Kelly v R [2022] NSWCCA 189

Kelly v R [2022] NSWCCA 189

The sentencing judge's assessment that the offending was within the mid-range of objective seriousness was open because the applicant had sexual intercourse with the complainant while she was asleep and vulnerable, had formed an intention to have sexual intercourse with her, and took the opportunity when she was alone and unprotected; the factors relied on by the applicant either did not bear on objective seriousness or did not reduce it in the circumstances. The sentence of 5 years and 9 months with a non-parole period of 3 years and 9 months was not unreasonable or plainly unjust having regard to the maximum penalty, standard non-parole period, general deterrence, aggravating...

Jurisdiction
Australia
Judgment Date
07 September 2022
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['sexual Intercourse Without Consent' 'objective Seriousness' 'manifest Excess' 'standard Non Parole Period' 'general Deterrence' 'victim Asleep or Unconscious']
['criminal Law' 'sentencing' 'criminal Appeals'] ['sexual Intercourse Without Consent' 'objective Seriousness' 'manifest Excess' 'standard Non Parole Period' 'general Deterrence' 'victim Asleep or Unconscious']

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred in determining that the offence fell within the mid-range of objective seriousness.' 'Whether the sentence imposed was manifestly excessive.']

Ratio Decidendi

The sentencing judge's assessment that the offending was within the mid-range of objective seriousness was open because the applicant had sexual intercourse with the complainant while she was asleep and vulnerable, had formed an intention to have sexual intercourse with her, and took the opportunity when she was alone and unprotected; the factors relied on by the applicant either did not bear on objective seriousness or did not reduce it in the circumstances. The sentence of 5 years and 9 months with a non-parole period of 3 years and 9 months was not unreasonable or plainly unjust having regard to the maximum penalty, standard non-parole period, general deterrence, aggravating...

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Leave to appeal granted.' 'Appeal dismissed.']