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District Court 6 June 2025

R v Kelly

[2025] NSWDC 281

Sexual offencesAssault & violence

Citation: [2025] NSWDC 281
Court: District Court of New South Wales
Date: 6 June 2025
Judge: Haesler SC DCJ

Background

The offender was charged in connection with a violent and degrading attack on a complainant at a residential unit in Port Kembla on 2 September 2022. The complainant had been lured to the unit under the pretext of purchasing methylamphetamine. Upon arrival, he was struck with a weighted kettlebell, beaten, restrained with an extension cord, stripped naked, and subjected to degrading conduct including an attempted sexual assault with a kitchen implement. He was also cut with a knife, had disinfectant and alcohol poured over him, and was threatened with further violence if he reported the offending.

The offender was originally charged with detaining a person for advantage (under s 86(3) of the Crimes Act 1900 (NSW)) and sexual intercourse without consent (under s 61I). In the lead-up to trial, the second count was replaced by the less serious offence of aggravated sexual touching (under s 61KD(1)(a)), and formal guilty pleas to both counts were entered on the day of trial.

The sentencing proceedings required the court to determine the correct discount for each guilty plea, assess the objective and subjective features of the offending, and fix an appropriate aggregate sentence.

  • What percentage discount for utilitarian value applied to the guilty plea on Count 1 (detain for advantage), where the plea was entered late?
  • Whether the guilty plea on Count 2 (aggravated sexual touching, a new count introduced by amended indictment) attracted a 25% discount, or only 10%, having regard to s 25D(3) and (4) of the Crimes (Sentencing Procedure) Act 1999 (NSW)?
  • How the offender's criminal history, drug addiction, mental health, and progress toward rehabilitation should be weighed in sentencing?
  • What was the appropriate aggregate sentence, including non-parole period?

Decision

Guilty plea discounts. The court accepted a 10% discount on Count 1, reflecting the late timing of the plea and its utilitarian value in sparing the complainant from cross-examination. On Count 2, the defence argued for a 25% discount on the basis that the charge was a new count introduced by amended indictment. The court rejected that submission. Although the charge was new, the underlying facts were substantially the same as those in the brief served in the committal proceedings, and the penalty for the new count was lower than the original charge. Section 25D(4)(a) operated to exclude the 25% rate, leaving only a 10% discount. The plea was nonetheless recognised as indicating a willingness to facilitate justice.

The offender's cooperation offer. Before the plea, the offender had offered, through his solicitor, to assist police in identifying an unidentified co-offender, conditional on an induced statement. Police declined. The court accepted this offer as a further indicator of the offender's willingness to put his past behind him, though it was not governed by s 23 of the Crimes (Sentencing Procedure) Act.

Objective and subjective factors. The offending was treated as serious. It involved sustained, planned, and degrading violence against a restrained and vulnerable complainant, carried out in company. The court also weighed the offender's difficult personal history, including longstanding drug addiction and mental health difficulties, consistent with the principles in Bugmy v The Queen. Against those factors, the court noted considerable progress made by the offender while on remand, including engagement with rehabilitation programs, and meaningful support from family and community.

General deterrence and rehabilitation. The court acknowledged that general deterrence has a role in sentencing for offences of this kind, while also recognising that the community benefits from the successful rehabilitation of offenders. Both considerations informed the final sentence.

Orders Made

  • Count 1 (detain for advantage): indicated sentence of 5 years and 4 months imprisonment (reduced by 10% for guilty plea).
  • Count 2 (aggravated sexual touching): indicated sentence of 1 year and 9 months imprisonment with a non-parole period of 11 months (reduced by 10% for guilty plea).
  • Aggregate term: 5 years and 6 months imprisonment.
  • Aggregate non-parole period: 3 years and 2 months.
  • Earliest possible release to parole: 2 May 2026 (subject to State Parole Authority determination).
  • Parole period: 2 years and 4 months.
  • Sentence expiry: 2 September 2028.
  • High Risk Offender Warning given in relation to Count 2, which is a serious high risk category offence; the court noted this warning was unlikely to have practical consequences given the material before it.
  • Psychiatric and psychological reports directed to accompany the warrant to assist with parole.

Key Takeaways

  • Under s 25D(4)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the 25% discount available for a new count offence does not apply where the facts establishing the new count are substantially the same as those in the committal brief and the new count carries a lower maximum penalty than the original charge. In such circumstances, the discount is limited to 10%.

  • The distinction between facts being "different" and facts being "substantially the same" can turn on fine distinctions in the evidence. Here, the court found that a significant factual distinction (penetration versus contact without penetration) was not enough to make the underlying facts substantially different for the purposes of s 25D(4)(a).

  • A pre-plea offer by an offender to assist police in identifying a co-offender, even where police decline the offer, may be taken into account as a factor reflecting a willingness to facilitate justice, though it does not engage s 23 of the Crimes (Sentencing Procedure) Act.

  • Consistent with Bugmy v The Queen, entrenched drug addiction and mental health difficulties arising from a disadvantaged background remain relevant to the assessment of moral culpability, even for serious violent offending.

  • Demonstrated rehabilitation progress during remand, including engagement with programs and the development of support networks, is a genuine mitigating factor capable of influencing the structure and length of a sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61KD(1)(a), 86(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 25D

Cases:
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1
- Devaney v R [2012] NSWCCA 285
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- Lloyd v R [2022] NSWCCA 18
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305
- Paterson v R [2021] NSWCCA 273
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Herring (1956) 73 WN (NSW) 203
- R v Millwood [2012] NSWCCA 2
- R v MJ [2023] NSWCCA 306
- R v Qutami [2001] NSWCCA 353
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- R v Windle [2012] NSWCCA 222
- Ryan v R [2017] NSWCCA 209
- Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
- Tepania v R [2018] NSWCCA 247