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Court of Criminal Appeal 12 July 2021

Kelly v R

[2021] NSWCCA 154

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE HISTORICAL SEXUAL OFFENCES

Citation: Kelly v R [2021] NSWCCA 154
Court: NSW Court of Criminal Appeal
Date: 12 July 2021
Judge(s): Payne JA; Price J; Wright J

Background

The applicant was sentenced in the District Court in May 2020 for a series of historical sexual offences committed against a child between 1969 and 1977. The victim was a ward of the State who had been placed in foster care with the applicant's half-sister, and was between seven and fifteen years old during the period of offending. The applicant was aged between 22 and 31 at the time, and 72 years old when sentenced.

The offences included seven counts of indecent assault and related acts of indecency, charged under provisions of the Crimes Act 1900 (NSW) that applied at the time of the conduct. Two further common assault offences were taken into account by the sentencing judge on Form 1 (a procedural mechanism allowing a court to take additional charges into account without recording separate convictions). The applicant entered guilty pleas four days before his trial was due to begin, receiving a 10 per cent discount for those pleas.

The District Court imposed individual sentences for each count before arriving at an aggregate sentence of eight years' imprisonment with a non-parole period of five years. The applicant sought leave to appeal that aggregate sentence to the Court of Criminal Appeal.

  • Whether the sentencing judge erred by assessing Count 1 as more serious than the Crown had conceded it to be, thereby denying the applicant procedural fairness
  • Whether the sentencing judge erred in her treatment of the applicant's mental health condition, including by failing to make findings on general deterrence in that context
  • Whether the aggregate sentence of eight years was latently erroneous (that is, contained a hidden sentencing error arising from the combination of individual sentences) or manifestly excessive

Decision

Ground 1: Crown concession on objective seriousness of Count 1

The applicant contended that the Crown had conceded Count 1 was of low objective seriousness, and that the judge's assessment departed from that concession without notice, denying procedural fairness. The Court rejected this ground. Price J found that the Crown's written submission characterised the offending on Count 1 as "less serious" than the later counts, but did not formally concede a specific level of objective seriousness. Even if such a concession had been made, the Court reaffirmed the established principle that a sentencing judge is not bound by concessions about objective seriousness. The Crown's position on that question is a submission, not a binding agreement.

Ground 2: Mental health

The applicant argued the judge erred in her assessment of his mental health condition. Medical evidence before the court described the applicant's mental health difficulties, but the applicant had not submitted at first instance that those difficulties should reduce the weight given to general deterrence. The Court of Criminal Appeal declined to treat the absence of such a finding as error, noting that a sentencing judge is not required to address matters not raised by the parties. No demonstrated error in the judge's approach to mental health was established.

Ground 3: Latent error and manifest excess

The applicant submitted that when the individual indicative sentences were combined, a latent error emerged, or alternatively that the aggregate was simply too high. The Court found no latent error and rejected the manifest excess argument. Having regard to the gravity and extent of the offending, spanning nearly a decade, involving a highly vulnerable child victim, and accompanied by significant aggravating features including threats with a firearm and coercion, the Court held the aggregate sentence was within the proper range. Comparable sentencing decisions in the District Court supported rather than undermined the outcome.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A Crown submission characterising the objective seriousness of an offence does not bind the sentencing judge; a sentencing judge retains the responsibility and authority to assess objective seriousness independently based on the evidence.
  • No error arises from a sentencing judge's failure to address general deterrence in the context of an offender's mental health where no submission was made on that issue at first instance.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an aggregate sentence must be assessed holistically against the totality of the offending, and that individual indicative sentences do not automatically generate a latent error simply because their sum exceeds the aggregate imposed.
  • Where offending against a highly vulnerable child victim spans many years and involves coercion, threats, and repeated escalation, a substantial aggregate sentence will not readily be characterised as manifestly excessive.
  • Procedural fairness in sentencing does not require a judge to alert parties before departing from a Crown submission that was itself characterised only as a submission, not a binding concession.

Legislation and Cases Referenced

Legislation

  • Crimes Act 1900 (NSW), ss 61J(1), 61M, 76, 76A
  • Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A(g), 25AA
  • Mental Health Act 2007 (NSW)

Cases