Kelly v The King - [2024] VSCA 109

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0217

KENNETH KELLY	Applicant
v
THE KING	Respondent

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JUDGE:	BOYCE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	9 May 2024
DATE OF JUDGMENT:	31 May 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 109
JUDGMENT APPEALED FROM:	[2023] VCC 2042 (Judge Gwynn)

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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 – Detention of victim for a sexual purpose – Sexual assault – Sexual activity directed at another person – Assault – Aggregate sentence – Whether reasonably arguable that sentence manifestly excessive – Not reasonably arguable that sentence manifestly excessive – Application for leave to appeal refused.

Sentencing Act 1991, s 9.

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Counsel
Applicant:		Mr C K Wareham
Respondent:		Ms S Lenthall
Solicitors
Applicant:	Victorian Aboriginal Legal Service
Respondent:	Solicitor for Public Prosecutions

BOYCE JA:

Introduction

The applicant pleaded guilty in the County Court on 9 August 2023 to charges of detention for a sexual purpose,[1] sexual activity directed at another person,[2] common assault,[3] and sexual assault.[4] On 31 October 2023, the applicant was sentenced on all charges to an aggregate sentence of 4 years and 2 months’ imprisonment. Her Honour directed that the applicant serve a period of 2 years and 4 months before becoming eligible for parole; 272 days was reckoned as time having already been served.
[1]Contrary to s 47 of the Crimes Act 1958 (maximum: 10 years’ imprisonment).
[2]Contrary to s 48 of the Crimes Act 1958 (maximum: 5 years’ imprisonment).
[3]Contrary to common law (maximum: 5 years’ imprisonment).
[4]Contrary to s 40 of the Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016 (maximum: 10 years’ imprisonment).
The applicant seeks leave to appeal against the sentence imposed. The applicant’s sole proposed ground of appeal is that the total effective sentence and non-parole period are manifestly excessive when regard is had to:
(a)the applicant’s acquired brain injury and the necessary reduction of his moral culpability and reduced weight to be attached to general and specific deterrence;
(b)the applicant’s personal circumstances, including the trauma and disadvantage that he has experienced;
(c)the objective gravity of the offending; and
(d)the applicant’s plea of guilty and its inherent utility.
For the reasons that follow, I consider that leave to appeal should be refused.

The offending

At the time of the offending the applicant was 54. On 23 October 2022, he met the complainant outside a Centrelink office in a rural township in Victoria. The complainant was 42 and did not have a permanent residence, or indeed anywhere to stay. The complainant was at Centrelink with her belongings. The applicant offered her a place to stay. The complainant agreed.
The applicant lived with his nephew, his nephew’s partner and their three children. Nevertheless, over the period from 23 October to 1 November 2022 — when she stayed at the…

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 109
Case: [2024] VSCA 109
Decision Date: 31 May 2024

CaseChat Overview and Summary

In the case of Kelly v The King, the applicant sought leave to appeal against his sentence, which was determined by a single judge. The applicant had been convicted of multiple offences, including detaining a victim for a sexual purpose, sexual assault, engaging in sexual activity directed at another person, and assault. The aggregate sentence imposed was 14 years and 3 months imprisonment, with a non-parole period of 10 years and 9 months. The applicant argued that the sentence was manifestly excessive and sought leave to appeal to the Court of Appeal.

The primary legal issue before the court was whether the applicant had demonstrated that it was reasonably arguable that the sentence was manifestly excessive. The court considered the nature and severity of the offences, the principles of sentencing, and the principles of appellate jurisdiction. The court also examined the sentencing remarks of the primary judge and the applicant's submissions.

The court found that the applicant had not demonstrated that it was reasonably arguable that the sentence was manifestly excessive. The court held that the sentence was within the range of appropriate sentences for the offences committed, taking into account the relevant aggravating and mitigating factors. The court noted that the primary judge had carefully considered the relevant principles and had imposed a sentence that was proportionate to the seriousness of the offences. The court held that the applicant had not shown that the sentence was manifestly excessive, and therefore, the application for leave to appeal was refused.

No further orders were made by the court.

Orders