Kelly v R [2017] NSWCCA 82

Kelly v R [2017] NSWCCA 82

The sentencing judge erred by taking the applicant's prior criminal history into account in assessing the objective seriousness of the offences. However, after fresh consideration of the material, no lesser sentence was warranted in law and the appeal was dismissed.

Parties
Applicant: Steven John Kelly; Respondent: Regina
Jurisdiction
Australia
Judgment Date
01 May 2017
Procedural Posture
Criminal Law Sentence Appeal / Court of Criminal Appeal, Post Sentencing, Application for Leave to Appeal and Appeal
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
Sentence Appeal, Aggravated Enter Dwelling With Intent, Armed Robbery, Assessment of Objective Seriousness, Application of Sentencing Guideline Judgment, Henry Guideline, Prior Criminal History
Criminal Law Sentence Appeal Aggravated Enter Dwelling With Intent Armed Robbery Assessment of Objective Seriousness Application of Sentencing Guideline Judgment Henry Guideline Prior Criminal History

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Parties

Steven John Kelly

Applicant

Regina

Respondent

Procedural Posture

Criminal Law Sentence Appeal / Court of Criminal Appeal, Post Sentencing, Application for Leave to Appeal and Appeal

Legal Issues

  1. 1 Whether the sentencing judge erred in taking into account prior criminal history in assessing objective seriousness of offences
  2. 2 Whether the sentencing judge erred in the application of the Henry guideline judgment in assessing the indicative sentence for robbery
  3. 3 Whether a lesser sentence should be imposed

Ratio Decidendi

The sentencing judge erred by taking the applicant's prior criminal history into account in assessing the objective seriousness of the offences. However, after fresh consideration of the material, no lesser sentence was warranted in law and the appeal was dismissed.

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • Leave to appeal granted.
  • Appeal dismissed.