R v Brett John Kelly [2000] NSWCCA 557

New South Wales Court of Criminal Appeal

CITATION : R v Brett John Kelly [2000] NSWCCA 557 FILE NUMBER(S) : CCA 60386/00 HEARING DATE(S) : 06/12/00 JUDGMENT DATE : 6 December 2000

Regina PARTIES : v Brett John Kelly JUDGMENT OF : Meagher JA at 1; Hidden J at 19

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/3513 LOWER COURT JUDICIAL Ainslie-Wallace DCJ OFFICER :

COUNSEL : A: J I Doris R: R A Hulme SOLICITORS : A: Neil J O'Connor & Associates R: S E O'Connor CATCHWORDS : Criminal law - application for leave to appeal against sentence - conspiracy to commit larceny - pre-sentence custody - extent to which non-parole period of sentence should be backdated - where pre-sentence custody partly a result of revocation of parole on earlier conviction - discretionary matter - appeal dismissed. CASES CITED: R v Eric John Andrews (unreported, NSW CCA, 28/04/93) DECISION : Leave to appeal allowed and appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL

CCA 60386/00

MEAGHER JA HIDDEN J

Wednesday, 6 December 2000 REGINA v BRETT JOHN KELLY JUDGMENT

1 MEAGHER JA: This is an application for leave to appeal in respect of a sentence imposed by her Honour judge Ainslie-Wallace in the District Court at Sydney on 15 June 2000 for an offence of conspiracy to commit larceny. 2 The applicant had pleaded not guilty to an offence of conspiracy to commit robbery in company but guilty to conspiracy to commit larceny, and the Crown accepted that plea in full satisfaction of the indictment. 3 Her Honour imposed a sentence of three years imprisonment with a non-parole period of 20 months to commence on 14 March 2000. 4 No complaint is made on the applicant's behalf as to length of time of the sentence imposed. The sole ground of appeal is: "The learned judge erred in principle in setting the commencement date of the sentence at 14 March 2000, thereby failing to take account, or proper account, of a period of approximately 14 months which the applicant had spent in custody attributable solely to a revocation of parole because he was charged with a considerably more serious offence than that to which a plea of guilty was ultimately accepted."