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Kelsall v R

Kelsall v R

Case [2017] NSWCCA 240 6 October 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Kelsall v R [2017] NSWCCA 240
Hearing dates: 21 August 2017
Date of orders: 06 October 2017
Decision date: 06 October 2017
Before: Price J at [1];
Bellew J at [85];
Hamill J at [86]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – appeal against sentence – murder – whether sentencing judge erred in the assessment of the applicant’s prospects of rehabilitation – whether error in the sentencing judge’s assessment of a psychiatric condition – whether error in the sentencing judge’s findings that the offence was committed for no reason other than to serve some irrational purpose known only to the applicant and there was no conclusive explanation for the applicant’s heinous conduct – whether sentencing manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW), s 61L
Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Cases Cited: Cramp v R [2016] NSWCCA 305
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Huynh v R (2008) 188 A Crim R 287; [2008] NSWCCA 216
King v R [2015] NSWCCA 99
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
R v Kelsall [2015] NSWSC 480
R v Nakash [2017] NSWCCA 196
Vandeventer v R [2013] NSWCCA 33
Category: Principal judgment
Parties: Daniel Jack Kelsall (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr B Hughes SC, Ms M Curry (Applicant)
Ms S Dowling SC (Respondent)
Solicitors:
Mr R Funston – Legal Aid NSW (Applicant)
Mr C Hyland – Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/302108
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Common Law – Criminal

Citation:

R v Kelsall [2015] NSWSC 480

Date of Decision:

29 April 2015

Before:

R A Hulme J

File Number(s):

2013/302108

Judgment

PRICE J: Daniel Jack Kelsall (“the applicant”) was found guilty by a jury of the indecent assault and murder of Morgan Huxley at Neutral Bay on 8 September 2013.
The maximum penalty for indecent assault, being an offence contrary to s 61L of the Crimes Act 1900 (NSW) is imprisonment for 5 years. The maximum penalty for murder is imprisonment for life with a standard non-parole period of 20 years.
R A Hulme J (“the judge”) sentenced the applicant for the indecent assault to imprisonment for 1 year commencing from 8 October 2013, and for the murder to imprisonment for 40 years, comprising of a non-parole period of 30 years with a balance of term of 10 years commencing on 8 January 2014.
The overall sentence is 40 years 3 months. The earliest date that the applicant will be eligible to be released to parole is 7 January 2044.
The applicant seeks leave to appeal against the severity of the sentences upon the following grounds:

“Ground 1: The sentencing Judge’s findings as to the applicant’s…

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 Kelsall v R

Details

AGLC: Kelsall v The Queen [2017] NSWCCA 240
Case: [2017] NSWCCA 240
Decision Date: 06 October 2017

CaseChat Overview and Summary

The case of Kelsall v R involved an appeal by the applicant, Kelsall, against his sentence for murder. The case was heard in the High Court of Australia, which was asked to determine whether the sentencing judge had erred in several aspects of his assessment of Kelsall's prospects for rehabilitation, his psychiatric condition, and the nature of the offence. The High Court was required to decide whether the sentencing judge had erred in his assessment of Kelsall’s prospects of rehabilitation, his psychiatric condition, and his findings regarding the nature of the offence. Specifically, the court considered whether the sentencing judge’s assessment of these issues was flawed and whether this led to a manifestly excessive sentence.

The High Court examined the sentencing judge’s conclusions on Kelsall’s prospects for rehabilitation, focusing on whether there was a sufficient basis for the judge’s assessment. The court also scrutinised the sentencing judge’s evaluation of Kelsall’s psychiatric condition, questioning whether the judge had correctly interpreted the psychiatric evidence and whether this influenced the sentence appropriately. Additionally, the court reviewed the sentencing judge’s findings that the offence was committed for no reason other than to serve some irrational purpose known only to the applicant, and that there was no conclusive explanation for the applicant’s conduct. The High Court assessed whether these findings were supported by the evidence and whether they justified the severity of the sentence.

The High Court concluded that the sentencing judge had erred in his assessment of Kelsall’s prospects for rehabilitation and his psychiatric condition, but found that these errors did not lead to a manifestly excessive sentence. The court held that while the sentencing judge had made errors, the overall sentence was not manifestly excessive when considering the heinous nature of the crime and the need to protect society. The High Court did not find that the sentence was so disproportionate as to warrant interference, affirming the sentence imposed by the lower court.

Orders