Citation: Kennedy v R [2017] NSWCCA 193
Court: NSW Court of Criminal Appeal
Date: 16 August 2017
Judges: Macfarlan JA, Davies J, Button J
Background
The applicant, a local Koori elder and chairman of a regional lands council, pleaded guilty on the first day of trial to four counts of aggravated sexual intercourse without consent under s 61J of the Crimes Act 1900 (NSW). The offending occurred between July 1996 and November 1999 and involved the repeated sexual abuse of his de facto stepdaughter, beginning when she was 15 years old. The abuse resulted in three pregnancies and the birth of two sons.
The applicant was sentenced in March 2016 to an aggregate term of 17 years' imprisonment with a non-parole period of 12 years. Indicative sentences of eight years were imposed for counts 1, 2 and 3, and nine years for count 4, which involved a violent rape committed after the applicant lured the complainant from a TAFE course under the false pretence that her child had been injured.
On appeal, the applicant sought leave to withdraw his guilty plea on count 4 and challenged the sentence on five grounds.
Legal Issues
- Whether the applicant should be permitted to withdraw his guilty plea on count 4, particularly on the question of whether the complainant was "under his authority" at the time of that offence
- Whether the sentencing judge gave adequate weight to the applicant's expressed remorse
- Whether the sentencing judge properly assessed the level of objective criminality for each individual offence
- Whether the sentencing judge erred in treating counts 3 and 4 as offences against a child, given the complainant's age at the time
- Whether the sentencing judge erred in finding that counts 3 and 4 took place in the complainant's home, and in treating that location as an aggravating factor
- Whether the aggregate sentence of 17 years was manifestly excessive
Decision
Application to withdraw plea: The Court of Criminal Appeal refused the application. The applicant had been represented by both a solicitor and counsel when the plea was entered, and nothing in the material suggested the plea was not freely and voluntarily made. The argument that the complainant was no longer "under his authority" for count 4, because the relationship with her mother had ended by mid-1999, was rejected. The agreed facts showed the applicant maintained a powerful physical and emotional domination over the complainant, and the question of authority was a matter of fact for the jury. No miscarriage of justice was established.
Remorse and objective seriousness: The Court found the sentencing judge had considered the psychological report detailing the applicant's subjective circumstances and his expressions of remorse. No error was demonstrated in the weight assigned to that material. On objective seriousness, the judge had assessed each count individually and had identified the gravity of the overall pattern of offending, including the use of pregnancy to coerce continued abuse.
Categorisation as offences against a child and location: The argument that counts 3 and 4 were incorrectly treated as offences against a child was not pressed with any substance. On the home location point, while the Court accepted that count 4 took place in a car rather than in the complainant's home, the sentencing judge's treatment of this as an aggravating feature was not established as error in any way that affected the outcome.
Manifest excess: The Court rejected the manifest excess ground. The offences were serious, three resulted in pregnancy, and the pregnancies were used as coercive tools to compel ongoing abuse. Count 4 involved a violent rape accompanied by a death threat. The Court found no error of principle in either the individual indicative sentences or the aggregate term.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- Withdrawal of a guilty plea will be refused where the applicant was legally represented at the time of the plea and no material exists to impugn its voluntariness, even where a legal argument might theoretically have been run at trial.
- The question of whether a complainant was "under the authority" of an accused for the purposes of s 61J of the Crimes Act 1900 is a question of fact, and a continuing pattern of domination and coercion can support that finding even after the formal relationship between the accused and the complainant's parent had ended.
- No error was established in the sentencing judge's treatment of remorse, objective seriousness, or the characterisation of the offending context, where the reasons addressed each of those matters.
- An indicative sentence in an aggregate sentencing exercise is not itself the subject of an appeal, but an erroneous approach to an indicative sentence may reveal error in the aggregate sentence: R v Brown [2012] NSWCCA 199 at [17].
- In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that intervention requires a conclusion that there must have been some misapplication of sentencing principle, not merely that a different result might have been reached.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 61J
- Crimes (Sentencing Procedure) Act 1999 (NSW), Div 1A of Pt 4
Cases:
- Maxwell v The Queen (1996) 184 CLR 501
- R v Howes (2000) 2 VR 141
- Dinsdale v The Queen (2000) 202 CLR 321
- Wong v The Queen (2001) 207 CLR 584
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- Bugmy v The Queen (2013) 249 CLR 571
- R v Brown [2012] NSWCCA 199
- Zreika v R [2012] NSWCCA 44
- Delaney v R; R v Delaney [2013] NSWCCA 150
- Langbein v R [2013] NSWCCA 88
- Khamis v R [2014] NSWCCA 152
- MM v R [2016] NSWCCA 235
- Jonson v R [2016] NSWCCA 286
- R v Lulham [2016] NSWCCA 287
- Ming Yuk (Raymond) Wong v Director of Public Prosecutions [2005] NSWSC 129
- Majid v R [2010] NSWCCA 121
- R v Van (2002) 129 A Crim R 229
- R v Miller [2001] NSWCCA 209