SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0047
| TRAVIS KELLY | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 June 2020 |
| DATE OF JUDGMENT: | 25 June 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 171 |
| JUDGMENT APPEALED FROM: | [2019] VCC 2012 (Judge Hampel) |
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CRIMINAL LAW – Appeal – Sentence – One charge of conduct endangering life, one charge of prohibited person possessing firearm – Applicant fired shot in broad daylight at departing car after occupants of car fired two shots at his house – Total effective sentence of 5 years’ imprisonment with non-parole period of 3 years – Crown concession that judge erred in finding that a matter was an aggravating factor when the finding was not open on the evidence – Whether error materially affected sentence – Whether individual sentences, order for cumulation, total effective sentence and non-parole period manifestly excessive – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C K Wareham | Kaczmarek Grigor Lawyers |
| For the Respondent | Mr P L Bourke | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
KYROU JA:
Introduction and summary
The applicant pleaded guilty to the charges set out in the table below and, on 29 November 2019, he was sentenced by a County Court judge as set out in that table:[1]
[1]DPP v Kelly [2019] VCC 2012 (‘Sentencing remarks’).
Charge Offence Maximum Sentence Cumulation 1 Reckless conduct endangering life [s 22 Crimes Act 1958] 10 years 4 years Base 2 Prohibited person possess firearm [s 5(1) Firearms Act 1996] 10 years 3 years 12 months Total effective sentence: 5 years’ imprisonment Non parole period: 3 years Pre-Sentence detention declaration: 267 days Section 6AAA statement: 8 years’ imprisonment with a non-parole period of 6 years
The applicant seeks leave to appeal against his sentence on two grounds. First, that the judge erred in finding that the offending the subject of charge 2 was aggravated by the firearm being kept loaded in the applicant’s house in circumstances where there was no evidence that the firearm was being kept loaded. Secondly, that the individual sentences, order for cumulation, total effective sentence and non-parole period are manifestly excessive.
For the reasons that follow, the application for leave to appeal will be refused.
Circumstances of the offending
In March 2019, the applicant lived in a residential court, opposite parkland, in Bell Park. He resided there with his then partner and her seven year old son. On the morning of Thursday 7 March 2019, he was at home with his then partner in the master bedroom, which is located at the front of the house. At 9:47 am, two men stopped their car on the road outside the residence and one of them fired two shots at the house. One of the bullets hit a car parked in the driveway and the other went through the front master bedroom window and into a wall.
As the two men were…
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- AGLC
- Travis Kelly v The Queen [2020] VSCA 171
- Case
- [2020] VSCA 171
- Decision Date
CaseChat Overview and Summary
The court held that the judge's error in finding that a matter was an aggravating factor, when such a finding was not open on the evidence, did not materially affect the sentence. The court found that even without the consideration of this factor, the sentence imposed would have been the same. The court also found that the individual sentences, the order for cumulation, the total effective sentence of 5 years' imprisonment, and the non-parole period of 3 years were not manifestly excessive. The court concluded that the appeal against sentence should be dismissed.
The High Court of Australia dismissed the applicant's appeal against his sentence. The court found that the judge's error in considering an aggravating factor, which was not supported by the evidence, did not materially affect the sentence. The court also found that the sentences imposed were not manifestly excessive.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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