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R v Kelly

R v Kelly

Case [2000] SASC 293 24 August 2000

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R v KELLY
[2000] SASC

Court of Criminal Appeal: Prior, Nyland and Bleby JJ

1................ PRIOR J:....................... This is an appeal against a sentence of 30 years imprisonment with a non-parole period of 18 years imposed in the District Court with respect to five admitted charges of armed robbery, committed in October, November and December 1999 and three other offences of resisting a police officer, attempting to escape from lawful custody and assaulting a police officer. The resist arrest offence occurred when the appellant was initially arrested in a shop at Glenelg on 10 December 1999. The escape from custody and assault offences occurred when the appellant attempted to escape from the Port Adelaide Police Station after being interviewed in relation to robbery offences. The appellant asked the sentencing judge to take into account 10 other robbery offences. Four of these were also armed robbery, three were robbery with violence and three robbery alone. All 18 offences were committed during a period of about six weeks.

The robberies were within the suburbs and environs of Adelaide. All of the robberies involved so-called “soft targets” - four delicatessens, four video stores, three supermarkets, three service stations and a pharmacy, in which trading was quiet, only one person was in attendance at the time. All but one of the 15 robberies were committed against female attendants, standing at cash registers. In most cases only one person was in attendance at the time of the robbery.
As for the armed robberies, a knife was used to threaten the victims in five of the cases, a syringe on the other four occasions. The appellant said he had no desire to hurt, harm or injure the persons put in fear by his actions. Rather he was intent on obtaining money to buy heroin, more for his girlfriend than for himself. She was a heroin addict whom the appellant was keen to impress. The appellant said that he was also wanting to use some of the proceeds for his own drug needs and to put towards the purchase of a motor car.
The total amount of money obtained from the 15 robberies was a little over $6000. A matter of aggravation, of course, was that this offending occurred whilst the appellant was on parole. He had no previous history of violent offending. He had been imprisoned in the past mostly for illegal use of motor cars and larceny. At the time of sentencing, the appellant was 24 years of age, of low/average intelligence. He readily accepted responsibility for his offending. He was seen as genuinely remorseful, naïve, vulnerable and not well-equipped to face the difficulties of his own poly-substance abuse or personal relationships.
In his sentencing remarks, the District Court judge accepted that the 15 offences were all “clearly connected” to the appellant’s chaotic life-style and explicable by his having naively focussed on a desire to form a relationship with a woman also dependent upon drugs. His Honour said that the appellant was, in a…

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.

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Details

AGLC: R v Kelly [2000] SASC 293
Case: [2000] SASC 293
Decision Date: 24 August 2000

CaseChat Overview and Summary

In the case of R v Kelly, the appellant appealed against the sentence of 30 years imprisonment with a non-parole period of 18 years, imposed by the District Court for multiple counts of armed robbery and related charges. The appellant committed a series of armed robberies targeting "soft targets" in Adelaide, using either a knife or a syringe to threaten the victims, while also committing other related offences such as resisting arrest, attempting to escape lawful custody, and assaulting a police officer. The Court of Criminal Appeal was tasked with determining whether the sentence imposed was manifestly excessive and whether the sentencing judge failed to adequately consider factors such as the appellant's prospects of rehabilitation, his pleas of guilty, and the short period over which the offences were committed.

The Court of Criminal Appeal observed that the sentencing judge did not follow the correct process for imposing a single sentence under section 18A of the Criminal Law (Sentencing) Act 1988. The judge initially considered separate sentences for each offence but later abandoned this approach, resulting in an apparently absurd total of sixty years. The Court noted that while the judge correctly invoked the totality principle in the end, the initial approach was flawed and may have unduly influenced the final sentence. The Court concluded that the sentence imposed was manifestly excessive, and the starting point for the head sentence should have been lower, taking into account the appropriate discount for the appellant's pleas and contrition.

The Court of Criminal Appeal held that a discount of approximately 40 per cent was appropriate in this case, considering factors such as early pleas, contrition, and the fact that most of the offences would not have been associated with the appellant but for his admissions. The Court fixed a head sentence of 15 years and a non-parole period of 10 years, both operating from 7 June 2000. The appeal was allowed, the sentence and non-parole period set aside, and a new sentence of 15 years imprisonment with a non-parole period of 10 years was imposed.

Orders