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R v Kelly (No 2)

R v Kelly (No 2)

Case [2017] ACTSC 64 31 March 2017

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Kelly (No 2)
Citation:	[2017] ACTSC 64
DecisionDate:	31 March 2017
Before:	Refshauge J
Decision:	1. That, at his request, Ian William Kelly be excused from attendance. 2. That order 6 in the sentence made on 22 August 2016 be amended by omitting “19 September 2018” and substituting “19 October 2017”. 3. That in the reasons for sentence, R v Kelly [2016] ACTSC 281, paragraph [77] be amended by omitting in sub-paragraph 5 “cumulative as to two months” and substituting “concurrent as to seven months”.
Catchwords:	PRACTICE AND PROCEDURE – JUDGMENTS AND ORDERS – Correction of sentence – sentence not contrary to law – order of the Court amended – slip rule – r 6906 of the Court Procedures Rules 2006 (ACT)
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT), s 61 Court Procedures Rules 2006 (ACT), r 6906
Cases Cited:	Achurch v The Queen [2014] HCA 10; 253 CLR 141 Arnett v Holloway [1960] VR 22 Austal Ships Sales Pty Ltd v Stena Rederi Aktiebolag [2009] FCAFC 179; 263 ALR 384 Barbaro v Director of Public Prosecutions (Cth) [2009] VSCA 26; 20 VR 717 Beniamini v Storman (No 2) [2017] ACTSC 31 Brennand v Hartung (No 3) [2015] ACTSC 149 Burrell v The Queen [2008] HCA 34; 238 CLR 218 Commonwealth v Davis Samuel Pty Ltd (No 11) [2017] ACTSC 2 David Syme & Co Ltd v Lloyd (1985) 1 NSWLR 416 Elson v Ayton [2010] ACTSC 70; 241 FLR 178 Hatton v Harris [1892] AC 547 Indigenous Business Australia v Schofield [2017] ACTSC 56 Jovanovic v The Queen [1999] FCA 1008; 92 FCR 580 Lawrence v The King [1933] AC 699 Mayer v Ryan (No 2) [2014] ACTSC 33; 282 FLR 435 Millard v The Queen(No 2) [2016] ACTCA 41 Mischel Holdings Pty Ltd (in liq) v Mischel (in his capacity as executor of the Estate of Mischel) [2013] VSCA 375 Nicholls v Director of Public Prosecutions (SA) (1993) 61 SASR 31 R v Gorman [2009] ACTSC 7 R v Kelly [2016] ACTSC 281 R v Vernell [1953] VLR 590 The Owners of Units Plan No 932 v Marhaba [2017] ACTSC 13
Parties:	The Queen (Crown) Ian William Kelly (Defendant)
Representation:	Counsel Mr S McLaughlin (Crown) Mr A Doig (Defendant)
Solicitors ACT Director of Public Prosecutions (Crown) Canberra Criminal Lawyers (Defendant)
File Number:	SCC 103 of 2016

REFSHAUGE J:

On 21 January 2016, Ian William Kelly and co-offender, Luke Horne, entered the underground car park to some apartments in Griffith, ACT, as trespassers, and stole from a residential storage cage there certain property valued at approximately $8350.

Investigation of the offences by police led them to identify Mr Kelly as one of the offenders. On 19 April 2016, police arrested Mr Kelly and charged him with aggravated burglary and theft. He was refused bail and remained in custody until he was sentenced.

On 22 August 2016, I…

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 (No 2)

Details

AGLC: R v Kelly (No 2) [2017] ACTSC 64
Case: [2017] ACTSC 64
Decision Date: 31 March 2017

CaseChat Overview and Summary

The appellant, Ian William Kelly, applied to the Supreme Court of the Australian Capital Territory to correct his sentence. The Court was required to determine whether the sentence imposed was contrary to law and whether it could be amended under the slip rule. The case was heard by the Supreme Court of the Australian Capital Territory.

The primary legal issue was whether the sentence was contrary to law and if the slip rule could be applied to amend the sentence. The appellant argued that the sentence was contrary to law as it included an incorrect date and an incorrect calculation of the cumulative sentence. The Crown argued that the sentence was not contrary to law and that the slip rule could not be applied to correct the sentence.

The Court held that the sentence was not contrary to law as it did not affect the overall sentence imposed. However, the Court found that the slip rule could be applied to correct the sentence as the errors did not affect the overall sentence imposed. The Court amended the sentence by correcting the date and the calculation of the cumulative sentence. The Court also amended the reasons for the sentence to reflect the correct calculation.

The Court ordered that Ian William Kelly be excused from attendance at the hearing. The Court also amended the sentence by omitting the incorrect date and substituting the correct date. The Court further amended the reasons for the sentence to reflect the correct calculation of the cumulative sentence.

Orders

Orders of the court

1. That, at his request, Ian William Kelly be excused from attendance.

2. That order 6 in the sentence made on 22 August 2016 be amended by omitting “19 September 2018” and substituting “19 October 2017”.

3. That in the reasons for sentence, R v Kelly [2016] ACTSC 281, paragraph [77] be amended by omitting in sub-paragraph 5 “cumulative as to two months” and substituting “concurrent as to seven months”.

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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Citations

AGLC Citation

R v Kelly (No 2) [2017] ACTSC 64

Most Recent Citation

R v Beniamini (No 3) [2017] ACTSC 80

Cases citing this decision · 2 of 2 shown

R v Elphick (No 3)
[2017] ACTSC 302 Para 1

…sed. It had not been identified by the Crown, nor, indeed, by the Sentence Administration authorities of ACT Corrective Services (cf R v Kelly (No 2) [2017] ACTSC 64 at [7], [16]). The sentence imposed in the Magistrates Court on 21 October 2013 totalled 10 months commencing from 4 July 2013 and ending on 3 May 20…
R v Beniamini (No 3)
[2017] ACTSC 80 Para 1

…It is in the nature of an explanation of the sentence, part of the reasons for sentence as described in R v Kelly (No 2) [2017] ACTSC 64.…

View all 2 citing cases →

Cases cited in this decision · 22 of 22 shown

Indigenous Business Australia v Schofield
[2017] ACTSC 56 Para 1

…es correctly what the Court decided, intended or should have ordered: Jovanovic v The Queen at 584-5; [20]; Indigenous Business Australia v Schofield [2017] ACTSC 56 at [17]-[21].…
Beniamini v Storman (No 2)
[2017] ACTSC 31 Para 1

…As I pointed out in Beniamini v Storman (No 2) [2017] ACTSC 31 at [10], for a sentence to be varied in this way, it must have been contrary to law, that is, a sentence that cannot in law properly be made. I set out in that decision at [11] some examples that are helpful to an understanding of the issue.…
The Owners of Units Plan No 932 v Marhaba
[2017] ACTSC 13 Para 1

…endments and invited me to make the amendments in chambers. As to the dealing with matters in chambers, see The Owners of Units Plan No 932 v Marhaba [2017] ACTSC 13 at [37]-[39].…
Commonwealth of Australia v Davis Samuel Pty Ltd (No 11)
[2017] ACTSC 2 Para 1

…Ordinarily, a court which has made a final order cannot amend that order; the court is functus officio : Commonwealth v Davis Samuel Pty Ltd (No 11) [2017] ACTSC 2 at [100]; Jovanovic v The Queen at 584; [15]-[19]. A sentence is a final order: David Syme & Co Ltd v Lloyd (1985) 1 NSWLR 416 at 422; Nicholls v Dire…
Millard v The Queen (No 2)
[2016] ACTCA 41 Para 1

…es to criminal proceedings, I held in R v Gorman [2009] ACTSC 7, that it does. That was accepted by the Court of Appeal in Millard v The Queen (No 2) [2016] ACTCA 41 at [26].…
R v Kelly
[2016] ACTSC 281 Para 1

…avated burglary and 15 months for the theft. I made all the sentences partly concurrent. The sentence and sentencing remarks are set out in R v Kelly [2016] ACTSC 281.…
Brennand v Hartung (No 3)
[2015] ACTSC 149 Para 1

…Nevertheless, I explained in Brennand v Hartung (No 3) [2015] ACTSC 149 at [29]-[51], that this can also be amended, indeed, arguably without a formal order, prior notice to the parties or reasons.…
Achurch v The Queen
[2014] HCA 10 Para 1

…In Achurch v The Queen [2014] HCA 10; 253 CLR 141, the High Court made clear that a sentence was not contrary to law where it was a sentence that was open to be made by the Court in the light of the law which then applied, but was actually reached by a process of reasoning that involved an error of fact or law.…
Mayen v Ryan (No 2)
[2014] ACTSC 33 Para 1

…Having considered that approach, I said in Mayen v Ryan (No 2) [2014] ACTSC 33; 282 FLR 435 at 444; [59]:…
Mischel Holdings Pty Ltd (in liq) v Mischel
[2013] VSCA 375 Para 1

…s (Cth) [2009] VSCA 26; 20 VR 717 at 719-20; [10]; Mischel Holdings Pty Ltd (in liq) v Mischel (in his capacity as executor of the Estate of Mischel) [2013] VSCA 375 at [140].…
Elson v Ayton
[2010] ACTSC 70 Para 1

…of the Court Procedures Rules , without notice to the parties and, except with their express consent, nor otherwise than in open Court: Elson v Ayton [2010] ACTSC 70; 241 FLR 178 at 193; [87]-[88].…
R v Mokbel
[2010] VSCA 11

…e inevitability that Smith J foresaw in actuality about the accused’s presence at sentence in R v Jones (1998) 72 SASR 281 at 295 and in R v Mokbel (2010) 30 VR 115 at 125; 249 FLR 169 at [42]. That is to say, an accused must be present when sentence is imposed unless he or she has waived the right to be there.…
Austal Ships Sales Pty Ltd v Stena Rederi Aktiebolag
[2009] FCAFC 179 Para 1

…siting the correctness of the actual decision as, for example, where the reasoning was in error: Austal Ships Sales Pty Ltd v Stena Rederi Aktiebolag [2009] FCAFC 179; 263 ALR 384 at 390; [23], 391; [25].…
DPP (Cth) v Barbaro
[2009] VSCA 26 Para 1

…d (1985) 1 NSWLR 416 at 422; Nicholls v Director of Public Prosecutions (SA) (1993) 61 SASR 31 at 63; Barbaro v Director of Public Prosecutions (Cth) [2009] VSCA 26; 20 VR 717 at 719-20; [10]; Mischel Holdings Pty Ltd (in liq) v Mischel (in his capacity as executor of the Estate of Mischel) [2013] VSCA 375 at [14…
R v Gorman
[2009] ACTSC 7 Para 1

…As to whether the slip rule applies to criminal proceedings, I held in R v Gorman [2009] ACTSC 7, that it does. That was accepted by the Court of Appeal in Millard v The Queen (No 2) [2016] ACTCA 41 at [26].…
Burrell v The Queen
[2008] HCA 34 Para 1

…that is part of the records of the Court. There is no doubt that this would constitute the perfecting of the order of the Court: Burrell v The Queen [2008] HCA 34; 238 CLR 218 at 224; [18].…
Barbaro v Director of Public Prosecutions
[1999] NSWSC 1338 Para 1

…416 at 422; Nicholls v Director of Public Prosecutions (SA) (1993) 61 SASR 31 at 63; Barbaro v Director of Public Prosecutions (Cth) [2009] VSCA 26; 20 VR 717 at 719-20; [10]; Mischel Holdings Pty Ltd (in liq) v Mischel (in his capacity as executor of the Estate of Mischel) [2013] VSCA 375 at [140].…
Jovanovic v The Queen
[1999] FCA 1008 Para 1

…o the records of the Court. Certainly the yellow bench sheet completed by the associate has been completed. On the authority of Jovanovic v The Queen [1999] FCA 1008; 92 FCR 580 at 592; [59]-[60], the recording of the sentence on that sheet in that way may amount to the recording of the sentence in the records of…
R v Jones
[1998] SASC 7021

…is approach was followed, though, without the inevitability that Smith J foresaw in actuality about the accused’s presence at sentence in R v Jones (1998) 72 SASR 281 at 295 and in R v Mokbel (2010) 30 VR 115 at 125; 249 FLR 169 at [42]. That is to say, an accused must be present when sentence is imposed unless he or…
Nicholls v Director of Public Prosecutions
[1993] SASC 3964 Para 1

…t 584; [15]-[19]. A sentence is a final order: David Syme & Co Ltd v Lloyd (1985) 1 NSWLR 416 at 422; Nicholls v Director of Public Prosecutions (SA) (1993) 61 SASR 31 at 63; Barbaro v Director of Public Prosecutions (Cth) [2009] VSCA 26; 20 VR 717 at 719-20; [10]; Mischel Holdings Pty Ltd (in liq) v Mischel (in his…
[1933] AC 699
[1933] AC 699 Para 1

…Ordinarily, an accused person must be present at his or her trial. That was held in Lawrence v The King [1933] AC 699 at 708 to include “the whole of the proceedings, including sentence”. There were, however, some exceptions explained by Smith J in R v Vernell [1953] VLR 590 at 598-600.…
[1892] AC 547
[1892] AC 547 Para 1

…In general, the often used test of whether a mistake or omission is accidental is that expressed by Lord Herschell in Hatton v Harris [1892] AC 547 at 558:…

Legislation cited in this decision · 2

Court Procedures Rules 2006 (ACT)
6906 2 mentions (from Para 1)
Crimes (Sentencing) Act 2005 (ACT)
61 2 mentions (from Para 1)