Kelso v The Queen - [2010] NSWCCA 34

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Kelso v R [2010] NSWCCA 34

FILE NUMBER(S):
2008/14420

HEARING DATE(S):
4 February 2010

JUDGMENT DATE:
2 March 2010

PARTIES:
Andrew John Kelso (applicant)
The Crown

JUDGMENT OF:
McClellan CJatCL Howie J Harrison J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/14420

LOWER COURT JUDICIAL OFFICER:
English DCJ

LOWER COURT DATE OF DECISION:
16 December 2008

COUNSEL:
G Turnbull SC (Applicant)
L Lamprati SC (Crown)

SOLICITORS:
Stacks Goudkamp Lawyers (Applicant)
Director of Public Prosecutions (Crown)

CATCHWORDS:
CRIMINAL LAW
appeal
appeal against sentence
grounds for interference
judge act on wrong principle
sentence manifestly excessive or inadequate
CRIMINAL LAW
sentence
relevant factors
nature and circumstances of offender

LEGISLATION CITED:
Crimes Act 1900

CATEGORY:
Principal judgment

CASES CITED:
England & Phanith v R [2009] NSWCCA 274
Lowe v R (1984) 154 CLR 606
Postiglione v R (1996-1997) 189 CLR 295
R v Henry (1999) 106 A Crim R 149; (1999) 46 NSWLR 346
R v Murchie (1999) 108 A Crim R 482

TEXTS CITED:

DECISION:
1. Leave to appeal granted, the appeal upheld and the sentence imposed in the District Court is quashed.
2. The applicant is sentenced to a term of imprisonment of 3 years with a non-parole period of 18 months commencing on 16 December 2008 and expiring on 15 June 2010 with a further period of 18 months expiring on 15 December 2011. The applicant is eligible for release to parole on 15 June 2010

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/14420
McCLELLAN CJ at CL
HOWIE J
HARRISON J
TUESDAY, 2 MARCH 2010

KELSO, Andrew John v R

Judgment

McCLELLAN CJ at CL: The applicant pleaded guilty to one count of robbery in company contrary to s 97(1) of the Crimes Act 1900 for which the maximum penalty is imprisonment for 20 years. The sentencing judge imposed a sentence of imprisonment comprising a non-parole period of 2 years with a total term of 4 years.
The applicant was convicted together with his co-offender Luke Bancroft. Bancroft also pleased guilty to the offence of robbery in company. However, he pleaded to a separate offence of armed robbery with which the applicant was not involved. Bancroft was sentenced for the armed robbery to a non-parole period of 2 years with a total term of 4 years 6 months. On the robbery in company charge he was sentenced to a non-parole period of 2 years with a total term of 4 years being the same sentence as the applicant. Bancroft’s sentences were partly accumulated by 6 months.
The facts
On 3 April 2008 at about 10.25 pm, the victim arrived at Fassifern Railway Station to catch a train home from work. He had with him his customised Dunlop brand mountain bike. The applicant and the co-offender were also on the station platform.
At about 10.40 pm the train arrived en route to Newcastle and all three boarded. Moments before the train arrived at Cockle Creek Station, Bancroft approached the…

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 Kelso v The Queen

Details

AGLC: Kelso v The Queen [2010] NSWCCA 34
Case: [2010] NSWCCA 34
Decision Date: 2 March 2010

CaseChat Overview and Summary

In the case of Kelso v The Queen, the applicant, Kelso, sought leave to appeal against his sentence for robbery in company, arguing that it was excessive. The matter was heard in the Court of Criminal Appeal. The primary issue before the court was whether the sentence imposed by the District Court was manifestly excessive or inadequate, and if the judge had acted on a wrong principle. The court also considered whether the applicant was entitled to a lesser sentence due to subjective factors such as his age and early plea.

The court determined that the applicant was appropriately described as a young offender, and he was aware that his actions were a serious breach of the law. However, the court found that the applicant was entitled to a greater discount for his early plea than the 10% contemplated in Henry. The court noted that the applicant was justifiably entitled to expect a lesser sentence than his co-offender Bancroft, due to the subjective matters considered. Therefore, the court decided to intervene and resentence the applicant. The non-parole period was reduced to eighteen months, with a total sentence of three years. The court proposed the following orders: leave to appeal was granted, the appeal was upheld, the sentence imposed in the District Court was quashed, and the applicant was sentenced to a term of imprisonment of three years with a non-parole period of eighteen months.

In conclusion, the Court of Criminal Appeal found that the original sentence was excessive and granted the applicant leave to appeal. The court reduced the non-parole period and the total sentence, taking into consideration the subjective factors of the applicant. The court's decision highlights the importance of considering individual circumstances when determining an appropriate sentence for an offender.

Orders

Orders of the court

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Background

Background to the litigation

The applicant was convicted together with his co-offender Luke Bancroft. Bancroft also pleased guilty to the offence of robbery in company. However, he pleaded to a separate offence of armed robbery with which the applicant was not involved. Bancroft was sentenced for the armed robbery to a non-parole period of 2 years with a total term of 4 years 6 months. On the robbery in company charge he was sentenced to a non-parole period of 2 years with a total term of 4 years being the same sentence as the applicant. Bancroft’s sentences were partly accumulated by 6 months.The facts On 3 April 2008 at about 10.25 pm, the victim arrived at Fassifern Railway Station to catch a train home from work. He had with him his customised Dunlop brand mountain bike. The applicant and the co-offender were also on the station platform. At about 10.40 pm the train arrived en route to Newcastle and all three boarded. Moments before the train arrived at Cockle Creek Station, Bancroft approached the victim and said to him: “Give me whatever is in your pockets and we’re going to take your bike. If not, we’re going to belt the fuck out of you”. The victim stood up and made efforts to escape but was restrained by Bancroft who punched him three times to the face. The victim saw the applicant near the bike rack and noticed that his bicycle had been removed from the rack. He continued to resist and felt punches to the back of his head. He recognised the applicant as having punched him. The victim was restrained and his legs were kicked. Fearing for his safety, he took his mobile phone from his pocket, threw it at Bancroft and managed to escape. After getting to another area of the train, he saw Bancroft had left the train at Cockle Creek railway station. Both his bicycle and his phone had been stolen. He reported the matter to the police. Closed-circuit television surveillance was collected from Fassifern and Cockle Creek railway stations. Based on the victim’s descriptions and the CCTV footage, the police were able to identify the offenders. The applicant was seen leaving the train at Cockle Creek railway station in the possession of the victim’s bike, and in company with Bancroft. On 8 May 2008, the applicant was arrested at Port Macquarie police station. He made partial admissions to the commission of the offence and implicated Bancroft. He informed the police that he was influenced by his co-offender, denied assaulting the victim and said he only assisted in the commission of the offence by stealing the bicycle. The applicant admitted that he was fully aware before he boarded the train that his co-offender was intending to “roll” the victim on the train.Subjective features of the co-offender and the applicant At the time of sentence, Bancroft had just turned 26. He was the father of 6 children aged 5 and under. He had been using ice, marijuana, speed and alcohol on a daily basis for months leading up to the commission of the two offences for which he had been charged. He grew up in a stable family environment. However, he had learning difficulties at school and had been diagnosed with ADHD. He left school when he was 14, and had a sporadic work history.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

CLELLAN CJ

The applicant may be appropriately described as a young offender, although he was 21 at the time of the offence. He plainly knew that what he was doing was a serious breach of the law and carried the risk, if apprehended, of incarceration. Although there was no weapon used the offence was committed in company upon a person who was vulnerable, travelling on public transport late in the evening. The offenders had entered the train with the intention of committing the offence which could not be described as spontaneous. Items of relatively modest value, apart from the bicycle were taken. I accept that the applicant was entitled to a greater discount for his early plea than the 10% contemplated in Henry but that would not in my opinion lead to the conclusion that the sentence imposed was erroneous.Conclusion Notwithstanding that the sentence was not erroneous because of manifest excess, as I have indicated, the applicant was justifiably entitled to expect that because of the subjective matters to which I have referred he would receive a lesser sentence than Bancroft. I would intervene and resentence. It is appropriate to maintain her Honour’s finding of special circumstances. The non-parole period should be eighteen months with a total sentence of three years. I propose the following orders:1.Leave to appeal granted, the appeal upheld and the sentence imposed in the District Court is quashed.2.The applicant is sentenced to a term of imprisonment of 3 years with a non-parole period of 18 months commencing on 16 December 2008 and expiring on 15 June 2010 with a further period of 18 months expiring on 15 December 2011. The applicant is eligible for release to parole on 15 June 2010. HOWIE J: I agree with McClellan CJ at CL. HARRISON J: I agree with McClellan CJ at CL.**********

Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

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