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Court of Criminal Appeal 1 May 2017

Kelly v R

[2017] NSWCCA 82

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCE APPEAL AGGRAVATED ENTER DWELLING WITH INTENT ARMED ROBBERY SENTENCE

Citation: Kelly v R [2017] NSWCCA 82
Court: NSW Court of Criminal Appeal
Date: 1 May 2017
Judge(s): Bathurst CJ, Walton J, Price J

Background

The appellant was sentenced in the District Court following guilty pleas to aggravated entry of a dwelling with intent, larceny, armed robbery, and attempted armed robbery. The offences involved a home invasion in which a teenage victim was bound and threatened with a screwdriver, a daylight robbery at a carpark in which a victim was threatened with an object resembling a handgun, and an attempted robbery at a butcher shop in which the appellant jumped onto a counter brandishing a carving knife.

The District Court imposed an aggregate sentence of 9 years and 6 months, with a non-parole period of 7 years, 1 month and 15 days. Indicative sentences were announced for each offence as required by the Crimes (Sentencing Procedure) Act 1999.

The appellant sought leave to appeal on two grounds: first, that the sentencing judge wrongly used his prior criminal history when assessing the objective seriousness of the offences; and second, that the judge misapplied the guideline judgment in R v Henry when setting the indicative sentence for the robbery offences.

  • Whether the sentencing judge erred by taking into account the appellant's prior criminal record when assessing the objective seriousness of the offences (as distinct from using it as a subjective factor, which is permissible).
  • Whether the judge erred in applying the Henry guideline judgment to the armed robbery and attempted armed robbery offences, in particular whether the judge engaged in impermissible double-counting of aggravating factors.

Decision

Ground 1: Prior criminal history and objective seriousness

The Court accepted Ground 1. A prior criminal record is a subjective factor relevant to issues such as prospects of rehabilitation and the weight given to general deterrence. It is not, however, a legitimate consideration when assessing the objective seriousness of the particular offence being sentenced. Using it in that context constitutes legal error. The Court found the sentencing judge had made that error here.

Ground 2: Application of the Henry guideline

The Court rejected Ground 2. The Henry guideline judgment provides a framework for assessing sentences for robbery offences in NSW. The appellant argued the judge had double-counted the same aggravating features both when fixing the Henry indicative range and when assessing objective gravity. Price J was not persuaded that double-counting occurred. The judge's references to planning and violence were part of reasoning why the offences sat above the guideline benchmark, not an additional separate use of the same features.

Price J also noted that indicative sentences are not themselves amenable to direct appeal under JM v R, and the appellant had not submitted that the aggregate sentence was manifestly excessive. That observation further undermined the utility of Ground 2.

Re-sentencing

Because Ground 1 was established, the Court was required to exercise the sentencing discretion afresh to determine whether a lesser sentence was warranted. All three judges concluded that no lesser sentence was warranted in law. The aggregate sentence appropriately reflected the totality of the criminality and the appellant's subjective circumstances, including a history of childhood sexual abuse, long-standing poly-substance dependence, and the absence of special circumstances justifying a variation to the standard non-parole period ratio.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge errs in law by taking into account a defendant's prior criminal history when assessing the objective seriousness of an offence. Prior record is a subjective sentencing factor and its use is confined accordingly, consistent with Veen v R (No 2).
  • No error was established in the judge's application of the Henry guideline. References to planning and violence in both the objective gravity analysis and the Henry assessment did not constitute double-counting where those references explained why the offences exceeded the guideline benchmark.
  • Under the approach confirmed in Kentwell v R, once sentencing error is established the appellate court must exercise the sentencing discretion afresh. That exercise does not automatically produce a more favourable outcome for the appellant.
  • Indicative sentences announced under s 53A(1) of the Crimes (Sentencing Procedure) Act 1999 are not directly amenable to appeal. As affirmed in JM v R, they may be a guide to whether error in the aggregate sentence is established, but only the aggregate sentence itself is the proper subject of appeal.
  • In dismissing the appeal despite upholding one ground, the Court of Criminal Appeal confirmed that establishing a sentencing error is a necessary but not sufficient condition for obtaining a reduced sentence on appeal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(1), 111(2), 117, 344A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A(1)
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases
- Adegoke v R [2013] NSWCCA 193
- JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
- Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v McNaughten (2006) 66 NSWLR 566; [2006] NSWCCA 242
- R v Walker [2005] NSWCCA 109
- Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14