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District Court 27 October 2023

R v Kibby

[2023] NSWDC 471

Sexual offences
CRIME SENTENCE

Citation: R v Kibby [2023] NSWDC 471
Court: District Court of New South Wales
Date: 27 October 2023
Judge(s): Newlinds SC DCJ

Background

The offender, a wardsman at a private rehabilitation hospital, was convicted by a jury of a single count of aggravated sexual intercourse without consent under s 61J of the Crimes Act 1900 (NSW). The maximum penalty for the offence is 20 years' imprisonment, with a standard non-parole period of 10 years.

The victim was a 73-year-old female patient admitted for rehabilitation following a vertebral fracture. She required assistance to walk and was dependent on hospital staff for personal care. On 15 August 2020, while the offender was assisting her to shower, he inserted his finger into her anus for a matter of seconds. The victim was too shocked to speak and did not consent. The court found beyond reasonable doubt that the offender had actual knowledge that she was not consenting.

The offender was 49 years of age at the time of the offence. He was in a position of authority over the victim by virtue of his role as a hospital employee assisting a mobility-impaired patient.

  • What facts could be determined beyond reasonable doubt for the purpose of sentencing, consistent with the jury's verdict?
  • How should the objective seriousness of the offence be assessed, having regard to the very short duration of the act (described as "a couple of seconds")?
  • What weight, if any, should be given to subjective factors including the offender's personal circumstances, absence of prior offending, and prospects of rehabilitation?
  • Whether special circumstances existed to justify reducing the non-parole period as a proportion of the head sentence.

Decision

Fact-finding at sentencing: Newlinds SC DCJ applied the principles summarised in R v Cranston [2023] NSWSC 1004, confirming that the sentencing judge must make findings consistent with the jury's verdict, with the prosecution bearing the burden of proving aggravating facts beyond reasonable doubt. The court accepted the Crown's submitted facts and further found, consistent with the verdict, that the offender had actual knowledge that the victim was not consenting.

Objective seriousness: The offender's counsel argued that the extremely brief duration of the act, only a couple of seconds, took the case outside the ordinary and warranted some reduction in objective seriousness. The court accepted this as a theoretical possibility. However, the judge preferred to treat the brevity as a consideration within an overall instinctive synthesis rather than as a discrete mitigating factor, noting that the violation of the victim's right to personal self-determination remained serious regardless of duration, the victim's age and vulnerability, and the offender's position of trust and authority.

Subjective factors: The court considered the offender's age, absence of prior criminal history, and evidence of responsiveness to psychological treatment in the past. These matters were weighed but did not produce a substantial reduction in sentence given the seriousness of the offending.

Special circumstances: The offender's counsel submitted that a longer parole period would likely assist in rehabilitation, pointing to past treatment compliance and the expectation of therapy conditions on parole. The court declined to find special circumstances, accepting only that a longer parole period was a possibility rather than something likely to assist rehabilitation. The standard ratio of non-parole period to head sentence was therefore maintained.

Orders Made

  • Head sentence of four years' imprisonment, commencing 29 August 2023 and expiring 28 August 2027.
  • Non-parole period of three years, expiring 28 August 2026.
  • First eligible for parole on 28 August 2026.

Key Takeaways

  • The District Court confirmed that all elements of objective seriousness in a sexual assault case must be assessed holistically: the type of penetration, the absence of additional physical violence, and the brevity of the act are not automatically mitigating, though they may be considered within an overall synthesis.
  • Where a party at sentencing seeks to rely on a particular fact, that party bears the onus of proof. The prosecution must establish facts to the criminal standard; the offender need only establish favourable facts on the balance of probabilities.
  • A sentencing court is constrained to make findings consistent with the jury's verdict, but is not required to accept all the Crown's case as presented at trial, nor to take the view of the facts most favourable to the offender.
  • Special circumstances sufficient to adjust the non-parole period require a finding that a longer period on parole is likely to assist in rehabilitation, not merely that it is a possibility. First-time custody alone is not determinative.
  • The victim's age, vulnerability, and the offender's position of authority as a carer were treated as significant features of objective seriousness in the overall assessment.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J, 61HE(3)(a), 61HE(3)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3(a)

Cases
- Cheung v R (2001) 209 CLR 1
- Dagdanasar v The Crown [2021] NSWCCA 178
- Doe v R [2013] NSWCCA 248
- Filippou v The Queen (2015) 256 CLR 47
- Fisher v R; R v Fisher [2021] NSWCCA 91
- GW v R [2018] NSWCCA 79
- Irmak v The Queen [2021] NSWCCA 178
- Kelly v R [2022] NSWCCA 189
- Leach v The Queen (2007) 230 CLR 1
- Markarian v The Queen (2005) 228 CLR 357
- MRW v R [2011] NSWCCA 260
- R v Carter [2003] NSWCCA 243
- R v Collier [2012] NSWCCA 213
- R v Cranston [2023] NSWSC 1004
- R v CTG [2017] NSWCCA 16
- R v Daily [2010] NSWCCA 223
- R v Isaacs (1997) 41 NSWLR 374
- R v Simpson (2001) 53 NSWLR 704
- R v Tuuta [2014] NSWCCA 40
- Savvas v The Queen (1995) 183 CLR 1