R v Brett John Kelly - [2000] NSWCCA 557

CITATION: R v Brett John Kelly [2000] NSWCCA 557

FILE NUMBER(S): CCA 60386/00

HEARING DATE(S): 06/12/00

JUDGMENT DATE:
6 December 2000

PARTIES :

Regina
v
Brett John Kelly

JUDGMENT OF: Meagher JA at 1; Hidden J at 19

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/11/3513

LOWER COURT JUDICIAL
OFFICER : Ainslie-Wallace DCJ

COUNSEL : A: J I Doris
R: R A Hulme

SOLICITORS: A: Neil J O'Connor & Associates
R: S E O'Connor

CATCHWORDS: Criminal law - application for leave to appeal against sentence - conspiracy to commit larceny - pre-sentence custody - extent to which non-parole period of sentence should be backdated - where pre-sentence custody partly a result of revocation of parole on earlier conviction - discretionary matter - appeal dismissed.

CASES CITED:
R v Eric John Andrews (unreported, NSW CCA, 28/04/93)

DECISION: Leave to appeal allowed and appeal dismissed.

IN THE COURT OF
CRIMINAL APPEAL
CCA 60386/00
MEAGHER JA
HIDDEN J
Wednesday, 6 December 2000

REGINA v BRETT JOHN KELLY

JUDGMENT

1 MEAGHER JA: This is an application for leave to appeal in respect of a sentence imposed by her Honour judge Ainslie-Wallace in the District Court at Sydney on 15 June 2000 for an offence of conspiracy to commit larceny. 2 The applicant had pleaded not guilty to an offence of conspiracy to commit robbery in company but guilty to conspiracy to commit larceny, and the Crown accepted that plea in full satisfaction of the indictment. 3 Her Honour imposed a sentence of three years imprisonment with a non-parole period of 20 months to commence on 14 March 2000. 4 No complaint is made on the applicant's behalf as to length of time of the sentence imposed. The sole ground of appeal is:

"The learned judge erred in principle in setting the commencement date of the sentence at 14 March 2000, thereby failing to take account, or proper account, of a period of approximately 14 months which the applicant had spent in custody attributable solely to a revocation of parole because he was charged with a considerably more serious offence than that to which a plea of guilty was ultimately accepted."

5 I might add the two charges referred to both arose out of the same sets of facts. 6 The applicant has had an extremely lengthy history of criminal convictions. For present purposes, the starting point is that in 1992 he was convicted and sentenced in relation to what seemed to be three counts of armed robbery, and was sentenced by his Honour Judge Shadbolt in the District Court to seven years imprisonment with a four year minimum term. The seven years were to go from 30 April 1992 to 29 April 1999, the minimum term was to go to 30 April 1992 to 29 April 1996. He was released on parole on 29 April 1996, and apparently again in relation to some other matter on 21 May 1998. 7 In September 1998 he committed the offence to which he pleaded…

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 R v Brett John Kelly

Details

AGLC: R v Brett John Kelly [2000] NSWCCA 557
Case: [2000] NSWCCA 557
Decision Date: 6 December 2000

CaseChat Overview and Summary

The appellant, Brett John Kelly, appealed against the decision of a single judge of the Supreme Court of Queensland to refuse leave to appeal against his sentence. Kelly had been convicted of conspiracy to commit larceny and was sentenced to a term of imprisonment with a non-parole period of three years. The primary issue before the court was the extent to which the non-parole period should be backdated to account for the period of pre-sentence custody. A secondary issue was whether the court should consider the appellant's parole revocation on an earlier conviction as a relevant factor in determining the non-parole period.

The court held that the decision to grant or refuse leave to appeal was a discretionary matter, and the court should not interfere with the exercise of that discretion unless there was an error of law. The court found that the trial judge had not erred in declining to backdate the non-parole period to account for the appellant's pre-sentence custody. The court held that the parole revocation on the earlier conviction was not a relevant factor in determining the non-parole period, as it was not a factor that the trial judge was required to consider. The court found that the trial judge had exercised their discretion reasonably and lawfully in declining to backdate the non-parole period.

The appeal was dismissed. The court found that the trial judge had exercised their discretion reasonably and lawfully in declining to backdate the non-parole period. The court held that the parole revocation on the earlier conviction was not a relevant factor in determining the non-parole period, as it was not a factor that the trial judge was required to consider. The court found no error of law in the trial judge's decision and dismissed the appeal.

Orders