Kelly v R [2021] NSWCCA 205

Kelly v R [2021] NSWCCA 205

Although an error was made in considering conditional liberty as an aggravating factor in determining objective seriousness, the Court found that the objective seriousness was in the middle of the range, and that a lesser sentence was not warranted in law. The appeal against sentence was dismissed.

Parties
Applicant: Shaun Tyrone Kelly; Respondent: Regina
Jurisdiction
Australia
Judgment Date
25 August 2021
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Outcome
Leave to appeal granted. Appeal against sentence dismissed.
Legal Topics
Sentencing, Appeal, Objective Seriousness, Aggravating Factors, Non Parole Period, Conditional Liberty
Criminal Law Sentencing Appeal Objective Seriousness Aggravating Factors Non Parole Period Conditional Liberty

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Parties

Shaun Tyrone Kelly

Applicant

Regina

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Sentence

Legal Issues

  1. 1 Did the sentencing judge err by considering breach of conditional liberty as an aggravating factor in the determination of objective seriousness?
  2. 2 Should the sentencing discretion be re-exercised as a result of this error?

Ratio Decidendi

Although an error was made in considering conditional liberty as an aggravating factor in determining objective seriousness, the Court found that the objective seriousness was in the middle of the range, and that a lesser sentence was not warranted in law. The appeal against sentence was dismissed.

Court Disposition

Leave to appeal granted. Appeal against sentence dismissed.

Orders

  • Leave to appeal granted.
  • Appeal against sentence dismissed.