R v Kelly - [2020] NSWDC 349

District Court

New South Wales

Medium Neutral Citation: R v Kelly [2020] NSWDC 349
Hearing dates: 9 April 2020
Decision date: 09 April 2020
Jurisdiction: Criminal
Before: King SC DCJ
Decision:
Convicted.
Special circumstances found –to take into account the total time in custody as a result of being in custody from 3 May 2019.
Form 1 matter taken into account on sentence imposed below.
Sentenced to a term of imprisonment of 3 years comprising a NPP of 2 years commencing on 29 November 2019 and expiring on 28 November 2021, on which date he is to be released to parole and a balance of term of 1 year to commence on 29 November 2021 and to expire on 28 November 2022.

Catchwords:
CRIME – Sentence - enter land with intent to commit a serious indictable offence, having a previous conviction for a serious indictable offence - Form 1 matter - common assault – continuing contumelious disregard for the law – high risk of re-offending - institutionalisation – extra-curial punishment - subjective matters

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
R v Fernando (2002) NSWCCA 28
R v Huynh (2003) NSWCCA 239
R v McVittie [2002] NSWCCA 344
R v Moffatt [1990] 20 NSWLR 114
R v Thomson; R v Houlton [2000] 49 NSWLR 383

Category: Sentence
Parties: Regina
Kelly, Peter Dezmond
Representation: Solicitors:
Crown: Mr A Wilczek
Defence: Mr T Spohr; Mr D Gleeson

File Number(s): 2019/00139568

Judgment

Peter Kelly appears for sentence in respect of the single offence, being commit a s 114 offence, that is enter land with intent to commit a serious indictable offence, having a previous conviction for a serious indictable offence, contrary to s 115 of the Crimes Act 1900. The maximum penalty provided is ten years’ imprisonment and there is no relevant standard non-parole period. He asks when being sentenced in respect of that matter to have a further offence of common assault, contrary to s 61, taken into account pursuant to a Form 1. Common assault, when dealt with separately, has a maximum of two years’ imprisonment.
The offender is 43 years of age. He was committed for sentence on 12 February 2020 from the Burwood Local Court and is entitled to 25% discount for the utility of the plea alone. Such a discount will be provided. The offence occurred on 3 May 2019 and he was arrested on that date. However, as he was on parole at the time his parole was subsequently revoked from that date, the balance of term being due to expire on 29 May 2020. During that period of serving the revoked parole he was also sentenced in respect of another offence, being a term of imprisonment imposed of six months to commence on 30 May 2019 and expire on 29 November 2019.
The facts have been agreed and are as follows.
At approximately 11pm on Thursday, 2 May 2019, Ms Li and Mr McGee were in their home at Third…

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 [2020] NSWDC 349
Case: [2020] NSWDC 349
Decision Date: 09 April 2020

CaseChat Overview and Summary

The defendant, Kelly, faced the court following his conviction for entering land with the intent to commit a serious indictable offence. Kelly had a prior conviction for a serious indictable offence, which had been taken into account as a Form 1 matter in the sentencing process. The offence in question was an act of common assault, which also demonstrated Kelly's continuing contumelious disregard for the law, indicating a high risk of re-offending. The court had to weigh the circumstances of his institutionalisation and the need to consider extra-curial punishment in its sentencing decision.

The legal issues before the court involved assessing the seriousness of the offence and Kelly's history, including his previous conviction and his demonstrated disregard for the law. The court had to determine an appropriate sentence that would adequately address the risk of re-offending and the need for deterrence, while also considering the time Kelly had already spent in custody. The court had to balance the objective of punishment with the need to rehabilitate Kelly and prevent future offences.

The court found that special circumstances existed, taking into account the total time Kelly had already spent in custody since 3 May 2019. The court considered the Form 1 matter, which involved the defendant's previous conviction for a serious indictable offence, in determining the sentence. The court concluded that a sentence of imprisonment was necessary to address the risk of re-offending and to provide deterrence. The court sentenced Kelly to a term of imprisonment of 3 years, consisting of a non-parole period of 2 years and a balance of term of 1 year. Kelly was to be released to parole at the end of the non-parole period.

Kelly was convicted and sentenced to a term of imprisonment of 3 years, with a non-parole period of 2 years and a balance of term of 1 year. The sentence took into account the special circumstances and the time already spent in custody. Kelly was to be released to parole at the end of the non-parole period.

Orders

Orders of the court

Convicted.

Special circumstances found –to take into account the total time in custody as a result of being in custody from 3 May 2019.

Form 1 matter taken into account on sentence imposed below.

Sentenced to a term of imprisonment of 3 years comprising a NPP of 2 years commencing on 29 November 2019 and expiring on 28 November 2021, on which date he is to be released to parole and a balance of term of 1 year to commence on 29 November 2021 and to expire on 28 November 2022.

Background

Background to the litigation

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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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Medium Neutral Citation:	R v Kelly [2020] NSWDC 349
Hearing dates:	9 April 2020
Decision date:	09 April 2020
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Convicted. Special circumstances found –to take into account the total time in custody as a result of being in custody from 3 May 2019. Form 1 matter taken into account on sentence imposed below. Sentenced to a term of imprisonment of 3 years comprising a NPP of 2 years commencing on 29 November 2019 and expiring on 28 November 2021, on which date he is to be released to parole and a balance of term of 1 year to commence on 29 November 2021 and to expire on 28 November 2022.
Catchwords:	CRIME – Sentence - enter land with intent to commit a serious indictable offence, having a previous conviction for a serious indictable offence - Form 1 matter - common assault – continuing contumelious disregard for the law – high risk of re-offending - institutionalisation – extra-curial punishment - subjective matters
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v Fernando (2002) NSWCCA 28 R v Huynh (2003) NSWCCA 239 R v McVittie [2002] NSWCCA 344 R v Moffatt [1990] 20 NSWLR 114 R v Thomson; R v Houlton [2000] 49 NSWLR 383
Category:	Sentence
Parties:	Regina Kelly, Peter Dezmond
Representation:	Solicitors: Crown: Mr A Wilczek Defence: Mr T Spohr; Mr D Gleeson
File Number(s):	2019/00139568