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Court of Criminal Appeal 6 October 2017

Kelsall v R

[2017] NSWCCA 240

Sexual offencesHomicide
CRIMINAL LAW APPEAL AGAINST SENTENCE MURDER WHETHER SENTENCING MANIFESTLY EXCESSIVE

Citation: Kelsall v R [2017] NSWCCA 240
Court: Court of Criminal Appeal, New South Wales
Date: 6 October 2017
Judge(s): Price J (principal judgment, [1]); Bellew J ([85]); Hamill J ([86])

Background

The applicant was convicted by a jury of the indecent assault and murder of a 31-year-old man at Neutral Bay on 8 September 2013. The victim, a stranger to the applicant, was followed home from a hotel late at night, after which the applicant entered an unlocked unit and stabbed him more than 20 times. The applicant had previously disclosed to treating clinicians in 2012 that he had experienced recurring thoughts about killing a random person with a knife, describing it as being "for the thrill of it."

At first instance, R A Hulme J sentenced the applicant to 1 year imprisonment for the indecent assault and 40 years imprisonment for murder, comprising a non-parole period of 30 years with a balance of term of 10 years. The overall sentence came to 40 years and 3 months, with the applicant not eligible for parole until January 2044.

The applicant sought leave to appeal on three grounds: that the sentencing judge erred in assessing his prospects of rehabilitation; that the judge erred in declining to find special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW); and that the sentence was manifestly excessive.

  • Whether the sentencing judge's findings on the applicant's prospects of rehabilitation were inconsistent with the psychiatric evidence before the court
  • Whether the sentencing judge erred by declining to find special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which would have altered the proportion of the non-parole period to the head sentence
  • Whether the overall sentence, and in particular the murder sentence, was manifestly excessive

Decision

Rehabilitation prospects: The Court of Criminal Appeal examined whether the sentencing judge's conclusions about the applicant's rehabilitation prospects were supported by the evidence of the four psychiatrists whose reports were before the court. The applicant argued those reports were more optimistic than the judge allowed. Price J considered the judge's findings were reasonably open on the evidence, and no error was established on this ground.

Special circumstances: Under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court may depart from the standard ratio of non-parole period to total sentence where it finds special circumstances exist. The applicant submitted that his age, health, and first time in custody warranted such a finding. Price J found that the judge's conclusion that a 10-year balance of term appropriately reflected all relevant sentencing factors was a legitimate exercise of the sentencing discretion, and that the failure to find special circumstances had not produced a crushing sentence.

Manifest excess: The applicant sought to demonstrate manifest excess by reference to comparative sentences in other murder cases and JIRS sentencing statistics. Price J noted the well-established principle, confirmed in cases such as Huynh v R and Vandeventer v R, that comparison with specific sentences in other cases is not the appropriate methodology for establishing manifest excess. Each murder case turns substantially on its own facts, and the court found clear differences between the facts of the matters cited and those of the present case. The Court was not persuaded that the sentence was unreasonable or plainly unjust.

The appeal was dismissed unanimously, with Bellew J and Hamill J both agreeing with Price J's reasons.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • No error was established in the sentencing judge's assessment of rehabilitation prospects where findings were reasonably open on the psychiatric evidence presented.
  • A finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) is not required simply because an applicant is young, in poor health, or a first-time custodial offender; the sentencing court retains a discretion to determine whether the overall sentence structure is appropriate.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal reaffirmed that comparative sentencing statistics and specific cases from other proceedings are not a reliable benchmark for establishing that a sentence is manifestly excessive.
  • Murder is a "protean offence," meaning differences in facts and circumstances between cases will commonly produce significant differences in outcome; sentence comparisons across cases carry limited weight.
  • The Court confirmed that the applicable standard for a successful sentence appeal remains whether the sentence was unreasonable or plainly unjust, not merely whether a different outcome was open.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61L (indecent assault)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 (special circumstances and non-parole period proportion)

Cases:
- R v Kelsall [2015] NSWSC 480 (first instance sentencing decision)
- Cramp v R [2016] NSWCCA 305
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Huynh v R (2008) 188 A Crim R 287; [2008] NSWCCA 216
- King v R [2015] NSWCCA 99
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- R v Nakash [2017] NSWCCA 196
- Vandeventer v R [2013] NSWCCA 33