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[2013] ACTSC 39
Supreme Court of the ACT
2013-02-05
Higgins CJ
Original judgment source is linked above.
Text from the judgment source.
Last Updated: 12 March 2013
IAN WILLIAM KELLY v DANIEL JAMES VICKERS
[2013] ACTSC 39 (5 February 2013)
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 49 of 2012
Judge: Higgins CJ
Supreme Court of the ACT
Date: 5 February 2013
IN THE SUPREME COURT OF THE )
) No. SCA 49 of 2012
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: IAN WILLIAM KELLY
Appellant
AND: DANIEL JAMES VICKERS
Respondent
ORDER
Judge: Higgins CJ
Date: 5 February 2013
Place: Canberra
THE COURT ORDERS THAT:
1. The appeal be allowed and the appellant be resentenced as follows:
a) On the charge of burglary (CC 12/3337), the appellant is sentenced to two years' imprisonment commencing 8 October 2012.
b) On the charge of burglary (CC 12/3338), the appellant is sentenced to two years' imprisonment cumulative with sentence (a) as to four months.
c) On the charge of burglary (CC 12/3339), the appellant is sentenced to two years' imprisonment cumulative with sentences (a) and (b) as to four months.
d) On the charge of unlawful possession of stolen property (CC 12/3340), the appellant is sentenced to three months' imprisonment cumulative with sentences (a), (b) and (c) as to one month.
The total sentence is two years and nine months to commence on 8 October 2012 with a non parole period of 22 months to commence on 8 April 2012.
1. First of all I note that there is no appeal in respect of the convictions for offences on 19 and 22 March respectively which resulted in a sentence of six months imprisonment commencing on 8 April 2012. The other matters, seeing as his Honour made those totally cumulative, would then commence on 8 October 2012. As I have indicated it seems to me that the sentence should be adjusted, albeit not entirely in Mr Kelly's favour, to a period of two years in respect of each of three burglaries. I acknowledge the first one is not as egregious an example as the other two but there is the consideration of the possession of article for use in burglary charge, which does not attach to the other two. They should be accumulated as to four months each, making a total of two years and eight months of imprisonment. For the unlawful possession charge I sentence the offender to three months' imprisonment with one month cumulative on the previous sentence. This makes a total of two years nine months from the expiration of the original sentence of six months. Therefore the total head sentence is three years and three months, commencing on 8 April 2012.
2. The non-parole period to be applied to that should be a period of 22 months from 8 April 2012.
3. As a question of totality it seems to me that deals adequately with Mr Kelly's considerable criminality. So, the effect overall is a reduction of four months on the non-parole period but an increase in the head sentence.
4. Now, if there is any difficulty about that in terms of calculation or whatever I give you leave to apply, under the slip rule.
I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 7 March 2013
Counsel for the Appellant: Mr James Lawton
Solicitor for the Appellant: Litigant in person
Counsel for the Respondent: Ms A Knibbs
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of hearing: 5 February 2013
Date of judgment: 5 February 2013
Kelly
Vickers [2013] ACTSC 39