Legal Research
Cases
R v Kelly

R v Kelly

Case [2018] ACTSC 332 4 December 2018

Verdict of Not Guilty by Way of Mental Impairment

Type to search within this case.

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Kelly
Citation:	[2018] ACTSC 332
Hearing Date:	3 December 2018
ReasonsDate:	4 December 2018
Before:	Murrell CJ
Decision:	A special verdict of not guilty by reason of mental impairment is entered. The accused is to be detained in custody for immediate review by ACAT pursuant to s 324(2)(a) of the Crimes Act 1900 (ACT). In relation to the culpable driving offence, the nominated term is two years and six months’ detention commencing 4 June 2017. In relation to the attempted murder offence, the nominated term is six years’ detention commencing 4 June 2018.
Catchwords:	CRIMINAL LAW – VERDICT OF NOT GUILTY BY WAY OF MENTAL IMPAIRMENT – culpable driving causing grievous bodily harm – attempted murder – whether the Court considers a verdict of not guilty by way of mental impairment is appropriate – s 321(2) of the Crimes Act 1900 (ACT) – whether the accused was mentally impaired pursuant to s 28 of the Criminal Code 2002 (ACT) CRIMINAL LAW – VERDICT OF NOT GUILTY BY WAY OF MENTAL IMPAIRMENT – SERIOUS OFFENCES – whether the Court considers it appropriate to make an order for detention – ss 324(2) and 308 of the Crimes Act CRIMINAL LAW – NOMINATED TERM – s 302 of the Crimes Act – whether the Court would have imposed a sentence of imprisonment if the accused had not been acquitted – what the nominated term of sentence would be if the accused had been found guilty – “best estimate” of a hypothetical term – sentencing purposes – moral culpability of an accused under a mental impairment – objective and subjective seriousness of the offences
Legislation Cited:	Crimes Act 1900 (ACT) ss 12(1), 29(4), 302, 308, 321, 324 Criminal Code 2002 (ACT) ss 27, 28, 44 Crimes (Sentencing) Act 2005 (ACT) ss 7, 33, 35A, 36 Mental Health Act 2015 (ACT) Road Transport (Safety and Traffic Management) Act 1999 (ACT) s 5
Cases Cited:	R v AN [2005] NSWCCA 239 R v AB [2015] NSWCCA 57 R v Duffy [2014] ACTCA 53 R v Klobucar (No 2) [2016] ACTSC 53 R v Steurer [2009] ACTSC 150
Text Cited:	Explanatory Memorandum, Crimes (Amendment) Bill 1999 (ACT)
Parties:	The Queen (Crown) Ashley Paul Kelly (Accused)
Representation:	Counsel Mr S Drumgold (Crown) Ms J Campbell (Accused)
Solicitors ACT DPP (Crown) Legal Aid ACT (Accused)
File Numbers:	SCC 294 of 2017; SCC 295 of 2017

Murrell CJ

Offences

On 3 December 2018, the accused pleaded not guilty by way of mental impairment to the following offences committed on 4 June 2017:

(a)Culpable driving (negligent driving) causing grievous bodily harm to Mr Boers contrary to s 29(4) of the Crimes Act 1900 (ACT) (the Crimes Act).
(b)Attempted murder of Mr Windsor contrary to ss 12(1) of the Crimes Act and s 44 of the Criminal Code 2002 (ACT) (the Criminal Code).

In accordance with s 321(2)(b) of the Crimes Act, the prosecution agreed to 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 [2018] ACTSC 332
Case: [2018] ACTSC 332
Decision Date: 4 December 2018

CaseChat Overview and Summary

In the case of R v Kelly, the defendant stood accused of culpable driving causing grievous bodily harm and attempted murder. The case was heard in the Supreme Court of the Australian Capital Territory. The central issue before the Court was whether the defendant was mentally impaired at the time of the commission of the offences, as required by section 321(2) of the Crimes Act 1900 (ACT), and if so, whether a verdict of not guilty by reason of mental impairment was appropriate. Additionally, the Court had to consider whether it was appropriate to make an order for detention under sections 324(2) and 308 of the Crimes Act.

The Court found that the defendant was indeed mentally impaired as defined by section 28 of the Criminal Code 2002 (ACT) at the time of the offences. The evidence presented indicated that the defendant suffered from a significant mental disorder, which impaired their ability to understand the nature and quality of their actions or to know that what they were doing was wrong. Given this finding, the Court concluded that a verdict of not guilty by way of mental impairment was appropriate. The Court also considered it appropriate to make an order for detention, as the offences were serious and the defendant posed a risk to the community if not detained.

The Court determined that if the defendant had not been acquitted due to mental impairment, it would have imposed a sentence of imprisonment. For the culpable driving offence, the nominated term of sentence would be two years and six months, and for the attempted murder offence, the nominated term would be six years. These terms were based on the "best estimate" of what the sentence would have been if the defendant had been found guilty, taking into account the moral culpability of the defendant and the objective and subjective seriousness of the offences.

The final orders of the Court were that a special verdict of not guilty by reason of mental impairment be entered, the defendant be detained in custody for immediate review by the Administrative Appeals Tribunal (ACAT) pursuant to section 324(2)(a) of the Crimes Act 1900 (ACT), and that the nominated terms of detention be two years and six months for the culpable driving offence and six years for the attempted murder offence.

Orders

Orders of the court

A special verdict of not guilty by reason of mental impairment is entered.

The accused is to be detained in custody for immediate review by ACAT pursuant to s 324(2)(a) of the Crimes Act 1900 (ACT).

In relation to the culpable driving offence, the nominated term is two years and six months’ detention commencing 4 June 2017.

In relation to the attempted murder offence, the nominated term is six years’ detention commencing 4 June 2018.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Kelly [2018] ACTSC 332

Most Recent Citation

R v Ophel [2019] ACTSC 325

Cases citing this decision · 6 of 6 shown

Director of Public Prosecutions v Kakar
[2023] ACTSC 236

…176 R v Goodfellow 33 NSWLR 308 R v Griffiths (No 2) [2020] ACTSC 118 R v Griffiths [2020] ACTSC 51 R v Jackson [2021] ACTSC 120; 360 FLR 1 R v Kelly [2018] ACTSC 332; 87 MVR 127 R v Klobucar (No 2) [2016] ACTSC 53 R v Matthews [2022] ACTSC 105 R v Mkpo-Uto Aniefiok Edet [2020] ACTSC 276 R v Ophel [2019] ACTSC 325…
Director of Public Prosecutions v Connors (No 2)
[2022] ACTSC 280 Para 64

…The estimation of such a sentence is “a very difficult and artificial task”: R v Kelly [2018] ACTSC 332; 87 MVR 127 at [64]. One fundamental matter giving rise to the difficulty is that a determination of the degree of moral culpability is critical to the determination of an appropriate sentence, yet a finding in a…
R v Walker (No 2)
[2021] ACTSC 46

…Jovanovic v The Queen [2015] ACTCA 29 R v Islam (Unreported, ACT Supreme Court, Mathews AJ, 25 May 2011). R v Kelly [2018] ACTSC 332; 87 MVR 127 R v Ophel [2019] ACTSC 325 R v Verdins [2007] VSCA 102; 16 VR 269 R v Walker [2021] ACTSC 42…
R v DQ
[2020] ACTSC 352

…v Kelly [1999] VSC 399 Guode v The Queen [2020] VSCA 257 Hudson v The Queen [2010] VSCA 332; 30 VR 610 Laipato v The Queen [2020] ACTCA 35 R v Kelly [2018] ACTSC 332 R v Keshtiar [2004] VSC 140 R v Ophel [2019] ACTSC 325 R v Playford [2017] QSC 337 R v Quail [2013] VSC 190 R v Rapovski [2015] VSC 359 R v RG [2006]…
R v Griffiths (No 2)
[2020] ACTSC 118 Para 1

…In R v Kelly [2018] ACTSC 332 ( Kelly ) at [63] Murrell CJ noted that the purpose behind this requirement that the Court determine the “best estimate” of the sentences it would have imposed is to “ensure that a mentally impaired accused person is detained for no longer than a mentally unimpaired person would have b…
R v Ophel
[2019] ACTSC 325 Para 1

…has been said to be, to some extent, already an artificial task. The artificiality to which I refer is to that which Murrell CJ referred in R v Kelly [2018] ACTSC 332, when her Honour observed that a determination of the degree of an offender's moral culpability is crucial to the determination of sentence. However,…

View all 6 citing cases →

Cases cited in this decision · 5 of 5 shown

R v Klobucar (No 2)
[2016] ACTSC 53 Para 1

…ion and planning reflect on moral culpability, such considerations may be largely irrelevant when deciding a nominated term. In R v Klobucar (No 2) [2016] ACTSC 53 at [27], Penfold J took a different approach; her Honour considered that her task was to consider the sentence that would have been appropriate had the…
R v AB
[2015] NSWCCA 57 Para 1

…purposes such as general deterrence and denunciation may be irrelevant to an offender with a mental illness or disability: see AN , as well as R v AB [2015] NSWCCA 57. For my part, I find it hard to see how the sentencing purpose of punishment could apply in circumstances where there is no moral culpability in the…
R v Duffy
[2014] ACTCA 53 Para 1

…It is not inevitable that all crimes of attempted murder are considered to be less objectively serious than the completed crime of murder: R v Duffy [2014] ACTCA 53 at [65]–[76].…
R v Steurer
[2009] ACTSC 150 Para 1

…the paramount consideration must be the protection of the community. That is the primary purpose of the “nominated term” provisions: R v Steurer [2009] ACTSC 150. Indeed, in Steurer , Penfold J stated that the protection of the community was the sole purpose. The nature of the order itself, which permits ongoing m…
R v AN
[2005] NSWCCA 239 Para 1

…courts should adopt and apply all the statutory and common law principles that apply to the sentencing of a person convicted of that offence: R v AN [2005] NSWCCA 239 ( AN ) at [13], and the same general approach should apply in this jurisdiction.…

Legislation cited in this decision · 4

Crimes Act 1900 (ACT)
12(1), 29(4), 302, 308, 321, 324 7 mentions
Crimes (Sentencing) Act 2005 (ACT)
33, 35A, 36, 7 5 mentions (from Para 1)
Road Transport (Safety and Traffic Management) Act 1999 (ACT)
5 2 mentions (from Para 1)
Mental Health Act 2015 (ACT)
1 mention (from Para 1)