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Legislation Cited: Crimes Act 1900 (ACT), s 54(1) Family Violence Act 2016 (ACT), ss 8, 43(2)

Cases Cited: Barbaro v The Queen [2012] VSCA 288; 226 A Crim R 354 Cranfield v The Queen [2018] ACTCA 3 Imbornone v The Queen [2017] NSWCCA 144 R v Palmer [2017] ACTSC 357

Parties: The Queen (Crown) Kynan Smith (Offender)

Representation: Counsel K Lee (Crown) J Moffett (Offender)

Solicitors ACT Director of Public Prosecutions (Crown) Boxall Legal (Offender)

File Number: SCC 149 of 2020

MOSSOP J:

Introduction

1. On 30 March 2021 the offender, Kynan Smith, pleaded guilty to the offence of sexual intercourse without consent contrary to s 54(1) of the Crimes Act 1900 (ACT), for which the maximum penalty is 12 years’ imprisonment. He also pleaded guilty to contravening a family violence order (FVO) contrary to s 43(2) of the Family Violence Act 2016 (ACT), for which the maximum penalty is 5 years’ imprisonment, 500 penalty units or both.

2. The pleas were entered on the second day of the offender’s jury trial, but before the Crown had opened its case. The Crown accepted the pleas in full satisfaction of the indictment on the basis that the facts relating to a charge of choking, suffocating or strangling, and three transfer charges of common assault, would be taken into account in relation to the contravention of the FVO.

Facts

3. The offences in this matter were committed by the offender against his partner between 24 and 25 March 2020.

4. The relationship between the victim and the offender commenced in late 2018. The relationship was one involving domestic violence and was marked by controlling and abusive behaviour by the offender towards the victim. In February 2019 the offender assaulted the victim. This led to criminal charges and the victim applying for a FVO, which was made by the ACT Magistrates Court on 7 May 2019 for 12 months. The FVO prohibited the offender from being at the victim’s residence unless expressly invited, being at the victim’s place of work and engaging in behaviour that constituted family violence.

5. On 18 July 2019 the offender pleaded guilty and was sentenced to 8 months’ imprisonment for the assault in February. The offender was released from custody on 6 January 2020. Upon his release the offender and the victim resumed their relationship. The offender promised the victim that he would never hurt her again and that she would always be safe with him. However, a few weeks later the victim noticed that the offender’s behaviour was beginning to escalate. On 23 March 2020 the victim and the offender moved into short-term rental accommodation in Griffith which the victim had organised and paid for.

6. On 24 March 2020 the victim decided to leave the offender. By this time she felt threatened and terrified of him. That morning the victim waited until the offender left for work and then packed some belongings and caught a taxi to the Abode Hotel in Phillip. She checked in at around 11am and paid for a three week stay. She asked the receptionist about the hotel’s privacy policy and asked what the hotel would do if someone called reception asking for her.

7. Once she had checked in the victim texted the offender to tell him where she had left the key to their unit. The offender began calling and texting her and sent her numerous text messages over the next few hours, which were as follows:

12:55pm Oh 1:06pm Wtf 1:09pm Answer me 1:11pm Wtf why r i doing this answer me plx 1:16pm I am stop this talk to me I’m at home 1:17pm Bub don’t do this 1:17pm To me wtf we were fine 1:21pm Baby plz no I’m a mess why r y doing this 1:21pm Plz no I’m going to kill myself in the Ute right now sorry 2:33pm I didn’t say anything about having enough I said stop it for answer me 3:46pm Bub come home now plz

8. The offender also called the victim and threatened to kill himself. He promised he would change and pleaded for the victim to return. The victim hoped that the offender’s remorse was genuine and so eventually decided to return to the unit for a short visit. She left her belongings at the hotel and caught an Uber to Griffith.

9. When she arrived the offender walked up to the victim angrily, took off her sunglass and accused her of taking drugs. They went inside and the offender continued to argue with the victim and accuse her of using drugs. He slapped her on the side of her face. She said “you promised I was safe with you and that you would never touch me again.”

10. The offender began smoking a bong and the victim sat down on the bed. A short time later the offender grabbed the victim by the front of her jacket, which was zipped up. While gripping the collar of the jacket, the offender thumped the victim up and down on the bed. Each time she was pressed down he applied force to her throat with his clenched fist, affecting the victim’s ability to breath. He did so for approximately 10 minutes while questioning the victim about things he thought she had done.

11. The offender then pulled the victim’s pants and underpants down and inserted his index and middle fingers inside her vagina. The victim did not consent. The offender brought his fingers to his nose, sniffed them and wiped them on the victim’s face.

12. The offender made the victim drive him to McDonalds. When they returned to the unit the offender began questioning the victim about how she had travelled from the hotel to the unit. He did not believe that she had caught a taxi and slapped her in the face, around her jaw.

13. For the duration of the evening in the unit the victim felt too frightened to leave or call for help.

14. The next morning the victim woke up around 7am. The offender elbowed her forcefully as he got out of bed. The offender told the victim that they were going to go get her things from the hotel. They drove there in the victim’s car and went upstairs to the victim’s room. At 8:28am they walked into the reception. The offender was carrying the victim’s bags. The victim handed him the car keys and said she would check out.

15. As the offender was walking to the car, the victim approached the receptionist and said “Please hide me. Please call the police”. She appeared frightened and distressed and the receptionist invited her into the operations manager’s office, which is behind the reception. He explained to the operations manager what was going on. The victim told the operations manager “He is out there. He is going to kill me.”

16. The operations manager told the receptionist to call the police. She locked the door to the office and reassured the victim that the office was secure. The victim was crying and shaking. The operations manager encouraged the victim to call the Domestic Violence Crisis Service and the victim spoke with the service on the phone.

17. In the meantime, the receptionist called 000 and requested urgent police attendance. The police operator also spoke with the victim who said “my, ah, partner is waiting – my ex-partner is waiting outside. Um, he assaulted me last night. And I’m really scared.”

18. After putting the bags in the car the offender returned to the reception area looking for the victim. He asked the receptionist where she had gone. The receptionist responded “I don’t know. I saw her leave”. The offender searched around the foyer before going outside and pacing in front of the hotel. He returned to the car and drove off.

19. The offender sent the victim another series of text messages, demanding the victim to call him. He said “I want to say goodbye” and that he was “leaving town”.

20. Police attended the hotel and spoke to the victim who was very distressed. The police searched for the offender in the immediate area but could not locate him. The victim accompanied police to the Woden Police Station and participated in a family violence evidence-in-chief interview.

21. A warrant was issued for the offender’s arrest and he handed himself into police on 17 April 2020.

Victim impact statement

22. The victim prepared a victim impact statement which she read aloud in court. The victim’s statement makes clear the significant and long-term effects of the offender’s actions upon her. When the offending occurred she was not sure when it was going to end or whether she would survive. Afterwards she felt disgusted by what had been done to her.

23. The statement includes a description of the mental, emotional and physical harm caused by the offending. The victim explained how she overthinks every decision, monitors her behaviour and questions her own judgment. She jumps every time she hears her phone buzz, scared that it is the offender. She has lost her sense of personal safety and feels hypervigilant. She has nightmares and flashbacks of the offending. She describes struggling to fight her way out of depression and attempting suicide. She feels that she is “forever changed”.

24. The effects upon the victim described in the statement are within the range of expected outcomes from domestic violence offending of the type that occurred in this case in the context which is disclosed by the facts.

Objective seriousness

Sexual intercourse without consent

25. The sexual intercourse without consent is constituted by the digital penetration of the complainant’s vagina. This is a case in which the sexual intercourse can properly be described as an act of sexual violence. There is nothing which suggests that the act was performed for the purposes of sexual gratification. Rather, it was an assault designed to degrade the victim and formed part of a pattern of demeaning and controlling behaviour on the part of the offender. That demeaning and controlling behaviour is an important part of the context in which the offence occurred.

26. In R v Palmer [2017] ACTSC 357 at [22] I made reference to some of the features that might be taken into account in determining the objective seriousness of an offence of sexual intercourse without consent. In this case, relevant considerations are as follows: the offence was not premeditated; the offender acted alone; the sexual intercourse was brief and involved a single incident of digital penetration; the act occurred in the context of violence that would have caused the victim to fear for her life; the offender’s behaviour at the time of the digital penetration and immediately following was, and was designed to be, humiliating or degrading; the victim was vulnerable largely because of her ongoing relationship with the offender; the facts do not disclose any particular protests by the victim but, in the circumstances in which the offending occurred, that is not surprising. While the offending was relatively brief, the various factors to which I have referred puts it at the upper end of the mid range of objective seriousness for this offence.

Breach of a family violence order

27. The breach of the family violence order is particularised as a course of conduct commencing on 24 March 2020 and continuing until the next morning. It included the slap on the face when the victim returned to the apartment in Griffith, the grabbing of the victim’s jacket and thumping her up and down in a manner so as to apply force to her throat, the non-consensual digital penetration, slapping her on the face when questioning her about how she travelled from the hotel to the unit and elbowing her forcefully as he got out of bed the next morning. Each of these acts constitutes “physical violence or abuse” and hence family violence as defined by s 8 of the Family Violence Act. Given the acts involved and the duration over which they occurred, this conduct is properly characterised as being at the upper end of the mid range of objective seriousness for this offence.

Subjective circumstances

28. The personal circumstances of the offender are set out in a pre-sentence report dated 1 June 2021.

29. The offender is 40 years old and was 38 at the time of the offending. He was born and raised in Canberra and is one of his parents’ three children. He described a positive childhood and continues to have a good relationship with his parents.

30. He is currently single and has no children. His relationship with the victim ended prior to his admission into custody. He claimed that the relationship was good and stable at the beginning but broke down at the end due to arguing. He stated that he has been subject to two apprehended violence orders placed against him in the past by an ex-friend and the victim. The offender is still subject to a special interim family violence order in favour of the victim.

31. The offender was living at his parents’ address on and off for 12 months prior to entering custody. He stated that he enjoys living there and does not use illicit substances there as his parents do not allow it.

32. He completed education in the ACT up to Year 10. Prior to entering custody he was self-employed as a car spray painter for six months. He also supplemented his income with Centrelink payments. Otherwise his employment history is not disclosed by the evidence.

33. The pre-sentence report details a history of drug and alcohol abuse. His problematic consumption of alcohol commenced at the age of 16 and continued until his early twenties. He commenced using illicit substances in his late twenties when he began using methylamphetamine which he used for a period of 10 years. He attended a rehabilitation program in 2011, although relapsed a year later. He was using methylamphetamine once a month prior to his arrest in 2020. He is receiving Buvidal injections, an opioid replacement therapy, while in custody. He has applied for the Arcadia House day program and has been placed on a waitlist for assessment.

34. He is not involved in any organised activity in the community and spends his spare time working on cars or going fishing. He has few friends in Canberra.

35. The offender has been diagnosed with a cancer on his lip and a cyst in his brain, although this latter condition is likely to be of limited clinical significance. He is awaiting further medical advice as to the treatment required. He has also been diagnosed with depression and reported taking antidepressants for the past 10 years. He began receiving treatment from a psychologist while in the community last year and attended four sessions prior to his arrest. The offender’s father reported that the offender has previously attempted suicide. He did not present with any thoughts of self-harm or suicidal ideation when assessed by Forensic Mental Health Services upon his entry into custody.

36. The offender claimed remorse for his offending, stating that he realises the impact of his actions on his family and the victim. He indicated that he pleaded guilty to avoid the victim having to go through a trial.

37. He attributed his offending to illicit substance abuse and stated that he was under the influence of methylamphetamine at the time of the offending. He suggested that if he receives the correct rehabilitation treatment, he will cease his family violence offending and stated that he is willing to attend any program. He claimed that he will now take FVOs seriously because his offending has become “beyond a joke”. When asked whether he will contact the victim when released from custody, he stated that she was the one who contacted him. The author of the pre-sentence report noted that the offender demonstrated a greater concern for how his offending affected his parents, rather than the victim.

38. The offender was assessed as presenting a medium to high risk of general reoffending and an average risk of sexual reoffending. The opinion of the author of the pre-sentence report was as follows:

Due to previous lack of compliance with community-based orders, and his history of reoffending, it is unclear whether [the offender’s] newfound motivation to address his family violence behaviour is the result of the pending matters or genuine desire to address his risk factors. This Service holds concern regarding [the offender’s] ability to comply with any family violence or non-association orders with the victim.

39. The offender was found suitable for a community service work condition as part of a good behaviour order and for an intensive correction order.

Criminal history

40. The offender has an extensive criminal history, both in NSW and the ACT. In the ACT his criminal record includes possessing a prohibited weapon, destroying or damaging property, possessing a prohibited substance and a number of traffic offences. He also has convictions for common assault and assault occasioning actual bodily harm in 2019, which were committed against the victim. These occurred earlier in the relationship when he struck her on the left side of her mouth with the back of an open right hand and then hit her twice in the right eye in a manner so as to draw blood. A sentence of eight months’ imprisonment was imposed for the assault occasioning actual bodily harm and a three-month term of imprisonment for the common assault was made wholly concurrent.

41. In NSW he has been sentenced for larceny, destroying or damaging property, possessing a prohibited drug, possessing a drug and needle or syringe as an inmate and various traffic offences. He also has multiple convictions for common assault and assault occasioning actual bodily harm, most of which are recorded as domestic violence offences. He has been sentenced for six separate offences of contravening an apprehended domestic violence order between 2006 and 2017.

Plea of guilty

42. The offender pleaded guilty on 30 March 2021 in the Supreme Court on the second day of his jury trial, before the Crown had opened its case. This followed the offender’s arraignment and the empanelment of the jury the day before. As a result of the plea, the victim was not required to be cross-examined. In my view, it is appropriate, having regard to the utilitarian value of the plea, that he receives a 10 per cent reduction on account of that plea. I accept that this is at the upper end of the available range having regard to the fact that the trial was required to be fully prepared. Even the plea in Cranfield v The Queen [2018] ACTCA 3 occurred some days prior to the date set for the trial.

Time in custody

43. The offender has spent 175 days in custody prior to today. The offender was initially granted bail on 17 April 2020. However, he was arrested on fresh charges on 10 December 2020 and bail was revoked on 11 December. The 175 days includes 10 December 2020.

Consideration

44. The circumstances of this case involve a disturbing example of domestic violence. The offender has a criminal history, including previous offences directed to the current victim, that means he is not entitled to leniency. I do not place any significant weight upon the remorse communicated to the author of the pre-sentence report. I accept that statements unsupported by evidence that is able to be tested should be treated with great caution: see Barbaro v The Queen [2012] VSCA 288; 226 A Crim R 354 at [38] and Imbornone v The Queen [2017] NSWCCA 144 at [57].

45. Significant purposes of sentencing in the present case include general and specific deterrence, protection of the victim and the community, denunciation of the offender’s conduct, providing adequate punishment of the offender and recognition of the harm done to the victim and the community. Rehabilitation remains a consideration but, having regard to the offender’s history, his prospects are at least guarded and rehabilitation is to be given lesser weight than those other sentencing considerations in this case.

46. I have had regard to cases identified in the tables of comparative sentences annexed to the Crown’s written submissions.

47. On both counts I am satisfied that there is no appropriate sentence other than a custodial one.

48. On the charge of sexual intercourse without consent, the appropriate starting point is a sentence of three years’ imprisonment which is reduced to 32 months and 12 days on account of the plea of guilty. On the charge of breaching the family violence order, the appropriate starting point is a sentence of 24 months’ imprisonment which is reduced to 21 months and 15 days on account of the plea of guilty.

49. In relation to both sentences, in my view, the purposes of sentencing will only be properly met if they are served by full-time detention.

50. Having regard to the close temporal and physical connection between the offending and having regard to the need to reach an appropriate overall sentence, it is appropriate that there be a significant degree of concurrency between the sentences. I have increased the degree of concurrency to take into account the fact that the breach of the FVO arising from the digital penetration is the subject of a separate charge. The sentence for the breach of the FVO will be cumulative as to 8 months upon the sentence for sexual intercourse without consent but will otherwise be concurrent.

51. The aggregate sentence to be imposed is therefore 40 months and 12 days (three years, four months and 12 days). The non-parole period will be 28 months, approximately 70 per cent of the head sentence. The sentence will be backdated to 10 December 2020 to take into account the period spent in custody.

Orders

52. The orders of the Court are:

53. On the charge of sexual intercourse without consent (CC2020/3911) the offender is convicted and sentenced to imprisonment for 32 months and 12 days commencing on 10 December 2020 and ending on 21 August 2023.

54. On the charge of contravening a family violence order (CC2020/3910) the offender is convicted and sentenced to imprisonment for 21 months and 15 days commencing on 7 July 2022 and ending on 21 April 2024.

55. The non-parole period commences on 10 December 2020 and ends on 9 April 2023.

I certify that the preceding fifty-two [52] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.

Associate:

Date: 11 June 2021