Kelly v R [2016] NSWCCA 246

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kelly v R [2016] NSWCCA 246 Hearing dates: 20 July 2016 Date of orders: 07 November 2016 Decision date: 07 November 2016 Before: Hoeben CJ at CL at [1]; Rothman J at [2]; R A Hulme J at [73] Decision: (1) Leave to appeal granted; (2) Appeal allowed; (3) The sentence imposed upon Timothy Kelly on 13 June 2014 by Justice Blanch, Chief Judge of the District Court, be quashed and in lieu thereof the following sentence be imposed: (i) For Sequence 6, destroy or damage property, contrary to s 195(1)(a) of the Crimes Act 1900, a fixed sentence of 18 months' imprisonment, commencing 3 October 2013 and concluding 2 April 2015; (ii) For Sequence 4, assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act, a fixed term of imprisonment of two (2) years and nine (9) months, commencing 3 April 2014 and concluding 2 January 2017; (iii) For Sequence 5, assault occasioning actual bodily harm, a fixed term of imprisonment of two (2) years and nine (9) months, commencing 3 October 2014 and concluding 2 July 2017; (iv) For Sequence 7, assault occasioning actual bodily harm, a fixed term of imprisonment of two (2) years and nine (9) months, commencing 3 April 2015 and concluding 2 January 2018; (v) For Sequence 2, wound with intent to cause grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act, a non-parole period of four (4) years' imprisonment, commencing 3 October 2015 and concluding 2 October 2019, with a balance of term of two (2) years and nine (9) months concluding 2 July 2022; (vi) For Sequence 3, wound with intent to cause grievous bodily harm, a non-parole period of four (4) years' imprisonment, commencing 3 October 2016 and concluding 2 October 2020 with a balance of term of a further four (4) years and three (3) months, concluding 2 January 2025. (4) The overall sentence to be imposed is a head sentence of 11 years' and three (3) months' imprisonment, with a non-parole period of 7 years' imprisonment. The applicant will be eligible for parole from 3 October 2020. Catchwords: CRIMINAL LAW – SENTENCE APPEAL – Applicant with psychiatric issues and cognitive disorder chose to represent himself and denied sentencing judge evidence of psychiatric and cognitive problems – miscarriage of justice – evidence allowed on appeal – appeal granted – sentence reduced. Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Bourke v R [2010] NSWCCA 22; 199 A Crim R 38 Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509 R v Fernando (1992) 76 A Crim R 58 R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 Texts Cited: Carol Paton, "Benzodiazepines and Disinhibition: A Review" (2002) 26(12) The Psychiatric Bulletin 460. Category: Principal judgment Parties: Timothy Kelly (Applicant) Regina (Crown) Representation: Counsel: A M Webb/E W C Anderson (Applicant) V Lydiard (Crown)