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Court of Criminal Appeal 25 August 2021

Kelly v R

[2021] NSWCCA 205

Assault & violenceTheft & propertyTraffic & driving
SENTENCING PLEA OF GUILTY STANDARD NON PAROLE PERIOD OFFENCE VULNERABLE ELDERLY VICTIM FORM 1 OFFENCE

Citation: Kelly v R [2021] NSWCCA 205
Court: Court of Criminal Appeal, NSW
Date: 25 August 2021
Judges: Macfarlan JA; R A Hulme J (principal judgment); Wright J

Background

The applicant pleaded guilty in the District Court at Newcastle to assault and recklessly inflicting actual bodily harm on an elderly man while taking his vehicle without consent, contrary to s 154C(2) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is 14 years imprisonment, with a standard non-parole period of five years. A Form 1 offence of dangerous driving was also taken into account, with the sentencing judge noting it called for a significant increase in the sentence imposed for the primary offence.

The facts involved the applicant entering the vehicle of an 89-year-old man without warning, forcibly removing him, leaving him injured on a service station driveway in the rain, and then driving the stolen vehicle through peak-hour traffic in wet conditions, colliding with seven other vehicles. The applicant was on bail for domestic violence charges at the time. The District Court imposed a sentence of three years and nine months imprisonment with a non-parole period of one year and nine months.

The applicant sought leave to appeal, arguing the sentencing judge had committed a legal error by factoring conditional liberty (being on bail) into the assessment of the objective seriousness of the primary offence, rather than treating it only as a subjective aggravating circumstance.

  • Whether the sentencing judge erred by taking the applicant's status on conditional liberty into account when assessing the objective seriousness of the offence.
  • Whether, if error was established, re-sentencing was warranted and would produce any lesser sentence.

Decision

The Court of Criminal Appeal accepted that the sentencing judge had erred in principle. The judge's remarks explicitly listed conditional liberty as a second aggravating factor in the passage dealing with objective seriousness, and the Court found that reading could not be explained away. It is well-established that conditional liberty at the time of offending is irrelevant to objective seriousness, bearing instead on the subjective circumstances of the offender. The Crown's argument that the judge's reference was directed at something other than objective seriousness was rejected.

Despite finding error, the Court was doubtful that re-sentencing was strictly necessary. The sentencing judge had assessed the offence as falling "just below the mid-range" of objective seriousness, which was actually lower than the "mid-range" finding both the Crown and the applicant's own legal representatives had put to the court below. The only error ran in the applicant's favour at first instance, in that removing the improperly considered factor would logically push the assessment upward rather than downward.

On re-exercising the sentencing discretion, R A Hulme J assessed the objective seriousness as sitting in the middle of the range, consistent with both parties' original submissions. The victim's age (89 years) was identified as a genuine aggravating factor under the statutory provisions. The findings that the offence was short-lived, opportunistic, and unplanned were characterised not as mitigating matters but simply as the absence of additional aggravation.

Taking all subjective factors into account, including a dysfunctional upbringing, a 25 per cent discount for the early guilty plea, guarded prospects of rehabilitation, a high risk of reoffending, and a significant criminal history, the Court concluded that no lesser sentence was warranted in law. The backdating of the sentence to 13 February 2020, to account for prior custody and the principle of totality, was maintained.

Orders Made

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

Key Takeaways

  • The Court of Criminal Appeal confirmed the long-standing principle that whether an offender was on conditional liberty (including bail) at the time of offending is irrelevant to the objective seriousness of the offence; it bears only on the subjective circumstances.
  • Where a sentencing judge explicitly includes conditional liberty as an aggravating factor in the objective seriousness analysis, that constitutes a legal error, even if the overall sentence might be defensible on other grounds.
  • Identifying error in a sentencing judge's reasoning does not automatically produce a lesser sentence on appeal. Where the original assessment of objective seriousness was actually lower than it should have been, correcting the error may leave the sentence unchanged or increase it.
  • In dismissing the appeal, the Court re-exercised the sentencing discretion and arrived at the same sentence, illustrating that an appellate court will not impose a lesser penalty merely because an error was found if no lesser sentence is warranted in law.
  • Under s 54B(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing judge departing from the standard non-parole period must provide reasons; that obligation does not, however, permit conditional liberty to be imported into the objective seriousness assessment as a vehicle for justifying the departure.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 154C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54B(3)
- Road Transport Act 2013 (NSW), s 117(2)

Cases:
- Hillier v Director of Public Prosecutions (NSW) (2009) 198 A Crim R 565; [2009] NSWCCA 312
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
- R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
- Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44