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Kelly v The Queen

Kelly v The Queen

Case [2020] VSCA 171 25 June 2020

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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

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…

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: Travis Kelly v The Queen [2020] VSCA 171
Case: [2020] VSCA 171
Decision Date: 25 June 2020

CaseChat Overview and Summary

The applicant in this case appealed against his conviction and sentence for charges of conduct endangering life and being a prohibited person in possession of a firearm. The appeal was heard by the High Court of Australia. The central issue before the court was whether the judge's error in considering an aggravating factor, which was not supported by the evidence, materially affected the sentence imposed on the applicant. Additionally, the court needed to determine whether the individual sentences, the order for cumulation, the total effective sentence, and the non-parole period were manifestly excessive.

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