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8
Court of Criminal Appeal 7 September 2022

Kelly v R

[2022] NSWCCA 189

Sexual offences
PAROLE PERIOD — APPEAL DISMISSED

Citation: Kelly v R [2022] NSWCCA 189
Court: NSW Court of Criminal Appeal
Date: 7 September 2022
Judge(s): Beech-Jones CJ at CL; Adamson J (primary judgment); Campbell J

Background

The appellant was convicted by jury of a single count of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW). The offending occurred in November 2019 in Crookwell, when the appellant, then aged 19, penetrated the sleeping complainant without her consent. The complainant awoke during the assault, realised the appellant was not her boyfriend, pushed him away, and immediately sought refuge in another room.

On 28 October 2021, the sentencing judge in the District Court imposed an aggregate term of 5 years and 9 months' imprisonment, with a non-parole period of 3 years and 9 months. The maximum penalty for the offence is 14 years' imprisonment; the standard non-parole period is 7 years.

The appellant sought leave to appeal his sentence before the Court of Criminal Appeal on two grounds: that the sentencing judge erred in placing the offence in the mid-range of objective seriousness, and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred in determining that the offending fell within the mid-range of objective seriousness.
  • Whether the sentence of 5 years and 9 months' imprisonment was manifestly excessive.

Decision

Ground 1: Objective seriousness

The appellant argued that several factors should have placed the offending below mid-range, including his youth, the absence of violence or threats, and the short duration of the assault. The Court rejected each of these contentions. The appellant's age of 19 constituted adult offending and did not bear on objective seriousness. The absence of violence or threats was not a mitigating feature in circumstances where the complainant was asleep and therefore incapable of resisting. The Court also rejected the submission based on the short duration of the offending, affirming that sexual assault of brief duration can carry lifelong consequences for the victim. The finding of mid-range objective seriousness was open to the sentencing judge.

Ground 2: Manifest excess

The appellant relied primarily on a comparison with Shanmugam v R [2021] NSWCCA 125, where an aggregate sentence of 5 years with a 3-year non-parole period was upheld. The Court identified several problems with this approach. The Shanmugam sentence was an aggregate covering multiple offences, making direct comparison inappropriate. More fundamentally, the principle of consistency in sentencing requires consistency of principle, not consistency of result, as affirmed by the High Court in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520. The factual differences between the two cases were also so significant as to render any comparison of marginal utility.

The Court considered the applicable statutory guideposts, the mid-range finding of objective seriousness, the importance of general deterrence for this type of offending, and the aggravating feature that the offence occurred at the home of the complainant's friend. The appellant had no prior criminal history and his youth was taken into account, including through a finding of special circumstances. However, he showed no remorse, lacked insight, and had poor rehabilitation prospects. The sentence was found to be neither unreasonable nor plainly unjust.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the absence of physical violence or threats is not a mitigating factor when a complainant was asleep and therefore unable to resist at the time of the offending.
  • Short duration of a sexual assault does not reduce its objective seriousness; the court emphasised that such offending can produce lifelong consequences for victims.
  • A sentenced offender's youth does not bear on the objective seriousness of offending where the conduct constitutes adult offending, though it remains relevant to other sentencing considerations such as special circumstances.
  • Consistency in sentencing requires consistency of principle rather than consistency of outcome, meaning comparisons between individual sentences have limited utility, particularly where factual differences are significant.
  • The primary guideposts for assessing whether a sentence is manifestly excessive remain the maximum penalty and the standard non-parole period prescribed by the relevant legislation, not the results reached in comparable individual cases.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 61J
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- Baines v R [2016] NSWCCA 132
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Doe v R [2013] NSWCCA 248
- Fisher v R [2021] NSWCCA 91
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Mulato v R [2006] NSWCCA 282
- R v Daley [2010] NSWCCA 223
- R v Gavel [2014] NSWCCA 56
- Salafia v R [2015] NSWCCA 141
- Shanmugam v R [2021] NSWCCA 125
- Tepania v R [2018] NSWCCA 247