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District Court 14 December 2011

R v KENNEDY

[2011] NSWDC 223

Sexual offences
CRIMINAL LAW SENTENCE ACT OF INDECENCY AGGRAVATED SEXUAL INTERCOURSE FORM 1

Citation: R v Kennedy [2011] NSWDC 223
Court: District Court of New South Wales
Date: 14 December 2011
Judge(s): Berman SC DCJ

Background

The offender, a man born in 1950 with a history of institutionalisation, Vietnam service, and severe alcoholism, was sentenced for sexual offences committed against two young sisters in the mid-1980s to early 1990s. The victims came into contact with him through their father, with whom the offender lived in a caravan. The sisters visited their father on weekends and were sexually assaulted on multiple occasions during those visits.

The offender pleaded guilty to two counts on the indictment: digital penetration of a 12-year-old girl (count one), and aggravated sexual intercourse without consent with a 15-year-old girl in circumstances where she was under 16 (count two). Additional offences, including acts of indecency and indecent assault against both victims, were placed on two Form 1 documents to be taken into account at sentencing.

The offending came to light many years later after one of the victims disclosed the abuse to a psychologist and then police. A lawfully recorded telephone call in which the offender made partial admissions formed part of the prosecution evidence. He denied the allegations upon arrest but ultimately pleaded guilty.

  • What sentence was appropriate having regard to the tariff and maximum penalties applicable at the time the offences were committed in the 1980s and early 1990s, rather than contemporary sentencing levels?
  • How should the court account for the offender's significant subjective circumstances, including childhood institutionalisation, Vietnam service, post-traumatic stress, and psychiatric conditions?
  • Whether special circumstances existed justifying an adjustment to the standard non-parole period ratio.

Decision

Berman SC DCJ emphasised that the offending was serious and had caused significant harm to both victims, a factor he directed to be kept firmly in mind throughout the sentencing exercise. However, the court was required by law to apply the sentencing tariff and maximum penalties that applied at the time of the offences, not the higher tariffs that have since developed. The court acknowledged that sentencing for this type of offending has increased substantially over the past 20 years, reflecting a growing judicial recognition of the profound harm caused by child sexual abuse, but noted the offender is entitled to the benefit of the lower tariff that prevailed when the offending occurred.

The court found the task of identifying historical sentencing practice to be a difficult one, noting limited available guidance and the absence of published sentencing data from the relevant period. Defence counsel appropriately conceded that full-time custody was the only appropriate outcome given the gravity of the offending.

The offender's subjective case was substantial. His background included removal from his mother at age five, placement in an orphanage, time at Yasmar, imprisonment in an adult gaol at 17, exposure to traumatic events during Vietnam service (including killing a fellow soldier in a friendly fire incident), and chronic alcoholism. A forensic psychologist provided an assessment. The court weighed these factors as part of the sentencing exercise while maintaining that they could not displace the need for a custodial sentence.

Special circumstances were found to exist, warranting a longer parole period than the statutory norm, having regard to the offender's age and ongoing psychiatric difficulties.

Orders Made

  • Count 1 (sexual intercourse with a person aged between 10 and 16, with Form 1 matters): fixed term of 18 months imprisonment, commencing 14 December 2011.
  • Count 2 (aggravated sexual intercourse without consent, with Form 1 matters): non-parole period of 2 years, head sentence of 4 years, commencing 14 December 2012.
  • Effective total sentence: non-parole period of 3 years, with a parole eligibility period of 2 years, totalling 5 years.
  • The offender became eligible for release to parole on 13 December 2014.

Key Takeaways

  • Where offending occurred decades ago, the sentencing court must apply the tariff and maximum penalties that existed at the time of the offences, not current sentencing levels, even where contemporary practice reflects a significantly harsher approach.
  • The District Court acknowledged an agreed position among counsel that the increase in sentences for child sexual offences over the past 20 years reflects a growing judicial understanding of the serious harm such offending causes.
  • Extensive adverse subjective circumstances, including childhood institutionalisation, Vietnam service, trauma, and psychiatric illness, can be weighed in mitigation but do not displace the need for full-time custody where the offending is of sufficient gravity.
  • Special circumstances justifying a departure from the standard non-parole period ratio may be found where the offender's age and psychiatric condition make extended post-release supervision appropriate.
  • Partial admissions made during a lawfully recorded telephone call can form part of the evidentiary record in historical child sexual assault prosecutions, even where the offender initially denied the allegations upon arrest.

Legislation and Cases Referenced

Cases:
- R v Bakewell (unreported, NSWCCA, 27 June 1996)

Legislation:
- Sentencing Act (NSW) (referenced in the context of applicable sentencing regimes)
- Parole of Prisoners Act (NSW) (referenced in the context of applicable sentencing regimes)

Note: The suppression order prohibiting publication of evidence identifying or tending to identify the complainants remains in force. Any use of this material should be checked against applicable suppression orders and statutory publication restrictions.