Kenny v R

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

Background

The applicant, a man aged 33 at the time of the offending, met a 15-year-old girl through an internet chat room designed for users aged 15 to 18. Over several weeks he developed a relationship with her through online and telephone contact, before travelling to meet her and booking a motel room. He brought photographic equipment, and on 13 December 2003 the two engaged in sexual acts that formed the basis of multiple charges.

The applicant pleaded guilty mid-trial to two counts of having sexual intercourse with a child aged between 14 and 16 years. He was sentenced in the District Court to imprisonment with a non-parole period of one year and three months on the second count, together with a four-year good behaviour bond on the first count. Additional matters were taken into account on a Form 1.

The agreed facts established that the applicant claimed to have believed the complainant was 16 years old at the time of the offending, but that both parties accepted his belief was unreasonable. He applied to the Court of Criminal Appeal for leave to appeal the sentence on three grounds.

Legal Issues

• Whether the sentencing judge erred by treating the applicant's use of the internet to make contact with the complainant as an aggravating factor, given that the applicant held an honest (if unreasonable) belief that she was 16 years old
• Whether the sentencing judge erred by finding that the planned nature of the offending constituted an aggravating factor, given that same honest belief
• Whether the sentencing judge erred by declining to treat the applicant's public humiliation and loss of political standing as mitigating factors in the form of extra-curial punishment

Decision

Ground 1: Use of the internet as an aggravating factor

The court rejected the submission that the applicant's unreasonable belief about the complainant's age rendered his use of the internet irrelevant to aggravation. The applicant had entered a chat room explicitly designed for users aged 15 to 18, creating a substantial risk that participants would be under 16. Howie J noted the applicant was clearly seeking out a young person for sexual purposes and had in fact been told the complainant was 15, even if he later claimed to have forgotten this. Basten JA observed that recklessness as to the complainant's age did not strip the internet use of its aggravating character, though the degree of aggravation could vary according to where the offender's state of mind fell on the spectrum from deliberate malice to inadvertence.

Ground 2: Planning as an aggravating factor

The court dismissed the argument that planning could not be an aggravating factor because the applicant believed he was not committing an offence. Howie J reasoned that the acts were criminal because his belief was unreasonable, and the planning he undertook to bring those acts about remained part of the circumstances of the offending. The offence was not a spontaneous act; it followed forethought, travel, motel bookings, and the bringing of photographic equipment. The sentencing judge's finding that this planning was aggravating was open on the facts.

Ground 3: Public humiliation and loss of political career as mitigating factors

The sentencing judge had noted the applicant's public role as a councillor and acknowledged the heightened public denigration he suffered, but declined to find this amounted to extra-curial punishment warranting mitigation. The court identified that extra-curial consequences such as job loss, financial penalties, or serious physical or psychological harm can properly reduce a sentence, and that in some exceptional cases public humiliation reaching those proportions may be taken into account. However, Howie J expressed the view that public humiliation alone, without more, should not ordinarily ground a reduction. Basten JA observed the question remained unresolved in the High Court. All three judges concluded no error had been established in the way the sentencing judge dealt with this issue, and that even if an error existed, its impact on the sentence would have been very slight.

Orders Made

• Leave to appeal granted
• Appeal dismissed

Key Takeaways

• The use of an internet chat room to meet and groom a person for sexual activity can constitute an aggravating sentencing factor even where the offender held an honest but unreasonable belief that the complainant was over the age of consent.
• Planning and forethought in the commission of a child sexual assault offence remain aggravating circumstances regardless of whether the offender believed the conduct was lawful, because the criminality of the act is judged objectively.
• Extra-curial punishment can encompass financial loss, physical injury, or other serious disadvantages flowing from an offence, and in exceptional cases may extend to public humiliation where it has produced significant physical or psychological effects on the offender.
• The Court of Criminal Appeal noted that the question of whether public humiliation and opprobrium alone (without additional concrete consequences) can properly mitigate sentence remains unresolved at High Court level.
• A distinction exists between the destruction of a reputation that is independent of the offence and the loss of standing arising from an abuse of the very position of trust or prominence that enabled or surrounded the criminal conduct, and that distinction may affect how much weight a sentencing court gives to reputational harm.

Legislation and Cases Referenced

Legislation
- Not stated

Cases
- Not stated