R v Kelly - [2016] QCA 293

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kelly [2016] QCA 293

PARTIES:

R
v
KELLY, Brian John
(applicant)

FILE NO/S:

CA No 62 of 2016
DC No 1895 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 29 February 2016

DELIVERED ON:

15 November 2016

DELIVERED AT:

Brisbane

HEARING DATE:

23 September 2016

JUDGES:

Morrison and Philip McMurdo JJA and Boddice J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant orchestrated and coordinated fraudulent schemes and induced 36 people to invest $1,332,550 – where the applicant laundered this money for his own personal gain – where only $209,968 was returned to investors, and $159,000 of that was returned by banks who had become suspicious of the activities – where the applicant had undertaken a similar scheme in Victoria and pleaded guilty at Melbourne County Court, but was given the chance to make restitution – where the offending the subject of this appeal occurred in Queensland shortly after the offending in Victoria – where the applicant pleaded guilty to one count of fraud and one count of money laundering in the District Court in Brisbane – where the learned sentencing judge sentenced the applicant to eight years and seven months imprisonment, with a parole eligibility date set at 6 February 2017 – where a declaration was made that 600 days presentence custody was time served under the sentence and 152 days of non-declarable presentence custody was also taken into account – where the applicant seeks leave to appeal against his sentence on the sole ground that it is manifestly excessive – whether the sentence is manifestly excessive

R v Carlisle and Crouch, unreported, District Court of Queensland, DC No 270 of 2015, O’Brien CJDC, 30 July 2015, considered
R v Crouch; R v Carlisle[2016] QCA 81, cited
R v Henderson[2014] QCA 12, considered
R v Lovell[2012] QCA 43, cited

COUNSEL:

A J Kimmins for the applicant
G P Cash QC for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MORRISON JA: Mr Kelly set up a number of companies and an elaborate organisational façade, in order to pretend that he was running legitimate investment schemes. In fact the schemes were non-existent. He orchestrated and coordinated the fraudulent schemes.
He induced 36 people to invest $1,332,550 in the schemes. Having obtained their money, Mr Kelly used a system of bank transfers, cheques and cash withdrawals to launder the money so that it could not be traced by the investors.
Of the $1,332,550 invested, only $209,968 was ultimately returned to investors. About $940,432 of investors’ funds were never retrieved.
He pleaded guilty to:

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 [2016] QCA 293
Case: [2016] QCA 293
Decision Date: 15 November 2016

CaseChat Overview and Summary

The case of R v Kelly involved the defendant, Kelly, who orchestrated and coordinated fraudulent schemes that induced 36 people to invest a total of $1,332,550. Kelly laundered this money for his personal gain, with only $209,968 returned to the investors, and $159,000 of that amount was returned by banks who had become suspicious of the activities. Kelly had previously engaged in similar fraudulent activities in Victoria, for which he pleaded guilty at the Melbourne County Court but was given the chance to make restitution. The current appeal concerns the sentence imposed on Kelly by the District Court in Brisbane, where he was sentenced to eight years and seven months imprisonment with parole eligibility set at 6 February 2017. Kelly seeks leave to appeal against his sentence on the sole ground that it is manifestly excessive.

The legal issue before the court was whether the sentence imposed on Kelly was manifestly excessive. The court considered the nature and extent of Kelly’s criminal conduct, including the orchestration and coordination of the fraudulent schemes, the significant sums of money involved, and the minimal restitution made to the victims. The court also considered the fact that Kelly had previously engaged in similar fraudulent activities and had been given an opportunity to make restitution in Victoria. The court had to balance these factors against the principles of proportionality and deterrence in determining whether the sentence was manifestly excessive.

In determining the appeal, the court noted that the sentence imposed on Kelly was within the range of sentences typically imposed for similar offences and took into account the significant harm caused to the victims. The court also considered that Kelly had been given an opportunity to make restitution in Victoria and had failed to do so. The court concluded that the sentence was not manifestly excessive and refused the application for leave to appeal against the sentence.

The final orders of the court were that the application for leave to appeal against sentence is refused. This means that the sentence imposed on Kelly by the District Court in Brisbane will stand, and he will serve the eight years and seven months imprisonment with parole eligibility set at 6 February 2017.

Orders

Orders of the court

The application for leave to appeal against sentence is refused.

Background

Background to the litigation

An agreed schedule of facts[4] was provided to the learned sentencing judge. What follows is drawn from that and other matters stated to the learned sentencing judge during the hearing.[4]AB 85-89.Background to the offending - the Victorian scheme From 2009 – 2010 Mr Kelly was involved in creating and coordinating another fraudulent boiler-room scheme run through a company called TJP Management Pty Ltd (TJP). The complainant investors in that scheme were “cold-called” and invited to invest with TJP. Investors made deposits either by cash transfers or cheques into nominated accounts. The funds were never invested and the investors did not receive dividends or their investments back. The funds were withdrawn in cash or transferred into other accounts held in fictitious names. The total amount obtained from 69 complainant investors across Australia was $979,200. Mr Kelly was held responsible for fraudulently obtaining $107,600 from ten complainants in Victoria. Mr Kelly was arrested in relation to the TJP scheme on 15 October 2010, and was released on bail on 20 October 2010. On 9 December 2013 Mr Kelly was arraigned in relation to a nine-count indictment and pleaded guilty in the Melbourne County Court. The sentence was part-heard and was adjourned to enable Mr Kelly to arrange restitution. Mr Kelly returned to Queensland and engaged in similar schemes as detailed below. He was arrested on 6 February 2014 by Queensland Police, and remanded in custody. A warrant had been issued for Mr Kelly’s arrest from Victoria.The Queensland schemes Police started an investigation because of complaints by a number of people who had fallen victim to a fraudulent investment scheme. They had invested funds but did not receive a dividend or return of their funds. Mr Kelly was the principal of the schemes. He established two fraudulent businesses, M6 Trading Group Pty Ltd (or M6 Securities Group) and Finance Management Group Pty Ltd (FMG). Mr Kelly had 12 other associates, but he was the one responsible for the commencement, coordination and management of the scheme, and associated fraudulent companies. He also coordinated the laundering of funds and was a beneficiary of the misappropriated money. Investors were “cold-called” and offered investments in stocks, shares, securities, index or performance based broking. The scheme utilised legitimate business operation tools, telemarketers, sales staff, and professional web sites that mimicked a genuine stock trading business website (Baker Young Stockbrokers). The complainant investors had made deposits into nominated accounts. The identity of the ultimate recipients of those funds was disguised, as was the manner in which the funds were then laundered. Six people[5] were engaged as “cash mules” to withdraw the deposits and pass the money onto three others.[6][5]Odmark, Aston, Harrold, Wagner, Thornton and Siemons.[6]Webb, Presotto and Lowe. The investigation revealed that $182,150 was then deposited into an account held by one Cheree Connolly, for Mr Kelly who did not have an operating bank account at the time. Connolly was the de-facto partner of Mr Kelly. The investigation revealed that Mr Kelly was personally handed $15,000 in $5,000 amounts (through three withdrawal transactions) over a two day period by Harrold (one of the “cash mules”). Harrold had been “recruited” by Mr Kelly as a result of a chance meeting at a tavern. Harrold opened a Commonwealth Bank Account and permitted the funds to be transferred into that account in his name. He was paid $250 for each transaction. The investigation revealed that co-offender Presotto had engaged an acquaintance, Thornton, and had her open a National Bank Account to facilitate the transfer of funds into that account. Thornton handed $10,000 in $5,000 amounts (through two withdrawal transactions) over a single day to Mr Kelly personally.

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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CITATION:	R v Kelly [2016] QCA 293
PARTIES:	R v KELLY, Brian John (applicant)
FILE NO/S:	CA No 62 of 2016 DC No 1895 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 29 February 2016
DELIVERED ON:	15 November 2016
DELIVERED AT:	Brisbane
HEARING DATE:	23 September 2016
JUDGES:	Morrison and Philip McMurdo JJA and Boddice J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant orchestrated and coordinated fraudulent schemes and induced 36 people to invest $1,332,550 – where the applicant laundered this money for his own personal gain – where only $209,968 was returned to investors, and $159,000 of that was returned by banks who had become suspicious of the activities – where the applicant had undertaken a similar scheme in Victoria and pleaded guilty at Melbourne County Court, but was given the chance to make restitution – where the offending the subject of this appeal occurred in Queensland shortly after the offending in Victoria – where the applicant pleaded guilty to one count of fraud and one count of money laundering in the District Court in Brisbane – where the learned sentencing judge sentenced the applicant to eight years and seven months imprisonment, with a parole eligibility date set at 6 February 2017 – where a declaration was made that 600 days presentence custody was time served under the sentence and 152 days of non-declarable presentence custody was also taken into account – where the applicant seeks leave to appeal against his sentence on the sole ground that it is manifestly excessive – whether the sentence is manifestly excessive R v Carlisle and Crouch, unreported, District Court of Queensland, DC No 270 of 2015, O’Brien CJDC, 30 July 2015, considered R v Crouch; R v Carlisle[2016] QCA 81, cited R v Henderson[2014] QCA 12, considered R v Lovell[2012] QCA 43, cited
COUNSEL:	A J Kimmins for the applicant G P Cash QC for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent