Kieran Kibby, the Offender, is before the Court for sentence, having being convicted by a jury on 29 August 2023 of a single count of sexual intercourse without consent in circumstances of aggravation, contrary to s 61(J) of the Crimes Act 1900. The maximum penalty is 20 years' imprisonment, and a standard non-parole period of 10 years applies.
By virtue of the guilty verdict, the jury was satisfied beyond reasonable doubt of the elements of the offence being:
1. The Offender had penetrated the victim's anus with his finger.
2. The victim did not consent to that penetration.
3. The Offender knew that the victim did not consent to that penetration.
The Crown relied on two of the ways to establish the Offender knew the complainant was not consenting to the sexual intercourse:
1. Actual knowledge - s 61(H)(E)(3)(A) of The Crimes Act 1900.
2. Recklessness - s 61(H)(E)(3)(B) of The Crimes Act.
[2]
The facts
The trial took place before me and a jury. It ran for seven days, commencing on 21 August 2023. It falls to me to determine what facts were accepted by the jury beyond reasonable doubt. Payne JA in the recent decision in R v Cranston [2023] NSWSC 1004 set out a helpful summary of how that process is to be applied as follows:
1. "A sentencing judge has a duty to make, as far as possible, findings of fact relevant to the issues that will inform the sentence: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [1]; Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [16]-[17]; R v Isaacs (1997) 41 NSWLR 374 at 378;
2. Sometimes, however, it may be impossible for the sentencer to resolve a given factual question in a way that tends to either increase or decrease the sentence. In that case, the sentencer must leave that matter to one side and proceed on the basis of what can be found: Filippou v The Queen (2015) 256 CLR 47, [2015] HCA 29 at [70];
3. If a party at sentencing seeks to rely on a particular fact, that party has the onus of proving the fact in question: Olbrich at [25]. There is, however, no general joinder of issue in sentencing and, unlike at the trial, no generalised onus of proof: Olbrich at [25];
4. If the prosecution seeks to rely on a fact, they must prove it beyond reasonable doubt. If the offender seeks to rely on a fact, the standard of proof is on the balance of probabilities: Olbrich at [27]-[28]; Leach v The Queen (2007) 230 CLR 1, [2007] HCA 3 at [41]; Filippou at [64], [66]; Strbak v The Queen (2020) 267 CLR 494, [2020] HCA 10 at [32];
5. After a jury returns a verdict of guilty, the sentencer is constrained to making findings of fact that are consistent with the jury's verdict: Cheung v R (2001) 209 CLR 1; [2001] HCA 67 at [14], approving Isaacs at 376-377;
6. A sentencer cannot know, in many cases, exactly what facts the jury found or what evidence they accepted. The sentencer is constrained by a verdict only when that verdict, by necessary implication, reveals that the jury accepted particular evidence or resolved facts in a particular way: Cheung at [17];
7. Within this constraint, the sentencer can make findings as they see fit: Savvas v The Queen (1995) 183 CLR 1 at 8. There is no requirement to accept all of the Crown's case as put to the jury: Cheung at [7]. Nor is the judge required to take a view of the facts most favourable to the offender: Isaacs at 377D."
The Crown submits that I ought find the following facts were established beyond reasonable doubt, and are consistent with the verdict of the jury.
1. The date of the offence was 15 August 2020.
2. The Offender was born on 14 April 1971 and was 49 years of age at the time of the offence.
3. The victim as born on 23 May 1947 and was 73 years of age at the date of the offence.
4. The victim was a patient at Delmar private hospital for rehabilitation and pain management following a vertebrae fracture.
5. The Offender was working at the hospital as a wardsman, and one of his duties was to assist patients to shower.
6. The Offender accompanied the victim to the bathroom and assisted her to undress.
7. The Offender assisted the victim to shower and was not wearing gloves.
8. There were only two people in the bathroom at the time.
9. As at that date, the victim required assistance to walk and moved around either with a four-wheel walker or with the assistance of another person.
10. While the victim was facing the wall and holding on to a railing for support, the Offender moved a sponge or flannel to wash her shoulders and moved down her back.
11. The Offender then inserted a finger into the victim's anus; nothing was said by either the victim or the Offender when this occurred.
12. The Offender's finger remained in the victim's anus for a "couple of seconds".
13. The victim was "all in a dither" because she was upset about what had just happened and she could not speak.
14. The victim was too shocked to say it was not okay. She was dazed and numb and felt upset.
15. The victim turned around and the Offender washed her chest.
16. At the time of the offence, the victim was under the authority of the Offender in that she was in his care by virtue of their relationship to one another, that he was an employee of the hospital and she was a patient, and he was assisting her to shower due to her mobility issues caused by her vertebrae fractures.
Applying the criteria explained by Payne JA in Cranston, I find those facts beyond reasonable doubt for the purpose of sentencing. I also further find beyond reasonable doubt, that the accused actually knew the victim was not consenting to him inserting his finger into her anus. I understand that fact is conceded by the Offender to have been found by the jury for the purpose of sentencing, whilst of course, maintaining his position of not guilty overall. I think it is inevitable that concession is properly made.
[3]
Objective seriousness
All sexual assaults involve an element of inherent violence involving as they do, the touching of another without consent so as to override the victim's right to personal self-determination: Irmak v The Queen [2021] NSWCCA 178 and Dagdanasar v The Crown [2021] NSWCCA 178 at [314].
The extent of the violation of a victim is not proportional to the degree of penetration or the part of the Offender's body which is inserted into the victim's body. Kelly v R [2022] NSWCCA 189 at [34].
Digital penetration is not of itself, less serious than the other forms of forced sexual intercourse. The objective seriousness of offending is to be determined according to the entirety of the facts in circumstances of the case. The kind of forced intercourse is not determinative of objective seriousness. Doe v R [2013] NSWCCA 248 at paras [48] and [54].
Sexual offences of short duration, minutes rather than hours, can have lifelong effects. A short duration does not usually reduce the objective seriousness of such offending. Kelly v R at [33].
In R v Daily [2010] NSWCCA 223 at para [48], Price J (with Hodson JA and Fullerton J agreed) said of the duration of a sexual assault;
"I wish to make it clear that the short duration of a sexual assault would not ordinarily be considered as a factor which reduces the objective seriousness of the offence. Most sexual assaults will not be prolonged as the Offender will seek to avoid apprehension."
In a similar vein, Fullerton J said in Fisher v R ; R v Fisher [2021] NSWCCA 91 at 84:
"The fact that there was no actual violence perpetrated in the preparations of the act of oral intercourse or its commission is irrelevant in an assessment of the objective seriousness of the offending"
Again, in GW v R [2018] NSWCCA 79 at 31 to 34, Fullerton J (with whom Hoeben CJ at CL and Davies J agreed in adopting what was said in R v CTG [2017] NSWCCA 16:
"It was not appropriate for his Honour to take into account the absence of actual bodily harm and the absence of force and coercion as matters in mitigation of the offending so as to impact directly upon the assessment of objective seriousness"
Mr Smith who has appeared for the Offender in this matter, has pointed out correctly, with a focus on the very short duration of the offending in this case, that all of the cases upon which the Crown relies, speak in terms of "ordinarily" or "usually". He accepts that the general rule is that a sexual intercourse without consent event having a short duration, will not impact on the consideration of objective seriousness.
However, he submits that this case is outside what can be described as the usual, because the only finding of fact consistent with the jury's verdict based on the evidence, is that the Offender's finger was in the victim's anus for no more than a couple of seconds. Accordingly, so the submission goes, this is an unusual case or is not an ordinary case and therefore, I can take that short duration into account when assessing the objective seriousness of the offence.
I think that is right as a matter of theory, however, I think the better way for me to assess the objective seriousness of this offence is to do what is commanded in those same authorities, which is to look at all of the factors surrounding the commission of the offence, and based on all of those factors, come to a conclusion. That is, without giving too much weight to any particular one of the circumstances that make up the full picture.
The Crown submits that the objective seriousness of the offence is "approaching the mid-range" for the following factors:
1. The nature of the relationship between the Offender and the victim - the victim was in the Offender's care in a hospital setting and he was assisting her to shower which meant she was naked and closely in his presence.
2. The victim was physically vulnerable due to her significant mobility issues caused by her vertebrae fracture, and compared to the size and strength of the Offender. She needed to hold onto the railing to support herself. The shower was wet and a fall hazard. This decreased the likelihood that she would physically resist the accused.
3. The type of sexual intercourse - there was penetration of the complainant's anus by the Offender's finger.
4. The duration of the sexual intercourse. It was very brief, lasting for a couple of seconds.
5. The Offender was aware of the victim's mobility issues. He exploited her vulnerability, and the opportunity he was pressed with.
So, it can be seen that the Crown concedes that the assessment of the objective seriousness of this offence includes that the very short duration of the offending conduct is a relevant factor to be considered by me. How much weight I give to that factor is a matter for me.
The Offender submits that, because of the short duration of the assault, the apparent lack of planning, the absence of any material aggravating factor, being that there was no harm occasioned to the victim over and above that which is intrinsically built into the offence, and that there was no additional humiliation or degradation or element of coercion, the objective seriousness of the offending falls towards the lower end of the range.
So, I am confronted with on the one hand, the Crown submitting that the offending is "approaching the mid-range" and on the other, the Offender is submitting that the offending "falls towards the lower end of the range".
I'm not really sure the parties are very far apart in their analysis, and I am not at all convinced that trying to place the offending on some range is helpful, rather, I think it's better for me to step back and just consider what it is that the Offender has been found to have done.
Approaching the matter that way, I prefer the Crown's characterisation of the objective seriousness. I do think this case is quite unusual, having regard to the extremely short duration of the actual assault, and I have factored that into my consideration. However, looking at the matter overall, what I see is a victim who is an elderly lady with a significant physical disability in a shower, with a much younger and stronger man, where the man takes advantage of her in circumstances where there was no possibility at all of her protecting herself.
To say such conduct is disturbing would be an understatement. I think a better description is that it is disgraceful. I therefore conclude that the offending is very much towards the mid-range of the objective scale of seriousness for these types of offences.
Whilst I accept that there was no "additional" degradation, that does not mean that there was no degradation. Moreover, I am not sure that there was no coercion in the circumstances. The position of vulnerability of the victim in the shower in the way I have described, was such that I really don't think there is a relevant distinction between what happened and some form of actual coercion.
[4]
Aggravating factors
The Crown submits the following aggravating factor is present, and should be taken into account in determining the appropriate sentence for the offence:
1. The victim was vulnerable because of her age and compared to er much younger Offender.
I think that is correct, but I must take care not to double count, because built into the offence is the aggravating factor that the victim was in the Offender's care. Cases like MRW v R [2011] NSWCCA 260 at [27] and [28], caution against factoring in a matter that is already built into the charge, the same matter as an aggravating factor. However, I think there is something in the Crown's case that the vulnerability of the victim because of the age discrepancy and for that matter, the strength discrepancy, is something that takes the matter a little beyond the concept of being in the care of.
[5]
Mitigating factors
The Crown accepts the following mitigating factors ought to be taken into account in determining the appropriate sentence. First, the Offender does not have any record or any relevant records of previous convictions. The Offender has one minor matter on his criminal record of entering closed land. It post-dates the offence. I think I can safely put that to one side, even though it was an event that happened on the same hospital grounds. I proceed upon the basis that for my consideration, the Offender has no other convictions and that he is a person who other than these offences, ought to be considered as being of good character.
The second mitigating factor the Crown concedes is the offence was not part of any planned or organised criminal activity. There is no evidence to the contrary, and I accept that fact and the proposition of law that it is a mitigating factor.
The Crown further concedes the offending was opportunistic rather than planned. I think that is correct.
[6]
The effect on the victim
There is no victim impact statement before me, but that is not mandatory and no inference of the absence of harm can be drawn from the fact that no such statement is placed before the Court on sentence. WAP v R [2017] NSWCCA 212 at [78]. In this case, I have heard from the victim in her evidence in the trial. She is an extremely impressive and dignified lady. Stoic and resilient, no doubt. However, that does not mean this offending did not have a profound impact on her. However, I should say that I do not find any extra injury or suffering occasioned to the victim over and above what that which is implicit in the offence itself and the penalties imposed by Parliament.
[7]
The Offender's mental health
In relation to the mental health of the Offender, there is a report from Sam Borenstein, clinical psychologist dated 21 September 2023, where he reports that the Offender had four psychotic episodes, the most recent of which was in 2006 or 2007, for which he was treated and has not had symptoms since.
In Mr Borenstein's opinion, there is no evidence of perceptual disturbances in the Offender. Mr Borenstein does conclude that the Offender would benefit from psychological treatment addressing longstanding vulnerabilities as it pertains to introversion and social isolation, which he suspects contributed to the past psychotic episodes, which occurred at the time when the Offender was subject to significant workplace stress.
The relevance of this evidence is marginal at best. There is no suggestion that the Offender's psychotic episodes nearly 20 years ago or his introverted character, has any connection to the offending.
The fact that he might benefit from some psychological treatment to address his introversions or social isolation is to my mind, not a matter which I ought give any weight.
Mr Smith puts it in a more subtle way than that. His point is that the evidence of the past mental health episodes together with the fact that the Offender sought treatment and that there was a successful outcome to that treatment, is relevant to my assessment of the prospects of rehabilitation to the rehabilitation of the Offender. I understand that submission and I think there is some weight to it, and I will return to it shortly when considering the Offender's subjective case.
[8]
The Offender's subjective case
As for the Offender's subjective case, it really comes down to this.
He has no criminal history. He was of prior good character. He has a good work history and he has a supportive family.
As he is entitled to do, he maintains his innocence. As such, at the moment, there is no remorse, contrition or insight.
More to the point, notwithstanding the opinions of Kate Solomon, forensic psychologist, to the effect that his risk of sexual reoffending falls in the average range, and Susanna Fowler, Community Corrections officer, who reports an assessment of the risk of reoffending in the average range, I am sceptical. I do not really understand from either report, the basis of those conclusions. They are the product of a series of tests, some of which to some degree, depend on the honesty of the Offender.
At this point, all I know is that the Offender committed the offence, has persistently denied, and continues to deny the offending.
I can only conclude that at the moment, he has no insight himself as to why he offended, and I infer therefore at the moment, he has no intention to obtain any form of treatment to help him understand why he did what he did, let alone seek to work out a strategy to prevent him from doing it in the future.
Again, Mr Smith puts the matter in a more nuanced way than that. He submits that it does not follow from the fact that today, the Offender does not acknowledge the offending and that he will not come to have insight. To put it another way, it is possible that at some point in the future, he may come to acknowledge his wrongdoing, develop some insight into it, and seek help to work out strategies as to stop him from conducting himself in such a way in the future. I accept that submission. I cannot rule out that possibility from that occurring in the future.
With some hesitation, I therefore approach the matter upon the basis of the expert opinion that his prospects of reoffending should be considered in the average range. The experts apparently think they are at such a level that the suggestion is that he will not qualify in prison for the sexual offenders' programs, albeit, on my reading of the reports, that is not necessarily the final position that we will come to. For my part, I do not accept that he ought not take part in relevant programs.
[9]
Resolution
The principals of sentencing are well understood and are set out in s 3(A) of the Crimes (Sentencing Procedure) Act 1999.
I think in the present case, the question of general deterrence, adequate punishment and retribution for the victim loom large. The maximum penalty imposed by Parliament is a guide only, but does demonstrate how seriously the community considers this type of behaviour.
Moreover, in light of the Offender's current refusal to acknowledge his guilt, the question of specific deterrence by reducing the Offender's chances of reoffending by placing him in prison does have a level of importance.
I do not think there is any issue that the s 5 threshold has been crossed. If there is, I find that there is no alternative but to a term of imprisonment on a full time basis.
The task for me is to identify all of the factors relevant to the sentence, weigh the significance of them, and then make an evaluative judgment as to what is the appropriate sentence: Markarian v The Queen (2005) 228 CLR at 375 per McHugh J. This has become to be known as the "instinctive synthesis".
In light of all of the matters I have mentioned, I think the appropriate head sentence is a term of imprisonment for four years.
There is then a question of whether any special circumstances have been made out, so as to justify an adjustment of the non-parole period as a proportion of the head sentence. The principals are explained in cases such as R v Simpson (2001) 53 NSWLR 704. There are two factors that might qualify for special circumstances that have been identified by Mr Smith for the Offender. The first is that this is the Offender's first time in prison. However, as was explained in R v Collier [2012] NSWCCA 213, whilst that is a relevant factor, it is not determinative.
Special circumstances are often identified in circumstances where there is some evidence or basis to conclude that a longer period on parole would be likely to assist in an Offender's rehabilitation. See for example, R v Carter [2003] NSWCCA 243 at para [20], R v Tuuta [2014] NSWCCA 40 at [57].
Mr Smith has made powerful submissions to the effect that I should infer from the fact that the Offender has responded well to treatment in the past for psychological issues, together with the fact that on parole, he undoubtedly would be required to undertake some therapy and that I should conclude that a longer period on parole would likely assist in his rehabilitation.
With a little hesitation, I have decided to reject that submission. I think Mr Smith has persuaded me that is a possibility. That is, there is a possibility that a longer period on parole would assist in the Offender's rehabilitation, but I am not satisfied that it would likely assist in the Offender's rehabilitation.
In those circumstances, I do not think special circumstances have been made out.
The Offender has been in custody since the jury found him guilty on 29 August 2023. I will backdate the sentence so that it is taken to have commenced on that date.
Mr Kibby, would you please stand up? For the offence the jury found you guilt of, I:
1. Sentence you to a maximum term of imprisonment of four years, commencing on 29 August 2023 and expiring on 28 August 2027.
2. I fix a non-parole period of three years to expire on 28 August 2026.
3. You will first become eligible for parole on 28 August 2026.
[10]
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: 03 November 2023