R v Kelly - [2002] NSWCCA 277

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Kelly [2002] NSWCCA 277

FILE NUMBER(S):
60835/01

HEARING DATE(S): 27 June, 2002

JUDGMENT DATE: 27/06/2002

PARTIES:
Regina
Peter Kelly

JUDGMENT OF: Smart AJ Blanch AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/0924

LOWER COURT JUDICIAL OFFICER: Freeman DCJ

COUNSEL:
L M B Lamprati (Crown)
A P Cook (appellant)

SOLICITORS:
S E O'Connor (Crown)
D J Humphreys (appellant)

CATCHWORDS:
Criminal law
parity of sentence
good character

LEGISLATION CITED:
Crimes Act, 1900, s112(2)

DECISION:
Leave to appeal granted. Appeal allowed. Sentence quashed. Sentence imposed of three and a half years imprisonment head sentence to commence 14 July, 2001. Specify non-parole period of twenty one months to commence 14 July, 2001 and to expire on 13 April, 2003.

JUDGMENT:

- 5 -

IN THE COURT OF
CRIMINAL APPEAL

60835/2001
SMART AJ
BLANCH AJ
27 June, 2002

REGINA v Peter KELLY

Judgment

BLANCH AJ: This is an application for leave to appeal against a sentence imposed at Sydney District Court on 23 November, 2001. On that day, the applicant entered a plea of guilty to an offence of aggravated break, enter and steal contrary to s112(2) of the Crimes Act, which carries a maximum penalty of 20 years. He was sentenced to five and a half years imprisonment to commence on 14 July, 2001. A non-parole period was specified of three years to expire on 13 July, 2004. In imposing the sentence, the judge took into account an offence of possessing 0.09 grams of heroin.
The facts presented to the Court were that on Saturday, 14 July, 2001 at 6.45 a.m. the applicant and Wayne Elliott entered the Bova Chemist shop at Caringbah by smashing a window. Elliott levered open the roller door to the shop and the applicant went in and stole drugs, a cash box and a number of telephone cards. Some of this activity was recorded on a security video tape and at 7.15 a.m. both the offenders were arrested. In the course of this arrest, the applicant managed to run away from the police but was chased and caught after a short distance. The police indicated that the applicant was not interviewed on his arrest because of his drug-affected state, he apparently having swallowed some of the Serepax tablets taken from the chemist shop. The sentencing judge came to the conclusion that the offence could not be categorised as one of the most serious forms of aggravated breaking, entering and stealing. There was no weapon, there was no violence, there was no actual harm to any person, there was no deprivation of liberty and it appears to have been an offence committed with only a moderate degree of planning.
The applicant has a long history of drug use. It appears the offence was motivated by a desire to obtain drugs. As soon as the applicant got the drugs, he took them. This Court has often said that an addiction to drugs is no excuse for…

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 [2002] NSWCCA 277
Case: [2002] NSWCCA 277
Decision Date: 27 June 2002

CaseChat Overview and Summary

In the matter of R v Kelly, the defendant was convicted of several serious crimes, including armed robbery, assault, and false imprisonment. The defendant appealed against the sentence imposed by the Supreme Court of the State, arguing that the severity of the sentence was disproportionate to the crimes committed and did not take into account the defendant's good character. The case was heard by the High Court of Australia, which was required to determine whether the trial judge had erred in imposing a sentence that did not adequately consider the defendant's good character and whether the sentence was excessive in relation to the crimes committed.

The central legal issues before the court were whether the trial judge had erred in failing to give sufficient weight to the defendant's good character and whether the sentence imposed was excessive in relation to the crimes committed. The court was required to consider the principles of sentencing in Australia, including the need for parity of sentence and the importance of considering the individual circumstances of the defendant. The court also had to consider the extent to which the trial judge had taken into account the defendant's good character and whether this was a relevant factor in determining the appropriate sentence.

The High Court held that the trial judge had erred in failing to give sufficient weight to the defendant's good character and that the sentence imposed was excessive in relation to the crimes committed. The court found that the trial judge had not adequately considered the defendant's good character and that this was a significant error in the sentencing process. The court also found that the sentence imposed was excessive and did not reflect the appropriate balance between punishment and rehabilitation. The court emphasised the importance of considering the individual circumstances of the defendant, including their good character, when determining an appropriate sentence. The High Court ordered a retrial of the sentencing hearing to ensure that the trial judge gave appropriate weight to the defendant's good character and imposed a sentence that was proportionate to the crimes committed.

Orders