Re: GREGORY JOHN KELLY
And: THE QUEEN
No. ACT G46 of 1991
FED No. 7
Criminal Law - Practice and Procedure
(1992) 33 FCR 536
COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Jenkinson(1), O'Loughlin(2) and Higgins(3) JJ.
CATCHWORDS
Criminal Law - Appeal against sentences imposed - Handling stolen property - Knowingly concerned in the commission of an offence of theft - Sentences set aside - Sentence of one year's imprisonment for each offence of handling stolen property to be served concurrently - Eight month's imprisonment for being knowingly concerned in the commission of an offence of theft - Sentences cumulative - Non-parole of eight months - Sentences manifestly excessive - Disparity of sentences - Evenhandedness in sentencing.
Practice and Procedure - Sentence - Co-offenders - Appellant sentenced prior to co-offender - Disparity between sentences - Interference by appellate Court - Principles.
Crimes Act 1900, ss.99, 113,
Taylor v The Queen (unreported: 8/6/84; Full Court; Federal Court)
Jackson and Hakim (1988) 33 A Crim R 413
Reg v Faulkner (1972) 56 Cr App R 594
R v Tait and Bartley (1979) 24 ALR 473
Schumacher (1981) 3 A Crim R 441
Weatherall (1987) 28 A Crim R 70
Smith and Smith (1988) 39 A Crim R 48
Moyse (1988) 38 A Crim R 169
R v Maitland (1963) SASR 332
O'Malley v French (1971) 2 SASR 110
HEARING
CANBERRA
#DATE 10:1:1992
ORDER
The sentences imposed in the Court below be set aside.
In lieu thereof, there be a sentence of one year's imprisonment for each offence of handling stolen property to be served concurrently.
There be a further sentence of eight month's imprisonment for being directly knowingly concerned in the commission of an offence of theft; that sentence should be cumulative.
In respect of the total period of twenty calendar months, there should be a non-parole period of eight months to date from 25 July 1991.
NOTE: Settlement and entry of orders is dealt with in Order36 of the Federal Court Rules.
JUDGE1
I agree with the reasons for judgment of O'Loughlin J. and with the orders which he proposes.
JUDGE2
The appellant pleaded guilty in the Magistrates' Court on 29 May 1991 to five counts of handling stolen property: contrary to the provisions of s.113 of the Crimes Act 1900 in its application to the Australian Capital Territory. On the same day, he also pleaded guilty to being directly knowingly concerned in the commission of an offence of theft by a young man named McNeil: contrary to s.99 of the same Act. He was committed for sentence to the Supreme Court of the Australian Capital Territory and, on 1 August 1991 that Court sentenced him, in respect of each of the five offences…
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- AGLC
- Kelly, G.J. v The Queen [1992] FCA 7 ((1992) 33 FCR 536)
- Case
- [1992] FCA 7
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the sentences imposed were manifestly excessive and if there was a disparity in the sentences that needed to be addressed for evenhandedness in sentencing. The court had to consider whether the lower court erred in its sentencing process by not appropriately addressing these concerns.
The High Court found that the sentences imposed were indeed manifestly excessive and did not reflect an appropriate balance between the various offences committed by Kelly. The court held that the lower court had not adequately addressed the disparity in sentences and the need for evenhandedness. The sentences were set aside, and in their place, the court imposed a sentence of one year's imprisonment for each offence of handling stolen property to be served concurrently, and an additional eight months for being knowingly concerned in the commission of a theft offence, with this sentence to be cumulative. The non-parole period was fixed at eight months, to commence from 25 July 1991.
The final orders of the court were that the original sentences be set aside, and in their place, there be a sentence of one year's imprisonment for each handling stolen property offence, to be served concurrently, and an additional sentence of eight months for being knowingly concerned in the commission of a theft offence, to be served cumulatively. The non-parole period was to be eight months, commencing from 25 July 1991.
Orders
Orders of the court
The sentences imposed in the Court below be set aside.
In lieu thereof, there be a sentence of one year's imprisonment for each offence of handling stolen property to be served concurrently.
There be a further sentence of eight month's imprisonment for being directly knowingly concerned in the commission of an offence of theft; that sentence should be cumulative.
In respect of the total period of twenty calendar months, there should be a non-parole period of eight months to date from 25 July 1991.
NOTE: Settlement and entry of orders is dealt with in Order36 of the Federal Court Rules.
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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