Kelly, Neil Edward v The Queen [1996] FCA 415

Procedural Posture

Appeal Against Sentence / On Appeal From a Judge of the Supreme Court of the Australian Capital Territory

Legal Issues

1. 1 ['Whether the sentencing judge erred by fixing a new non-parole period which effectively required the appellant to serve longer than the nine-month further sentence before becoming eligible for parole.' 'Whether the seriousness of offences committed while on parole and the earlier sentence could be taken into account in fixing the new non-parole period.' "Whether disparity between the appellant's non-parole period and the sentences imposed on co-offenders disclosed appealable error."]

Ratio Decidendi

The appeal failed because the Parole Act 1976 (ACT) required the sentencing judge to revoke and reset the non-parole period by reference to the aggregate of the appellant's previous uncompleted sentence and the further sentence. The judge could take into account the earlier conviction, the violent character of the earlier and further offences, and the fact that the further offences were committed while on parole. The effective extension of the non-parole period beyond the nine-month further sentence was not shown to be an error of law or a miscarriage of discretion, and any disparity with co-offenders was justified by differences in participation, antecedents and the fact that the...

Court Disposition

Appeal dismissed

Orders

• ['The appeal be dismissed.']