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23
Court of Criminal Appeal 12 February 2010

Kenny v R

[2010] NSWCCA 6

Sexual offences
CRIMINAL LAW SENTENCE RELEVANT FACTORS SEXUAL INTERCOURSE WITH CHILD UNDER 16

Citation: Kenny v R [2010] NSWCCA 6
Court: NSW Court of Criminal Appeal
Date: 12 February 2010
Judge(s): Basten JA, Howie J, Johnson J

Background

The applicant was sentenced in the District Court by Blackmore DCJ after pleading guilty to having sexual intercourse with a girl under the age of 16. He received a two-year term of imprisonment with a non-parole period of one year and three months.

The offence involved the applicant making contact with the complainant through an internet chat site advertised for 15 to 18 year olds. The agreed facts recorded that the complainant had told the applicant she was 15 during an online exchange roughly two months before the offences. The applicant and the Crown also agreed that, whatever his claimed belief about her age at the time, that belief was not reasonable. The applicant had arranged to meet the complainant at a country motel, paying for the room and bringing photographic equipment.

The applicant also held a public position with a political party at the time of the offending. His arrest and prosecution attracted significant public attention and ended his political career. He appealed the sentence on the grounds that the sentencing judge had wrongly treated internet use and planning as aggravating factors and had wrongly declined to treat public humiliation as a mitigating factor.

  • Whether the applicant's use of the internet to contact and groom the complainant constituted an aggravating factor in circumstances where the applicant may have held a belief (albeit unreasonable) that she was not under 16.
  • Whether the planning involved in arranging the offence could properly be treated as an aggravating factor given the same uncertainty about the applicant's state of mind.
  • Whether public opprobrium and loss of public standing suffered by the applicant amounted to mitigating circumstances or extra-curial punishment warranting a reduction in sentence.

Decision

On the internet use and planning grounds, the Court of Criminal Appeal upheld the sentencing judge's approach. The Court reasoned that even where an offender is merely reckless (rather than certain) about the complainant's age, planning and deliberate conduct in pursuit of the offence remain relevant aggravating factors. The degree of aggravation may vary across a spectrum from deliberate malice to inadvertence, but recklessness does not strip those factors of their relevance. The applicant's deliberate use of a chat site known to attract minors, combined with the organised steps taken to meet the complainant and record the encounter, plainly warranted the sentencing judge's finding of aggravation.

On the question of public humiliation, the Court declined to find error in the sentencing judge's refusal to treat the applicant's public denigration as a mitigating factor. Basten JA drew a distinction between reputation (the public estimation of a person) and character (a person's inherent moral qualities), observing that loss of reputation does not, without more, constitute extra-curial punishment. The applicable principles suggested that public humiliation may only be mitigating where it reaches a level that produces genuine physical or psychological consequences beyond the ordinary embarrassment that ordinarily accompanies public exposure of serious offending.

Howie J agreed that ordinary public humiliation flowing naturally from the commission and exposure of such an offence should not of itself reduce a sentence. However, his Honour noted that an exceptional case, such as where media coverage leads to threats or places an offender under severe psychological strain, might qualify. That threshold was not met here. Notably, the sentencing judge had separately allowed for the delay between offence and sentence, acknowledging the burden the lengthy proceedings and public scrutiny had placed on the applicant.

All three judges agreed that none of the grounds of appeal were made out and that leave to appeal should be granted but the appeal dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Planning and internet use can constitute aggravating factors in child sexual offence sentencing even where the offender was merely reckless, rather than certain, about the complainant's age. The degree of moral culpability affects the weight of the aggravation, not its existence.
  • A sentencing court that identifies an offender's use of a forum known to attract minors, combined with organised steps to facilitate the offence, acts consistently with principle in treating those matters as aggravating.
  • Loss of reputation, career, or public standing does not ordinarily constitute extra-curial punishment capable of mitigating a sentence. The Court of Criminal Appeal confirmed the distinction between character and reputation in the sentencing context.
  • Public humiliation may rise to the level of a mitigating factor in exceptional circumstances, such as where it produces demonstrable physical or psychological harm beyond ordinary embarrassment, but no such threshold was established on the facts here.
  • Delay between offence and sentencing, and the burden of prolonged public scrutiny during that period, may be recognised separately in mitigation even where general public humiliation is not treated as extra-curial punishment.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(f)
- Crimes Act 1900 (NSW), ss 61M(1), 66C(3)

Cases:
- Melbourne v The Queen [1999] HCA 32; 198 CLR 1
- Ryan v The Queen [2001] HCA 21; 206 CLR 267
- R v Jackson and Hakim (1988) 33 A Crim R 413
- R v Hermann (1988) 37 A Crim R 440
- R v Dagwell [2006] NSWCCA 98
- R v Allpass (1993) 72 A Crim R 561
- R v Cobb [1999] FCA 158; 84 FCR 450
- R v Poynder [2007] NSWCCA 157; 171 A Crim R 544
- R v King [2009] NSWCCA 117