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Kelley v R

Kelley v R

Case [2021] NSWCCA 173 23 July 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

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:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kelley v R

Details

AGLC: Kelley v R [2021] NSWCCA 173
Case: [2021] NSWCCA 173
Decision Date: 23 July 2021

CaseChat Overview and Summary

In the matter of Kelley versus the Crown, the appellant sought leave to appeal against his sentence, which was imposed following his conviction for two counts of sexual assault. The case was heard in the High Court of Australia. The appellant argued that the sentencing judge erred by conflating the objective seriousness of the offence with his moral culpability, and by failing to have regard to particular evidence relevant to his moral culpability.

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.

Orders