R v Kelly

[2005] VSCA 5

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 242 of 2003

THE QUEEN

v.

BARRY KELLY

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JUDGES:	WINNEKE, P., CHARLES and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 February 2005
DATE OF JUDGMENT:	3 February 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 5

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Criminal law - Sentence - Intentionally causing serious injury - Eight years' imprisonment with minimum term of six years not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C.M. Quin	Ms K. Robertson, Solicitor for Public Prosecutions
The Applicant in person

WINNEKE, P. (for the Court):

1. Barry Kelly was convicted after he had pleaded guilty in the County Court to one count of intentionally causing serious injury on 22 August 2003.  He was sentenced by a County Court judge to a term of imprisonment of eight years and the judge fixed a period of six years before Mr Kelly would become eligible for parole.  As this Court has said to the applicant this morning, the offence is regarded as a serious offence, carrying a maximum sentence of 20 years' imprisonment.  As we have tried to indicate to Mr Kelly this morning, this Court itself has said on a number of occasions that violence in the community is becoming very prevalent at the moment and the judges are urged to impose sentences for this type of offending which reflect the principles of general deterrence. 

1. Kelly made an application for leave to appeal to a single judge of this Court in May of last year, seeking that judge's leave to appeal under s.582 of the Crimes Act.  The single judge, in carefully expressed reasons, refused that leave, but indicated to Mr Kelly that he had the right to approach the Court of three if he was dissatisfied with the single judge's determination.  In pursuance of that right, Mr Kelly has come before us today.

1. This offending occurred at Castlemaine in June 2002.  There was an altercation between Kelly and the victim, who was known to Kelly. The circumstances of the offending have been set out in the remarks of the single judge of this Court and I refer to them very briefly.  His Honour said:  "The offence arose out of an altercation between the applicant and one Stephen Parsons, who was at the time a friend, or at least an acquaintance, of the applicant.  The altercation took place at Castlemaine late on 15 June 2002 or in the early hours of the following day."  Both the applicant and the victim were intoxicated, as his Honour noted:  "It appears that the victim was the aggressor, but the applicant's response went far beyond what was reasonable by way of defence.  The applicant viciously attacked the victim in anger, punching him and kicking him in the head several times with the heavy work boots that he was wearing.  In particular, he was knocked to the ground unconscious and kicked while he was down.  The applicant later loaded his victim on to a truck by means of a fork-lift and left him unconscious by the road near his mother's house in the dark and the cold.  He did not seek medical attention for him.  Though affected by liquor, he knew what he was doing."

1. I think Mr Kelly takes the view that the latter statement by the single judge might not have reflected the true situation regarding his state of inebriation.  The judge who sentenced Mr Kelly said, amongst other things:  "You [Kelly] viciously attacked and caused serious injury, including brain damage, to your victim.  You kicked him in the head numerous times.  You were wearing heavy work boots at the time.  The altercation began, I accept, with Parsons being the aggressor, but your violent and aggressive response went far beyond that which was reasonable in order to defend yourself from harm;  save to say that you were both drunk at the time, though not so drunk that you didn't know what you were doing.  It is not necessary for me to recount in detail the facts of the matter, as they are on the transcript."  His Honour went on subsequently to say that the facts of this case, in his view, were "the most serious and of the most unpleasant" kind.  He referred to the fact that the behaviour by Kelly was extremely violent and inexcusable and that there were aggravating aspects of the conduct which included the fact that the kicking was involved, and that although he had taken him to a place close by his mother's house, it is the fact that Kelly had left the victim in the dark of night only to be found by chance by others as he lay unconscious on the ground.  As his Honour indicated, it seemed to him that Kelly must have understood the consequences of the use of such violence upon the victim.  He noted that the victim had suffered terribly.

1. This Court has sought to explain to Mr Kelly the difference between our function and the function of the trial judge.  We have indicated to Mr Kelly that in imposing sentence in accordance with circumstances as he found them, the trial judge was engaged in the exercise of his sentencing discretion.  This Court is a court of review in the sense that all it can do is to review the judge's sentencing process through the words used by him and having regard to the facts as found by the judge.  We can only interfere with that discretion, as we have said, if we can find some error in the exercise of it.

1. In this Court's view, there is no such error to be found, even though, as we have indicated to Mr Kelly, the sentence is a stern one.  It seems to us to have been nevertheless a sentence that was within the range of sentences available to the judge, and in those circumstances this Court has no power to interfere with it. 

1. In the circumstances, the application for leave to appeal against sentence, in our view, must be dismissed.

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