R v Kelly - [1998] QCA 340

COURT OF APPEAL

[1998] QCA 340

THOMAS JA
MACKENZIE J
HELMAN J

CA No 167 of 1998

THE QUEEN

STEPHEN ROY KELLY Applicant

BRISBANE

..DATE 06/08/98

JUDGMENT

MACKENZIE J: The applicant pleaded guilty to manslaughter and was sentenced to 12 years' imprisonment with a non-parole period of four and a half years. The body of the victim was found in a putrefied state near a road at Sheldon. Shortly after that the applicant volunteered to the police a version of events in which he said he collected the victim from Ascot and later dropped her off at the Transit Centre from which she intended to travel to Sydney.

Police investigations established that he had told several lies in their interviews with him, disposed of some of her belongings, and cleaned out the boot of his car on the weekend that her body was found. He was arrested and subsequently asked to see the arresting officer to whom he made incriminating admissions.

The version given on the second occasion was to the effect that after meeting her he had taken her to his home. During the course of an argument they had pushed each other a few times. On one occasion when he had pushed her she had tripped and hit her head on a besser block wall outside his house and became unconscious and subsequently died.

The forensic pathologist who examined the body could not reconcile this version with the injury which caused her death. Her skull was split through the base from ear to ear in a way which would have required application of severe force, probably on one occasion, to cause the injury. It was of a kind often seen in car or motorcycle accidents consistent with a compression of the skull and inconsistent with merely falling on to a hard surface. It was consistent with the head being forced on to or impacting at great speed with a broad, flat surface, such as a smooth concrete floor.

There was evidence that the deceased woman had ingested alcohol and drugs which may have predisposed her to injury by reducing her defence mechanisms, but not in concentrations which were life-threatening in themselves. While there may not have been precise unanimity as to the way in which the death may have occurred, both counsel accepted that the applicant should be sentenced on the basis that severe force was required to cause the injury.

The accused had been convicted in 1975 of doing grievous bodily harm with intent to do grievous bodily harm by stabbing and sentenced to 10 years' imprisonment. The sentencing Judge on this occasion took into account this conviction as evidence that in some circumstances he had a propensity towards violent conduct. Otherwise the applicant had two admitted convictions for offences of dishonesty and one for assault occasioning bodily harm for which he received community service in 1989. That was the last entry in his criminal history and these other offences, other than the offence of grievous…

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 [1998] QCA 340
Case: [1998] QCA 340
Decision Date: 6 August 1998

CaseChat Overview and Summary

In the case of The Queen v. Stephen Roy Kelly, the applicant was convicted of manslaughter and sentenced to 12 years' imprisonment with a non-parole period of four and a half years. The victim's body was discovered in a decomposed state near Sheldon, and the applicant initially provided a version of events to the police that was later proven to be false. The applicant admitted to having lied during police interviews, disposing of the victim's belongings, and cleaning the boot of his car on the weekend her body was found. The applicant was arrested and subsequently made incriminating admissions to the arresting officer, claiming that he had pushed the victim during an argument, causing her to hit her head on a wall and die from the resulting injury. However, the forensic pathologist could not reconcile this account with the injury that caused the victim's death, which appeared to be consistent with a severe force applied to the victim's head, possibly in a car or motorcycle accident. The applicant had a criminal history, including a 1975 conviction for grievous bodily harm with intent, as well as other convictions for dishonesty and assault occasioning bodily harm.

The legal issue before the court was whether the sentence imposed on the applicant was manifestly excessive. The Crown had submitted that a sentence of at least 12 years was appropriate, while the defence argued for a range of six to 11 years. The applicant's counsel submitted in the Court of Appeal that a sentence of eight years' imprisonment, with a non-parole period of three years, should have been imposed. The trial judge considered the applicant's previous conviction for grievous bodily harm with intent, but the Court of Appeal found that the sentence imposed was manifestly excessive, given the basis upon which the trial judge was forced to act.

The Court of Appeal, in allowing the appeal and substituting a sentence of nine years' imprisonment, with a non-parole period of three and a half years, found that while the previous conviction was a relevant factor in determining an appropriate sentence, the sentence imposed was manifestly excessive. The court considered that the circumstances of the offence did not warrant such a severe sentence, as there was no evidence of violence in the relationship between the applicant and the deceased except on the occasion of her death. The court also noted that the case did not have the same level of severity as The Queen v. Smith, in which a 12-year sentence was held to be not manifestly excessive due to the history of violence and significant physical and other handicaps suffered by the victim.

The final orders of the Court of Appeal were that the application for leave be granted, the appeal be allowed, and a sentence of nine years' imprisonment, with a non-parole period of three and a half years, be substituted for the sentence imposed by the trial court.

Orders