Kelly v The Queen - [2021] VSCA 216

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0142

SHAUN DESMOND KELLY	Appellant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 August 2021
DATE OF JUDGMENT:	10 August 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 216
JUDGMENT APPEALED FROM:	[2020] VCC 736 (Judge Lyon)

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CRIMINAL LAW – Sentence – Appeal – Obtaining property by deception (8 charges) – Total amount involved approximately $1.5 million – Continuing criminal enterprise offences – TES 5 years and 6 months, NPP 3 years and 5 months – Denial of procedural fairness – Events occurring after plea hearing taken into account by sentencing judge against appellant – Appellant not given opportunity to make submissions about events occurring after plea hearing – Serious offending – Whether Court satisfied that different sentence should now be imposed – Court not satisfied that different sentence should be imposed – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D Gurvich QC with Mr P J Smallwood	James Dowsley & Associates
For the Respondent	Ms D Piekusis QC	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA:

The appellant pleaded guilty in the County Court to eight charges of obtaining property by deception.[1] Charge 1 was a rolled up charge covering 11 instances of offending. Charges 2 to 8 were ‘continuing criminal enterprise offences’ within the meaning of s 6H of the Sentencing Act 1991.[2] Accordingly, while the maximum term of imprisonment on charge 1 was 10 years,[3] the maximum term of imprisonment on each of charges 2 to 8 was 20 years.[4]
[1]Contrary to s 81 of the Crimes Act 1958.
[2]See item 1(d) of Schedule 1A of the Sentencing Act 1991.
[3]See s 81(1) of the Crimes Act 1958.
[4]See s 6I of the Sentencing Act 1991.

On 22 May 2020, following a plea hearing conducted on 12 May 2020, the appellant was sentenced as follows:

Charge Offence Sentence Cumulation

1

Obtaining property by deception

2 years

1 month

2

Obtaining property by deception

1 year 8 months

2 months

3

Obtaining property by deception

2 years

2 months

4

Obtaining property by deception

2 years 7 months

4 months

5

Obtaining property by deception

2 years 6 months

3 months

6

Obtaining property by deception

3 years

6 months

7

Obtaining property by deception

3 years 4 months

7 months

8

Obtaining property by deception

3 years 5 months

Base

Total Effective Sentence 5 years 6 months

Non-Parole Period 3 years 5 months

Section 6AAA Statement 7 years with a non-parole period of 5 years

On 2 December 2020, the appellant was granted leave to appeal against sentence on the following ground of appeal:

There was an error in the sentence first imposed arising from the sentencing judge’s findings about the appellant’s (i) prospects for rehabilitation, (ii) purported lack of insight into the gravity of his situation and (iii) purported contempt for the criminal justice process, findings that were…

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 Queen

Details

AGLC: Kelly v The Queen [2021] VSCA 216
Case: [2021] VSCA 216
Decision Date: 10 August 2021

CaseChat Overview and Summary

The appellant, Kelly, appealed against his sentence for multiple charges of obtaining property by deception and continuing criminal enterprise offences. The total amount of property involved was approximately $1.5 million. The trial judge sentenced the appellant to a total effective sentence (TES) of 5 years and 6 months and a non-parole period (NPP) of 3 years and 5 months. Kelly argued that the sentence was manifestly inadequate and that the trial judge failed to give him procedural fairness by not allowing him to make submissions about events that occurred after the plea hearing. The central legal issue was whether the sentence was manifestly inadequate and whether the appellant was denied procedural fairness. The court considered the totality of the offending, which was serious, and the appellant’s culpability. The court noted that the trial judge had taken into account all relevant matters, including the events that occurred after the plea hearing. The court was not satisfied that a different sentence should be imposed, and thus dismissed the appeal. The reasoning hinged on the trial judge's assessment of the totality of the offending and the appellant's culpability, which the appellate court found to be adequate. The appeal was dismissed, and the original sentence was upheld.

Orders