Kelley v R

HEADNOTE [This headnote is not to be read as part of the judgment] Ms Marlee Rose Kelley (the Applicant) was sentenced to imprisonment for a term of 3 years and 4 months with a non-parole period of 2 years on a charge of aggravated dangerous driving occasioning grievous bodily harm (with a speed in excess of 45 kilometres over the applicable speed limit) pursuant to s 52A(4) of the Crimes Act 1900 (NSW), after having pleaded guilty to that offence. The Applicant had a mid-range alcohol reading at the time of the offence. The Applicant was also charged with a further two counts of common assault contrary to s 61 of the Crimes Act, which occurred immediately before the commencement of the driving which was the subject of the aggravated dangerous driving charge, and during the course of that driving, which were contained on a s 166 Certificate. The victim had been in a domestic relationship with the Applicant for approximately three months at the time of the incident. The Applicant sought leave to appeal from the sentence imposed. The principal issues on appeal were: 1. whether the primary judge conflated the terminology of objective seriousness with that of moral culpability, and thereby erred by failing to give weight to a number of subjective matters that were said to be relevant to the Applicant's moral culpability; 2. whether the primary judge erred by failing to make any findings, in the context of assessing the Applicant's moral culpability, as to the significance of certain expert evidence that the Applicant's drug and alcohol use disorder had a causal connection to her PTSD, which arose as a result of a sexual assault when she was in her early teens; 3. whether the primary judge erred, in the context of assessing the Applicant's moral culpability, in finding that the victim's injuries fell at the upper end of objective seriousness, in circumstances where there was no evidence that such injuries would be considered permanent from a medical perspective; 4. whether the primary judge erred by failing to make any findings as to the effect of the injuries sustained by the Applicant on her moral culpability, as a form of extra-curial punishment. The Court held (Bell P, Rothman and Bellew JJ agreeing), granting the application for leave to appeal but dismissing the appeal: As to issue 1: 1. To the extent that there may have been a degree of conflation between objective seriousness and moral culpability, this was at most a slip in language in the course of delivery of ex tempore reasons, and both understandable and excusable in the absence of some serious injustice to the Applicant. There was no such injustice in the present case: [37] (Bell P); [57] (Rothman J); [58] (Bellew J). Dixon v R [2019] NSWCCA 85; Gommesen v R (2012) 62 MVR 196; [2012] NSWCCA 226; Karout v R [2019] NSWCCA 253; Robertson v Director of Public Prosecutions (NSW) [2017] NSWCA 180; Zheng v R; Li v R; Pan v R [2021] NSWCCA 78, applied. 1. In any event, the concepts of objective seriousness and moral culpability are not unrelated, and the two concepts overlap. Assessment of an offender's moral culpability for the offending conduct is a feature of the objective seriousness of the conduct, which is fundamental to the sentencing process: [38]-[39] (Bell P); [57] (Rothman J); [58] (Bellew J). Filippou v The Queen (2015) 256 CLR 47 at 72; [2015] HCA 29; Fisher v R [2021] NSWCCA 91; Muldrock v R (2011) 244 CLR 120; [2011] HCA 39; R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343, applied. 1. The primary judge did not fail to have regard to the Applicant's subjective circumstances in the exercise of her sentencing discretion, albeit that she may not have regarded those circumstances as reducing the moral culpability of the Applicant: [40] (Bell P); [57] (Rothman J); [58] (Bellew J). As to issue 2: 1. As the Applicant had not made submissions before the sentencing judge as to the interrelationship between the traumatic event, the Applicant's diagnosis of PTSD and the substance abuse that followed, this Court would only have regard to such a factor which may operate in mitigation of penalty where it rendered a serious injustice or a miscarriage of justice if the offender was not able to correct the error: [45] (Bell P); [57] (Rothman J); [58] (Bellew J). Zreika v The Queen (2012) 223 A Crim R 460; [2012] NSWCCA 44, applied. 1. No such serious injustice incurred, in circumstances where the relevant expert evidence was somewhat tentative and qualified as to the strength of the relationship between the traumatic event, the diagnosis of PTSD and the substance abuse that followed. Accordingly, as no exceptional circumstances were demonstrated, the Applicant should not be allowed to reformulate her plea in this Court: [47], [49] (Bell P); [57] (Rothman J); [58] (Bellew J). As to issue 3: 1. The primary judge did not err in her assessment of the level of objective seriousness of the offence with respect to the victim's injuries, and the Applicant's moral culpability for it, where the Statement of Agreed Facts clearly indicated the seriousness of the victim's injuries. Medical evidence of a long-term prognosis of permanent injury was not required to classify the offence as falling toward the upper end of objective seriousness: [51] (Bell P); [57] (Rothman J); [58] (Bellew J). As to issue 4: 1. The primary judge was not required to make specific findings as to the effect of the Applicant's injuries on her moral culpability as a form of extra-curial punishment, in circumstances where her Honour's remarks indicated that she had given consideration to the Applicant's subjective case, which included the fact of her injuries, in the instinctive synthesis exercise that she was required to conduct: [53] (Bell P); [57] (Rothman J); [58] (Bellew J).