Kelly v R [2021] NSWCCA 205

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kelly v R [2021] NSWCCA 205 Hearing dates: 9 August 2021 Date of orders: 25 August 2021 Decision date: 25 August 2021 Before: Macfarlan JA at [1]; R A Hulme J at [2]; Wright J at [28] Decision: 1. Leave to appeal granted. 2. Appeal against sentence dismissed. Catchwords: SENTENCING – plea of guilty – standard non-parole period offence – offence against Crimes Act 1900 (NSW), s 154C(2) – vulnerable elderly victim – Form 1 offence – conditional liberty erroneously considered as aggravating objective severity – sentencing judge's finding of objective severity less severe than that submitted by applicant at first instance – no error alleged in finding of objective severity as mid-range – need to resentence questionable – sentencing discretion re-exercised – no lesser sentence warranted in law – appeal dismissed Legislation Cited: 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 Cited: 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 Category: Principal judgment Parties: Shaun Tyrone Kelly (Applicant) Regina (Respondent) Representation: Counsel: Mr B Neild (Applicant) Ms E Wilkins SC (Crown)