R v Brett John Kelly [2000] NSWCCA 557

R v Brett John Kelly [2000] NSWCCA 557

The sentencing judge was aware of the complications arising from the applicant's pre-sentence custody, expressly took into account both the relationship between the parole revocation and the present charge and the fact that the applicant was serving an additional term on the earlier matter, and backdated the sentence to reflect some of the custody. The decision was discretionary and no error in principle was shown, so leave was granted but the appeal was dismissed.

Jurisdiction
Australia
Judgment Date
06 December 2000
Procedural Posture
Criminal Application for Leave to Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the New South Wales Court of Criminal Appeal
Outcome
Leave to appeal allowed and appeal dismissed.
Legal Topics
['conspiracy to Commit Larceny' 'pre Sentence Custody' 'backdating of Non Parole Period' 'revocation of Parole' 'appeal Against Sentence']
['criminal Law' 'sentencing'] ['conspiracy to Commit Larceny' 'pre Sentence Custody' 'backdating of Non Parole Period' 'revocation of Parole' 'appeal Against Sentence']

Case Brief

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Procedural Posture

Criminal Application for Leave to Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred in principle by setting the commencement date of the sentence at 14 March 2000 and failing to take account, or proper account, of pre-sentence custody.' 'To what extent pre-sentence custody should be taken into account where part of that custody resulted from revocation of parole on an earlier conviction.' 'Whether alleged plea discussions or delay in bringing on the trial required appellate intervention.']

Ratio Decidendi

The sentencing judge was aware of the complications arising from the applicant's pre-sentence custody, expressly took into account both the relationship between the parole revocation and the present charge and the fact that the applicant was serving an additional term on the earlier matter, and backdated the sentence to reflect some of the custody. The decision was discretionary and no error in principle was shown, so leave was granted but the appeal was dismissed.

Court Disposition

Leave to appeal allowed and appeal dismissed.

Orders

  • ['Leave to appeal allowed.' 'Appeal dismissed.']