AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
32
Court of Criminal Appeal 13 December 2000

Regina v Kennedy

[2000] NSWCCA 527

Sexual offences
RELEVANCE OF PRIOR GOOD CHARACTER

Citation: Regina v Kennedy [2000] NSWCCA 527
Court: New South Wales Court of Criminal Appeal
Date: 13 December 2000
Judge(s): Simpson J, Howie J

Background

The appellant was convicted by a jury in the District Court of five offences of having sexual intercourse with a child aged between 10 and 16 years, contrary to s 66C(1) of the Crimes Act 1900. The complainant was a 13-year-old girl. The appellant, aged 56 at the time, believed her to be 15 and believed she was consenting. The jury acquitted him of the more serious charges of aggravated sexual intercourse without consent, instead returning guilty verdicts on the alternative counts.

The offences occurred on a single day. The first took place in a vehicle. The remaining four occurred in a motel room, where the appellant acted in company with another man, Colby, who held what the appellant understood to be a quasi-parental relationship with the complainant. Colby had arranged and facilitated the conduct, including setting up a video camera.

Judge Payne in the District Court imposed concurrent sentences of a minimum term of 2 years 8 months and an additional term of 1 year 8 months for each offence, dating from the appellant's entry into custody on 26 May 1999. The appellant sought leave to appeal against those sentences.

  • Whether the sentences imposed were outside the proper range of the sentencing discretion, having regard to comparable decisions.
  • Whether the offences fell at the lower end of the scale of seriousness for this category of offence.
  • Whether the sentencing judge erred in giving reduced weight to the appellant's prior good character and the testimonials tendered on his behalf.
  • Whether the appellant's belief in the complainant's consent, and the suggestion that some conduct was initiated by the complainant, operated as mitigating factors.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding that the sentences were fully justified by the objective seriousness of the offences.

Howie J rejected the submission that the offences fell at the lower end of the scale. The appellant was 56 years old, the complainant was 13, the conduct in the motel room was committed in company with another man who was in a position of trust over the complainant, and the sexual acts included particularly degrading conduct. The Court found that the appellant knowingly exploited the complainant's vulnerability and was a willing and active participant throughout.

The Court found that the appellant's belief that the complainant was consenting did not operate as mitigation. Had he known she was not consenting, he would have been guilty of the more serious offence of which the jury acquitted him. Similarly, the suggestion that some conduct was initiated by the complainant carried little mitigatory weight, given that the appellant knew Colby was instigating the conduct and understood the nature of Colby's relationship with the complainant.

On the question of prior good character, Howie J found that the sentencing judge's approach, drawing on a general principle from R v Levi that good character is of lesser importance in cases of this kind, was not appropriate on the particular facts. The offences occurred on a single day and arose from an unusual set of circumstances, entitling the appellant to full weight being given to his prior good character as evidence of otherwise uncharacteristic conduct. However, the Court held that the objective seriousness of the offences was such that the sentences were justified regardless, and no lesser sentence was warranted.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a belief in the complainant's consent does not operate as mitigation in sentencing for child sexual assault, where that belief would merely have placed the offender within the category of a more serious, separately charged offence.
  • A general principle that prior good character carries reduced weight in child sexual assault cases will not apply automatically. Where offences occurred on a single day, arose from a peculiar set of circumstances, and represented aberrant behaviour, an offender may be entitled to full mitigating weight being given to prior good character.
  • Reduced weight for good character may be appropriate where general deterrence is paramount, the offending type is frequently committed by persons of good character, the offender's standing enabled the offending, or there is a pattern of repeat offending over time. None of those circumstances applied here.
  • The objective seriousness of an offence can justify a sentence even where the sentencing judge has erred in reducing the mitigatory weight of a particular factor. The Court found the error made no practical difference to the outcome.
  • Aggravating features such as acting in company, a significant age disparity, and the exploitation of a complainant in a position of vulnerability all bear on the objective seriousness of offences under s 66C(1) of the Crimes Act 1900.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66C(1)

Cases
- R v Levi (unreported, Court of Criminal Appeal NSW, 15 May 1997)