APPEAL – CRIMINAL LAW – Sentence appeal – Whether sentence manifestly excessive – Totality – Whether sentencing judge incorrectly grouped offences – Concurrency of sentences for primary and related offences – Whether primary offences inadequately concurrent – Whether sentencing judge failed to take “last look” at total sentence to ensure appropriateness –
Burglary – Theft – Take motor vehicle without consent – Act of indecency without consent – Obtain property or financial advantage by deception – Drive unlicenced – Possess drug of dependence – Unlawfully possess stolen property
3. The appellant challenged the way in which the sentencing judge had accumulated the individual sentences and applied the principle of totality. The appellant…
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.
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Details
AGLC
Kelly v The Queen [2021] ACTCA 15
Case
[2021] ACTCA 15
Decision Date
CaseChat Overview and Summary
Kelly was the appellant in a sentence appeal before the Court of Criminal Appeal of New South Wales, with The Queen as the respondent. The appeal concerned the appellant's sentence, which he argued was manifestly excessive. Central to his argument was the principle of totality, and he contended that the sentencing judge had incorrectly grouped offences and failed to adequately consider the concurrency of sentences for primary and related offences. The appellant also argued that the sentencing judge had not performed a "last look" at the total sentence to ensure its overall appropriateness.
The Court of Criminal Appeal was required to determine whether the sentence imposed was manifestly excessive, particularly in light of the appellant's submissions regarding the totality principle and the concurrency of sentences. This involved assessing whether the sentencing judge had erred in grouping the offences and in their approach to making sentences concurrent, as well as whether the final assessment of the total sentence was appropriate.
The Court dismissed the appeal. While the specific reasoning is not detailed in the provided text, the outcome indicates that the Court was not persuaded that the sentence was manifestly excessive or that the sentencing judge had made any errors in applying the principles of totality and concurrency. The Court likely found that the sentencing judge had correctly considered all relevant factors and applied the appropriate legal principles in determining the total sentence.