Kelly v The Queen

Case [2021] ACTCA 15


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:  Kelly v The Queen
Citation:  [2021] ACTCA 15
Hearing Date:  21 May 2021
Decision Date:  11 June 2021
Before:  Murrell CJ, Mossop and Abraham JJ
Decision:  Appeal dismissed.

Catchwords: 

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

Cases Cited:  Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41
CX v The Queen [2017] ACTCA 37
Dalton v The Queen [2015] ACTCA 48
Dawson v The Queen [2019] ACTCA 9
Henry v The Queen [2019] ACTCA 5
House v The King (1936) 55 CLR 499
Loundes v The Queen [1999] HCA 29; 195 CLR 665
Melham v The Queen [2011] NSWCCA 121
Mill v The Queen (1988) 166 CLR 59
Nguyen v The Queen [2016] HCA 17; 256 CLR 656
O’Brien v The Queen [2015] ACTCA 47
Pearce v The Queen (1998) 194 CLR 610
R v Elphick [2021] ACTSC 9
R v Kelly [2020] ACTSC 292
R v Knight [2005] NSWCCA 253; 155 A Crim R 252
R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159
R v Meyboom [2012] ACTCA 48
R v Steen [2020] ACTSC 222
R v Toohey [2019] NSWCCA 182
R v TW [2011] ACTCA 25; 6 ACTLR 18
R v Wheeler [2000] NSWCCA 34
Singh v The Queen [2015] ACTCA 65
Tracey v The Queen [2020] ACTCA 51
Zdravkovic v The Queen [2016] ACTCA 53
Texts Cited:  D A Thomas, Principles of Sentencing (2nd ed, 1979)
Parties:  Paul David Kelly (Appellant)
The Queen (Respondent)
Representation:  Counsel
J White SC (Appellant)
A Williamson (Respondent)
Solicitors
Legal Aid ACT (Appellant)
ACT Director of Public Prosecutions (Respondent)
File Number:  ACTCA 44 of 2020
Decision under appeal: 
Court/Tribunal:  ACT Supreme Court
Before:  Loukas-Karlsson J
Date of Decision:  23 October 2020
Case Title:  R v Kelly
Citation:  [2020] ACTSC 292
THE COURT: 
Introduction 

1.       The appellant appealed against sentence imposed by Loukas-Karlsson J (the sentencing judge) on the sole ground that it was manifestly excessive.

2.       On 23 October 2020, the sentencing judge imposed a total sentence of five years and

nine months’ imprisonment (from 29 September 2019 to 28 June 2025) and set a

nonparole period of three years and five months’ imprisonment (approximately 60 per

cent of the total sentence): R v Kelly [2020] ACTSC 292.

3.       The appellant challenged the way in which the sentencing judge had accumulated the individual sentences and applied the principle of totality. The appellant…

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Kelly v The Queen [2021] ACTCA 15
Case
[2021] ACTCA 15
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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.

Orders

Orders of the court

Appeal dismissed.

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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