Kelsall v R [2017] NSWCCA 240

Kelsall v R [2017] NSWCCA 240

The sentence for murder was not shown to be unreasonable or plainly unjust. The sentencing judge's findings about the applicant's questionable prospects of rehabilitation, lack of remorse, absence of a conclusive psychiatric explanation, and future dangerousness were open on the evidence. The murder was close to the highest level of gravity: the applicant randomly selected and followed a stranger, entered the victim's home armed with a knife, and killed an incapacitated and defenceless victim. The refusal to find special circumstances was a legitimate exercise of sentencing discretion and did not make the sentence crushing.

Jurisdiction
Australia
Judgment Date
06 October 2017
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['murder' 'indecent Assault' 'manifestly Excessive Sentence' 'prospects of Rehabilitation' 'special Circumstances' 'mental Health' 'future Dangerousness' 'protection of the Community']
['criminal Law' 'sentencing'] ['murder' 'indecent Assault' 'manifestly Excessive Sentence' 'prospects of Rehabilitation' 'special Circumstances' 'mental Health' 'future Dangerousness' 'protection of the Community']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence

Legal Issues

  1. 1 ["Whether the sentencing judge erred in assessing the applicant's prospects of rehabilitation." 'Whether the sentencing judge erred in finding no special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW).' 'Whether the sentence imposed for murder was manifestly excessive.' 'Whether findings that the offence served an irrational purpose known only to the applicant and that there was no conclusive explanation for his conduct were open on the evidence.']

Ratio Decidendi

The sentence for murder was not shown to be unreasonable or plainly unjust. The sentencing judge's findings about the applicant's questionable prospects of rehabilitation, lack of remorse, absence of a conclusive psychiatric explanation, and future dangerousness were open on the evidence. The murder was close to the highest level of gravity: the applicant randomly selected and followed a stranger, entered the victim's home armed with a knife, and killed an incapacitated and defenceless victim. The refusal to find special circumstances was a legitimate exercise of sentencing discretion and did not make the sentence crushing.

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

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