Kelly v R [2021] NSWCCA 154

Kelly v R [2021] NSWCCA 154

The appeal failed because the Crown had not conceded that count 1 fell at the lower end of the overall range of objective seriousness, and the applicant was not denied procedural fairness. The sentencing judge considered and accepted the mental health submissions actually advanced, including that custody would be more onerous and likely exacerbate the applicant's conditions, and the applicant suffered no serious injustice from the absence of a finding reducing general deterrence. Given the repeated, degrading and serious sexual offending against a vulnerable child, the Form 1 violence and threats, the application of s 25AA, and the judge's consideration of totality and subjective factors,...

Jurisdiction
Australia
Judgment Date
12 July 2021
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence From the District Court of New South Wales
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['historical Sexual Offences' 'child Sexual Assault' 'objective Seriousness' 'procedural Fairness' 'mental Health and Sentencing' 'general Deterrence' 'manifest Excess' 'aggregate Sentence' 'special Circumstances']
['criminal Law' 'sentencing'] ['historical Sexual Offences' 'child Sexual Assault' 'objective Seriousness' 'procedural Fairness' 'mental Health and Sentencing' 'general Deterrence' 'manifest Excess' 'aggregate Sentence' 'special Circumstances']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence From the District Court of New South Wales

Legal Issues

  1. 1 ['Whether the sentencing judge erred, and denied procedural fairness, by not acting on an alleged Crown concession about the objective seriousness of count 1.' "Whether the sentencing judge erred in assessing the applicant's mental health condition by not treating him as an inappropriate vehicle for general deterrence when no such submission was made below." 'Whether the aggregate sentence was latently erroneous or manifestly excessive.']

Ratio Decidendi

The appeal failed because the Crown had not conceded that count 1 fell at the lower end of the overall range of objective seriousness, and the applicant was not denied procedural fairness. The sentencing judge considered and accepted the mental health submissions actually advanced, including that custody would be more onerous and likely exacerbate the applicant's conditions, and the applicant suffered no serious injustice from the absence of a finding reducing general deterrence. Given the repeated, degrading and serious sexual offending against a vulnerable child, the Form 1 violence and threats, the application of s 25AA, and the judge's consideration of totality and subjective factors,...

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

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