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Court of Criminal Appeal 1 March 2005

Regina v Kershaw

[2005] NSWCCA 56

Sexual offencesDomestic & family violencePublic order & justice offences
CRIMINAL LAW SENTENCING WITHIN MARRIAGE RELATIONSHIP BREACH OF AVO SENTENCE IMPRISONMENT 5Y NON PAROLE 2Y 6M NOT MANIFESTLY EXCESSIVE

Citation: Regina v Kershaw [2005] NSWCCA 56
Court: NSW Court of Criminal Appeal
Date: 1 March 2005
Judge(s): Bryson JA, Barr J, Hoeben J

Background

The applicant pleaded guilty in the District Court at Campbelltown to one count of sexual intercourse without consent under s 61I of the Crimes Act 1900, committed against his wife at the family home in Tahmoor on 2 December 2002. The offence occurred the morning after police had attended the home, removed the applicant following an altercation, and obtained a Telephone Interim Apprehended Violence Order (AVO) for the protection of his wife. The applicant returned to the home the following morning and forced intercourse on his wife despite her clear refusal.

A breach of the AVO was taken into account on a Form 1 at sentencing. The applicant had a prior conviction for common assault against the same complainant, for which he had previously been placed on a recognizance and required to attend anger management counselling.

District Court Judge Sides QC sentenced the applicant to five years' imprisonment with a non-parole period of two and a half years. The applicant sought leave to appeal on the sole ground that the sentence was manifestly excessive.

  • Whether the sentence of five years' imprisonment with a non-parole period of two and a half years was manifestly excessive for a marital rape committed in breach of an AVO.
  • Whether the sentencing judge gave undue weight to certain aggravating features, including the domestic setting and the AVO breach.
  • Whether the complainant's forgiving and optimistic attitude toward the relationship, as demonstrated in her sentencing evidence, should have operated to reduce the sentence.

Decision

The Court of Criminal Appeal unanimously dismissed the appeal, finding that the sentence was severe but not manifestly excessive. Bryson JA, with whom Barr J and Hoeben J agreed, identified several serious aggravating features: the offence was committed in direct response to the complainant obtaining an AVO, it occurred in the matrimonial home, there was a prior conviction for assaulting the same complainant, and the applicant had previously undergone supervision and counselling without sufficient effect.

On the question of the domestic context, the Court rejected the applicant's submission that committing the offence at home or within a marriage should be treated as a neutral or even mitigating circumstance. The Court considered it an aggravating factor that the offence was committed in a domestic relationship and in the complainant's home, while acknowledging this was difficult to define precisely. The Court distinguished observations from R v Comert [2004] NSWCCA 125, noting those comments were confined to the facts of that case and did not establish any general principle.

On the complainant's forgiving attitude, the Court stated clearly that the sentencing process is not controlled by complainants. In domestic violence cases, complainants sometimes display an understanding and optimistic disposition toward a violent partner that others may find difficult to share. Such an attitude does not reduce the gravity of the offence and carries little weight in determining an appropriate sentence in the interests of justice.

The Court also emphasised the importance of AVOs as measures designed to secure peace and safety in the community. The applicant's response to the AVO with aggressive conduct constituted a serious aggravating matter that the sentencing judge was entitled to reflect in the sentence imposed.

Orders Made

  • Leave to Appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A complainant's forgiving or optimistic attitude toward a violent partner in a domestic relationship does not reduce the gravity of a sexual assault offence and carries little weight in determining an appropriate sentence.
  • Committing sexual intercourse without consent within a marriage or domestic relationship, and in the complainant's own home, was treated by the Court of Criminal Appeal as an aggravating circumstance rather than a neutral or mitigating one.
  • Breaching an AVO in the course of committing an offence is a serious aggravating factor; AVOs serve an important protective function in the community, and conduct in breach merits punishment.
  • No error was established in the sentencing judge's exercise of discretion, and a sentence can be "recognisably severe" without being manifestly excessive where the objective facts of the offence warrant it.
  • Observations made in earlier Court of Criminal Appeal decisions about specific factual matters are confined to those cases and do not establish broader general principles applicable to all subsequent sentencing exercises.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I (sexual intercourse without consent; maximum penalty 14 years' imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32 (Form 1 procedure for taking additional offences into account)

Cases:
- R v Comert [2004] NSWCCA 125
- R v Glen (unreported, NSWCCA, 19 December 1994)