Kelly v R

Judgment

1. BEECH-JONES CJ at CL: I agree with Adamson J.
2. ADAMSON J: Aidan Kelly (the applicant) seeks leave to appeal against the sentence imposed on him by Baly SC DCJ in the District Court at Goulburn. Following a trial by jury, the applicant was convicted of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW), being the single count on the indictment which charged that the applicant: "on 23 November 2019, at Crookwell in the State of New South Wales, did have sexual intercourse with [the complainant] without her consent, and knowing that [the complainant] was not consenting to the sexual intercourse."
3. The maximum penalty for such an offence is 14 years' imprisonment. The standard non-parole period is 7 years' imprisonment. The offending conduct occurred on 23 November 2019, when the applicant was 19 years old. Her Honour imposed a sentence of 5 years and 9 months' imprisonment commencing on 6 August 2021 and expiring on 5 May 2027, with a non-parole period of 3 years and 9 months' imprisonment, commencing on 6 August 2021 and expiring on 5 May 2025.
4. The applicant seeks leave to appeal against his sentence on the following grounds: 1. Her Honour erred in determining that the offence fell in the mid-range of objective seriousness. 2. The sentence imposed is manifestly excessive.

The proceedings on sentence

1. At the proceedings on sentence, the Crown tendered a document entitled "Summary of Facts" which sets out the facts which the Crown contended ought be found on sentence. The applicant had changed representation by the time of the proceedings on sentence. However, his trial counsel, Mr Valentin, had prepared written submissions on sentence, which were relied on by Ms Feiner, who appeared for the applicant on sentence. In his written submissions, Mr Valentin said, at paragraph 59: "Mr Kelly denies the offending outlined in the summary of facts document provided by the Crown in these proceedings. However, the writer notes the document and concedes that it is a fair summary of the evidence adduced at trial which would have formed the basis of the jury's finding."
2. The applicant did not challenge the findings of fact set out in the summary. Her Honour made findings accordingly, which are summarised below.
3. After several adjournments relating to the change of counsel and to facilitate the remote connection sought to be made by the complainant, the proceedings on sentence took place on 28 October 2021.
4. The Crown tendered a copy of the indictment; the summary of facts (referred to above); the applicant's criminal history (which showed that he had no prior history); the applicant's custodial history (which showed that he was first taken into custody on 6 August 2021, being the date which her Honour had allocated for the sentence hearing when the Court adjourned following the return of the verdict and the discharge of the jury on 1 June 2021); a pre-sentence report prepared by ACT Community Corrections (as the applicant resided in the Australian Capital Territory); and the complainant's victim impact statement.
5. The victim impact statement read as follows: "Following a night out with friends in November 2019, my entire life changed in a moment due to the actions of the offender. From not being able to sleep at night in fear that I could wake up to the same thing, to not being able to trust people, their intentions or words & developing an eating disorder. As I write this, I am still confused, vulnerable and even after these years, I still have this sense of disbelief. We all hear of this happening all the time but you never, in a million years think it will happen to you. That morning I did not get a choice, I didn't get to say no, I had no chance of preventing this. My body was no longer mine, the choice in what happened to me and my body was taken from away from me. There are no words that can accurately capture what this feels like, nor should there ever be any. After the ambulance drives, the phone calls and the hospital, the inevitable happened. I found myself alone. This is when the spiralling began. The replaying, Constant flash backs and breakdowns that would follow, no matter what I was doing. I wasn't able to return to work for weeks. I couldn't bring myself to even converse with men without worrying I might give them the wrong idea, as my efforts to show disinterest previously obviously had no substance whatsoever. Crookwell is a very small town and 'gossip' gets around fast. I was so scared no one would believe me. I was scared of what was going to happen and it took me weeks to go back out in public, I didn't know what to do or where to go. Before this, I was traveling and working in Australia alone. I was strong, independent. I had so many plans and aspirations! I had done a lot of work on myself to get where I was and not with the easiest past to begin with. Now I am left feeling angry, weak and have lost all direction. It has taken a long time (two years in fact) to accept and start to deal with what has happened. I am waiting to be assigned a counsellor where finally my healing can begin. I am forever grateful for my friend [R] and everyone that has helped me through this all to get to this day. I truly hope that me speaking up will encourages others to do the same."
6. The following material was tendered on behalf of the applicant: 1. two reports of psychologists, Chafic Awit dated 29 July 2021 and Julie Dombrowski dated 7 October 2021; 2. material from, and relating to, Jasmine George, who became the applicant's partner in around February 2020, after the charge had been laid; 3. a payslip for the applicant as well as evidence that he was in receipt of a carer's allowance for the care he provided to Ms George; and 4. several character references in respect of the applicant.
7. Both parties provided written submissions to her Honour prior to the sentence proceedings. No witnesses were called at the sentence proceedings. The complainant's victim impact statement was read out. The legal representatives briefly addressed the written submissions.
8. The applicant submitted that the objective seriousness of his offending was "in the low to below mid-range" and relied on the nature and extent of the penetration and the short duration of the offending. The applicant submitted that his moral culpability was reduced because of childhood disadvantage and that less emphasis ought be placed on both specific and general deterrence.
9. At the conclusion of the hearing, her Honour gave her reasons for sentence ex tempore and imposed the sentence.

The sentencing judgment

1. Her Honour found the facts as follows: "The facts consistent with the jury's verdict are as follows - on the evening of Friday 22 November 2019, the victim [the complainant] and some of her friends, including [R] and [J], went out to one of the pubs in Crookwell to relax and enjoy an evening after work. There they met the offender, whom they did not know. Closed circuit television footage of events at the hotel was played over and over again in the trial to the jury. It is worth noting, again, that prior to the night, the offender had not met the victim. It is apparent from the footage, and the evidence that accompanied it, including the evidence from the offender himself, that he was sexually interested in the victim, who was not interested in him. It is apparent from the victim's testimony, and the footage, that [the complainant] was trying to enjoy her night out with her friends. She had no interest in the offender at all, yet he continually placed himself near her, and, it seems to me, he intruded on her night out with her friends. The offender said in his evidence that he believed that [the complainant] had expressed a sexual interest in him. The defence suggested that the victim [the complainant] was displaying sexual interest in the offender. Cross-examination on this issue was extensive. It is abundantly clear that [the complainant] was not in the least bit sexually or otherwise interested in Mr Kelly, yet he pursued her, completely ignoring the fact that she was not interested in him. Later, the victim, [R] and [J], as well as the offender, ended up back at [R's] house where they continued drinking. The offender was clearly intoxicated. At one point he removed his clothing and referred to his penis as a 'grower'. He also said that he was going to 'smash' [the complainant]. She brushed that comment off. Eventually the offender went to sleep on a sofa. [The complainant] was in a spare room with [B]. [The complainant] went to sleep. In the morning [B] left quite early, as did [R], and that left the offender on the sofa in the lounge room and [the complainant] in the spare room. The door between the lounge and the spare room was closed. [The complainant] awoke to the offender having sexual intercourse with her. He had penetrated her vagina with his penis whilst she was asleep. For a split second after she awoke [the complainant] thought that it was [B] who was having sexual intercourse with her. They had had consensual sex the night before. As soon as the offender spoke, stating 'wake up, wake up', she knew it was not Mr [B], and she pushed the offender off with her hands, stating: 'No, what the fuck?' She was naked and lying on her back. The offender was naked. He said: 'Let me finish you off.' The victim grabbed a blanket and ran into her friend's bedroom and shut the door. The offender came to the door. [The complainant] was scared and thought she needed to get the offender out of the house. She sent a text to her friend [R], who at that time had left the house and gone to the local bakery where [J] worked. The text said that she had been raped. [The complainant] stayed in the room. The offender left the house. [R] returned to the house, prior to which she called the police and the ambulance. She spotted the offender walking away from the house. She followed him for a short distance. Eventually, he was arrested and charged by the police."
2. Her Honour noted that the applicant had run his case at trial on the basis that the complainant had invited him into the bedroom and had actively consented to him penetrating her but had become annoyed with him when he was unable to sustain an erection and made a false complaint of rape against him. Her Honour found that the applicant's version was "plainly untrue" and that the complainant was "a very impressive witness who was obviously telling the truth."
3. Her Honour considered the offence to have been "pre-meditated" but that no "real planning went into it." Her Honour found: "… the offender decided in his own mind that he would have sexual intercourse with the victim, and when he saw an opportunity the next morning, the offender acted on his sexual interest in [the complainant] and had non-consensual intercourse with her. Whilst that certainly does not show any real planning as such, it does show premeditation and it cannot be said that this offence was spontaneous or wholly opportunistic."
4. As to objective seriousness, her Honour recounted the applicant's submissions and said that the duration of the offending "is not a matter that looms large … [The offending] was only a short duration because [the complainant] woke up and actively pushed the offender off." Her Honour found: "I find that [the offending] falls well into the mid-range. My assessment of mid-range seriousness accords with the Crown Prosecutor's submissions. I accept the Crown's submission, which includes that 'Mr Kelly's conduct was presumptuous and contemptuous of [the complainant's] personal rights, bodily integrity and dignity.' To my mind that is a far more important issue here than the duration of the offence itself."
5. Her Honour referred to the victim impact statement of the complainant and the profound change in the complainant's life that had resulted from the applicant's offending.
6. Her Honour considered the offence to have been aggravated by the circumstance that it took place in the home of one of the complainant's good friends where the complainant "was entitled to feel safe and secure." Her Honour accepted that the applicant breached the complainant's expectation and "violated [her] sense of safety and security."
7. In addressing the applicant's subjective circumstances, her Honour referred to his youth, lack of criminal record and previous good character, which entitled him to "a measure of leniency" and amounted to mitigating factors. Her Honour accepted the applicant's submission that the purpose of rehabilitation was particularly important for a person of the applicant's relative youth.
8. Her Honour noted that the applicant was born in Canberra and is one of six children. His father drank alcohol to excess which led to the family having to move homes and the children having to change schools frequently. The applicant sometimes lived with his mother (and, eventually, his stepfather whom he said abused him physically) and sometimes with his father. His mother left Australia to live in Egypt with a man she had met online. Subsequently, she returned to Australia in 2012 and began a relationship with a man who became the applicant's second stepfather.
9. The applicant completed Year 11 at school. He claimed that he was bullied at school. Her Honour found that the applicant has a "very good work history and ethic." Her Honour rejected the submission that the applicant's background was such as to reduce his moral culpability or the need for specific or general deterrence.
10. Her Honour referred to the reports of the two psychologists tendered by the applicant and noted that Mr Awit opined that the applicant had symptoms consistent with generalised anxiety disorder, major depressive disorder and alcohol use disorder (in sustained remission) and that he was suffering these disorders when he committed the offence. Her Honour was not satisfied of any causal nexus between these mental health issues and the offending. Her Honour noted that Ms Dombrowski gave no such opinion and that the reports were, to that extent, contradictory.
11. Her Honour found, as to the applicant's alcohol consumption at the time of the offending: "[The applicant] was clearly drunk the night before and he said in his evidence [at the trial] that on the morning when he committed the crime he was hung over. That is self-evidently not a mitigating factor."
12. As to the applicant's risk of re-offending, her Honour rejected Ms Dombrowski's assessment that it was "relatively low" on the basis that "she has not factored into that opinion the offender's lack of remorse and insight which, to my mind, are obviously material in terms of future risk." Her Honour noted that the pre-sentence reports tendered assessed the applicant's risk of offending generally as low but of sexual offending to be higher. Her Honour said: "That is no doubt because Mr Kelly has not shown any remorse for what he did. He has shown no insight into the nature of his offending, and he has shown no empathy or insight into the impact that it has had upon the victim."
13. Her Honour found the applicant's prospects of rehabilitation to be "guarded" having regard to his lack of insight and a failure to take responsibility for the offence. Her Honour noted protective factors such as a positive work history, a supportive partner, a supportive family, prior good character and the circumstance that his issues with alcohol consumption were being addressed. Her Honour was not, however, satisfied that the applicant had a low risk of re-offending or that he had good prospects of rehabilitation.
14. Her Honour accepted that the conditions of the applicant's incarceration were onerous (in part because of restrictions imposed due to the COVID-19 pandemic) and that he had been assaulted in gaol and was fearful of a further assault.
15. Her Honour found general deterrence to be "of paramount importance" and specific deterrence also to be important. Her Honour said: "The offender must be punished and his conduct must be denounced. The harm done to the victim must also be a significant feature in this sentence. Again, because the offender is young, the need for a sentence that fosters rehabilitation is also important. … Non-consensual sexual intercourse is an extreme form of violence and Courts are expected to take such offences very seriously. A sentence of imprisonment must be imposed."
16. Her Honour found special circumstances on the basis of this being the applicant's first time in custody and the need for him to get assistance with mental health issues and alcohol. The ratio between the non-parole period specified by her Honour and the total term of the sentence imposed is 65%, as distinct from the statutory ratio, in the absence of special circumstances of 75%: s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Ground 1: alleged error in assessment of objective seriousness

1. Mr McLachlan, who appeared for the applicant, relied on the following factors in support of his contention that her Honour's assessment of objective seriousness as falling within the mid-range was not open: the offending was of short duration; the extent of penetration was minimal; no real planning went into the offending; the offending was isolated; no threats were made to the complainant not to resist or to keep silent; there were no acts of humiliation committed by the applicant; there was neither violence nor physical injury; and the applicant was 19 years old.
2. In the circumstances of the present case, I am not persuaded that the last factor, the age of the applicant, bears on objective seriousness of the offending. The nature of the offending was adult offending. It is unnecessary to address the circumstance in which the youth of the offender might, in other circumstances, be relevant to an assessment of objective seriousness: see the detailed consideration of the statutory provisions and the authorities in Tepania v R [2018] NSWCCA 247 at [87]-[120] (Johnson J, Payne JA and Simpson AJA agreeing). Accordingly, it ought be disregarded for the purposes of ground 1.
3. The applicant's submissions assume that the matters listed are in his favour. However, several are the product of the circumstances of the offending: that the applicant's penis penetrated the complainant's vagina when she was asleep in a separate bedroom where she believed she was safe and which her boyfriend had recently vacated in order to go to work. In these circumstances, there was no need for threats or violence because the complainant could hardly have been more vulnerable nor defenceless than she was at that time.
4. Her Honour's finding that "[the offending] was only a short duration because [the complainant] woke up and actively pushed the offender off", must be read in the context of the circumstance that the complainant did not know how long the intercourse had proceeded because she was asleep. Her Honour plainly did not accept the applicant's version of events. Thus the finding, which was not challenged, may have been unduly favourable to the applicant. This Court has frequently held that the duration of offending is no measure of its seriousness. Regrettably, as this Court has observed, sexual offences of allegedly short duration, minutes, rather than hours, can have lifelong effects: see the summary in R v Gavel [2014] NSWCCA 56 at [110] (Leeming JA, Johnson and Hall JJ). For these reasons, a short duration does not usually reduce the objective seriousness of such offending: R v Daley [2010] NSWCCA 223 at [48] (Price J, Hodgson JA and Fullerton J agreeing).
5. Further, the extent of violation of the complainant is not proportional to the degree of penetration or the part of the offender's body which is inserted into the victim's body: see the authorities referred to in Doe v R [2013] NSWCCA 248 at [47]-[56] (Bellew J, Hoeben CJ at CL and Johnson J agreeing).
6. The absence of threatening conduct when the victim is unconscious does not serve to lessen the objective seriousness: threats are plainly unnecessary when the victim, being unconscious is powerless to object, defend or protect herself. Indeed, the fact of the offence being committed when the victim was unconscious may heighten its objective seriousness, for the reasons I gave in Fisher v R [2021] NSWCCA 91 at [241]-[242]. Further, once the complainant's account was accepted, it followed that the applicant knew that she did not consent: she was asleep and incapable of giving her consent.
7. I do not accept Mr McLachlan's submission that the offending did not involve humiliation of the complainant. It is plain from the complainant's victim impact statement that she found it humiliating to realise, when she woke, that the applicant had used her body without regard to her identity, personality or bodily integrity but merely as a tool for the satisfaction of his sexual desire. This kind of humiliation ought not be regarded as lesser than other types which may occur when the victim is conscious throughout.
8. Justice Fullerton's description of the offender's conduct in Fisher v R at [89] as amounting to "rank opportunism" is apposite to the circumstances of the present case. There was no real planning because it was only the departure of the complainant's boyfriend which resulted in the complainant being alone, asleep and unprotected, in the bedroom. The applicant took advantage of this opportunity to commit the offence.
9. Further, to submit, as the applicant has done, that there was neither violence nor physical injury, fails to acknowledge the gross violation of the complainant's bodily integrity and dignity which the offending entailed. Violence would have been superfluous in the circumstances and the absence of physical injury is an indication that no force was required because the complainant was, while asleep, unconscious and powerless to resist. Further, for the reasons given by Fullerton J in Fisher v R at [84] and Johnson J in Tepania v R at [131], it would have been an error had the sentencing judge reduced the objective seriousness on the ground that there was no infliction of actual bodily harm or threat of grievous bodily harm or wounding since, had there been, the offending would have attracted the more serious charge of aggravated sexual assault pursuant to s 61J of the Crimes Act.
10. I accept the Crown's submission that it is unhelpful to envisage factors which may be present in other circumstances of the commission of an offence under s 61I but which are irrelevant in a case such as the present where the victim is asleep.
11. The assessment of objective seriousness is quintessentially a matter for the sentencing judge: Mulato v R [2006] NSWCCA 282 at [37] (Spigelman CJ) and [46] (Simpson J). This is particularly the case where, as here, the sentencing judge has also been the trial judge and, as such, has heard and seen the witnesses: Baines v R [2016] NSWCCA 132 at [15] (Basten JA). In the present case, the applicant and the complainant both gave evidence and were cross-examined. The test for this Court is whether the sentencing judge's assessment of objective seriousness was open, not whether this Court would have made the same assessment: Salafia v R [2015] NSWCCA 141 at [88] (Wilson J, Hoeben CJ at CL and Hall J agreeing).
12. I am not persuaded that the assessment of objective seriousness of the offending as within the mid-range was not open. The offending was serious in several respects, including that the complainant was, to the applicant's knowledge, asleep and that it was pre-meditated in that the applicant had formed the intention the previous evening of having sexual intercourse with the complainant and had taken the first available opportunity (when her boyfriend left and she was still sleeping) to achieve his objective. Accordingly, ground 1 has not been made out.

Ground 2: alleged manifest excess

1. The finding that a sentence is manifestly excessive is a conclusion which does not depend on the demonstration of patent error: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J). The question is whether the sentence is "unreasonable or plainly unjust".
2. Mr McLachlan relied on a single decision of this Court, Shanmugam v R [2021] NSWCCA 125 (Shanmugam), in support of the submission that the sentence imposed on the applicant was manifestly excessive. In Shanmugam, this Court rejected an appeal by the offender based on alleged manifest excess against an aggregate sentence imposed on him of 5 years' imprisonment with a non-parole period of 3 years' imprisonment.
3. There are several difficulties with this submission. First, no useful comparison can be made with an aggregate sentence which, by definition, covers a number of offences. Secondly, and of greater importance, the principle of consistency in sentencing is one of consistency of principle, not consistency of result: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [49] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Thus, there is rarely any utility in comparing individual decisions. Thirdly, the factual differences between Shanmugam and the present case are so extensive that, even if such an approach were warranted, it would be of marginal, if any, utility in the present case.
4. The applicable statutory guideposts in the present case are the maximum penalty of 14 years' imprisonment and the standard non-parole period of 7 years' imprisonment. Her Honour's finding that the objective seriousness was within the mid-range was, for the reasons given above, open. General deterrence is particularly important, as her Honour found. The offending was aggravated because it occurred at the home of a friend of the complainant. The offender was not remorseful, lacked insight and his prospects of rehabilitation were found not to be good.
5. The only matters in mitigation were the applicant's youth, lack of antecedents and prior good character. His mental health issues were not causally related to the offending but were taken into account in the finding of special circumstances, as were the applicant's youth and lack of antecedents.
6. In all the circumstances, I am satisfied that the sentence imposed was open to her Honour. It was neither unreasonable nor plainly unjust.

Proposed orders

1. For the reasons given above, I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed.
2. CAMPBELL J: I agree with Adamson J.

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