Kelson v The Queen - [2020] VSCA 112

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0009

THOMAS KELSON	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, HARGRAVE and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 May 2020
DATE OF JUDGMENT:	11 May 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 112
JUDGMENT APPEALED FROM:	[2018] VSC 442 (Tinney J)

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CRIMINAL LAW – Appeal – Sentence – Murder – Sentence of 24 years’ imprisonment with non-parole period of 19 years – Whether sentencing judge erred in making findings ‘not reasonably open’ on the evidence – Whether open to find significant level of premeditation in relation to offence – Whether open to find that, prior to murder, victim knowingly made series of false statements regarding violence towards applicant’s father – Findings well open to sentencing judge – No vitiating error – Whether sentence manifestly excessive – Sentence within range – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood and	Valos Black & Associates
Mr T Bourbon
For the Respondent	Mr C B Boyce QC	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
HARGRAVE JA
WEINBERG JA:

On 2 June 2018, the applicant, Thomas Kelson, pleaded guilty before Tinney J, in the Trial Division, to a charge of murder. He was sentenced to a term of 24 years’ imprisonment with a non-parole period of 19 years. He now seeks leave to appeal against that sentence upon the following grounds:

Ground 1:The sentencing judge erred by making findings that were not reasonably open on the evidence.
Particulars:
His Honour erred by finding that:
(a)The applicant formed an intention to kill Hough while at the house in Collingwood;
(b)The applicant acted with that intention when he killed Hough; and
(c)Hough had fabricated his assertion that he had been [involved] in raping and killing the applicant’s father in response to the applicant’s violence.

Ground 2:The sentence imposed (24 years), and the non-parole period fixed (19 years), are both manifestly excessive.

For the reasons that follow, we would refuse leave to appeal.

Circumstances surrounding the commission of the offence

At the time of the offending, the applicant was aged 26, and Hough aged 17. Despite the disparity in their ages, they were friends. Both had regularly used drugs for a considerable period, including cannabis and methamphetamine.

On Friday 18 December 2015, the applicant and Hough attended a party in Skye, near Frankston. That party continued on and off until the early hours of Sunday 20 December 2015. Both men were observed to have consumed alcohol, and to have used drugs, including cannabis, methamphetamine, and ecstasy. Others at the party described them as being on edge, significantly drug‑affected, and ‘scattered and all over the place’. The applicant was also seen showing other guests at the party a set of knuckledusters that he had in his possession.

In the early hours of Sunday 20 December 2015, the applicant and Hough left the party in the applicant’s car. At about 5:00 am, they attended…

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 Kelson v The Queen

Details

AGLC: Kelson v The Queen [2020] VSCA 112
Case: [2020] VSCA 112
Decision Date: 11 May 2020

CaseChat Overview and Summary

The case of Kelson v The Queen was heard in the High Court of Australia. The applicant, Kelson, appealed against his conviction and sentence for the murder of an individual. The sentence handed down was 24 years’ imprisonment, with a non-parole period of 19 years. The primary issues before the court were whether the sentencing judge had erred in making findings that were not reasonably open on the evidence, particularly regarding the degree of premeditation and the victim’s alleged false statements about violence towards Kelson’s father. The court also needed to determine if the sentence was manifestly excessive, considering it fell within the sentencing range.

The High Court examined the evidence and concluded that the findings made by the sentencing judge were indeed reasonably open. The court found that there was sufficient evidence to support the judge's conclusion that there was a significant level of premeditation involved in the offence. Furthermore, the court determined that it was open to the sentencing judge to find that the victim had knowingly made a series of false statements about violence towards Kelson’s father prior to the murder. The High Court held that the sentencing judge’s findings were well supported by the evidence and that there was no vitiating error in the sentencing process. Regarding the sentence, the court held that it was within the appropriate range and did not find it to be manifestly excessive.

Consequently, the High Court dismissed the appeal and refused leave to appeal. The reasoning was that the findings of the sentencing judge were supported by the evidence and the sentence was appropriate given the circumstances of the case. The High Court's decision reaffirmed the importance of the sentencing judge’s discretion and the weight that must be given to their findings when considering an appeal against sentence.

Orders