R v Kelley

[2018] QCA 18

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kelley [2018] QCA 18

PARTIES:

R
v
KELLEY, Luke James
(applicant)

FILE NO/S:

CA No 183 of 2017
DC No 34 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Hervey Bay – Date of Sentence: 11 August 2017 (Koppenol DCJ)

DELIVERED ON:

2 March 2018

DELIVERED AT:

Brisbane

HEARING DATE:

13 February 2018

JUDGES:

Sofronoff P and Morrison and Philippides JJA

ORDERS:

1.     Leave to appeal granted.

2.     Appeal allowed.

3.     Set aside the sentence imposed on 11 August 2017, except as to the recording of a conviction.

4.     Order that the applicant be imprisoned for a period of three months, suspended forthwith for an operable period of two years.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – POWERS OF APPELLATE COURT – URGENT SENTENCE APPLICATIONS – where the applicant was sentenced to one month of imprisonment and had served this by date of hearing – where prompt urgent hearing as an alternative to bail application discussed

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant pleaded guilty to one count of assault occasioning bodily harm – where the charge was a domestic violence offence – where the applicant was sentenced to imprisonment for three months with parole release set for one month after the commencement of the period of imprisonment – where the application was heard after the sentence was fully served – where it was submitted that the learned sentencing judge was not referred to comparable cases regarding the sentencing of youthful first offenders – where significant mitigating factors such as the applicant’s age and prospects of rehabilitation existed – where it was submitted that these factors were given little weight by the learned sentencing judge – whether the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 9(3)

R v Cay; Gersch and Schell; Ex parte Attorney-General (Qld) (2005) 158 A Crim R 488; [2005] QCA 467, considered
R v GB & LB[1999] QCA 46, cited
R v Goodwin; Ex parte Attorney-General (Qld) (2014) 247 A Crim R 582; [2014] QCA 345, cited
R v Hopper; Ex parte Attorney-General (Qld) [2015] 2 Qd R 56; [2014] QCA 108, followed
R v Lovell [1999] 2 Qd R 79; [1998] QCA 36, cited
R v Lovi[2012] QCA 24, cited
R v Riley[2007] QCA 391, cited

COUNSEL:

L D Reece for the applicant
C N Marco for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. SOFRONOFF P:  I agree with the reasons of Morrison JA and with the orders that his Honour proposes.  I would only wish to add some remarks concerning the pace at which this application came on for hearing.

2. The sequence of events was this:

   (a)the sentence was imposed on 11 August 2017;

   (b)an…