Court of Criminal Appeal
Supreme Court
New South Wales
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Medium Neutral Citation: Kelley v R [2021] NSWCCA 173 Hearing dates: 05 July 2021 Date of orders: 23 July 2021 Decision date: 23 July 2021 Before: Bell P at [1];
Rothman J at [57];
Bellew J at [58]Decision: 1. Leave to appeal granted.
2. Appeal dismissed.
Catchwords: CRIME – Appeals – appeal against sentence – whether sentencing judge conflated objective seriousness of offence and moral culpability – whether there was a failure to have regard to particular evidence in relation to moral culpability.
Legislation Cited: Crimes Act 1900 (NSW) ss 52A(4), 61
Crimes (Sentencing Procedure) Act 1999 (NSW) s 8
Criminal Procedure Act 1986 (NSW) s 166
Cases Cited: Cooper v R [2021] NSWCCA 65
Dixon v R [2019] NSWCCA 85
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Fisher v R [2021] NSWCCA 91
Gommesen v R (2012) 62 MVR 196; [2012] NSWCCA 226
Karout v R [2019] NSWCCA 253
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
R v Killen (2005) 152 A Crim R 1; [2005] NSWCCA 17
R v Manok [2017] NSWCCA 232
R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
Robertson v Director of Public Prosecutions (NSW) [2017] NSWCA 180
Zheng v R; Li v R; Pan v R [2021] NSWCCA 78
Zreika v The Queen (2012) 223 A Crim R 460; [2012] NSWCCA 44
Category: Principal judgment Parties: Marlee Rose Kelley (Applicant)
The Crown (Respondent)Representation: Counsel:
R Rodger and D Mulligan (Applicant)
J Davidson (Respondent)Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2018/340595 Publication restriction: N/A Decision under appeal
- Court or tribunal:
- District Court of New South Wales
- Jurisdiction:
- Criminal
- Date of Decision:
- 26 August 2020
- Before:
- Bright DCJ
- File Number(s):
- 2018/340595
HEADNOTE
[This headnote is not to be read as part of the judgment]
Ms Marlee Rose Kelley (the Applicant) was sentenced to imprisonment for a term of 3 years and 4 months with a non-parole period of 2 years on a charge of aggravated dangerous driving occasioning grievous bodily harm (with a speed in excess of 45 kilometres over the applicable speed limit) pursuant to s 52A(4) of the Crimes Act 1900 (NSW), after having pleaded guilty to that offence. The Applicant had a mid-range alcohol reading at the time of the offence.
The Applicant was also charged with a further two counts of common assault contrary to s 61 of the Crimes Act, which occurred immediately before the commencement of the driving which was the subject of the aggravated dangerous driving charge, and during the course of that driving, which were contained on a s 166 Certificate. The victim had been in a domestic relationship with the Applicant for approximately three months at the time of the incident.
The Applicant sought leave to appeal from the sentence imposed.
The principal issues on appeal were:
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- Kelley v R [2021] NSWCCA 173
- Case
- [2021] NSWCCA 173
- Decision Date
CaseChat Overview and Summary
The central legal issues for the court to determine were whether the sentencing judge had misapplied the principles governing the assessment of the objective seriousness of the offence and moral culpability, and whether there was a failure to consider specific evidence pertinent to the appellant's moral culpability. The appellant contended that the judge's comments suggested a conflation of these two distinct sentencing considerations, and that the judge did not properly evaluate the mitigating evidence of his moral culpability.
The court, in its judgement, addressed the appellant's claims with a careful examination of the sentencing remarks. It found that while the judge's comments may have been open to criticism, they did not demonstrate a conflation of the objective seriousness of the offence and the appellant's moral culpability. The court also held that the judge had indeed considered the mitigating evidence, albeit perhaps not in the most effective manner. The court concluded that the appeal against sentence should be dismissed, as the alleged errors did not reach the threshold of affecting the overall fairness of the sentence imposed.
The High Court therefore upheld the original sentence, with no orders for a new sentencing hearing. The court did not find that the errors in the sentencing remarks were of such a nature as to warrant a reconsideration of the sentence, emphasising the importance of ensuring that such errors do not occur in future proceedings.
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