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Kelly v R

Kelly v R

Case [2021] NSWCCA 154 12 July 2021

Appeal

Aggravated & Exemplary Damages

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kelly v R [2021] NSWCCA 154
Hearing dates: 23 June 2021
Date of orders: 12 July 2021
Decision date: 12 July 2021
Before: Payne JA at [1];
Price J at [2];
Wright J at [123]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
CRIMINAL LAW – appeal against sentence – historical sexual offences – whether Crown concession as to the objective seriousness of count 1 – whether error in assessment of applicant’s mental health where no submission was made about general deterrence – whether applicant suffered a serious injustice – whether aggregate sentence is manifestly excessive

Legislation Cited:
Crimes Act 1900 (NSW), ss 61J(1), 61M, 76, 76A
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A(g), 25AA
Mental Health Act 2007 (NSW)

Cases Cited:
Aslan v R [2014] NSWCCA 114
Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
Benitez v R (2006) 160 A Crim R 166; [2006] NSWCCA 21
Brown v R [2020] NSWCCA 132
Cunningham v R [2020] NSWCCA 287
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
Griffin v R [2018] NSWCCA 259
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Jackson v R [2021] NSWCCA 15
Markarian v R (2005) 228 CLR 357; [2005] HCA 25
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
R v CG [2020] NSWDC 107
R v Greenaway [2020] NSWDC 97
R v Roberts [2019] NSWDC 510
Rahman v R [2020] NSWCCA 13
Stojanovski v R [2013] NSWCCA 334
Sumpton v R [2016] NSWCCA 162
Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64
Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44

Category: Principal judgment
Parties: Gregory Stephen Kelly (Applicant)
Regina (Respondent)
Representation:
Counsel:
J Clarke (Applicant)
S Traynor (Respondent)
Solicitors:
James & Jaramillo (Applicant)
Solicitor for the Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2018/82481
Publication restriction: Orders have been made under the Court Suppression and Non-Publication Orders Act 2010 that there be no publication of the names of persons, or anything that might identify them, referred to in this judgment as the victim or by the letters of JF.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

27 May 2020

Before:

Huggett DCJ

File Number(s):

2018/82481

Judgment

PAYNE JA: I agree with Price J.
PRICE J: Gregory Stephen Kelly (“the applicant”) seeks leave to appeal against the sentence imposed upon him in the District Court by Huggett DCJ (“the judge”) on 27 May 2020 in relation to offences that he committed between 1 March 1969 and 31 July 1977 upon the victim. At the time of the offences, the victim was aged between seven…

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 Kelly v R

Details

AGLC: Kelly v R [2021] NSWCCA 154
Case: [2021] NSWCCA 154
Decision Date: 12 July 2021

CaseChat Overview and Summary

The case of Kelly v R involved an appeal against sentence by the applicant, who was convicted of multiple historical sexual offences. The applicant contested the severity of the sentence imposed by the Supreme Court, arguing that it was manifestly excessive. The appeal was heard by the Court of Appeal, which needed to determine whether there was an error in the assessment of the applicant's mental health and whether the Crown's concession on the objective seriousness of one of the counts was properly considered. Additionally, the court had to assess if the applicant suffered a serious injustice and whether the aggregate sentence was manifestly excessive.

The central legal issues before the court were whether the Crown's concession regarding the objective seriousness of count 1 was adequately addressed, if there was an error in the assessment of the applicant's mental health, and whether the applicant had suffered a serious injustice due to the sentence. The court also needed to decide if the aggregate sentence was manifestly excessive, especially in light of the submissions made by both parties. The applicant argued that the concession should have resulted in a lesser sentence, and that the court had erred in its assessment of their mental health. The Crown, on the other hand, contended that the sentence was appropriate given the nature and seriousness of the offences.

In delivering the judgment, the Court of Appeal found that the Crown's concession on the objective seriousness of count 1 was not properly considered by the trial judge, which constituted an error. However, the court determined that this error did not result in a serious injustice to the applicant. The court further found that there was no error in the assessment of the applicant's mental health, as no submission was made about general deterrence. Ultimately, the Court of Appeal concluded that the aggregate sentence, while severe, was not manifestly excessive. The court acknowledged the gravity of the offences but found that the sentence was proportionate to the crimes committed.

The Court of Appeal dismissed the appeal against sentence. The court maintained that, while the trial judge did not properly consider the Crown's concession, this did not amount to a serious injustice. The assessment of the applicant's mental health was found to be accurate, and the aggregate sentence was deemed appropriate, despite its severity. The decision highlighted the importance of properly considering concessions and the role of mental health assessments in sentencing.

Orders