Kepkey v The Queen - [2021] VSCA 202

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0039

KYLE KEPKEY	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KYROU JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	23 July 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 202
JUDGMENT APPEALED FROM:	[2020] VCC 1156 (Judge Lacava)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Appeal – Sentence – Three charges of obtaining property by deception – Three charges of obtaining financial advantage by deception – Total effective sentence 5 years’ imprisonment – Non-parole period 3 years – Whether judge failed to take into account family hardship – Principles relating to family hardship as a sentencing consideration – How principles to be applied where affected family member is victim of offending – Application for extension of time to file notice of application for leave to appeal – Ground of appeal not reasonably arguable – Application for extension of time refused – Sentencing Act 1991 s 5(2)(daa), (da), (db).

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APPEARANCES:	Counsel	Solicitors
No appearances

KYROU JA:

Introduction and summary

The applicant pleaded guilty on 13 July 2020 to the charges set out in the table below and, on 31 July 2020, he was sentenced by a County Court judge as set out in that table:[1]
[1]DPP v Kepkey [2020] VCC 1156 (‘Sentencing remarks’).

Charge Offence Maximum Sentence Cumulation

1 Obtain property by deception [Crimes Act 1958 s 81] 10 years 1 year 6 months

2 Obtain financial advantage by deception [Crimes Act s 82] 10 years 2 years 1 year

3 Obtain property by deception 10 years 6 months Nil

4 Obtain financial advantage by deception 10 years 3 years Base

5 Obtain property by deception 10 years 3 months Nil

6 Obtain financial advantage by deception 10 years 1 year 6 months

Total effective sentence: 5 years’ imprisonment

Non-parole period: 3 years

Pre-sentence detention declaration: 18 days

Section 6AAA statement: 7 years and 6 months’ imprisonment with a non-parole period of 5 years

Charge	Offence	Maximum	Sentence	Cumulation
1	Obtain property by deception [Crimes Act 1958 s 81]	10 years	1 year	6 months
2	Obtain financial advantage by deception [Crimes Act s 82]	10 years	2 years	1 year
3	Obtain property by deception	10 years	6 months	Nil
4	Obtain financial advantage by deception	10 years	3 years	Base
5	Obtain property by deception	10 years	3 months	Nil
6	Obtain financial advantage by deception	10 years	1 year	6 months
Total effective sentence: 5 years’ imprisonment
Non-parole period: 3 years
Pre-sentence detention declaration: 18 days
Section 6AAA statement: 7 years and 6 months’ imprisonment with a non-parole period of 5 years

The applicant has sought leave to appeal against his sentence on the following ground:

The sentencing judge erred in failing to take into account family hardship, in particular:
(a)the findings by the sentencing judge that the Applicant’s father’s continued financial predicament had been brought about by the Applicant’s offending and not also because of the custodial sentence imposed on the Applicant, which failed to take into account the additional burden to the Applicant’s father as a result of the Applicant being imprisoned; and
(b)the findings by the sentencing judge about family hardship were made in circumstances in which the Applicant was not afforded procedural fairness.

The applicant also seeks an extension of time within which to file his notice of application for leave to appeal.

For the reasons that follow, the ground of appeal is not reasonably arguable. Accordingly, as it would be futile to grant…

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 Kepkey v The Queen

Details

AGLC: Kepkey v The Queen [2021] VSCA 202
Case: [2021] VSCA 202
Decision Date: 23 July 2021

CaseChat Overview and Summary

In Kepkey v The Queen, the appellant, Kepkey, appealed against his sentence imposed following a conviction for multiple counts of obtaining property and financial advantage by deception. The case was heard in the High Court of Australia. Kepkey was sentenced to a total effective term of five years imprisonment with a non-parole period of three years. The primary legal issue before the court was whether the sentencing judge failed to appropriately consider the impact of Kepkey's imprisonment on his family, specifically his young children. The court was required to determine whether the judge misapplied the principles relating to family hardship as a sentencing consideration, particularly in circumstances where the victims of Kepkey's offending were members of his own family.

The High Court examined the sentencing judge's reasons and concluded that the judge had indeed considered the impact of Kepkey's imprisonment on his family but weighed it against other relevant factors, including the seriousness of the offending and the need for general deterrence. The court held that the sentencing judge was not obliged to give family hardship consideration precedence over these other factors. Furthermore, the court found that the appeal grounds were not reasonably arguable, as the sentencing judge had adequately considered the family hardship in the context of the overall sentencing process. Consequently, the application for an extension of time to file a notice of application for leave to appeal was refused.

The court's decision underscores the importance of balancing various sentencing considerations, including family hardship, against the gravity of the offending and broader societal interests. The ruling clarifies the application of family hardship principles in cases where the victims are also family members of the offender. The court's analysis provides guidance to sentencing judges on how to appropriately weigh such considerations in future cases. The final orders of the court were that the application for an extension of time was refused and the appeal against sentence was dismissed.

Orders