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R v Kelly

R v Kelly

Case [2023] SASCA 22 2 March 2023

Statutory Interpretation

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Supreme Court of South Australia
(Court of Appeal: Criminal)
R v KELLY
[2023] SASCA 22
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Bleby and the Honourable Justice David)
2 March 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - SENTENCE
After stabbing the victim in the torso, the respondent stole one pound of cannabis from his car.
The respondent pleaded guilty to aggravated robbery. The sentencing Judge commenced with a starting point of two years and six months imprisonment with a non-parole period of one year and one month, reduced on account of the respondent's time served in custody and plea of guilty to one year, seven months and 14 days imprisonment with a non-parole period of five months and 28 days. The sentence was ordered to be served on home detention.
The Director of Public Prosecutions (SA) seeks permission to appeal against the sentence imposed on the ground of manifest inadequacy.
Held (Bleby and David JJA) granting the Director permission to appeal, allowing the appeal and resentencing the respondent:
1.There are considerations that speak against a grant of permission, as identified by Lovell JA, in particular the respondent’s young age, rehabilitative efforts, and personal circumstances. However, the length of the sentence and the order that it be served on home detention amounted to an extreme departure from the appropriate standard, having regard to the seriousness of the offending.
2.The respondent is resentenced. The respondent is sentenced to five years’ imprisonment, reduced by 15 per cent to four years and three months for his guilty plea. Their Honours impose a low non-parole period of two years and three months, having regard to the respondent’s personal circumstances. Their Honours give the credit applied by the judge for time spent in custody of six months and two days, as well as an additional credit of six months and four days for time spent on home detention. The resulting head sentence is three years, two months and 24 days. The non-parole period is one year, two months and 24 days. The sentence is to commence from the date the respondent is taken into custody.

Held (Lovell JA) refusing permission to appeal:
1.The sentence is manifestly inadequate; however, this is not a "rare and exceptional" case that warrants the intervention of this Court.
Criminal Law Consolidation Act 1935 (SA) s 137; Criminal Procedure Act 1921 (SA) s 157; Sentencing Act 2017 (SA) s 71, referred to.
Director of Public Prosecutions (Vic) v Josefski [2005] VSCA 265; Everett v The Queen (1994) 181 CLR 295; Green v The Queen (2011) 244 CLR 462; House v The King (1936) 55 CLR 499; Lacey v Attorney-General (Qld) (2011) 242…

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 Kelly

Details

AGLC: R v Kelly [2023] SASCA 22
Case: [2023] SASCA 22
Decision Date: 2 March 2023

CaseChat Overview and Summary

The case of *R v Kelly* concerned an appeal by the Crown against the sentence imposed on the respondent, Kelly, who had pleaded guilty to a charge of robbery. The appeal was heard by the Full Court of the Supreme Court of South Australia.

The central legal issue before the Full Court was whether the sentence imposed by the sentencing judge was so inadequate as to warrant intervention on appeal by the Crown. Specifically, the Court had to consider the principles governing Crown appeals against sentence, and whether the sentencing judge had erred in principle or imposed a sentence that was manifestly inadequate in the circumstances of the offence.

The Full Court applied the well-established principles for Crown appeals against sentence, which require the Crown to demonstrate that the sentence imposed was not merely lenient, but was demonstrably wrong, either due to an error of principle or because it was so disproportionate to the gravity of the offence and the circumstances of the offender as to be outside the bounds of a reasonable exercise of the sentencing judge's discretion. The Court reviewed the facts of the robbery, the offender's background, and the sentencing judge's reasons, ultimately concluding that while the sentence imposed was at the lower end of the available range, it did not reach the threshold of being manifestly inadequate.

The appeal was therefore dismissed.

Orders