AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 5 September 2019

R v KENNEDY

[2019] NSWDC 466

Sexual offences
CRIMINAL SENTENCING SEXUAL INTERCOURSE WITH CHILD AGGRAVATED INDECENT ASSAULT PLEA OF GUILTY MILD INTELLECTUAL IMPAIRMENT

Citation: R v Kennedy [2019] NSWDC 466
Court: District Court of New South Wales
Date: 5 September 2019
Judge: Lerve DCJ

Background

The offender, a 22-year-old man living in Ashmont, Wagga Wagga, pleaded guilty to two offences committed on 16 January 2018. He lured an eight-year-old girl from outside their adjoining flats into a vacant neighbouring unit and sexually assaulted her. Two further acts of indecency were taken into account on a Form 1 document.

The offender had a documented history of psychiatric illness and intellectual impairment. Treating psychiatrist Dr Luke Johnson had noted schizophrenia with co-morbid intellectual disability, poor impulse control, and a history of auditory hallucinations. Forensic psychiatrist Dr Olav Nielssen, reporting for the sentencing proceedings, diagnosed mild intellectual disability, psychotic illness, and substance use disorder.

The offender entered his pleas at Wagga Wagga Local Court on 8 March 2019 and maintained those pleas at the District Court sentence hearing on 19 July 2019.

  • What is the appropriate sentence for sexual intercourse with a child under 10 years, an offence carrying a maximum of life imprisonment and a standard non-parole period of 15 years?
  • What is the appropriate sentence for entering a dwelling with intent to commit a serious indictable offence, carrying a maximum of 10 years imprisonment?
  • How should the offender's mild intellectual disability and active psychotic illness affect the assessment of objective seriousness and the exercise of the sentencing discretion?
  • What discount applies for the utilitarian value of the guilty pleas?
  • Whether special circumstances exist justifying a departure from the statutory ratio between the non-parole period and the balance of term?

Decision

Lerve DCJ found that the offending was of significant objective seriousness. The victim was only eight years old, the offender deliberately lured her away from other children, and the assault involved penile penetration. The Form 1 matters, involving incitement to commit an act of indecency and a further act of indecency, were also taken into account.

The court addressed the impact of the offender's intellectual disability at length. Drawing on the approach taken in R v MW [2019] NSWDC 307, the court noted that "mild" intellectual disability should not be misread as minor or insignificant. Dr Nielssen's opinion was that the impairment in consequential thinking and impulse control, combined with an exacerbation of the offender's underlying psychotic illness around the time of the offence, were substantial contributing factors that affected his perception of events, his ability to judge right from wrong, and his capacity to control his behaviour. These factors reduced the offender's moral culpability to a degree, though they did not diminish the gravity of the offending.

The court applied a full 25% discount for the utilitarian value of the guilty pleas, reducing the starting point of 12 years imprisonment to a total sentence of 9 years. Special circumstances were found to exist, warranting a non-parole period set at approximately 63% of the total sentence rather than the standard 75%. The reasons included the offender's psychiatric and intellectual needs in custody and the importance of supervised reintegration.

The court directed that the psychiatric reports of Dr Nielssen and Dr Johnson be annexed to the warrant accompanying the offender to custody, to ensure that custodial authorities had access to the relevant clinical material.

Orders Made

  • The offender was convicted of both offences.
  • For the offence of entering a dwelling with intent to commit a serious indictable offence (s 111(1) Crimes Act): a fixed term of 18 months imprisonment, commencing 16 January 2018 and expiring 15 July 2019.
  • For the offence of sexual intercourse with a child under 10 years (s 66A(1) Crimes Act), taking into account the Form 1 matters: a non-parole period of 5 years and 9 months commencing 16 January 2018 and expiring 15 October 2023, followed by a balance of term of 3 years and 3 months commencing 16 October 2023 and expiring 15 January 2027.
  • The court recommended release to parole at the expiration of the non-parole period.
  • Copies of Dr Nielssen's report and all reports of Dr Luke Johnson were directed to be annexed to the warrant accompanying the offender to custody.

Key Takeaways

  • A diagnosis of "mild" intellectual disability does not signify a minor condition. The District Court confirmed that the term can encompass substantial deficits in reasoning, planning, and impulse control, and that courts should not be misled by the word "mild" when assessing its sentencing relevance.
  • Where intellectual disability and active psychotic illness are identified as substantial contributing factors to offending, they may reduce an offender's moral culpability even for very serious sexual offences against children, without diminishing the objective gravity of the conduct.
  • Under the one-step instinctive synthesis required by Muldrock v The Queen (2011) 244 CLR 120, the maximum penalty and standard non-parole period serve as principal guideposts rather than prescriptive benchmarks. The court applied this framework to an offence carrying a standard non-parole period of 15 years.
  • A full 25% utilitarian discount applied where guilty pleas entered at the Local Court were maintained at the District Court sentence hearing.
  • Special circumstances justifying a non-parole period below the standard 75% ratio can be established where an offender's psychiatric and intellectual needs, and the importance of supervised post-release support, call for a longer parole period.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66A(1), 111(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Muldrock v The Queen (2011) 244 CLR 120
- R v MW [2019] NSWDC 307
- Tepania v R [2018] NSWCCA 247
- R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434
- Jolly v R [2013] NSWCCA 76
- R v PGM [2006] NSWCCA 310
- RJA v R [2008] NSWCCA 137
- Bravo v R [2015] NSWCCA 302
- Mills v R [2017] NSWCCA 87
- R v AA [2017] NSWCCA 84
- MLP v R (2006) 164 A Crim R 93
- R v Hemsley [2004] NSWCCA 228
- Hamid v R [2006] NSWCCA 302
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Ngati v R [2014] NSWCCA 125
- R v Joel Kershaw [2019] NSWDC 99
- Cahyadi v R [2007] NSWCCA 1
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (Guideline Judgment on Form 1 matters) (2002) 56 NSWLR 146