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 guilty. He was taken into custody on that offence on 17 September 1998 and bail was refused. 8   Whilst in custody and charged with this offence, the Parole Board revoked his parole operative from 16 September 1998 and he commenced to serve the balance of the term to which Judge Shadbolt had sentenced him. The additional term concluded on 21 November 1999. Thereafter he remained in custody solely in relation to this matter, not quite, but almost until 15 June 2000 when her Honour imposed the sentences to which I have referred. 9   The matter which is now in issue, that is to what extent her Honour should have backdated the non-parole period, is a matter of some complication because if one looks at the applicant's sojourn in prison before the commencement of the trial in the present case, some of it is attributable to the fact that he was awaiting trial in the present case. Other parts of it are attributable to the fact that his parole, in respect of different matters, had been revoked. 10   Her Honour was conscious of all these complications, and they were very complicated indeed. 11   Her Honour said there was argument as to how much, if any, of the pre-sentence custody ought to be taken into account on the sentence of this matter. The revocation of the parole was consequent upon the prisoner being charged with this matter and held without bail. 12   Counsel for the Crown submitted that whilst a matter for discretion, the time served in custody did not directly relate to this offence but to the offence committed in 1992. 13   I am of the view that it should be taken into account in some way on the sentence as the revocation was related to the charge in relation to this matter. However it is clear that he was serving an additional term. 14   Then her Honour said "I propose to backdate the sentence to reflect some of the time spent in custody but also to reflect the decision of the Parole Board to revoke the prisoner's parole on the earlier matter" and it is evident, from the order which her Honour made, that she did take these matters into account. It is a purely discretionary matter, and I am not able to see any error in what her Honour did. Other judges may have come to a slightly different conclusion, but it was a matter for her Honour to decide how far back the non-parole period should start. 15   In this respect I have found great deal of assistance in the case referred to the court by the Crown in R v Eric John Andrews (unreported, NSW CCA, 28/04/93), and in particular to what Hunt J, then the Chief Judge at Common Law said, that it is quite fallacious to assert, as it is so often asserted, that the prisoner is being punished twice for the same thing in these circumstances. The parole is revoked, because by reason of the further offence committed, it has been demonstrated that the applicant was unable to adapt to normal lawful community life, and therefore is no longer entitled to parole in relation to the earlier offence. 16   The sentence is imposed as punishment for the further offence itself committed whilst on parole. That, in my respectful opinion, exactly covers the present situation. 17   This morning we were treated to an interesting argument by Mr Doris, learned counsel for the applicant, to the effect that a bargaining had gone on between the Crown and the applicant in which the applicant had made perfectly plain which charge he was prepared to plead guilty to and which charge he was prepared not to plead guilty to, and if the Crown wanted to they could have brought on the trial in question some months before they in fact did, and this fact of itself ought to result in a successful appeal in the present matter. 18   In my view this is not so. I do not doubt that interchange of views was conducted, and I do not doubt, from what Mr Doris has told me, that the prisoner's attitude was disclosed to the Crown in the manner in which it was suggested. On the other hand, I cannot think that any really firm deal was done or that the parties placed great reliance on it, otherwise the matter would have been canvassed in terms by her Honour, which it was not. For those reasons I am of the view that leave to appeal should be allowed and the appeal dismissed. 19   HIDDEN J: I agree. 20   MEAGHER JA: Those are the orders of the court.

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