Kelly v R [2017] NSWCCA 256

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kelly v R [2017] NSWCCA 256 Hearing dates: 11 September 2017 Date of orders: 27 October 2017 Decision date: 27 October 2017 Before: Basten JA at [1]; Beech-Jones J at [2] Fagan J at [46] Decision: Application for leave to appeal against sentence refused Catchwords: SENTENCING – parity principle – one offender sentenced to 5 years and 11 months with non-parole period of three years and six months for attempted armed robbery – co-offender sentenced to aggregate sentence of nine years and six months with a non-parole period of just over 7 years for common offence and robbery and break and enter offences – applicant claimed a justifiable sense of grievance arising from co- offender's sentence – contended that only small part of co-offender's actual period in custody solely referable to common offence – consideration of Postiglione v The Queen (1997) 189 CLR 295 – comparison of actual periods in custody a matter to be taken into account but not determinative – comparison of all components of sentence including sentences being served for unrelated offences required – when criminality of two offenders for common and unrelated offending compared no justifiable sense of grievance arises – when applicant's sentence for common offence compared to co-offender's indicative sentence for common offence no justifiable sense of grievance Legislation Cited: Crimes Act 1900, ss 97, 111, 117, 344A Crimes (Sentencing Procedure) Act 1999, s 53A Weapons Prohibition Act 1998, s 7 Cases Cited: Ayik v Regina [2013] NSWCCA 119 Bell v R [2008] NSWCCA 206 El-Helou v R [2014] NSWCCA 209 Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 Kelly v R [2017] NSWCCA 82 Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 Tran v Regina [2006] NSWCCA 266 Texts Cited: D A Thomas, Principles of Sentencing, (2nd ed 1979, Heinemann) at 56-57 Category: Principal judgment Parties: Jesse Aaron Kelly(Applicant) Regina (Respondent) Representation: Counsel: S Pararajasingham (Applicant) B Baker (Respondent)