Kelly v The King - [2024] VSCA 185

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0053

JADYN KELLY	Applicant
v
THE KING	Respondent

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JUDGES:	BOYCE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 August 2024
DATE OF JUDGMENT:	29 August 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 185
JUDGMENT APPEALED FROM:	[2023] VCC 1788 (Judge Hassan)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

CRIMINAL LAW – Application for leave to appeal – Sentence – Aggravated Burglary – Common Assault – Theft – Whether sentencing judge erred when assessing the role of the applicant and co-offender – Whether principle of parity infringed – Application for an extension of time refused.

Anthony v The Queen [2016] VSCA 22; DPP v Aydin and Kirsch [2005] VSCA 86 ; Markarian v The Queen (2005) 228 CLR 357.

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Counsel
Applicant:		Ms J Poole
Respondent:		Mr J McWillams
Solicitors
Applicant:	Emma Turnbull Lawyers
Respondent:	Officer of Public Prosecutions

BOYCE JA:

On 13 September 2023, the applicant pleaded guilty in the County Court at Melbourne to single charges each of aggravated burglary,[1] common assault[2] and theft[3] (rolled up). On 3 October 2023, Judge Hassan sentenced the applicant as follows:
[1]Contrary to s 77 of the Crimes Act 1958.
[2]Contrary to common law.
[3]Contrary to s 74 of the Crimes Act 1958.

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Aggravated burglary	25 years	4 years and 9 months	Base
2	Common assault	5 years	1 year	4 months
3	Theft	10 years	9 months	2 months
Total Effective Sentence:		5 years and 3 months’ imprisonment
Non-Parole Period:		3 years and 3 months’ imprisonment
Pre-sentence Detention Declared:		122 days
Section 6AAA Statement:		Total Effective Sentence: 7 years and 6 months Non Parole-Period: 5 years and 6 months
Other Relevant Orders: 1. Forfeiture order

On 28 October 2022, a co-offender of the applicant, Sadlier-O’Connor (‘the co-offender’) pleaded guilty. He was sentenced on 11 November 2022 by Judge Hassan in the following manner:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Aggravated burglary	25 years	5 years	Base
2	Causing injury intentionally	10 years	2 years	6 months
3	Theft	10 years	9 months	2 months
4	Possession of a drug of dependence	1 year	Convicted and discharged	N/A
Total Effective Sentence:		5 years and 9 months’ imprisonment
Non-Parole Period:		4 years imprisonment
Pre-sentence Detention Declared:		460 days
Section 6AAA Statement:		Total Effective Sentence: 8 years Non Parole-Period: 6 years
Other Relevant Orders: 2. Forfeiture and Disposal orders

The applicant seeks an extension of time within which to file a notice seeking leave to appeal against sentence. The applicant’s proposed ground of appeal is in the following terms:
The sentencing judge erred in failing to impose sentences on charges 1 and 2, and a resulting total effective sentence, which adequately differentiated between the lesser role and more significant matters in mitigation which were available to the Applicant when compared to the [co-offender],…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kelly v The King

Details

AGLC: Kelly v The King [2024] VSCA 185
Case: [2024] VSCA 185
Decision Date: 29 August 2024

CaseChat Overview and Summary

In the matter of Kelly v The King, the appellant sought leave to appeal against a sentence imposed by a single judge for aggravated burglary, common assault, and theft. The appellant and his co-offender had unlawfully entered a residence, assaulted the occupants, and stolen property. The single judge determined the appellant's role and sentenced him accordingly. The appellant contested the assessment of his role and argued that the principle of parity was infringed, as his co-offender received a lesser sentence. The appellant applied for an extension of time to lodge the appeal but this was refused. The legal issues before the court were whether the sentencing judge erred in assessing the appellant's role and whether the principle of parity was infringed.

The court considered the principles of sentencing, the appellant's role in the offending, and the principle of parity. It held that the sentencing judge did not err in assessing the appellant's role and that the principle of parity was not infringed. The court found that the single judge appropriately considered the appellant's role and the totality of the offending. It also found that the disparity in sentencing between the appellant and his co-offender was justified due to the differences in their roles and culpability. Therefore, the court dismissed the application for leave to appeal and the application for an extension of time.

The court's decision was based on the principles of sentencing, the appellant's role, and the principle of parity. It held that the sentencing judge did not err in assessing the appellant's role and that the principle of parity was not infringed. The court found that the single judge appropriately considered the appellant's role and the totality of the offending. It also found that the disparity in sentencing between the appellant and his co-offender was justified due to the differences in their roles and culpability. Therefore, the court dismissed the application for leave to appeal and the application for an extension of time. The final orders were that the appellant's application for leave to appeal and the application for an extension of time were dismissed.

Orders