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Kellway (a pseudonym) v The King

Kellway (a pseudonym) v The King

Case [2023] VSCA 109 11 May 2023

Appeal

Sentencing

Negligent Causing of Serious Injury

Child Abuse

Moral Culpability

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0095

SEAN KELLWAY (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent
S EAPCR 2023 0014

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the applicants and others.

ROSE DONALD (A PSEUDONYM)	Applicant
v
THE KING	Respondent

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JUDGES:	EMERTON P, NIALL and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	8 February 2023, 28 March 2023
DATE OF JUDGMENT:	11 May 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 109
JUDGMENT APPEALED FROM:	[2022] VCC 661 (Judge Carmody)

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CRIMINAL LAW – Appeal – Sentence – Application for leave to appeal against sentence – Applicants pleaded guilty to negligently causing serious injury to child – Infliction of injuries on four-year-old child over four-month period – First applicant partner of mother of child – Total effective sentence of 6 years and 3 months – Reports that applicant subject to violence as child – Whether childhood deprivation necessarily reduces moral culpability – Open to judge to conclude no reduction – Any reduction offset by other sentencing considerations – Whether sentence manifestly excessive – Offending particularly serious – Whether sentence disparate – Disparity of insufficient magnitude – Leave to appeal granted – Appeal dismissed.

CRIMINAL LAW – Appeal – Sentence – Application by second applicant (mother of child) for extension of time – Total effective sentence of 3 years and 9 months – Whether applicant inflicted some of the injuries – Open to conclude applicant had inflicted one or more injuries – Whether sentence manifestly excessive – Sentence lenient – Applicant failed to pursue application for leave to appeal over many months – Application for extension of time refused.

Crimes Act 1958, s 24.

Bugmy v The Queen (2013) 249 CLR 571, Director of Public Prosecutions v Herrmann (2021) 290 A Crim R 110, Sabbatucci v The Queen (2021) 98 MVR 256, discussed.

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Counsel
Applicant (Kellway):		Ms A Roodenburg
Applicant (Donald):		Mr J O’Connor
Respondent:		Mr C Boyce KC
Solicitors
Applicant (Kellway):	Victoria Legal Aid
Applicant (Donald):	Nelson Brown Legal
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TABLE OF CONTENTS

Introduction

Background to both proceedings

SENTENCE APPEAL: KELLWAY

Plea hearing

Personal circumstances

Child protection and Austin Health materials

Psychologist’s report and evidence

Reasons for sentence

Ground 1: failure to apply Bugmy

Submissions

Discussion

Ground 2: misconceived discipline

Submissions

Discussion

Ground 3: timing of the plea

Submissions

Discussion

Ground 4: manifest excess

Discussion

Ground 5: parity

Submissions

Discussion

Disposition

SENTENCE APPEAL: DONALD

Reasons for sentence

Ground 1: findings not open

Submissions

Discussion

Ground 2: manifest excess

Submissions

Discussion

Extension of time application

Disposition

EMERTON P
NIALL JA
KAYE JA:

Introduction

On 12 November 2021, Sean Kellway pleaded guilty to negligently causing serious injury to a four-year-old child, Charlie Lynas,[2] in relation to whom he stood in loco parentis. Kellway’s partner, Rose Donald, the mother of Charlie, pleaded guilty to the same charge on the…

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 Kellway (a pseudonym) v The King

Details

AGLC: Kellway (a pseudonym) v The King [2023] VSCA 109
Case: [2023] VSCA 109
Decision Date: 11 May 2023

CaseChat Overview and Summary

The applicants in this case, Kellway and the mother of the victim, appealed against their sentences for negligently causing serious injury to a four-year-old child over a four-month period. The applicants had pleaded guilty to the charges and the matter was heard in the Court of Appeal. The first applicant, Kellway, had a total effective sentence of six years and three months, while the mother received a sentence of three years and nine months.

The primary legal issues before the court were whether the sentences were manifestly excessive and whether there was sufficient disparity between the sentences. The court considered whether the childhood deprivation experienced by Kellway should reduce his moral culpability and whether any such reduction was offset by other sentencing considerations. The court also assessed whether the sentence for the mother was manifestly excessive and whether her delay in pursuing her application for leave to appeal warranted an extension of time.

The court found that the trial judge was entitled to conclude that the deprivation Kellway experienced in childhood did not necessarily reduce his moral culpability and that any reduction was offset by other sentencing considerations. The court also found that the sentence was not manifestly excessive given the particular seriousness of the offending. Regarding the disparity, the court found that the difference in the sentences was not of sufficient magnitude to warrant intervention. As such, the application for leave to appeal was granted, but the appeal itself was dismissed. The mother’s application for an extension of time was refused due to her failure to pursue her application for leave to appeal in a timely manner.

No further orders were made in relation to either applicant.

Orders