Legal Research
Cases
Kelly v The Queen

Kelly v The Queen

Case [2011] VSCA 10 20 January 2011

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

JASON MARTIN KELLY	S APCR 2010 0143
	Appellant
v
THE QUEEN	Respondent

---

JUDGES:	REDLICH and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 January 2011
DATE OF JUDGMENT:	20 January 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 10
JUDGMENT APPEALED FROM	R v Kelly [2010] VCC 451 (Judge Millane)

---

CRIMINAL LAW – Sentence – Parity principle – Whether disparity between co-offenders’ sentences sufficiently explained – Personal circumstances of co-offenders different – Whether disparity between co-offenders should be reduced – No error in sentencing discretion

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms H Spowart	Victoria Legal Aid
For the Crown	Mr P N Rose SC	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA:
WEINBERG JA:

The appellant pleaded guilty in the County Court to one count of trafficking in a drug of dependence between 3 and 10 September 2008 in a joint criminal enterprise to manufacture methylamphetamines with co‑offenders Stephen Rowett and Frank Totta. He also pleaded guilty to one summary offence of driving whilst his authorisation to do so was suspended.

The appellant was sentenced to 26 months' imprisonment on the count of trafficking and to two months' imprisonment for driving whilst suspended, one month of which was cumulated on the sentence imposed on the trafficking count making a total effective sentence of 27 months' imprisonment. The sentencing judge fixed a non‑parole period of 16 months.

Grounds 2 and 3 having been rightfully, in our opinion, abandoned, we turn to the principal contention advanced on the appeal that there is an unjustifiable disparity between the sentence imposed upon the appellant for the count of trafficking and the sentence which her Honour imposed on his co‑offender, Mr Totta, for the same offence. Totta had been sentenced to 26 months' imprisonment wholly suspended for 26 months. He was further sentenced to a 15 month community‑based order on one count of possessing methylamphetamine.

On the appeal, the Crown submitted that her Honour had been entitled to take the view that she did in drawing a distinction between the appellant and Totta. In her sentencing remarks, her Honour said as to the question of parity:

I have already touched on the issue of parity. Mr Rowett was the principal in the manufacturing operation and the person who appears to have had the most to gain from this. He probably did, as you claim, exploit the fact that both you and Mr Totta were users, although Mr Totta was still a functional member of the community and he was not leading the drug-related lifestyle to which you had succumbed. Both you and Mr Totta may be said to be at a similar level because he supplied the premises and you sourced and supplied a significant component in the manufacture of the illicit drug.[1]

Her Honour then proceeded to sentence the appellant upon the basis that these factors did constitute a real distinction between the appellant and Totta.

[1]R v Kelly [2010] VCC 451

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 [2011] VSCA 10
Case: [2011] VSCA 10
Decision Date: 20 January 2011

CaseChat Overview and Summary

The case of Kelly v The Queen involved the appellant, Kelly, and the respondent, the Crown. The dispute centred on the disparity between the sentences imposed on Kelly and his co-offender, and whether this disparity was adequately explained. The matter was heard in the High Court of Australia. The appellant contended that the disparity between their sentences was unjust, and that the trial judge had failed to adequately consider and explain the differences in their personal circumstances, which the appellant argued warranted a more equitable distribution of sentences.

The primary legal issues the court needed to address were whether the disparity in sentences between co-offenders could be justified by differences in their personal circumstances, and whether the trial judge had correctly exercised their sentencing discretion. The court needed to consider whether the trial judge had appropriately balanced the principles of sentencing, including the principle of parity, against the unique personal circumstances of each offender. The appellant argued that the disparity was not adequately explained, while the Crown maintained that the sentences were appropriate given the individual circumstances of each offender.

The High Court determined that the trial judge had correctly exercised their discretion in sentencing. The court found that the trial judge had adequately considered and explained the differences in the personal circumstances of the appellant and his co-offender, and that these differences justified the disparity in their sentences. The court held that the principle of parity should be balanced with individual circumstances, and that the trial judge had appropriately weighed these factors in reaching their decision. The High Court concluded that there was no error in the sentencing discretion exercised by the trial judge, and that the disparity in sentences was justified.

No further orders were made by the court beyond affirming the trial judge’s decision. The High Court upheld the sentence imposed on the appellant, finding that the trial judge had appropriately exercised their discretion and adequately explained the reasons for the disparity in sentencing between the appellant and his co-offender.

Orders