Medium Neutral Citation: R v Kelly [2025] NSWDC 281
Hearing dates: 18 December 2024 and 6 June 2025
Date of orders: 6 June 2025
Decision date: 06 June 2025
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of imprisonment of 5 years 6 months with a non-parole period of 3 years 2 months

Catchwords:
CRIME — Sexual offences — Sexual touching
CRIME — Violent offences — Assault occasioning actual bodily harm — In company — Detain for advantage
SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions
SENTENCING — Mitigating factors — Late plea of guilty — Considerable steps towards rehabilitation
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — General principles — Moral culpability — Objective seriousness
SENTENCING — Sentencing procedure — Findings of fact — Extent of reduction for guilty plea
SENTENCING — Subjective considerations on sentence — Drug addiction — Mental illness — Mental disorders — Significant progress on remand

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1
Devaney v R [2012] NSWCCA 285
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Lloyd v R [2022] NSWCCA 18
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305
Paterson v R [2021] NSWCCA 273
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149
R v Herring (1956) 73 WN (NSW) 203
R v Millwood [2012] NSWCCA 2
R v MJ [2023] NSWCCA 306
R v Qutami [2001] NSWCCA 353
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Windle [2012] NSWCCA 222
Ryan v R [2017] NSWCCA 209
Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
Tepaniav R [2018] NSWCCA 247

Category: Sentence
Parties: Damian David Kelly (the offender)
Director of Public Prosecutions (NSW) (Crown)
Representation:
Counsel:
D Coulton (for the Crown)
H White (for the offender)
Solicitors:
Director of Public Prosecutions (NSW) (Crown)

File Number(s): 2022/262882

JUDGMENT – ex tempore revised

Guilty pleas

When he was initially before the Local Court and when he was arraigned in this Court and a trial date fixed, Damian Kelly said he was not guilty of the take and detain offence charged pursuant to s 86(3) Crimes Act 1900 (NSW) and an offence of sexual intercourse without consent charged pursuant to s 61I Crimes Act. About a month prior to the trial date, negotiations took place. It was agreed that the more serious second count was withdrawn and replaced by a sexual touching offence: Crimes Act, s61KD(1)(a). Formal guilty pleas were not entered until the day of trial.
It…

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 R v Kelly

Details

AGLC: R v Kelly [2025] NSWDC 281
Case: [2025] NSWDC 281
Decision Date: 06 June 2025

CaseChat Overview and Summary

In the matter of R v Kelly, the defendant was convicted of various sexual and violent offences, including sexual touching and assault occasioning actual bodily harm, committed while in the company of another individual, and detaining for advantage. The case was heard in an Australian court, where the defendant appealed against his sentence. The appeal centred on the severity and appropriateness of the sentence imposed, considering both aggravating and mitigating factors.

The court was tasked with determining whether the sentence was proportionate to the crimes committed, taking into account the defendant's breach of conditional liberty, his record of previous convictions, and his late plea of guilty. The court also had to consider mitigating factors such as the defendant's considerable steps towards rehabilitation, his drug addiction, and mental illness. The court was required to balance these factors against the need for general deterrence and the moral culpability of the defendant, as well as the objective seriousness of the offences.

The court examined the defendant's criminal history, his breach of conditional liberty, and the nature of the offences, concluding that these were significant aggravating factors. However, it also recognised the defendant's late plea of guilty, his considerable steps towards rehabilitation, and his significant progress on remand as mitigating factors. After weighing these considerations, the court determined that the original sentence was appropriate, taking into account the need for general deterrence and the moral culpability of the defendant. The appeal was ultimately dismissed, and the original sentence was upheld.

The court's final order was to maintain the aggregate sentence of imprisonment of 5 years and 6 months, with a non-parole period of 3 years and 2 months. This decision reflected the court's assessment of the defendant's criminal history, the nature of the offences, and the mitigating factors presented during the appeal.

Orders

Orders of the court

Aggregate sentence of imprisonment of 5 years 6 months with a non-parole period of 3 years 2 months

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Kelly [2025] NSWDC 281

Most Recent Citation

R v Agostini (No 2) [2025] NSWDC 369

Cases citing this decision · 1 of 1 shown

R v Agostini (No 2)
[2025] NSWDC 369 Para 24

…sentence, I have to have regard to my sentencing of Kelly whose remarks are before the Court, and their respective degrees of culpability: R v Kelly [2025] NSWDC 281. They did different things, and she was not as involved as Kelly, but only modestly so. Her role however was, as the Crown submit today, “pivotal “to…

View all 1 citing cases →

Cases cited in this decision · 19 of 19 shown

R v MJ
[2023] NSWCCA 306 Para 26

…His Honour there was referring to moral culpability not the offences objective seriousness. In R v MJ [2023] NSWCCA 306, Simpson JA cautioned that sometimes the search for a causal connection between the person’s background and the offence bypasses the larger issue and causes the Court to focus too narrowly on the o…
Lloyd v R
[2022] NSWCCA 18 Para 46

…d. They were not based solely on self-reports, particularly Mr Machin and Dr Furst. But what is revealed in the reports is uncontroversial: Lloyd v R [2022] NSWCCA 18 ; Devaney v R [2012] NSWCCA 285 at [88]; Ryan v R [2017] NSWCCA 209 at [9].…
Paterson v R
[2021] NSWCCA 273 Para 23

…ffender that are causally connected with or materially contributed to the commission of the offence, they can include a mental disorder: Paterson v R [2021] NSWCCA 273 at [29]; Tepania v R [2018] NSWCCA 247 at [112]; Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305 at [324]-[325] (Brennan J); Cheung v The Queen [2…
Tepania v The Queen
[2018] NSWCCA 247 Para 23

…h or materially contributed to the commission of the offence, they can include a mental disorder: Paterson v R [2021] NSWCCA 273 at [29]; Tepania v R [2018] NSWCCA 247 at [112]; Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305 at [324]-[325] (Brennan J); Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 at 55-56…
Ryan v Regina
[2017] NSWCCA 209 Para 46

…in and Dr Furst. But what is revealed in the reports is uncontroversial: Lloyd v R [2022] NSWCCA 18 ; Devaney v R [2012] NSWCCA 285 at [88]; Ryan v R [2017] NSWCCA 209 at [9].…
Bugmy v The Queen
[2013] HCA 37 Para 24

…their background must be taken into account when the sentence is synthesised. They are very relevant to the sentencing task: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571; R v Millwood [2012] NSWCCA 2 at [69].…
Devaney v R
[2012] NSWCCA 285 Para 46

…n self-reports, particularly Mr Machin and Dr Furst. But what is revealed in the reports is uncontroversial: Lloyd v R [2022] NSWCCA 18 ; Devaney v R [2012] NSWCCA 285 at [88]; Ryan v R [2017] NSWCCA 209 at [9].…
R v Windle
[2012] NSWCCA 222 Para 66

…ll upon them if they do similar things: R v Herring (1956) 73 WN (NSW) 203 at [205]; Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222. As I have said, drug use, even drug psychosis, cannot be used as an excuse.…
R v Millwood
[2012] NSWCCA 2 Para 24

…n the sentence is synthesised. They are very relevant to the sentencing task: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571; R v Millwood [2012] NSWCCA 2 at [69].…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 25

…Courts are often referred to the helpful and succinct summary of McClellan J in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177], where his Honour said:…
Markarian v The Queen
[2005] HCA 25 Para 18

…I have to identify all the factors relevant to the sentence, discuss their significance and ultimately make a value judgment: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51] (McHugh J). I will attempt to do so in as short a time as possible given the hour and the large amount of material that has…
R v Simpson
[2001] NSWCCA 534 Para 64

…ty, however, the minimum term for which he should be imprisoned still has to properly reflect the seriousness of the crimes he committed: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].…
Cheung v The Queen
[2001] HCA 67 Para 23

…73 at [29]; Tepania v R [2018] NSWCCA 247 at [112]; Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305 at [324]-[325] (Brennan J); Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 at 55-56 [171]-[172] (Callinan J).…
R v Qutami
[2001] NSWCCA 353 Para 46

…re me which go to the objective seriousness of the offences. No regard could be had to them unless they are supported by evidence on oath: R v Qutami [2001] NSWCCA 353. This was accepted by the defence. But all of the reports were admitted without objection and the opinions reached about Kelly and the relevant mater…
Ryan v The Queen
[2001] HCA 21 Para 66

…d let others know the retribution that will fall upon them if they do similar things: R v Herring (1956) 73 WN (NSW) 203 at [205]; Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222. As I have said, drug use, even drug psychosis, cannot be used as an excuse.…
Regina v Simpson
[1999] NSWCCA 367 Para 64

…nimum term for which he should be imprisoned still has to properly reflect the seriousness of the crimes he committed: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].…
R v Henry
[1999] NSWCCA 111 Para 30

…ters. I cannot take into account intoxication with a drug; applying s 25A Crimes (Sentencing and Procedure) Act , common law principles and R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346. Ther reasons for Kelly’s drug induced psychosis, will be taken into account in this sentencing exercise, but when I come to con…
R v Henry
[1999] NSWCA 111 Para 30

…into account intoxication with a drug; applying s 25A Crimes (Sentencing and Procedure) Act , common law principles and R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346. Ther reasons for Kelly’s drug induced psychosis, will be taken into account in this sentencing exercise, but when I come to consider the objective s…
Neal v The Queen
[1982] HCA 55 Para 23

…of the offence, they can include a mental disorder: Paterson v R [2021] NSWCCA 273 at [29]; Tepania v R [2018] NSWCCA 247 at [112]; Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305 at [324]-[325] (Brennan J); Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 at 55-56 [171]-[172] (Callinan J).…

Legislation cited in this decision · 3

Crimes (Sentencing Procedure) Act 1999 (NSW)
25D, 44(2) 3 mentions (from Para 2)
Crimes Act 1900 (ACT)
1 mention (from Para 1)
Criminal Procedure Act 1986 (NSW)
1 mention

Medium Neutral Citation:	R v Kelly [2025] NSWDC 281
Hearing dates:	18 December 2024 and 6 June 2025
Date of orders:	6 June 2025
Decision date:	06 June 2025
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of imprisonment of 5 years 6 months with a non-parole period of 3 years 2 months
Catchwords:	CRIME — Sexual offences — Sexual touching CRIME — Violent offences — Assault occasioning actual bodily harm — In company — Detain for advantage SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions SENTENCING — Mitigating factors — Late plea of guilty — Considerable steps towards rehabilitation SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — General principles — Moral culpability — Objective seriousness SENTENCING — Sentencing procedure — Findings of fact — Extent of reduction for guilty plea SENTENCING — Subjective considerations on sentence — Drug addiction — Mental illness — Mental disorders — Significant progress on remand
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 Devaney v R [2012] NSWCCA 285 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Lloyd v R [2022] NSWCCA 18 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305 Paterson v R [2021] NSWCCA 273 R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149 R v Herring (1956) 73 WN (NSW) 203 R v Millwood [2012] NSWCCA 2 R v MJ [2023] NSWCCA 306 R v Qutami [2001] NSWCCA 353 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Windle [2012] NSWCCA 222 Ryan v R [2017] NSWCCA 209 Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 Tepaniav R [2018] NSWCCA 247
Category:	Sentence
Parties:	Damian David Kelly (the offender) Director of Public Prosecutions (NSW) (Crown)
Representation:	Counsel: D Coulton (for the Crown) H White (for the offender) Solicitors: Director of Public Prosecutions (NSW) (Crown)
File Number(s):	2022/262882