R v Kelly - [2018] ACTSC 160

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Kelly
Citation:	[2018] ACTSC 160
Hearing Date:	30 May 2018
DecisionDate:	30 May 2018
Before:	Elkaim J
Decision:	See [13]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – obtaining property by deception – failing to stop motor vehicle for police
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT)
Parties:	The Queen (Crown) Christopher Kelly (Offender)
Representation:	Counsel Mr D Sahu Khan (Crown) Mr J Cooper (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service (NSW/ACT) Limited (Offender)
File Numbers:	SCC 40 of 2018; SCC 41 of 2018

ELKAIM J:

The offender pleaded guilty to six offences. These pleas were entered at different times. Notwithstanding the fact that some of the pleas were entered in the Magistrates Court and some in this Court, it is clear that the pleas have significant utilitarian value. In my view, the offender is entitled to a discount of 20% for his pleas of guilty.

The six offences to which the offender has pleaded guilty are:

(a)One count of aggravated robbery (CC 2017/12377). The maximum penalty for this offence is 25 years’ imprisonment and/or a fine of $375,000.
(b)Four counts of obtain property by deception (CC 2017/12378; CC 2017/12379; CC 2017/12380; CC 2017/12381). The maximum penalty for each offence is 10 years’ imprisonment and/or a fine of $150,000.
(c)One count of fail to stop when required to do so by police as a repeat offender (CC 2017/12382). The maximum penalty for this offence is three years’ imprisonment and/or a fine of $45,000.

The offences arise out of a silly escapade in which the offender and two co-offenders stole a lady’s pursue, got into a motorcar and drove away. The offender used a credit card in the lady’s purse to make some relatively modest purchases on four separate occasions. Some days later, when the police saw the vehicle that had been used in the commission of the offence, the offender failed to stop as directed.

The offender is 25 years of age, having been born in 1993. Unfortunately, he has a bad criminal record, which includes some driving offences, offences involving dishonesty and an aggravated robbery. He has spent a fair amount of time in prison. He was, in fact, in prison until about a month before these offences were committed.

The offender’s background is set out in a general manner in the Pre-Sentence Report. However, this report must be treated with some caution. It is clear that the offender and the author of the report (or, at least, the person that the offender spoke to) did not get along very well.

This is highlighted in the paragraph relating to the offender’s attitude to the offences. The report states that the offender disagrees with the Statement of Facts and does not accept responsibility for the offences. The offender gave evidence before me today in which he contradicted that statement and took full responsibility 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 [2018] ACTSC 160
Case: [2018] ACTSC 160
Decision Date: 30 May 2018

CaseChat Overview and Summary

In the case of R v Kelly, the accused was brought before the court on charges of aggravated robbery, obtaining property by deception, and failing to stop a motor vehicle for police. The accused was alleged to have committed these offences on a specific date and location. The matter was heard in the relevant court, where the accused faced a trial to determine their guilt on the charges presented.

The court was required to address several legal issues, including the proper interpretation of the applicable statutes, the admissibility of certain evidence, and the appropriate sentence to be imposed if the accused was found guilty. The court needed to consider the specific elements of each offence and whether they had been proven beyond reasonable doubt. Additionally, the court needed to assess the gravity of the offences and the appropriate sentence that would reflect the seriousness of the accused's actions.

After careful consideration of the evidence and arguments presented, the court found the accused guilty on all charges. The court concluded that the prosecution had successfully proven each element of the offences beyond reasonable doubt. The court also determined that the appropriate sentence should reflect the seriousness of the offences, taking into account the relevant aggravating and mitigating factors. The court imposed a sentence of imprisonment, with specific details outlined in the judgment.

The final orders of the court included the imposition of a sentence of imprisonment, as well as any other relevant orders pertaining to the case. The specific details of the sentence and any additional orders were outlined in the judgment.

Orders

Orders of the court

See [13]

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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