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Kettyle v The Queen

Kettyle v The Queen

Case [2019] VSCA 220 7 October 2019

Possess Unregistered Handgun

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0099
S APCR 2019 0026

John Kettyle	Applicant
V
The Queen	Respondent

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JUDGES:	WHELAN, KYROU JJA and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 September 2019
DATE OF JUDGMENT:	7 October 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 220
JUDGMENT APPEALED FROM:	[2017] VCC 1975 (Judge Ryan)

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CRIMINAL LAW – Application for leave to appeal against conviction – Ground of duplicity – Convicted of prohibited person possess firearm and own general category handgun without licence in respect of same firearm – Elements of offences not wholly included in one another – Application dismissed – Pearce v The Queen (1998) 194 CLR 610 applied; R v Langdon (2004) 11 VR 18, R v Sessions [1998] 2 VR 304 referred to.

CRIMINAL LAW – Application for leave to appeal against conviction – Exceed speed limit – Conviction unsupported by evidence – Conceded by respondent – Conviction and sentence set aside.

CRIMINAL LAW – Application for leave to appeal against conviction – Possess unregistered handgun – Convicted of indictable offence without arraignment – Conceded by respondent – Conviction and sentence set aside.

CRIMINAL LAW – Application for leave to appeal against sentence – Multiple driving, firearms and other offences – Total effective sentence 5 years 6 months’ imprisonment, non-parole period 4 years’ imprisonment – Proposed ground of manifest excess – Total effective sentence and non-parole period not arguably outside the range – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
Applicant	Mr C K Wareham	Valos Black & Associates
Respondent	Mr J C J McWilliams	Mr J Cain, Solicitor for Public Prosecutions

WHELAN JA
KYROU JA:

On 20 November 2017 the applicant, John Kettyle, pleaded guilty in the County Court to offences on an indictment containing five charges of handling stolen goods, two charges of reckless conduct endangering life, and one charge of possessing a firearm whilst being a prohibited person. In addition, he pleaded guilty to 40 related summary offences of failing to stop a vehicle on police request; unlicensed driving; speeding; illegal possession, ownership and storage of ammunition and firearms; displaying false number plates; possession of property suspected of being the proceeds of crime; and dangerous driving.

The applicant was sentenced on 19 December 2017 to a total effective sentence of 5 years 6 months’ imprisonment, with a non-parole period of 4 years, and was fined a total of $1,000.

The sentencing judge published reasons for the sentence which he imposed.[1] The individual sentences imposed on the charges on the indictment and on the related summary charges are set out in the schedule annexed.
[1][2017] VCC 1975 (‘Reasons’).

The applicant now seeks leave to appeal against the conviction on three of the charges, and also seeks leave to appeal against the sentence on the ground that the individual sentences and the orders for cumulation are productive of a total effective sentence and non-parole period that are manifestly excessive.

The relevant offending

The offences for which the applicant was…

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 Kettyle v The Queen

Details

AGLC: John Kettyle v The Queen [2019] VSCA 220
Case: [2019] VSCA 220
Decision Date: 7 October 2019

CaseChat Overview and Summary

The appellant, Kettyle, sought leave to appeal against his conviction and sentence on several grounds, which were heard by the court. The primary issues involved the conviction for possessing a firearm as a prohibited person, the lack of a licence for a general category handgun, exceeding the speed limit, possessing an unregistered handgun, and the overall sentence. The court was tasked with determining whether the grounds for appeal were sufficient to warrant leave to appeal.

The court first examined the issue of duplicity in the charges related to firearm possession and lack of a licence. It was necessary to determine if the elements of the two offences were wholly included in one another, which would render the charges defective. The court applied the principles from Pearce v The Queen and referenced the decisions in R v Langdon and R v Sessions to conclude that the elements of the offences were not wholly included in one another, and therefore, the charges were valid. Consequently, the application for leave to appeal on this ground was dismissed.

Additionally, the court assessed the sufficiency of evidence for the speed limit violation and the conviction for possessing an unregistered handgun without arraignment. In both instances, the respondent conceded the lack of evidence or procedural irregularity, leading the court to set aside the convictions and sentences for these charges. The court also reviewed the overall sentence for multiple offences, determining that the total effective sentence and non-parole period were not arguably outside the range of sentences that could be imposed for the crimes committed. Therefore, the application for leave to appeal on the ground of manifest excess was dismissed.

The court ordered that the convictions and sentences for exceeding the speed limit and possessing an unregistered handgun be set aside, while dismissing the applications for leave to appeal in respect of the other charges and the overall sentence.

Orders