Citation: R v Keane [2019] NSWDC 941
Court: District Court of New South Wales
Date: 20 September 2019
Judge(s): King SC DCJ
Background
The offender was a 29-year-old man managing a backpacker hostel in Port Macquarie at the time of the offence. The complainant was a 19-year-old French national staying at the hostel, who had entered a relationship with the offender's long-standing friend and assistant manager, James Quinn. Quinn was away for the weekend when the offence occurred.
On the night of 13-14 May 2017, the complainant became profoundly intoxicated during pre-dinner drinks with a group at the hostel. She was so intoxicated she could not walk unassisted and vomited before being helped to bed. The other members of the group then left for a nightclub, leaving only the complainant and the offender at the hostel.
The complainant's next recollection was waking to find herself naked with the offender naked on top of her, his penis touching her vagina. She subsequently dressed, located her phone, and went directly to the police. The offender had given police a detailed account on the day of arrest describing consensual intercourse, but changed his account at trial, claiming his original statement had been unreliable due to his own intoxication.
Legal Issues
- Whether the facts as found by the jury established the objective seriousness of the offence for sentencing purposes
- What weight to give the offender's continued assertion of innocence, given his maintenance of that position after conviction
- How to assess and apply the standard non-parole period as a sentencing guidepost
- What subjective factors warranted adjustment of the non-parole period relative to the balance of term
Decision
King SC DCJ accepted the jury's verdict as a finding that the complainant was either unconscious or so severely affected by alcohol that she was incapable of consenting, and that the offender was well aware of that fact. A forensic pharmacologist had given evidence that the complainant's blood alcohol level prior to vomiting was approximately 3%, twice the high-range prescribed concentration for driving. The court found no evidence of accompanying physical violence, and noted there was no evidence as to the duration of the intercourse before the complainant regained awareness.
The court assessed the offence as falling below the mid-range of objective seriousness, though not at the lowest end. The judge characterised the offender's conduct as an abuse of the duty of care he owed to workers and guests at the hostel he managed. The victim impact statement described serious and prolonged psychological consequences for the complainant, including suicidal ideation, psychiatric treatment, and ongoing difficulties in relating to men, all of which the court acknowledged as serious sequelae consistent with offending of this nature.
The offender continued to maintain his innocence after conviction. His original police interview, in which he described consensual intercourse in considerable detail, was characterised by the judge as highly implausible when he later claimed it was the product of confused intoxication. The court took into account that this was the offender's first period of custody, his father's ill health, and that he had served at least some time on remand in protection (with more restricted conditions and more cell time than the general prison population). These factors led the court to reduce the non-parole period below the statutory default ratio.
Orders Made
- Total sentence of three years and six months' imprisonment
- Non-parole period of two years, with a balance of term of one year and six months
- Sentence backdated to 20 May 2019 (accounting for 23 days of pre-trial custody from the date of arrest)
- First eligible for parole: 19 May 2021
- Total sentence expires: 19 November 2022
Key Takeaways
- The District Court treated the offender's position of trust and management responsibility over hostel workers and guests as an aggravating feature of the offending conduct.
- Where an offender maintains innocence after a jury conviction and had given a detailed prior inconsistent statement to police, a sentencing court may characterise the change in account as going to credibility and implausibility rather than attracting any discount for remorse or assistance.
- Serving a sentence or remand period in protection, with consequent restrictions on access and increased cell time, can constitute a relevant factor warranting adjustment of the statutory non-parole period ratio, even where specific evidence of ongoing protection status is limited.
- An offence assessed below the mid-range of objective seriousness does not automatically attract a non-parole period below the standard non-parole period; the court weighed multiple subjective factors before arriving at the final reduction.
- Statistics drawn from the Judicial Information Research System (JIRS), while described as a "very blunt tool," retain some utility in sentencing, particularly where individual reported cases can be accessed and examined.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 61I (sexual intercourse without consent; maximum penalty 14 years' imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW) (standard non-parole period provisions)
Cases:
No specific cases were cited in the portions of the judgment provided.