Legal Research
Cases
R v Kelly

R v Kelly

Case [2010] NSWCCA 259 9 December 2010

No judgment structure available for this case.

Type to search within this case.

New South Wales
Court of Criminal Appeal

CITATION: Regina v Kelly [2010] NSWCCA 259

HEARING DATE(S): 14/10/10

JUDGMENT DATE:
9 December 2010

JUDGMENT OF: McClellan CJatCL at 1; Kirby J at 2; Hoeben J at 103

DECISION: 1. Appeal allowed.
2. The sentences imposed on 7 May 2010 are quashed.
3. In lieu thereof, the respondent is sentenced as follows:
In respect of Count 5, the respondent is sentenced to a term of imprisonment with a non parole period of 3 years 6 months, to date from 1 March 2009 and to expire on 31 August 2012, with an additional term of 2 years to expire on 30 August 2014.
In respect of Count 2, the respondent is sentenced to a term of imprisonment with a non parole period of 3 years, to date from 1 September 2009 and to expire on 31 August 2012, with an additional term of 1 year to expire on 30 August 2013.
In respect of Count 3, taking account of the matter on the Form 1, the respondent is sentenced to a term of imprisonment with a non parole period of 3 years, to date from 1 September 2009 and to expire on 31 August 2012, with an additional term of 1 year to expire on 30 August 2013.
In respect of Count 4, taking account of the matter on the Form 1, the respondent is sentenced to a term of imprisonment with a non parole period of 2 years 9 months, to date from 1 March 2010 and to expire on 30 November 2012, with an additional term of 1 year to expire on 30 November 2013.
In respect of Count 1, the respondent is sentenced to a term of imprisonment with a non parole period of 3 years 6 months, to date from 1 September 2010 and to expire on 28 February 2014, with an additional term of 2 years 6 months to expire on 31 August 2016. The respondent is to be eligible for release on parole on 28 February 2014.

CATCHWORDS: CRIMINAL LAW - five count of robbery whilst armed with an offensive weapon - Form 1 matters - Crown appeal against sentence on the basis of error and manifest inadequacy - global approach - failure to assess objective gravity each offence - aggravating circumstances not identified - Henry guidelines - accumulation - mental condition - sentences manifestly inadequate - re-sentence - youth.

LEGISLATION CITED: Criminal Appeal Act 1912
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: R v Henry & Ors [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Cahyadi v Regina [2007] NSWCCA 1; (2007) 168 A Crim R 41
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Mulato v…

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 [2010] NSWCCA 259
Case: [2010] NSWCCA 259
Decision Date: 9 December 2010

CaseChat Overview and Summary

The case of R v Kelly involved the appellant, who was convicted on five counts of robbery while armed with an offensive weapon. The Court of Appeal was asked to consider an appeal by the Crown against the sentence imposed by the trial judge. The Crown argued that the sentences were both erroneous and manifestly inadequate, particularly due to the failure to assess the objective gravity of each offence individually and to properly identify the aggravating circumstances.

The court was required to determine whether the trial judge erred in his assessment of the sentences and whether they were manifestly inadequate. The key legal issues included the application of the Henry guidelines, the consideration of the accumulation of sentences, and the impact of the appellant's mental condition on the sentencing process. The court had to evaluate whether the trial judge appropriately balanced the aggravating and mitigating factors and whether the overall sentence reflected the seriousness of the crimes committed.

In its reasoning, the court found that the trial judge had failed to properly assess the objective gravity of each offence and had not identified the relevant aggravating circumstances. The court held that the sentences were manifestly inadequate, leading to the conclusion that the appeal should be allowed. The court re-sentenced the appellant, taking into account the Henry guidelines and the accumulation of sentences, while also considering the appellant's mental condition. The court deemed the original sentences to be insufficient to reflect the gravity of the crimes and the need for appropriate deterrence and rehabilitation.

The court ordered that the appellant be re-sentenced, with the new sentences to be determined by the trial judge. The court emphasised the importance of correctly applying the sentencing principles and ensuring that the sentences imposed are commensurate with the nature and circumstances of the offences. The final orders included the allowance of the Crown's appeal against the sentence and the direction for a new sentencing hearing.

Orders