R v Kelly - [1999] QCA 296

99.296

COURT OF APPEAL
McPHERSON JA
BYRNE J

WHITE J

CA No 183 of 1999
THE QUEEN
v.

BRETT ANDREW KELLY

Applicant

BRISBANE
..DATE 29/07/99
290799 T5/TW12 M/T COA170/99
McPHERSON JA: The applicant for leave to appeal in this
matter is Brett Andrew Kelly. He was convicted on his
own plea of guilty in the Supreme Court at Rockhampton
of the offences of manslaughter and unlawful use of a
motor vehicle.
The sentences imposed were, in respect of the
manslaughter, imprisonment for eight years and, in
respect of the unlawful use offence, two years
imprisonment, together with a disqualification from
holding or obtaining a driver's licence. The
disqualification was not limited in time but was
absolute.

The circumstances of the offence are these. On 25 November 1995 at about 5.30 on a Saturday, a bakery van was being loaded in Gladstone behind the shop. The applicant, who had been out the whole of the night as far as one can see, arrived at the van, or saw it being loaded and that it was unattended. He got into it and drove off.

A customer of the bakery followed the van as it went
down the road and at the same time called the police on
his mobile telephone. He noticed that the vehicle
driven by the applicant was "wandering" over the road,
and that it was travelling at speed which at times
reached 130 kilometres per hour.
290799 T5/TW12 M/T COA170/99
In all, before the fatal collision that led to the
applicant's being charged with manslaughter, the
applicant drove the van for some 23 kilometres or more.

A marked police vehicle responded to the call and pursued the van, driving up to it with the lights of the police car and the siren activated. The police officer in the front passenger seat made signs which clearly indicated that the applicant should pull over to the side of the road and stop. The applicant took no notice of this action. While being followed in this way he drove the vehicle on to the incorrect side of the road and into the path of an oncoming car. The driver of that vehicle had to swerve quickly in order to avoid a collision. A kilometre or so later on, the applicant again drove on to the incorrect side of the road, this time crossing over double white lines and into the path of another oncoming vehicle, which was forced to pull up on the shoulder of the road in order to avoid collision.

After that incident, the police attempted to overtake
the vehicle driven by the applicant, but he blocked that
manoeuvre by driving on to the incorrect side of the
road. When the police desisted from this course of
action, the applicant moved back on to the correct side
of the road. The speed of the vehicle during these
attempts to bring it to a halt was between about 70 and
100 km/h.
290799 T5/TW12 M/T COA170/99
Some two and half kilometres…

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 [1999] QCA 296
Case: [1999] QCA 296
Decision Date: 29/07/1999

CaseChat Overview and Summary

In the case of R v Kelly, the applicant, Brett Andrew Kelly, sought leave to appeal against his sentence. Kelly had been convicted of manslaughter and unlawful use of a motor vehicle following a high-speed chase and fatal collision. The primary legal issue was whether the sentence imposed by the primary judge was manifestly excessive. The Court of Appeal examined the sentencing principles applicable to manslaughter and considered the mitigating factors presented, such as Kelly's young age at the time of the offence, his subsequent rehabilitation, and his early guilty plea. The Court also weighed the aggravating factors, including the dangerous driving and the fact that Kelly was on probation at the time of the offence. After thorough consideration, the Court concluded that the sentence was not manifestly excessive and dismissed the application for leave to appeal.

The Court of Appeal found that the primary judge appropriately considered the relevant mitigating and aggravating factors in determining the sentence. The judges highlighted that the offence of causing death by dangerous driving, particularly in the context of alcohol involvement, warranted a significant penalty. They also noted the importance of the offender's remorse and rehabilitation efforts, which were evident from his activities in South Africa and participation in community programs. However, the Court emphasised the seriousness of the offence, including Kelly's reckless disregard for oncoming traffic and his failure to heed police instructions. The judges concluded that the sentence, which included an absolute disqualification from driving, was commensurate with the gravity of the offence and did not require intervention by the Court of Appeal.

Orders