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Court of Criminal Appeal 23 July 2021

Kelley v R

[2021] NSWCCA 173

Assault & violenceTraffic & drivingDomestic & family violence
CRIME APPEALS APPEAL AGAINST SENTENCE

Citation: Kelley v R [2021] NSWCCA 173
Court: NSW Court of Criminal Appeal
Date: 23 July 2021
Judge(s): Bell P (principal judgment); Rothman J and Bellew J (agreeing)

Background

The appellant was 23 years old when she committed the offences on 1 October 2018. She had been in a domestic relationship with the victim for approximately three months. Following a dispute at a fast food outlet, she forcibly took the wheel from the victim and drove at a speed more than 45 kilometres per hour over the limit while under the influence of mid-range alcohol. She assaulted the victim immediately before and during the driving. The resulting crash caused the victim serious injuries and left the appellant herself with a fractured back, broken ribs, frontal lobe damage, and a traumatic brain injury.

The appellant pleaded guilty to aggravated dangerous driving occasioning grievous bodily harm under s 52A(4) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 11 years' imprisonment. She also pleaded guilty to two counts of common assault. On 26 August 2020, the District Court sentenced her to 3 years and 4 months' imprisonment with a non-parole period of 2 years for the driving offence, and two Community Corrections Orders for the assaults.

The appellant sought leave to appeal against the sentence on four grounds, all directed at how the sentencing judge assessed her moral culpability.

  • Whether the sentencing judge conflated the distinct concepts of objective seriousness and moral culpability, thereby failing to give proper weight to subjective mitigating factors.
  • Whether the sentencing judge erred by making no findings about expert evidence connecting the appellant's drug and alcohol use disorder to a PTSD diagnosis arising from a sexual assault suffered in early adolescence, and the relevance of that connection to moral culpability.
  • Whether the sentencing judge erred in characterising the victim's injuries as falling at the upper end of objective seriousness in the absence of medical evidence that those injuries were permanent.
  • Whether the sentencing judge erred by failing to make specific findings about the mitigating effect of the appellant's own injuries as a form of extra-curial punishment.

Decision

Issue 1: Conflation of objective seriousness and moral culpability. The Court accepted that there may have been some degree of conflation in the sentencing judge's ex tempore reasons. However, the Court treated this as an understandable slip in language rather than a material error, noting that, in any event, the two concepts are not wholly distinct. Moral culpability is a component of objective seriousness and the two concepts necessarily overlap. Because no serious injustice to the appellant resulted, the conflation did not ground appellable error. The Court further found that the sentencing judge did in fact have regard to the appellant's subjective circumstances, even if those circumstances were not viewed as reducing her moral culpability.

Issue 2: Expert evidence on the PTSD and substance abuse connection. The appellant had not advanced submissions at first instance about the causal link between the sexual assault, her PTSD diagnosis, and her subsequent substance abuse. The Court of Criminal Appeal will only permit a party to raise a new argument on appeal where failing to do so would produce a serious injustice or miscarriage of justice. The Court found no such injustice here because the expert evidence on this causal connection was qualified and tentative in its terms. The appellant was therefore not permitted to reformulate her case on appeal.

Issue 3: Classification of the victim's injuries. The Court found no error in the sentencing judge's conclusion that the offence fell toward the upper end of objective seriousness with respect to the victim's injuries. The Statement of Agreed Facts clearly documented the seriousness of those injuries. The Court confirmed that medical evidence of a permanent prognosis is not a prerequisite to classifying an offence at the higher end of the seriousness spectrum.

Issue 4: The appellant's own injuries as extra-curial punishment. The sentencing judge was not required to make discrete findings about the appellant's injuries as extra-curial punishment. The remarks on sentence showed that her Honour had considered the full subjective case, which expressly included the appellant's injuries, as part of the instinctive synthesis process. Counsel had specifically made submissions on this point, and there was no basis to infer the sentencing judge overlooked it.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that objective seriousness and moral culpability are related and overlapping sentencing concepts; a degree of conflation in ex tempore reasons will not constitute appellable error unless it produces a serious injustice to the offender.
  • A new argument on appeal concerning mitigating factors not raised at the sentencing hearing will only be entertained where refusing to do so would result in a serious injustice or miscarriage of justice.
  • Where expert evidence relied on as mitigation is qualified or tentative in its conclusions, that weakness diminishes the prospect of a court finding that its omission from the sentencing reasons constitutes a miscarriage of justice.
  • No requirement exists for a sentencing judge to produce medical evidence of permanent injury before classifying an offence as falling toward the upper end of objective seriousness; a Statement of Agreed Facts may suffice to support such a finding.
  • In dismissing the appeal, the Court reaffirmed that a sentencing judge conducting an instinctive synthesis is not obliged to make express discrete findings on each mitigating factor, provided the sentencing remarks demonstrate that the overall subjective case was taken into account.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 52A(4), 61
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 8
- Criminal Procedure Act 1986 (NSW), s 166

Cases
- Cooper v R [2021] NSWCCA 65
- Dixon v R [2019] NSWCCA 85
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Fisher v R [2021] NSWCCA 91
- Gommesen v R (2012) 62 MVR 196; [2012] NSWCCA 226
- Karout v R [2019] NSWCCA 253
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v Killen (2005) 152 A Crim R 1; [2005] NSWCCA 17
- R v Manok [2017] NSWCCA 232
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
- Robertson v Director of Public Prosecutions (NSW) [2017] NSWCA 180
- Zheng v R; Li v R; Pan v R [2021] NSWCCA 78
- Zreika v The Queen (2012) 223 A Crim R 460; [2012] NSWCCA 44