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) Solicitors: Aboriginal Legal Service Solicitor for Public Prosecutions File Number(s): 2019/308255 Decision under appeal Court or tribunal: District Court Date of Decision: 24 September 2020 Before: English DCJ File Number(s): 2019/308255 Judgment 1. MACFARLAN JA: I agree with R A Hulme J. 2. R A HULME J: Shaun Tyrone Kelly seeks leave to appeal in respect of a sentence of imprisonment imposed by her Honour Judge English in the District Court at Newcastle on 24 September 2020. 3. Mr Kelly (the applicant) had pleaded guilty to an offence of assaulting and recklessly inflicting actual bodily harm upon a person in possession of a motor vehicle with intent to take and drive the vehicle without that person's consent. The offence is contrary to s 154C(2) of the Crimes Act 1900 (NSW) and the maximum penalty is imprisonment for 14 years. There is also a standard non-parole period of 5 years. 4. The judge was asked to take into account an offence on a Form 1 of driving recklessly, in a manner dangerous to the public. That offence is contrary to s 117(2) of the Road Transport Act 2013 (NSW) and the maximum penalty is a fine of 20 penalty units, and/or imprisonment for 9 months. (Licence disqualification is also a consequence.) The seriousness of this offence was indicated by the judge saying it "calls for a significant increase in the penalty to be imposed" for the primary offence. 5. The applicant was also convicted but no further penalty was imposed in respect of seven summary traffic offences: driving while unlicensed and six offences of failing to stop and give particulars. 6. The sentence imposed was imprisonment for 3 years and 9 months with a non-parole period of 1 year and 9 months. 7. The applicant was on bail for two domestic violence charges at the time of the offences. He was arrested for the present matters on 2 October 2020. He was subsequently sentenced for the domestic violence offences to an overall term of 15 months imprisonment with a non-parole period of 8 months dating from 14 August 2019. The non-parole period expired on 13 April 2020 and custody thereafter was solely referable to the present matters. The judge was required to consider the prior custody and to apply the principle of totality in relation to the other sentences. She exercised her discretion by ordering that the sentence would commence on 13 February 2020, six months after the earlier sentences commenced. The applicant will become eligible for release on parole on 12 November 2021. 8. Leave is sought to appeal upon the following ground: The sentencing judge erred by taking the aggravating factor of the breach of conditional liberty into account in the determination of the objective seriousness of the principal offence. 1. For the following reasons I consider that leave to appeal should be granted but the appeal should be dismissed. Assessment of objective seriousness by the judge 1. The Crown's written submissions on sentence included the contention that the primary offence should be found to be in the "mid-range" of objective seriousness. The applicant's solicitor agreed, albeit submitting with greater precision that it "falls towards the middle or upper part of the mid-range". 2. The sentencing judge referred in detail to the statement of agreed facts in relation to the offences and then summarised the applicant's background and personal circumstances before turning to the objective seriousness of the offences: "The substantive offence involved him, without warning, entering the vehicle of a very elderly gentleman, accompanying him in that vehicle for a short period of time before violently removing him from the vehicle, leaving him on the ground and driving off, having stolen the vehicle. An offence committed over a relatively short period of time and I find without any apparent planning on his part. It was an impulsive offence in those circumstances, but one committed without obvious reason. The fact that he was drug affected and/or intoxicated is no excuse. It perhaps explains in some small part how he came to commit the offence. What occurred thereafter could best be described as a train wreck. This offender, in a stolen vehicle, in peak hour traffic in the wet, completely disregarded the safety of others and collided with seven motor vehicles, all of which sustained a varying degree of damage, from being minor to being written off, costing many of the victims financial loss, not to mention the hardship that occurs when a vehicle is damaged or destroyed. Two victims were unable to exit their vehicles due to the damage to the drivers' doors. One of those vehicles contained a small child. The victim, Mr Sleishman's vehicle was, I infer, significantly damaged as a result also. The episode only came to an end when the stolen vehicle became stationary following the last collision. By driving as he did, he demonstrated no regard for public safety whatsoever. In terms of seriousness of offending, the substantive offence is aggravated. Two factors of aggravation apply. The first being the age of the victim at the time. A very elderly gentleman, who was particularly vulnerable given his great age. There is no evidence of the impact of this offending upon him, but common sense would dictate that it would have had a significant impact upon him. A frightening experience and one that resulted in him being callously left on the driveway of a service station in the rain injured. Fortunately the injuries sustained would appear to be only minor. The second factor of aggravation being that this offender was on conditional liberty at the time. It was I find a short-lived offence, an opportunistic one which was clearly unplanned. As I have said, there is no explanation as to why the offender acted as he did. Having regard to the maximum penalty and the standard non-parole period and the factors to which I have just referred, I find it is an offence falling just below the midrange of objective seriousness. It is for that reason I will depart from imposing the standard non-parole period. The driving offence is one which I find falls at the very upper end of the range, given the distance over which he drove, the carnage left behind and the blatant disregard for the safety of others." (emphasis added) 1. Mr Neild, counsel for the applicant in this Court, contends that it was contrary to principle for the judge to take into account conditional liberty in the assessment of objective seriousness. His contention is that such error is patently clear in what the judge said in the passage just quoted. 2. There is no controversy as to the principle. This Court has clearly explained on many previous occasions that whether the offender was on conditional liberty at the time of the offence(s) is irrelevant to the objective seriousness of the offending: for example, R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 at [92]; Hillier v Director of Public Prosecutions (NSW) (2009) 198 A Crim R 565; [2009] NSWCCA 312 at [30] (Basten JA) and [74] (R S Hulme J). 3. The Crown submitted that whether there was error depended upon what the judge was referring to when she said that her finding of objective seriousness was based upon "the maximum penalty and the standard non-parole period and the factors to which I have just referred". Ms Wilkins SC submitted that the judge was doing two things in this part of her sentencing remarks: in addition to making findings as to objective seriousness of the offence, she was answering the written submissions of the Crown which urged a finding that the offence was in the mid-range. The "factors to which I have just referred" was a reference to the factors in the paragraph immediately preceding the finding of objective seriousness. They were factors that reduced the objective seriousness and explained why her Honour's assessment was less than that for which the Crown had urged. In oral submissions, Ms Wilkins added a contention that in the fourth of the five paragraphs quoted above from the sentencing remarks the judge was complying with the requirement of s 54B(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) of providing reasons for setting a non-parole period that is shorter than the standard non-parole period. 4. These were ex tempore remarks on sentence delivered on the day the judge heard and received the evidence and submissions. Spigelman CJ observed in R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [48] that "[t]he conditions under which District Court judges give such reasons are not such as to permit their remarks to be parsed and analysed". However, the difficulty in accepting the Crown's contentions is that there were quite a number of matters pertaining to the seriousness of the offence to which the judge referred in the four paragraphs of sentencing remarks which preceded the paragraph in which the finding as to objective seriousness appears. The submission that the "factors to which I have just referred" was a reference only to the matters mentioned in the last of those four paragraphs in order to explain why her finding differed from that suggested by the Crown cannot be accepted. It fails to explain why there was reference to a subjective factor (conditional liberty) which was said to aggravate the seriousness of the offence in the middle of her Honour's references to wholly objective factors bearing upon the assessment of objective seriousness. The submission about the fourth of the quoted paragraphs being a compliance with s 54B(3) of the Crimes (Sentencing Procedure) Act is even more fanciful. Consequences of upholding the ground of appeal 1. The contention of error in the proposed ground of appeal must be accepted. But what is the significance of it? The error occurred in the process of the judge making a finding more favourable about the relative level of objective seriousness of the offence than was sought by the applicant. It is highly dubious whether the Court should be required to re-exercise the sentencing discretion in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. The Crown was unable to engage usefully on the subject when pressed for a response at the hearing. In these circumstances the Court should proceed to engage with re-sentencing. Nonetheless, I record my misgivings about the necessity to do so. Re-exercising the sentencing discretion 1. Despite the submission to the primary judge that the objective seriousness of the offence was in the mid-range, counsel submitted that this Court on re-sentencing should find that it was "at the lower end of the range". He sought to support this by pointing to various ways in which a more serious example of the offence could be committed; for example, by the intentional rather than reckless infliction of actual bodily harm, and by the infliction of more serious actual bodily harm than a cut to the hand. 2. The Crown did not object to the applicant contending for a more favourable finding than he submitted should be made in the court below. I have considerable misgivings about permitting him to reformulate his case in this way: Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 at [81]. However, given the Crown's attitude, a pragmatic approach is to deal with the issue on its merits. I am of the view that the objective seriousness of the offence was in the middle of the range. It is appropriate to say more about the facts of the offending in order to explain that. 3. The victim was Mr Frank Sleishman and he was aged 89. He was driving his Mazda 3 sedan along the Pacific Highway near Charlestown at about 5.00pm one day in heavy, slow-moving traffic when it was raining and becoming dark. He saw a man who was a stranger to him (the applicant) walking along the side of the road heading in the same direction. Suddenly the man opened the passenger side front door and demanded the keys. He then walked around to the driver's side door, opened it and said, "Give me your keys. I'll teach you how to drive". He returned to the passenger side and sat in the front seat. Mr Sleishman drove on but a few minutes later he drove into a service station, hoping the man would get out. He parked outside the shop area. The man aggressively asked for the keys, but Mr Sleishman replied, "You're not getting the keys, get out of the car". 4. The man alighted and walked around to the driver's door. He pulled Mr Sleishman by the right arm out of his seat, twisting the arm and causing him to fear it would be pulled out of the socket. The man tried to take the keys from Mr Sleishman's hands, demanding, "Keys, give me the keys". Witnesses saw a scuffle occurring. 5. The man obtained the keys and Mr Sleishman fell to the ground as the man pulled away from him. He entered the car and drove off, leaving his elderly victim on the ground. A customer came to Mr Sleishman's aid and helped him up. She saw his finger was bleeding from a cut he sustained during the struggle over the keys. 6. The applicant drove off in a fashion that prompted the parties to submit to the sentencing judge that the dangerous driving offence was either in the high range or close to it. There is no complaint about the judge's finding that it was "at the very upper end of the range, given the distance over which he drove, the carnage left behind and the blatant disregard for the safety of others". The reference to "carnage" was a reference to collisions with six other cars, three of which had to be written off by the insurers. 7. A significant matter in the assessment of the objective seriousness of the primary offence was the age of the victim; being 89 years of age he was truly vulnerable to the rough handling he received. There was no criticism of the judge's findings that it was "a frightening experience" and that he was "callously left on the driveway of a service station, in the rain, injured". The findings that the offence was short-lived, opportunistic and unplanned are not mitigating; they simply record the absence of what might otherwise additionally aggravate the offence. My own assessment accords with the submissions of both parties in the court below: the objective seriousness of the offence was in the middle of the range. 8. Findings made by the sentencing judge as to subjective matters that were highlighted in Mr Neild's submissions and relied upon for the purposes of re-sentencing were: a) A dysfunctional upbringing which reduced the applicant's moral culpability. b) The offending occurred while the applicant was on bail, a statutory aggravating feature. d) The early plea of guilty warranted a 25% reduction of sentence. e) There were "guarded" prospects of rehabilitation. f) The likelihood of reoffending which was "high unless he addresses the issues stemming from his childhood". g) The applicant's criminal history disentitled him to leniency. h) The need for "a lengthy, supervised period of rehabilitation including residential rehabilitation" were special circumstances justifying a reduction of the non-parole period. 1. I have referred to the reason for the judge having backdated the sentence to 13 February 2020 (above at [7]). Backdating the sentence any further would unduly erode the sentence earlier imposed for the domestic violence offences. The date chosen by her Honour should be maintained. 2. None of the findings of the sentencing judge as to subjective matters were impugned and I see no reason to proceed otherwise than by accepting them. In the evaluation of an appropriate sentence on the basis of those findings in the context of my assessment of objective seriousness, I am driven to conclude that a sentence at least as much as that imposed by the sentencing judge is appropriate. Even if the head sentence remained, there would be no justification for a non-parole period that was less than half of it. Orders 1. I propose the following orders: 1. Leave to appeal granted. 2. Appeal against sentence dismissed. 1. WRIGHT J: I agree with R A Hulme J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 August 2021