Kelly v the Queen - [2013] VSCA 336

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0084

MICHAEL TERRENCE KELLY
	Applicant
v
THE QUEEN
	Respondent

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JUDGES	NEAVE, REDLICH and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	22 November 2013
DATE OF JUDGMENT	22 November 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 336
JUDGMENT APPEALED FROM	R v Kelly [2013] VSC 144 (Osborn JA)

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CRIMINAL LAW — Application for leave to appeal against sentence — Applicant pleaded guilty to s 3A Crimes Act 1958 murder and reckless conduct endangering life — Whether sentencing judge took into account commission of uncharged offence of aggravated burglary when sentencing applicant — Manifest excess — Range of culpability in respect of s 3A murder — Sentence within range — Application dismissed.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis	Leanne Warren & Associates
For the Crown	Ms D I Piekusis	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:

I will ask Weinberg JA to deliver the first judgment.

WEINBERG JA:

The applicant, whose initial application for leave to appeal against sentence was refused, has elected to renew that application.

On 27 March 2013, after pleading guilty to one charge of statutory murder and one charge of reckless conduct endangering life, Osborn JA sentenced the applicant as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Murder [s 3A of the Crimes Act 1958] Life 17 years Base

2
Reckless conduct endangering life [s 22

of the Crimes Act 1958]
10 years 3 years 2 years

Total Effective Sentence: 19 years

Non-Parole Period: 16 years

Pre-sentence Detention: 407 days

6AAA Statement 24 years’ imprisonment with a non-parole period of 21 years

The applicant seeks leave to appeal against his sentence on the following grounds:

1.The sentencing discretion miscarried as a result of the Judge’s having treated as an aggravating feature of the applicant’s offending the fact that his actions constituted also his commission of the offence of aggravated burglary.
2. In all the circumstances, the individual sentence imposed on Charge 1, the total effective sentence and the non-parole period are: (a) at odds with current sentencing practice; and (b) manifestly excessive.

At the time of the offences the applicant was mourning the death of a close friend, David Etherton. On 27 January 2012, the applicant was told by one of his sons that a man whom he knew, Peter Brown, was removing items from Etherton’s

house and putting them onto a trailer. The applicant reported this to the police and they investigated the matter. Following a verbal altercation, Brown both abused and threatened the applicant’s son. The applicant told his wife that Brown was going to be sorry for having made those threats.

The following night, the applicant (who had been drinking all day), retrieved a loaded .22 rifle from where he had stored it and drove to Brown’s home arriving just after 10:00 pm. Once there, the applicant fired a shot through the side window of the front corner bedroom. He did so, having…

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 [2013] VSCA 336
Case: [2013] VSCA 336
Decision Date: 22 November 2013

CaseChat Overview and Summary

The applicant, Kelly, applied for leave to appeal against the sentence imposed after pleading guilty to murder under section 3A of the Crimes Act 1958 and to a charge of reckless conduct endangering life. The case was heard in the court of appeal. Kelly's appeal focused on whether the sentencing judge considered an uncharged offence of aggravated burglary during the sentencing process, and if the sentence was a manifest excess. The court had to determine whether the judge appropriately accounted for all relevant factors in the sentencing and if the sentence imposed was within the appropriate range of culpability for the murder charge.

The court examined whether the sentencing judge took into account the uncharged offence of aggravated burglary when determining Kelly's sentence. The appeal also addressed the range of culpability in respect of the murder charge and whether the sentence was within that range. The court considered the totality of the circumstances, including the nature of the offences and the conduct of the applicant. It was essential to ensure that the sentence was proportionate to the crimes committed and that all relevant factors were duly considered.

After careful consideration, the court found that the sentencing judge had appropriately assessed all relevant factors in determining Kelly's sentence. The court concluded that the sentence was within the appropriate range of culpability for the murder charge and did not constitute a manifest excess. Consequently, the court dismissed the application for leave to appeal, affirming the sentence imposed by the original sentencing judge. The court's decision was based on a comprehensive analysis of the circumstances and the appropriateness of the sentence in light of the charges and the conduct of the applicant.

Orders