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R v Kelley

 

[2018] QCA 18

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v Kelley [2018] QCA 18

PARTIES:

R
v
KELLEY, Luke James
(applicant)

FILE NO/S:

CA No 183 of 2017

DC No 34 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Hervey Bay – Date of Sentence: 11 August 2017 (Koppenol DCJ)

DELIVERED ON:

2 March 2018

DELIVERED AT:

Brisbane

HEARING DATE:

13 February 2018

JUDGES:

Sofronoff P and Morrison and Philippides JJA

ORDERS:

  1. Leave to appeal granted.
  2. Appeal allowed.
  3. Set aside the sentence imposed on 11 August 2017, except as to the recording of a conviction.
  4. Order that the applicant be imprisoned for a period of three months, suspended forthwith for an operable period of two years.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – POWERS OF APPELLATE COURT – URGENT SENTENCE APPLICATIONS – where the applicant was sentenced to one month of imprisonment and had served this by date of hearing – where prompt urgent hearing as an alternative to bail application discussed

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant pleaded guilty to one count of assault occasioning bodily harm – where the charge was a domestic violence offence – where the applicant was sentenced to imprisonment for three months with parole release set for one month after the commencement of the period of imprisonment – where the application was heard after the sentence was fully served – where it was submitted that the learned sentencing judge was not referred to comparable cases regarding the sentencing of youthful first offenders – where significant mitigating factors such as the applicant’s age and prospects of rehabilitation existed – where it was submitted that these factors were given little weight by the learned sentencing judge – whether the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 9(3)

R v Cay; Gersch and Schell; Ex parte Attorney-General (Qld) (2005) 158 A Crim R 488; [2005] QCA 467, considered

R v GB & LB [1999] QCA 46, cited

R v Goodwin; Ex parte Attorney-General (Qld) (2014) 247 A Crim R 582; [2014] QCA 345, cited

R v Hopper; Ex parte Attorney-General (Qld) [2015] 2 Qd R 56; [2014] QCA 108, followed

R v Lovell [1999] 2 Qd R 79; [1998] QCA 36, cited

R v Lovi [2012] QCA 24, cited

R v Riley [2007] QCA 391, cited

COUNSEL:

L D Reece for the applicant

C N Marco for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. SOFRONOFF P:  I agree with the reasons of Morrison JA and with the orders that his Honour proposes.  I would only wish to add some remarks concerning the pace at which this application came on for hearing.
  2. The sequence of events was this:
    1. the sentence was imposed on 11 August 2017;
    2. an application for leave to appeal was filed on 15 August;
    3. an application for Legal Aid funding for the appeal and for appeal bail was also made on 15 August;
    4. on 16 August Legal Aid filed an application for appeal bail, and made arrangements for it to be heard on 22 August;
    5. on 18 August Mr Kelley instructed the discontinuance of the application;
    6. legal aid for the sentence application was approved on 11 October; and
    7. on 16 November the matter was listed for 13 February 2018.
  3. Mr Kelley and the officers of Legal Aid acted with great speed and efficiency.  One can only speculate as to why Mr Kelley discontinued the application for appeal bail.  Perhaps he took a pragmatic view that it was better to serve out the one month of actual imprisonment rather than face the alternative possibility of being released on bail only to be sent back to prison if the appeal failed.
  4. However that may be, an approach to the Court would almost certainly have resulted in an urgent hearing date being set, at least well inside the period of actual custody being served under the sentence.  Practitioners in cases in which there is a short sentence that may well be served before the appeal can be brought on should be aware that an approach to the Court is desirable and that the Court can and will do all it can to arrange an urgent hearing as an alternative to a bail application.
  5. MORRISON JA:  Despite being subject to a Domestic Violence Order obtained at the suit of V, a woman with whom he had a relationship for two years, Mr Kelley went to her house on 26 June 2016.  V told him that the relationship was over.  He said he did not want it to be over, refused for some time to leave, and resisted V’s attempt to close the door after him by grabbing her arm.  He then punched her to the side of her face with his closed fist, knocking her down and causing bruising to her eye.
  6. Not content with that, Mr Kelley called her a “slut” and a “cunt”, deliberately provoking her to slap him.  He left, daring her to call the police, saying “I’ve got you now”.
  7. Arising from these events Mr Kelley was charged with assault occasioning bodily harm; a domestic violence offence in the circumstances.
  8. On 11 August 2017 he pleaded guilty, and was sentenced to imprisonment for three months, with parole release set at 10 September 2017.  Thus he was sentenced to three months, to serve one month in actual custody.  Mr Kelley filed, but then abandoned, an application for appeal bail, with the consequence that the sentence was fully served on 11 November 2017.[1]
  9. Mr Kelley seeks leave to appeal against the sentence imposed, contending that it is manifestly excessive, and the learned sentencing judge failed to have proper regard to the mitigating factors.

The circumstances of the offending conduct

  1. Mr Kelley and V had an “on again, off again” relationship for about two years from June 2014.  On 3 November 2015 she obtained a Domestic Violence Order (DVO) against Mr Kelley.
  2. On 25 June 2016 he went to V’s house.  V attempted to speak with him about their relationship during the evening but he did not want to talk, and went to sleep.  He left the next morning and during that day they communicated about their relationship.
  3. At about 9 pm on 26 June he arrived at V’s house.  They spoke about their relationship on the verandah.  He explained that he did not want his parents to know he was in a relationship with V because of the DVO.  Because he said he was cold they moved into the lounge room.  As the conversation progressed he became frustrated and V became upset.  She told him to go home, and she went upstairs to get ready for bed.  When she went into the bedroom he was lying on the bed.  For the next 45 minutes she tried to get him to leave.  Finally Mr Kelley got up and walked to the hallway.
  4. When in the hallway he questioned whether V had someone else coming over, which she denied.  V asked him why he was “dragging this out”.  He walked to the front door and V followed to lock it after him.  He said “I love you, I don’t want it to be over”.  V responded that it was the right thing to do, and he needed to grow up as “we aren’t going anywhere”.  He then adopted a stern voice and said “I don’t need to grow up, you need help”.
  5. V reached for the door handle, and he grabbed her arm.  She let go of the handle and he let her arm go.  He then punched her to the right side of her face with his closed fist.[2]  V fell back, hit a wall and fell to the floor.  She felt instant pain to the right side of her face, and, using her hand to cup her eye, she started to cry.
  6. Mr Kelley walked out the front door onto the veranda, and said “I’ve done it to you, now do it to me, I know you want to”.  V stood, scared, while he told her she needed help, and called her “slut” and “cunt”.  V slapped him and told him to leave.  Mr Kelley then went quiet and started to cry.  Leaving, he said “Call the cops I dare you, I’ve got you now”.  V told him to leave, and he did.
  7. V complained to police.  Photographs of a bruise near her right eye were taken.
  8. Police interviewed Mr Kelley on 10 July 2016.  He told police that: (i) they were in a relationship for two years; (ii) there was a DVO; (iii) he had gone to V’s house to end the relationship and she pleaded with him not to end it; (iv) V kicked him “in the nuts” a few times and had slapped him; (v) he did not strike her, but he may have called her a bitch; (vi) the injury to V’s face was because she had a fracture through her cheek bone (caused before their relationship) and it visibly bruised in cold weather; (vii) V had experienced domestic violence at the hands of a previous partner; (viii) the injury shown in the photograph of V’s face was not caused by him, and V may have done it herself.

Submissions at sentencing – Mr Kelley

  1. For Mr Kelley it was submitted that:
  1. he was 25 years old at sentencing;
  2. his criminal history was limited;
  3. he was gainfully employed as a panel beater in the family business; he was an integral part of the business, working with his father;
  4. a number of references spoke highly of him;
  5. the offending conduct was out of character, as he was regarded as a quiet, non-violent person;
  6. it was an emotive occasion and he desisted after one punch;
  7. he had a lot of family support; and
  8. he had now established a relationship with another person, and his life had moved on.
  1. Mr Kelley’s counsel submitted that a non-custodial sentence was appropriate:[3]

“… a noncustodial community-based order is the appropriate one, particularly in view of his history.  That is accepted as within the range by my learned friend.  This is a person who otherwise – apart from this blemish – has led a good life and is a good person.

He’s woken up to himself, your Honour.  So your Honour might consider something like a community service order, perhaps.  And perhaps a period of supervision where he might usefully gain something.  And those are my submissions on that.  If your Honour is with me – and I hope your Honour is with me because that would be the appropriate response, in my submission – then he would gain, the community would gain and then he would continue working.”

  1. On the topic of recording a conviction and the extent to which a conviction might impact upon him, it was submitted:[4]

“He’s told me … that, ultimately, he wants to work in the mines – get a job in the mines. That’s when his father ultimately retires. And he’s had offers of work, as far afield as Western Australian, but, ultimately, he’ll want to get a job in the mines. … Your Honour will be aware that the mines overseers will require that a person not come to them with a conviction.”

  1. It was also submitted that consideration should be given to not recording a conviction.  Counsel referred to s 12 of the Penalties and Sentences Act 1992 (Qld) as setting the considerations: nature of the offence, offender’s character, age, impact on economic or social wellbeing, and chances of finding employment.
  2. Counsel for Mr Kelley concluded by submitting that he (counsel) appreciated it was “a serious offence but it’s a first and hopefully it can be the last that he’ll be before the court”.[5]

Crown submissions at sentencing

  1. The Crown referred to Mr Kelley’s age (23 years and nine months) as “relatively young … albeit not a teenager but still in his early 20s” and his short criminal history, noting that at the time of the offence he had no criminal history.  After recounting the conduct the guilty plea was characterised as an early plea.  Although the aggravating features included that it was an unprovoked punch in a domestic situation, and a breach of a domestic violence order, it was an assault by a single punch where there was a timely plea of guilty.  The prosecutor submitted that the learned sentencing judge “had a wider sentencing discretion in cases such as this” and the “discretion can extend to community-based orders”.[6]
  2. On the issue of whether a conviction should be recorded the prosecutor submitted that there were two points: (i): whether Mr Kelley’s wish for employment in the mines is enough evidence to support that there will be an impact on his economic and social wellbeing in the absence of any applications to the mines and things of that nature; and (ii) whether there was a strong enough denunciation in the absence of recording a conviction.[7]

Approach of the sentencing judge

  1. The learned sentencing judge recounted the circumstances of the offending conduct, having noted that Mr Kelley was 23 years old at the time, and had been in the two year relationship with V.  His Honour referred to what Mr Kelley told the police in his interview:[8]

“They were lies. You lied to the police in an attempt to exculpate yourself. You lied to the police also by pointing the finger of blame at your former female partner. She had nothing wrong.”

  1. Matters noted by his Honour included:
  1. the offence was “even more serious” because he was subject to the DVO;
  2. the lack of any criminal history at the time;
  3. the references tendered on his behalf; his Honour accepted that it may be the case that Mr Kelley was generally a quiet and non-violent person and the offence was out of character;
  4. the assault was an unprovoked attack on a woman who had been in a relationship with him; his Honour said “There is never an excuse for a man to use violence towards a woman”;
  5. domestic violence was a “scourge in our country”; he characterised Mr Kelley’s behaviour:[9]

“Men who punch their female partners or wives are cowards.  You are a coward.  And you acted cowardly when you spoke to the police.  Rather than accept your criminality and tell the officers what happened, you told the officers a pack of lies.”

and

  1. the maximum penalty of seven years’ imprisonment was reserved for the most serious cases.
  1. The learned sentencing judge then said:[10]

“Despite the very able submissions by Mr Fong of counsel, I have come to the conclusion that a period of actual imprisonment is required.  That means you will be going to prison today.

I also make it clear that in cases like this, a message needs to be sent to the community that violence like this will not be tolerated by the court and that those who would act in this way towards their female partners need to realise that they stand a very good chance of going to prison.

I take into account all of the very helpful submissions by Mr Le Grand of counsel for the prosecution and by Mr Fong of counsel on your behalf.  I take account of your early plea of guilty and all of the factors urged upon me.”

Submissions for Mr Kelley

  1. Ms Reece of counsel submitted that the sentence was manifestly excessive having regard to the objective seriousness of the offence and the matters in mitigation.  Further, that no real allowance was given for the matters in mitigation, in particular Mr Kelley’s plea of guilty, his youth, his lack of criminal history and evidence of his character and work ethic which was established by the material relied upon (and not challenged) at the sentencing hearing.
  2. It was submitted that the learned sentencing judge was not referred to the legislation relating to the sentencing of violent offenders,[11] or any cases involving comparable offending or statements of principle regarding the sentencing of youthful first offenders.  Mr Kelley (23 years old at the time) did not belong to the cohort of very youngest of offenders who are often afforded particular lenience.  Despite this, his age and lack of criminal history were significant mitigating factors which should properly have led to him being dealt with as a youthful first offender.
  3. Cases such as R v Lovell,[12] R v Lovi[13] R v Riley[14] and R v GB & LB[15] recognise that the potential for rehabilitation of youthful first offenders should be given some weight when considering the appropriate sentence to be imposed, and that it is undesirable that a young person who commits a single offence, completely out of character, be exposed to actual custody.  His Honour dealt with the matter in mitigation in a cursory manner, with no specific mention of Mr Kelley’s youth, work history and chances of employment in the mining industry.  Mr Kelley had excellent prospects of rehabilitation and a term of actual custody was not warranted.  The appropriate sentence would have been a community based order, or probation, without a conviction being recorded.[16]
  4. Ms Reece submitted that the sentence ought to be set aside and, in the circumstances of Mr Kelley’s having already served one month of actual custody and two more months on parole, that a period of six months’ probation be imposed from 13 February 2018, and that there be no conviction recorded.  It was explained that the proposed period of probation notionally reflected the remainder of a 12 month probation period from 11 August 2017, which would have been the appropriate sentence.

Submissions for the Crown

  1. For the Crown it was submitted that the learned sentencing judge was not referred by either counsel to relevant legislation, comparable cases or cases regarding statements of sentencing principle, but nonetheless, submissions were directed to those matters.  The proper focus was whether the failure of the learned sentencing judge to refer to such matters led to appellable error.
  2. Further, the absence of reference to comparable cases may make the exercise of the sentencing discretion harder but it “does not preclude the sentencing judge from otherwise finding the relevant facts for the purpose of the sentencing, weighing up the relevant factors relating to the offence and the offender, and applying the principles of sentencing found in the relevant legislation and the common law, in order to reach the appropriate sentence for that offending”.[17]
  3. None of the submissions at sentencing confined the exercise of the learned sentencing judge’s sentencing discretion to a non-custodial order.  A review of the comparable cases considered below, if accepted as comparable, demonstrates the discretion could not be so confined.  Alternatively, the absence of comparable cases suggests “no perceivable sentencing pattern reflecting the accumulation of judicial wisdom deriving from multiple instances of sentencing decisions.  Inevitably this imports a wide discretionary field open to a sentencing judge”.[18]
  4. It was submitted that the learned sentencing judge appreciated the breadth of the sentencing discretion, warned of his inclination to impose a period of imprisonment, and evidently considered the legislation and principles.  Further, it was evident that the learned sentencing judge balanced the objective seriousness of the violent conduct against factors such as youth, lack of criminal history and prospect of rehabilitation.  A substantial factor in that exercise was that the offending occurred in breach of a court order.
  5. Whilst the learned sentencing judge did not specifically refer to Mr Kelley’s work history, it should not be inferred that it was left out of account.  Given that he worked with his father in the family business it could be inferred that his employment would continue following his release from custody.
  6. It was submitted that some of the character references did not suggest that the authors were aware of the offending conduct.  Further, whilst Mr Kelley’s mother attended at the sentencing, there was no reference from her or his father.
  7. Once the learned sentencing judge had determined that the appropriate penalty was one of imprisonment, the weight to be attributed to Mr Kelley’s stated desire of one day working in the mines was diminished as this was primarily relevant to the question of whether a conviction ought to be recorded.  Notwithstanding that, the material relied upon to support these submissions did not include any material from Mr Kelley’s father about when he would or might retire, that being the suggested trigger for seeking work in the mines.  The material also went no higher than a reference from a friend who worked in an undisclosed capacity in the mining industry that a conviction for the offence would “hinder” Mr Kelley’s prospects of employment.
  8. Comparable cases such as R v CBU,[19] R v Kingston[20] and R v Ward[21] demonstrated that the sentence was not manifestly excessive.

Discussion

Did the sentencing discretion miscarry?

  1. In my view, the key to resolving this question lies in the proper characterisation of the offending conduct, the prospects of rehabilitation, and the impact of Mr Kelley’s age and criminal history.  They are all matters comprehended within s 9(3) of the Penalties and Sentences Act 1992 (Qld), which relevantly provides:

“(3) In sentencing an offender to whom subsection (2A) applies, the court must have regard primarily to the following—

  1. the risk of physical harm to any members of the community if a custodial sentence were not imposed;
  1. the need to protect any members of the community from that risk;
  1. the personal circumstances of any victim of the offence;
  1. the circumstances of the offence, including … any injury to a member of the public …;
  1. the nature or extent of the violence used, or intended to be used, in the commission of the offence;
  1. the past record of the offender, including any attempted rehabilitation and the number of previous offences of any type committed;
  1. the antecedents, age and character of the offender;
  1. any remorse or lack of remorse of the offender;
  1. ….

(k) anything else about the safety of members of the community that the sentencing court considers relevant.”

  1. It is, of course, right to acknowledge that what occurred was in breach of the DVO obtained against Mr Kelley by V.  It is also right that the conduct was violent, and perpetrated against a person with whom Mr Kelley was in a relationship, and was therefore domestic violence.  Further, that the surrounding circumstances were of a persistently threatening nature, both verbally and physically.  And finally, that Mr Kelley not only lied to the police about what occurred, he tried to falsely implicate V as the perpetrator.
  2. However, the conduct (at least in terms of the punch which was the charged offence) and the personal circumstances of Mr Kelley were properly characterised (at the time of sentence) in this way:
  1. he was a first offender; no assault (or any offence at all) had occurred previously; the basis for obtaining the DVO was not elucidated and therefore one cannot infer it was for actual violence;
  2. he was relatively young at the time of the offence (nearly 24) and at sentence (25);
  3. as charged, the assault was one punch;
  4. the punch occurred in the course of an emotional meeting where V told him the relationship was over; that provides no excuse, but reveals context;
  5. it was not repeated since, either against V or anyone else;
  6. there had been no further relevant offence since;[22]
  7. he was well regarded and remained a person of good character in the eyes of those who knew him, and was well supported by his family;
  8. references attested to his quiet and non-violent nature;
  9. the assault was out of character;
  10. whilst no doubt distressing to V, she sustained no lasting damage, and there was no victim impact statement suggesting ongoing issues;
  11. he had since formed a new relationship with another person; there was no suggestion of continued contact with V following the assault;
  12. he had been in, and remained in, gainful employment in the well-established family business;
  13. he pleaded guilty; and
  14. he had excellent prospects of rehabilitation.
  1. In the face of that assessment of the position one might have expected that, in coming to the conclusion that a sentence of actual custody was required, the learned sentencing judge would have had to take into account the well-established sentencing principles that call for the seriousness of the offending conduct to be balanced against the fact that the offender was a youthful first offender, with an unblemished record, good character, and excellent prospects of rehabilitation.[23]  The position was expressed by Fraser JA in R v Hopper; Ex parte Attorney-General (Qld):[24]

“The second matter referred to by the sentencing judge as favouring a non-custodial sentence was the respondent’s youthfulness. The sentencing judge referred to R v Mules, in which the President, with whose reasons Keane JA and Mullins J agreed, observed that the previous decision in R v Horne made it clear that because the rehabilitation of young offenders is in the interests of the community, “youthful offenders with limited criminal histories and promising prospects of rehabilitation who have pleaded guilty and co-operated with the administration of justice, even where they have committed serious offences … should receive more leniency from courts than would otherwise be appropriate.” The sentencing judge also took into account the long experience of the Courts, to which Burbury CJ referred to in Lahey v Sanderson in a passage quoted in R v Lovi, “that imprisonment is likely to expose a youth to corrupting influences and to confirm him in criminal ways, thus defeating the very purpose of the punishment imposed” so that it had been universally accepted by the Courts in England, Australia and elsewhere “that in the case of a youthful offender his reformation is always an important consideration and in the ordinary run of crime the dominant consideration in determining the appropriate punishment to be imposed.”

  1. It should also be noted that the prosecutor advanced no submission directed at a sentence involving actual custody.  To the contrary the prosecutor’s submissions were squarely aimed at a community-based sentence.[25]  Even in reply, when counsel for Mr Kelley had contended for a community-based order, the prosecutor did not contend for a custodial sentence.  Of course the prosecutor’s approach does not bind a sentencing judge but it does lend some force to the complaint that a sentence of actual custody was unwarranted.
  2. The learned sentencing judge gave some warning of his inclination to impose imprisonment:[26]

“MR FONG: I’ll also hand up, your Honour … a number of references and some by relevant organisations that deal with him. They speak highly of him, your Honour. And the end result of it is – and your Honour will note that in one case it’s a reference to the fact that my client had a twin sister … who was lost in a tragic accident when he was 17. That only just is part of the factual matrix … of his personal background.

HIS HONOUR: But that might go against him, Mr Fong. He – rather than bashing his girlfriend---

MR FONG: Yes.

HIS HONOUR: --- he should be loving her ---

Mr FONG: That’s so, your Honour.

HIS HONOUR: --- as he would love his deceased sister. I’m contemplating imposing imprisonment.

MR FONG: All right.

HIS HONOUR: I’ve got to give you fair notice of that.”

  1. To refer to “imposing imprisonment” does not necessarily mean a period of actual custody, as opposed to, say, a suspended sentence or one attracting immediate release on parole.  It seems, however, that it was understood as referring to actual custody as Mr Kelley’s counsel pressed for a “noncustodial community-based order”.[27]
  2. Whilst Mr Kelley did not fit into the band of youthful offenders who are teenagers, or even up to 21, he was not far from that age, and was described, without demur, by the prosecutor as “relatively young … albeit not a teenager but still in his early 20s at the time”.[28]  At one point in the history of the Penalties and Sentences Act 1992 (Qld), those under 25 were included in the category of youthful offenders: see s 9(4) as it was enacted in 1992.  The subsequent repeal of that provision did not remove youth as a relevant consideration, nor, in my view, could it be seen as a statutory indicator that those in their 20’s were no longer considered youthful for sentencing purposes.[29]
  3. In any event there is no magic figure that defines a youthful offender for the purposes of that principle.  For example, offenders in their teens may readily be described as youthful, but so also might an offender who was 20 or 21 at the time of the offence and 22 to 23 at sentence.[30]  It must also be borne in mind that the age of the offender is but one of a number of factors to be weighed.
  4. However, the sentencing remarks do not reveal that the relevant balancing exercise was carried out.  Rather, all that reflects the approach taken is what appears in this passage of the sentencing reasons:[31]

“Despite the very able submissions by Mr Fong of counsel, I have come to the conclusion that a period of actual imprisonment is required. That means you will be going to prison today.

I also make it clear that in cases like this, a message needs to be sent to the community that violence like this will not be tolerated by the court and that those who would act in this way towards their female partners need to realise that they stand a very good chance of going to prison.”

  1. When considered with the comment made during submissions, see paragraph [45] above, that suggests that the sentencing approach was, at best, unduly punitive, or the product of a misapplication of the relevant sentencing principles.  For present purposes it is not necessary to determine which it is.
  2. Given the matters enumerated in paragraph [42] above, it is difficult to see how a period of actual custody was warranted.  That is to say, whilst a period of actual custody could not be said to be outside the range of what might be imposed for an offence such as this (assault causing bodily harm, and a domestic violence offence), the particular circumstances here reveal that the sentence imposed was manifestly excessive.
  3. Therefore the sentence must be set aside, and Mr Kelley re-sentenced.
  4. Balancing the factors referred to earlier, and particularly noting that the offence was carried out in breach of a court order, in my view the appropriate sentence was the imposition of three months’ imprisonment, suspended immediately for an operable period of two years.
  5. I reject the contention that a conviction should not be recorded.  This was, as counsel for Mr Kelley rightly conceded at sentencing,[32] a serious offence, one of domestic violence, and carried out in breach of a court order.  To not record a conviction in such a matter would call for exceptional circumstances which are not present here.
  6. For a number of reasons the prospect of Mr Kelley’s employment “in the mines” can be put to one side.  First, the desire or intention to do so was expressed vaguely, and in any event was dependent upon his father retiring.[33]  Nothing was said as to the likelihood of that or when that might be.  There was evidence that the father and Mr Kelley continued to run the family smash repair business, and no suggestion that the business would not continue into the future.
  7. Secondly, if that was to be seriously pressed then some evidentiary foundation should have been laid, at least better than it was.  Whilst it is not an essential requirement, a specific employment opportunity or opportunities should usually be identified if the discretion to not record a conviction is to be exercised in favour of an offender.[34]  All that supported it was a reference from a Mr Stevens,[35] who said: (i) he worked in the mines but not in what capacity; (ii) he thought he could get Mr Kelley a position, but not what or with what prospects; and (iii) that a conviction would “hinder” the chances of obtaining “this type of job”, but not why, or that it would preclude such employment.
  8. Thirdly, given the nature of Mr Kelley’s continuing employment in the family business, the broader, non-specific impact of a conviction referred to in R v Cay; Gersch and Schell; Ex parte Attorney-General (Qld)[36] does not have much weight.

Disposition of the appeal and application

  1. For the reasons given above I propose the following orders:
    1. Grant leave to appeal.
    2. Allow the appeal.
    3. Set aside the sentence imposed on 11 August 2017, except as to the recording of a conviction.
    4. Order that the applicant be imprisoned for a period of three months, suspended forthwith for an operable period of two years.
  2. PHILIPPIDES JA:  I agree with the reasons of Morrison JA and the orders he proposes.

Footnotes

[1]  More will be said of this later.

[2]  This was the assault causing bodily harm.

[3]  Appeal Book (AB) 13 lines 26-36.

[4]  AB 13 lines 36-42.

[5]  AB 14 line 3.

[6]  AB 11 lines 6-16.

[7]  AB 14.

[8]  AB 16 lines 43-45.

[9]  AB 17 lines 29-31.

[10]  AB 17 lines 36-47.

[11]  Specifically s 9(3) of the Penalties and Sentences Act 1992 (Qld).

[12]  [1999] 2 Qd R 79 at 83.

[13]  [2012] QCA 24 at [38].

[14]  [2007] QCA 391 at [11].

[15]  [1999] QCA 46.

[16]  In this respect reliance was placed on R v Cay, Gersch and Schell; Ex parte Attorney-General (Qld) [2005] QCA 467 at [43]-[45].

[17]  Referring to R v Goodwin; Ex parte Attorney-General (Qld) [2014] QCA 345 at [37].

[18] Goodwin at [42].

[19]  [2017] QCA 227.

[20]  [2008] QCA 193.

[21]  [1998] QCA 329.

[22]  Subsequently he had been fined for failing to provide the police with identifying particulars in respect of a traffic matter.

[23] R v Lovell [1999] 2 Qd R 79 at 83; R v GB & LB [1999] QCA 46 at 5 per Thomas JA, Wilson J concurring.

[24]  [2014] QCA 108 at [28], Boddice J concurring; internal citations omitted.  See also R v Mules [2007] QCA 47 at [21] and R v Lovi [2012] QCA 24 at [38].

[25]  AB 11 lines 3-16.

[26]  AB 11 lines 10-34.

[27]  AB 13 line 26.

[28]  AB 10 line 46.

[29] R v Taylor [1999] QCA 323 at [23] per McPherson JA.

[30]  For example, R v Wilkins; ex parte Attorney-General (Qld) [2008] QCA 272 at [20]; R v Lude; R v Love [2007] QCA 319 at [17]; R v Middleton; R v Johns (2006) 165 A Crim R 1; [2006] QCA 92 at [40]; R v Abednego [2004] QCA 377; R v Summers [2015] QCA 278 at [38].

[31]  AB 17 lines 36-43.

[32]  AB 14 line 3.

[33]  AB 13 lines 36-38.

[34] R v Cay; Gersch and Schell; ex parte Attorney-General (Qld) [2005] QCA 467 at [43].

[35]  AB 27.

[36]  [2005] QCA 467 at [43]-[45].

Close

Editorial Notes

  • Published Case Name:

    R v Kelley

  • Shortened Case Name:

    R v Kelley

  • MNC:

    [2018] QCA 18

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Morrison JA, Philippides JA

  • Date:

    02 Mar 2018

  • White Star Case:

    Yes

Litigation History

Event Citation or File Date Notes
Primary Judgment DC34/17 (No Citation) 11 Aug 2017 Date of Sentence (Koppenol DCJ).
Appeal Determined (QCA) [2018] QCA 18 02 Mar 2018 Appeal against sentence allowed: Sofronoff P and Morrison and Philippides JJA.

Appeal Status

{solid} Appeal Determined (QCA)