Medium Neutral Citation: R v Mongta-Kelly [2020] NSWDC 602
Hearing dates: 24-26 June 2020
21 August 2020
Decision date: 27 August 2020
Jurisdiction: Criminal
Before: Norrish QC DCJ
Decision:
Sentenced to an aggregate term of imprisonment of 9 years 6 months; non-parole period 5 years 3 months imprisonment.
Referral to Drug Court for inclusion in Compulsory Drug Treatment Program at CDTCC

Catchwords:
CRIME – sentence – steal motor vehicle – break enter and steal in circumstances of aggravation – assault – destroy property by fire – totality of criminality – co-offenders – parity of sentencing – purposes of sentencing – extensive criminal history from age 10 – institutionalised – breach of conditional liberty - drug use – disadvantaged and dysfunctional background – Aboriginality – Bugmy principles– special circumstances – standard non-parole period – aggregate sentence – indicative sentences .

Legislation Cited:
Children’s (Criminal Proceedings) Act 1987
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Attorney‑General’s Application (No 1) (2002) 56 NSW 147
Bugmy v the Queen [2013] HCA 37
Callaghan v R [2006] NSWCCA 58
Harris v R [2005] NSWCCA 204
Huynhv R [2005] NSWCCA 220
Johnson v R [2004] HCA 15; 78 ALJR 616
Kentwell v R (No 2) [2015] NSWCCA 96
Mill v R (1988)166 CLR 59
Moffitt v R (1990) 14 NSWLR 114
MuldrockvR [2011] HCA 39
Munda v Western Australia [2013] HCA 38
Pearce v The Queen (1998) 194 CLR 610
Postiglione v R [1997] HCA 26
R v Henry [1999] 46 NSWLR 346
R v Holder & Anor (1983) 3 NSWLR 245
R v Jimmy [2010] NSWCCA 60
R v Lewis [2014] NSWCCA 1127
R v Ponfield & Ors [1999] NSWCCA 435
Veen (No 2) v R [1988] 164 CLR 465

Category: Sentence
Parties: Regina (Crown)
Daniel Lee Mongta-Kelly (Offender)
Representation: Solicitors:
Mr D Wilcox-Watson
Mr P Carey

File Number(s): 2019/00114627
2019/00097409
2019/00093320
Publication restriction: No

Judgment

Mr Mongta‑Kelly appears for sentence today in relation to a large number of offences committed between 22 January 2019 and 6 April 2019. He pleaded guilty in relation to 15 counts on an indictment containing 19 counts in full satisfaction of that indictment.
Those counts to which he pleaded guilty comprise:

Two counts of stealing a motor vehicle (counts 1 and 4) carrying a maximum penalty of ten years imprisonment.
Three counts of breaking, entering and stealing (counts 2, 8 and 15) carrying a maximum penalty of 14 years imprisonment.
Six counts of breaking, entering and steal in circumstances of aggravations, that is, being in company (counts 5, 7, 9, 10, 18 and 19) carrying a maximum penalty each of 20 years imprisonment with a standard non-parole period of five years imprisonment.
One count of assault (count 12) carrying a maximum penalty of two years imprisonment.
One count of destroying property by fire, to wit a motor vehicle (count 3) which carries a maximum penalty of ten years imprisonment,…

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 Mongta-Kelly

Details

AGLC: R v Mongta-Kelly [2020] NSWDC 602
Case: [2020] NSWDC 602
Decision Date: 27 August 2020

CaseChat Overview and Summary

The case before the court involved a conviction for break enter and steal in circumstances of aggravation, assault, and destroy property by fire. The appellant, Mongta-Kelly, was sentenced to an aggregate term of imprisonment of 9 years 6 months with a non-parole period of 5 years 3 months. The court also ordered that Mongta-Kelly be referred to the Drug Court for inclusion in the Compulsory Drug Treatment Program at the Correctional Drug Treatment Centre.

The primary legal issues for the court to determine were the appropriate sentence for the appellant's crimes, taking into account the totality of the criminality, the purposes of sentencing, and any special circumstances. The court also needed to consider the appellant's extensive criminal history, institutionalised background, drug use, and disadvantaged and dysfunctional upbringing, including their Aboriginality. The court had to balance these factors against the need for punishment, deterrence, and the protection of the community.

In reaching its decision, the court considered the appellant's extensive criminal history, starting from a young age, and their institutionalised background. The court also took into account the appellant's drug use and disadvantaged and dysfunctional upbringing, including their Aboriginality. The court applied the principles set out in Bugmy v The Queen to assess the appropriate sentence, considering the totality of the criminality, the purposes of sentencing, and any special circumstances. The court determined that the standard non-parole period for the crimes committed was appropriate, but it also imposed an aggregate sentence that reflected the totality of the criminality. The court further ordered the appellant's referral to the Drug Court for inclusion in the Compulsory Drug Treatment Program at the Correctional Drug Treatment Centre, recognising the appellant's drug use and the need for treatment.

The court's final orders were that the appellant be sentenced to an aggregate term of imprisonment of 9 years 6 months with a non-parole period of 5 years 3 months. The court also ordered that the appellant be referred to the Drug Court for inclusion in the Compulsory Drug Treatment Program at the Correctional Drug Treatment Centre.

Orders

Orders of the court

Sentenced to an aggregate term of imprisonment of 9 years 6 months; non-parole period 5 years 3 months imprisonment.

Referral to Drug Court for inclusion in Compulsory Drug Treatment Program at CDTCC

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 Mongta-Kelly [2020] NSWDC 602

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 18 of 18 shown

Moffitt v The Queen
[2020] NSWDC 486 Para 73

…repealed. In fact, it was once the leading judgment in relation to the character of “special circumstances.” That is the judgment of Moffitt v R (1990) 14 NSWLR 114, particularly at [120]-[121]. The prisoner does need a great deal of professional assistance. But he also needs to reflect upon his own conduct and take…
R v Holder
[2019] SASCFC 73 Para 75

…6. To my mind, the best statement of the practical application of totality of criminality in sentencing is found in the decision of R v Holder & Anor (1983) 3 NSWLR 245 particularly at 260 in the judgment of Street CJ. There his Honour said this:…
Kentwell v R (No 2)
[2015] NSWCCA 96 Para 68

…could have greatly fashioned his attitudes. Bugmy principles of course go to the assessment of his moral culpability (see Kentwell v R (No 2) [2015] NSWCCA 96 per Rothman J). These matters were also discussed in his Honour’s judgment in sentencing Mr Lewis for murder or manslaughter, ( R v Lewis [2014] NSWCCA 1127)…
Munda v Western Australia
[2013] HCA 38 Para 68

…l which I have been provided, require reflection upon the High Court decisions of Bugmy v the Queen [2013] HCA 37 and Munda v Western Australia [2013] HCA 38, both decided on 8 October 2013. Particularly I refer to the dicta in the judgment of Bugmy at [42]-[44]. The disadvantages for the prisoner arising from h…
Bugmy v The Queen
[2013] HCA 37 Para 68

…stances and accepting the very general detail which I have been provided, require reflection upon the High Court decisions of Bugmy v the Queen [2013] HCA 37 and Munda v Western Australia [2013] HCA 38, both decided on 8 October 2013. Particularly I refer to the dicta in the judgment of Bugmy at [42]-[44]. The d…
Green v The Queen; Quinn v The Queen
[2011] HCA 49 Para 6

…nal grounds. There is also a decision of the High Court referred to, quite properly by the Crown, that I take into account of Green v The Queen (2011) CLR 462, particularly at [28], which does not in any way detract from the decision of, for example, Dawson and Gaudon JJ in Postiglione .…
Muldrock v The Queen
[2011] HCA 39 Para 13

…of objective seriousness (see s 54A(2) and s 54B(2) Crimes (Sentencing Procedure) Act 1999 hereinafter referred to as ‘the Act’ and Muldrock v R [2011] HCA 39, particularly at [20] - [30]). The High Court, dealing with different provisions under the Act, made clear, as is now provided for in the legislation, th…
Jimmy v R
[2010] NSWCCA 60 Para 6

…ciples set out in decisions such as the High Court’s decision of Postiglione, [1997] HCA 26, and the Court of Criminal Appeal decision of R v Jimmy [2010] NSWCCA 60 particularly the statement made by Rothman J in that judgment concerning the relationship of parity of sentencing to “equal justice” and the requiremen…
Callaghan v R
[2006] NSWCCA 58 Para 21

…ggravation of committing these offences while subject to conditional liberty including conditional liberty for like offending, (see Callaghan v R [2006] NSWCCA 58 per Simpson J). However, noting the sentence for the resist police officers matter which is separate offending, I have concluded the sentences I impose s…
R v Huynh
[2005] NSWCCA 220 Para 18

…e subject of criticism by counsel for the prisoner, relating to the assessment of offences under s 112(2) Crimes Act 1900 , the decision of Huynh v R [2005] NSWCCA 220 particularly at [27], to which could be added the decision, if my memory serves me correctly, from the same Judge in the matter of Harris v R [2005]…
Harris v R
[2005] NSWCCA 204 Para 18

…CCA 220 particularly at [27], to which could be added the decision, if my memory serves me correctly, from the same Judge in the matter of Harris v R [2005] NSWCCA 204.…
Johnson v The Queen
[2004] HCA 15 Para 75

…week, I have had regard to the totality of sentencing as it is reflected in High Court decisions such as Mill v R ( 1988) 166 CLR 59 and Johnson v R [2004] HCA 15; 78 ALJR 616. To my mind, the best statement of the practical application of totality of criminality in sentencing is found in the decision of R v Ho…
R v Ponfield
[1999] NSWCCA 435 Para 34

…to all the breaking, entering and stealing matters, of course, I have regard to the learned judgment of Grove J in the decision of R v Ponfield & Ors [1999] NSWCCA 435, properly referred to by the Crown in his written submission. I have had regard to the additional matters his Honour identified other than those from…
R v Henry
[1999] NSWCA 111 Para 17

…tigating factor in relation to a consideration of offences of this type, as was held in relation to armed robbery in the decision of R v Henry [1999] 46 NSWLR 346.…
Pearce v The Queen
[1998] HCA 57 Para 83

…I hasten to say those observations need to be seen in the light of the more recent decision of the High Court in Pearce v The Queen (1998) 194 CLR 610, particularly in the majority judgment at [45] and subsequent judgments that I have borne in mind.…
Postiglione v the Queen
[1997] HCA 26 Para 6

…y adopt the references I made in the sentencing of Mr Simpson, to principles set out in decisions such as the High Court’s decision of Postiglione, [1997] HCA 26, and the Court of Criminal Appeal decision of R v Jimmy [2010] NSWCCA 60 particularly the statement made by Rothman J in that judgment concerning the r…
Mill v The Queen
[1988] HCA 70

…R [2005] NSWCCA 220 Johnson v R [2004] HCA 15; 78 ALJR 616 Kentwell v R (No 2) [2015] NSWCCA 96 Mill v R (1988) 166 CLR 59 Moffitt v R (1990) 14 NSWLR 114 Muldrock v R [2011] HCA 39 Munda v Western Australia [2013] HCA 38 Pearce v The Queen (1998) 194 CLR 610 Postiglione v R [1997] HCA 26 R v Henry [1999] 46 NSWLR…
Veen v The Queen (No 2)
[1988] HCA 14 Para 22

…ccept is clearly not within his control. I have had regard as the Crown properly reminds me to the decision of the majority of Veen ( No 2 ) [1988] 164 CLR 465. I am also mindful of course of what the Crown says that the prisoner has in his criminal history demonstrated an ongoing attitude of disobedience of t…

Legislation cited in this decision · 5

Children (Criminal Proceedings) Act 1987 (NSW)
1 mention (from Para 65)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 13)
Crimes Act 1900 (ACT)
1 mention (from Para 18)
Drug Court Act 1998 (NSW)
1 mention (from Para 88)
Sentencing Act 1989 (NSW)
1 mention (from Para 73)

Medium Neutral Citation:	R v Mongta-Kelly [2020] NSWDC 602
Hearing dates:	24-26 June 2020 21 August 2020
Decision date:	27 August 2020
Jurisdiction:	Criminal
Before:	Norrish QC DCJ
Decision:	Sentenced to an aggregate term of imprisonment of 9 years 6 months; non-parole period 5 years 3 months imprisonment. Referral to Drug Court for inclusion in Compulsory Drug Treatment Program at CDTCC
Catchwords:	CRIME – sentence – steal motor vehicle – break enter and steal in circumstances of aggravation – assault – destroy property by fire – totality of criminality – co-offenders – parity of sentencing – purposes of sentencing – extensive criminal history from age 10 – institutionalised – breach of conditional liberty - drug use – disadvantaged and dysfunctional background – Aboriginality – Bugmy principles– special circumstances – standard non-parole period – aggregate sentence – indicative sentences .
Legislation Cited:	Children’s (Criminal Proceedings) Act 1987 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Attorney‑General’s Application (No 1) (2002) 56 NSW 147 Bugmy v the Queen [2013] HCA 37 Callaghan v R [2006] NSWCCA 58 Harris v R [2005] NSWCCA 204 Huynhv R [2005] NSWCCA 220 Johnson v R [2004] HCA 15; 78 ALJR 616 Kentwell v R (No 2) [2015] NSWCCA 96 Mill v R (1988)166 CLR 59 Moffitt v R (1990) 14 NSWLR 114 MuldrockvR [2011] HCA 39 Munda v Western Australia [2013] HCA 38 Pearce v The Queen (1998) 194 CLR 610 Postiglione v R [1997] HCA 26 R v Henry [1999] 46 NSWLR 346 R v Holder & Anor (1983) 3 NSWLR 245 R v Jimmy [2010] NSWCCA 60 R v Lewis [2014] NSWCCA 1127 R v Ponfield & Ors [1999] NSWCCA 435 Veen (No 2) v R [1988] 164 CLR 465
Category:	Sentence
Parties:	Regina (Crown) Daniel Lee Mongta-Kelly (Offender)
Representation:	Solicitors: Mr D Wilcox-Watson Mr P Carey
File Number(s):	2019/00114627 2019/00097409 2019/00093320
Publication restriction:	No