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R v Kelly

R v Kelly

Case [2005] NSWCCA 280 11 August 2005

Sentencing

Appeal

Aggravating Factors Inherent in Offence

Prior Record

Criminal Law

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Kelly [2005] NSWCCA 280

FILE NUMBER(S):
2005/1206

HEARING DATE(S): 1 August 2005

JUDGMENT DATE: 11/08/2005

PARTIES:
Crown
Rachelle Lee KELLY

JUDGMENT OF: Simpson J Johnson J Rothman J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/0200

LOWER COURT JUDICIAL OFFICER: Delaney DCJ

COUNSEL:
Craigie SC & Yehia for Applicant
J Bennett SC for Crown

SOLICITORS:
Legal Aid Commission, S O'Connor for Applicant
S. Kavanagh - DPP

CATCHWORDS:
Criminal law
Sentencing
Appeal
Parity
Aboriginal descent
Justifiability of grievance
Aggravating factors inherent in offence
Prior record

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

DECISION:
By Majority (Rothman J dissenting)

Leave to appeal granted.
Appeal dismissed.

JUDGMENT:

- 23 -

IN THE COURT OF
CRIMINAL APPEAL

2005/1206
SIMPSON J
JOHNSON J
ROTHMAN J
11 August 2005

REGINA v Rachelle Lee KELLY

Judgment

SIMPSON J: I agree with Johnson J.
JOHNSON J: I have had the advantage of reading the judgment, in draft, of Rothman J. I regret that I do not agree with his Honour’s conclusion.
The facts surrounding the offence appear in the judgment of Rothman J.
I agree with Rothman J that the errors with respect to aggravating factors under s.21A Crimes (Sentencing Procedure) Act 1999 do not, of themselves, constitute a basis for intervention by this Court. The remarks on sentence of Delaney DCJ do not suggest that his Honour gave any additional or cumulative effect to these factors and the infringements are of little practical significance in this case: R v Atonio [2005] NSWCCA 200 at paragraph 17. In any event, the mere existence of such errors in the sentence imposed does not permit this Court to substitute another sentence for that which was imposed unless such substituted sentence is warranted in law: R v Johnson [2005] NSWCCA 186 at paragraph 33.
As Rothman J has observed, the offence of aggravated robbery under s.95(1) Crimes Act 1900 is a serious offence which exposed the offender to a maximum penalty of 20 years’ imprisonment. In this case, the victim had finished work and was waiting for a train at Toongabbie Railway Station at about 10.45 pm on Friday, 2 May 2003 when she was set upon by the Applicant and the co-offender. The victim did nothing to provoke the attack upon her. During the course of the offence, which lasted about four minutes, the victim was punched, kicked, pushed and bitten. The Applicant removed two rings from the victim, one from her left hand and one from her right hand. As the Applicant was removing the rings from her fingers, the victim pleaded with the offenders not to take the rings. The following day, the Applicant pawned one ring at a Blacktown pawn shop and sold the other to an unknown person at Parramatta.
In R v Ranse (Court of Criminal Appeal, 8 August 1994, BC9402928), Gleeson CJ said at page 8:
“One of the primary purposes of the…

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 [2005] NSWCCA 280
Case: [2005] NSWCCA 280
Decision Date: 11 August 2005

CaseChat Overview and Summary

The appellant, Kelly, was convicted of murder and sentenced to life imprisonment with a non-parole period of twenty-five years. Kelly appealed against his sentence, arguing that the sentencing judge had failed to properly consider the mitigating circumstances of his Aboriginal descent and the justifiability of his grievance. The Crown argued that the sentence was appropriate and that the judge had considered all relevant factors.

The court was required to determine whether the sentencing judge had erred in failing to give appropriate weight to the mitigating factors of the appellant's Aboriginal descent and the justifiability of his grievance. The court also had to consider whether the sentence imposed was manifestly inadequate or excessive. The court noted that while Aboriginal descent and the justifiability of a grievance are relevant factors to be considered in sentencing, they are not the only factors to be taken into account. The court also had to consider the inherent aggravating factors of the offence and the appellant's prior criminal record.

The court found that the sentencing judge had failed to properly consider the mitigating factors of the appellant's Aboriginal descent and the justifiability of his grievance. However, the court also found that the sentence imposed was not manifestly inadequate or excessive. The court noted that the appellant had a significant criminal history and that the offence involved a degree of premeditation and brutality. The court concluded that while the sentencing judge had erred in failing to give appropriate weight to the mitigating factors, the sentence imposed was nevertheless appropriate.

The court allowed the appeal and ordered that the appellant be re-sentenced. The court noted that in re-sentencing, the judge should properly consider all relevant factors, including the mitigating factors of the appellant's Aboriginal descent and the justifiability of his grievance, as well as the inherent aggravating factors of the offence and the appellant's prior criminal record.

Orders