R v Kelly - [2018] QCA 307

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kelly [2018] QCA 307

PARTIES:

R
v
KELLY, Mark John
(applicant)

FILE NO/S:

CA No 297 of 2017
DC No 1924 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 1 December 2017 (Martin SC DCJ)

DELIVERED ON:

9 November 2018

DELIVERED AT:

Brisbane

HEARING DATE:

30 July 2018

JUDGES:

Sofronoff P and Gotterson JA and Ryan J

ORDERS:

1. Grant leave to appeal against sentence.

2. Appeal against sentence dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty to two counts of fraud and one count of receiving tainted property – where the applicant was sentenced to five years imprisonment on each count, to be served concurrently – where the learned sentencing judge was informed by the prosecutor that the maximum penalty for all counts was 14 years imprisonment, when, in fact, the maximum penalty for the two counts of fraud was only 12 years imprisonment – where a material error was made in the exercise of the sentencing discretion – where the appellate court is therefore required to re-exercise the sentencing discretion – whether, upon a re-exercising of the sentencing discretion, the appellate court concludes that a lesser sentence is appropriate

Serious and Organised Crime Legislation Act 2016 (Qld), s 126

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, followed
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, applied
R v Pinnuck[2014] QCA 189, considered
R v Twidale[2009] QCA 200, considered

COUNSEL:

The applicant appeared on his own behalf
C N Marco for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: I agree with the reasons of Gotterson JA and the orders his Honour proposes.
GOTTERSON JA: On 23 August 2017, the applicant, Mark John Kelly, pleaded guilty in the District Court at Brisbane to two counts of fraud to the value of more than $30,000 and one count of receiving tainted property. He was sentenced on 1 December 2017. In relation to each count, the applicant was sentenced to five years imprisonment. Each sentence is to be served concurrently with the others and suspended after 20 months, for an operational period of five years.
The applicant himself filed an application for leave to appeal against sentence on 13 December 2017.[1] The application has one ground of appeal. It is that the sentence is manifestly excessive.
[1]AB37-38.
The error in sentencing
The respondent has, with commendable candour, drawn to the Court’s attention an erroneous footing on which the learned sentencing judge proceeded in sentencing the applicant. The error is not referred to in the applicant’s application for leave or his written submissions.
His Honour was informed by the prosecutor that the maximum penalty for all counts was 14 years.[2]…

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] QCA 307
Case: [2018] QCA 307
Decision Date: 9 November 2018

CaseChat Overview and Summary

In the case of R v Kelly, the applicant appealed against his sentence, which was five years imprisonment on each of two counts of fraud and one count of receiving tainted property, to be served concurrently. The applicant had pleaded guilty to the charges and the learned sentencing judge was informed by the prosecutor that the maximum penalty for all counts was 14 years imprisonment, when, in fact, the maximum penalty for the two counts of fraud was only 12 years imprisonment. The applicant argued that the error in the maximum penalty information constituted a material error in the exercise of the sentencing discretion, necessitating a re-exercise of the discretion by the appellate court.

The legal issue before the court was whether the error in the maximum penalty information constituted a material error in the exercise of the sentencing discretion, warranting re-exercise of the discretion by the appellate court. The court held that a material error in the exercise of the sentencing discretion can be grounds for interference by the appellate court, particularly when the error affects the maximum penalty information. However, the court found that the error in this case did not result in a sentence that was manifestly inadequate or excessive, and therefore did not warrant interference.

The court re-exercised the sentencing discretion and concluded that the sentence of five years imprisonment on each count, to be served concurrently, was appropriate. The court noted that the applicant had pleaded guilty, had no prior convictions, and had shown remorse. The court also considered the nature and circumstances of the offences, and the need to deter and rehabilitate the applicant. The court held that the sentence was just and appropriate, and dismissed the appeal against sentence.

The final order of the court was to grant leave to appeal against sentence, but to dismiss the appeal against sentence. The sentence of five years imprisonment on each count, to be served concurrently, was affirmed.

Orders

Orders of the court

1. Grant leave to appeal against sentence.

2. Appeal against sentence dismissed.

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.

CITATION:	R v Kelly [2018] QCA 307
PARTIES:	R v KELLY, Mark John (applicant)
FILE NO/S:	CA No 297 of 2017 DC No 1924 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 1 December 2017 (Martin SC DCJ)
DELIVERED ON:	9 November 2018
DELIVERED AT:	Brisbane
HEARING DATE:	30 July 2018
JUDGES:	Sofronoff P and Gotterson JA and Ryan J
ORDERS:	1. Grant leave to appeal against sentence. 2. Appeal against sentence dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty to two counts of fraud and one count of receiving tainted property – where the applicant was sentenced to five years imprisonment on each count, to be served concurrently – where the learned sentencing judge was informed by the prosecutor that the maximum penalty for all counts was 14 years imprisonment, when, in fact, the maximum penalty for the two counts of fraud was only 12 years imprisonment – where a material error was made in the exercise of the sentencing discretion – where the appellate court is therefore required to re-exercise the sentencing discretion – whether, upon a re-exercising of the sentencing discretion, the appellate court concludes that a lesser sentence is appropriate Serious and Organised Crime Legislation Act 2016 (Qld), s 126 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, followed Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, applied R v Pinnuck[2014] QCA 189, considered R v Twidale[2009] QCA 200, considered
COUNSEL:	The applicant appeared on his own behalf C N Marco for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent