Kennedy v R

1. [1]

   MACFARLAN JA: I agree with Davies J.

2. [2]

   DAVIES J: On 7 December 2015, on the first day of the trial, the applicant pleaded guilty to the following offences:

3. [3]

   These offences were contrary to s 61J of the Crimes Act 1900 (NSW). They all occurred between July 1996 and November 1999. The maximum penalty at the time for this offence was 20 years’ imprisonment. The offending predated the commencement of Div 1A of Pt 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW) with the result that, unlike at the present time, there was no standard non-parole period for this offence.

4. [4]

   On 14 March 2016 the applicant was sentenced by Judge Conlon SC to an aggregate sentence of 17 years’ imprisonment commencing 19 February 2016 and expiring 18 February 2033 with a non-parole period of 12 years expiring 18 February 2028. The indicative sentences were eight years’ imprisonment for each of counts 1, 2 and 3, and nine years’ imprisonment for count 4.

5. [5]

   The applicant now seeks leave to withdraw his plea of guilty in respect of count 4 on the indictment. He also seeks leave to appeal against the sentence imposed on the following grounds:

Facts

1. [6]

   The following is taken from a statement of agreed facts relied upon at the sentencing hearing.

2. [7]

   The applicant was a local Koori elder in the Illawarra and was the Chairman of the local Lands Council.

3. [8]

   The complainant is the daughter of a person who was in a relationship with the applicant from 1991 until around 1999. The applicant’s partner was working full time and was away from home a lot, leaving the children in the care of the applicant. The applicant commenced to abuse the complainant sexually and physically from the age of 15 and the sexual activity continued into her late teens.

4. [9]

   In August, 1996 when the complainant was 15 years of age, the applicant had sexual intercourse with her as a result of which she fell pregnant. She gave birth to a son in May 1997, the day prior to her 16th birthday. She did not disclose to anyone that the applicant was the father.

5. [10]

   When the complainant fell pregnant with her son the applicant told her to make up a story that she had gone to a beach party and had consumed alcohol, became intoxicated and then had unprotected sexual intercourse, and as a result she had become pregnant not knowing who the father was.

6. [11]

   After the birth of her son the complainant believed that the applicant would take the baby away from her if she did not continue to have sexual intercourse with him, or if she told her mother about the sexual abuse.

7. [12]

   Between 1 August 1997 and 31 August 1997 when the complainant was 16 years of age she was again subjected to sexual intercourse by the applicant. She once again fell pregnant and in May 1998 she gave birth to her second son eight days prior to her 17th birthday. Again she did not disclose that the applicant was the father.

8. [13]

   After giving birth to the second son a family friend was blamed for being the father. This was because in 1997, the complainant was seeing this person. However, she was not in a sexual relationship with him.

9. [14]

   In 1998 whilst the complainant was 17 years of age, she again fell pregnant with twins but had a miscarriage. The applicant was the father of these children as the complainant was not in a sexual relationship with another man. The first of the twins was absorbed into her body and dissolved whilst the second did not have a heartbeat at 12 weeks. The complainant told her mother that some other boy was the father of the twins.

10. [15]

    Between June 1999 and November 1999 when she was 18 years of age the complainant had commenced an IT course at Berkeley. On one particular day the applicant was looking after both of the children. He turned up at the course and told her that the elder son had put bleach in his eyes. The complainant got into the car with him and he commenced to verbally abuse her. The abuse was directed at a relationship she was in with another man. The complainant realised that the applicant had made up the story about her son being injured.

11. [16]

    The applicant screamed that he was going to drive off the cliff at "Kembla Grange" and they would both die together. The complainant became fearful and upset and screamed at the applicant to let her out of the vehicle, but he refused. Due to the extent of her fear she opened the door of the moving vehicle and jumped out. She received a number of grazes on her legs and shoulders and screamed for help.

12. [17]

    The applicant stopped the car, got out and pulled the complainant back to the car. He drove a short distance before stopping the vehicle. He forced the complainant into the rear passenger's seat. He then removed his pants and forced the complainant to remove her clothes. He had sexual intercourse with her until he ejaculated. During the attack the complainant was in fear and crying and telling the applicant to stop. After the assault the applicant drove the complainant back to her home in Berkeley.

13. [18]

    That was the last time they had sexual intercourse.

14. [19]

    Some months prior to the final incident the complainant told her mother that the applicant had been 'raping her'. On that day the complainant and her mother moved out of the applicant's home in Dapto. The complainant’s mother returned to the Dapto address a couple of days later to pick up some belongings. While there she spoke to the applicant and he admitted to her that he was the father of the two children.

15. [20]

    In 2002-2003 the applicant got back in contact with the complainant. On one occasion he attended her home at Unanderra to see his sons. He apologised for his past behaviour saying, "I'm sorry. I was infatuated by you".

16. [21]

    In 2013 the complainant went to the police and an investigation was commenced.

17. [22]

    On 23 January 2014 the complainant met up with the applicant and the conversation they had was lawfully recorded on a listening device. During the conversation he acknowledged that he was the father of the two children.

18. [23]

    Subsequent DNA testing on 18 August 2014 confirmed that the applicant was the father of the elder child. The younger child declined to provide a forensic sample for comparison.

Remarks on Sentence

1. [24]

   The sentencing judge set out the above facts. His Honour then dealt with the objective seriousness of the offending. His Honour noted that the counts were representative counts as the applicant had sexually abused the complainant from the time she was 15 until she was about 18 years. His Honour said that the applicant had exploited the complainant’s youth in the worst possible way and that the offending involved a gross breach of trust. He said that the complainant was entitled to feel safe and protected within the confines of the family home and not be the target of the applicant's lust and sexual gratification.

2. [25]

   His Honour, having noted the pregnancies and the threat to have the first child taken from her if she did not continue to have sexual intercourse with him, then made specific reference to count 4 saying that although it did not result in a fourth pregnancy it further demonstrated the applicant’s total lack of regard for the complainant. The manner in which he committed the offence exhibited a powerful physical and emotional domination of her. His Honour said that the fact that the applicant continued to abuse her sexually despite the three earlier pregnancies elevated the objective seriousness of the offence.

3. [26]

   His Honour said that the recitation of the facts of all of the offending clearly demonstrated the extremely serious nature of the offending conduct.

4. [27]

   His Honour then dealt with the applicant’s subjective circumstances. The evidence about those came chiefly from a report of Danielle Castles, a psychologist, dated 19 February 2016.

5. [28]

   The report disclosed that the applicant grew up on the South Coast and in La Perouse in a typical Aboriginal extended family. Generally his recollections of early life were happy and characterised by close relationships with those in the extended family. He told the psychologist, however, that he had been sexually assaulted when he was aged 12, a matter which he did not disclose at the time but received counselling for many years later.

6. [29]

   The applicant attended school in a number of places and ultimately obtained his School Certificate. He enrolled in a number of courses subsequently at an art college and a TAFE but he did not complete those studies. Ultimately he obtained a Diploma in Business Administration as well as obtaining trade qualifications from TAFE in spray painting, sand blasting, colour matching and mixing. He was employed consistently from the age of about 16 years and did not experience unemployment until the 1980's recession. He then became involved in the repatriation of Aboriginal remains from museums and was introduced to Aboriginal activism.

7. [30]

   He was elected to the lllawarra Aboriginal Land Council where he continued to hold elected positions between 1985 and 1995. He worked as the Aboriginal Liaison Officer for Randwick Council from 1993 to 1996.

8. [31]

   He met his first wife at Ultimo TAFE. They had four children together, now aged 27 to 37. The marriage came to an end in 1991. Two incidents appear to have brought about the breakdown in the marriage. The first occurred in 1985 and was a serious assault by a group of men on the applicant who had confronted one of them after that person had sexually propositioned his wife. The second was the suicide of his brother Ernie in 1991. He thereafter resorted to alcoholism and marijuana, and the marriage broke down.

9. [32]

   He met the complainant's mother in 1991 and they formed a relationship which was described as on and off again over the course of a number of years. He continued to consume large amounts of alcohol, it was said, to deal with the death of Ernie.

10. [33]

    The sentencing judge noted that he told Ms Castles that he continued to live at a Tent Embassy at Sandon Point and since being charged has rarely left that area. When asked why, he responded in a whisper to Ms Castles, “Too ashamed”. He told her that he had been shunned by his community and he accepted this as natural justice.

11. [34]

    The sentencing judge noted that when giving evidence in the sentence proceedings the applicant said he felt deeply ashamed having heard the victim impact statement. However, his Honour commented that there was nothing in the report of Ms Castles to indicate victim empathy. When the applicant was giving evidence he seemed to stress the impact upon him of his marriage breakdown and the loss of his brother Ernie giving rise to excessive drinking but he did indicate regret for his offending conduct.

12. [35]

    His Honour noted that the applicant’s criminal history was limited, that he had not since reoffended, and that those matters provided the Court with hope that he had reasonable prospects of rehabilitation.

13. [36]

    His Honour accorded a 10% discount for the late plea and noted that the penalty for the offences had not changed since the time of the offending apart from the introduction of a standard non-parole period.

Conviction appeal

1. [37]

   The applicant submitted that the “authority” relied upon for the aggravation of the charges in counts 2, 3 and 4 was that the applicant was the stepfather of the complainant, and that when the complainant’s mother went to work she left the children including the complainant in the care of the applicant. However, the breakdown of the relationship between the applicant and the complainant’s mother occurred prior to the events that gave rise to the charge in count 4.

2. [38]

   By the time of those events the complainant’s mother knew that the complainant had said that the applicant had been raping her, and the complainant and her mother moved out of the applicant’s home in Dapto. On that basis no conclusion could be drawn that the applicant had authority over the complainant because that authority was dependent upon the existence of the relationship. Reference was made to the decision of this Court in R v Miller [2001] NSWCCA 209. In that way, it was submitted, the integrity of the plea was bona fide in question.

3. [39]

   The Crown drew attention to the principles in relation to the withdrawal of a plea, particularly those set out in Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46 and in MM v R [2016] NSWCCA 235.

4. [40]

   Specifically in relation to the offence in question the Crown drew attention to the decision of the Victorian Court of Appeal in R v Howes (2000) 2 VR 141; [2000] VSCA 159; (2000) 116 A Crim R 249 which stressed the special position of responsibility arising from the relationship.

5. [41]

   The Crown submitted that the applicant’s plea was of itself a cogent admission of the ingredients of the offence, one of which was the ingredient of being "under the authority" of the applicant. The Crown submitted that there was no evidence that the applicant did not understand the nature of the charge, that he had entered his plea as a result of inappropriate or imprudent advice, or that he was subject to inappropriate pressure in determining the plea.

6. [42]

   The Crown submitted that the applicant had the onus and that he had failed to discharge it.

7. [43]

   In MM v R this Court said:

8. [44]

   In R v Van [2002] NSWCCA 148; (2002) 129 A Crim R 229 Greg James J (with whom Hodgson JA and Kirby J agreed) said:

9. [45]

   In Ming Yuk (Raymond) Wong v Director of Public Prosecutions [2005] NSWSC 129; (2005) 155 A Crim R 37 Howie J said:

10. [46]

    Those statements were approved in MM v R at [39].

11. [47]

    In commenting on Van and Wong Hoeben CJ at CL (with whom McCallum and Garling JJ agreed) said in Khamis v R [2014] NSWCCA 152 at [59]:

12. [48]

    What these cases demonstrate is that the focus is on the integrity of the plea itself. Any investigation of a miscarriage of justice, which must be shown, is directed to that matter. The applicant’s submissions were not directed to this matter at all. Rather, they focused on the factual situation concerning his position of authority which was said to demonstrate that he was no longer in a position of authority. Indeed, counsel for the applicant accepted that there was nothing to impugn the plea other than the agreed facts themselves.

13. [49]

    At the time of the applicant’s plea he was represented by a solicitor and counsel. Indeed, when his counsel addressed on the issue of matters aggravating the offending he said:

14. [50]

    In any event, he was the person in the best position to know whether, despite his partner and the children moving from his premises, the continuing nature of the relationship was such that he was in a position of authority over the complainant. The agreed facts for use at the sentencing hearing were relatively scant about this matter. Quite apart from the applicant’s failure at the hearing of the appeal to adduce any evidence tending to impugn the integrity of the plea, no attempt was made by the applicant to lead any evidence to show that in fact he lacked the authority over the complainant which he clearly previously held and which he does not now dispute.

15. [51]

    The question whether a person remains under the authority of another for the purpose of an offence such as s 61J of the Crimes Act was discussed in R v Howes, a decision that involved a school teacher and a pupil. In that case Winneke P (Brooking and Chernov JJA agreeing) said:

16. [52]

    In addition, Brooking JA said:

17. [53]

    What was said in Howes has some relevance here. The complainant had undoubtedly been under the applicant’s authority as the child of his then partner. Whether the same basis for that authority remained at the time of count 4 is unclear. However, the applicant was in an unusual dual relationship with the complainant, having been effectively her stepfather but becoming, by his offending, in a position of being father of her children over whom he undoubtedly had authority also. By reason of that authority he had the ability to take or retain custody of those children which gave him a de facto authority over the complainant.

18. [54]

    Nevertheless, this factual enquiry is an entirely subsidiary matter. Nothing was demonstrated to impugn the plea, nor to show that any miscarriage of justice occurred by reason of the making of it.

19. [55]

    The decision in R v Miller is of no assistance to the applicant in the matter. The case concerned a repealed section of the Crimes Act that does not assist in determining the question of authority. The legislation was there concerned with the terms “stepfather” and “stepdaughter” and whether those terms embraced a de facto relationship. Section 61H(2) refers to being “in the care, or under the supervision or authority”.

20. [56]

    I would not grant the applicant leave to withdraw the plea.

Sentence appeal

1. [57]

   The applicant submitted that a number of matters showed that he accepted responsibility for what he had done and demonstrated remorse and contrition. He said that he admitted to the complainant’s mother that he was the father of the children and within a few days had apologised to the complainant. This was some ten years before the matters had been reported to the police and was said in the context that the complainant had told her mother that the applicant had been raping her.

2. [58]

   He said he accepted responsibility that he was the father of the children in the conversation the subject of the listening device intercept. He referred to the apology to the complainant in his evidence at the sentencing hearing.

3. [59]

   He submitted that all of these matters demonstrated a degree of empathy for the complainant, contrary to the sentencing judge’s assessment. He also drew attention to the payments made to the complainant as a form of child support and to his care of the children from time to time.

4. [60]

   The Crown submitted that the ground raised a question of weight in the exercise of his Honour's sentencing discretion and that it was well established that the circumstances in which matters of weight will justify intervention by this Court were narrowly confined.

5. [61]

   The Crown submitted that the sentencing judge made mention of the admissions and apology. Simply because those matters were not referred to when his Honour was expressly dealing with subjective matters did not mean that they had not been appropriately considered.

6. [62]

   In his sentencing remarks the sentencing judge said this (ROS 9):

7. [63]

   Earlier in his remarks the sentencing judge referred to the encounter between the complainant’s mother and the applicant when she returned to pick up some of her belongings. On that occasion the applicant admitted to her that he was the father of both of the children. He also referred to the fact that in 2002 or 2003 the applicant got back in contact with the complainant. On one occasion he attended the home that she was living at with the children and he apologised for this past behaviour saying “I’m sorry I was infatuated by you”.

8. [64]

   In Majid v R [2010] NSWCCA 121 Johnson J (with whom Simpson and McCallum JJ agreed) said:

9. [65]

   In Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Gageler J said at [53] that a ground framed only in terms of weight was incapable of establishing error in terms of the specific errors referred to in House v The King. At best it pointed to a circumstance which, taken with other circumstances, might be indicative of a sentence that was unreasonable or plainly unjust.

10. [66]

    In Langbein v R [2013] NSWCCA 88 one of the grounds of appeal was that the sentencing judge had erred by failing to find that the applicant was remorseful. Justices Fullerton and Campbell (McClellan CJ at CL agreeing) said:

11. [67]

    The position is no different in the present case. His Honour noted evidence concerning the applicant’s remorse. The applicant does not establish how, in the light of those remarks, his Honour did not give adequate weight to that material or that such a failure, in any event, amounts to error.

12. [68]

    Little or no regard could be had to the admissions to the complainant’s mother when subsequently he violently raped the complainant as count 4 established. Indeed, in the light of the events constituting count 4, reliance on those admissions as remorse might be thought to colour any other matters relied on as remorse. The notion that paying some money for the children’s support and looking after them constituted remorse should be rejected. They were his children for whom he bore a very considerable responsibility.

13. [69]

    His Honour’s conclusion that there was nothing in the report of Ms Castles to indicate victim empathy was amply justified by a reading of the report although it should be acknowledged that the psychologist does not appear to have discussed the circumstances of the offending with the applicant. Nevertheless, the sentencing judge referred to the evidence of the applicant that he felt deep shame having heard the victim impact statement and made an assessment of that evidence. In circumstances where his Honour did not ignore the evidence no error is shown.

14. [70]

    I would reject this ground.

15. [71]

    The applicant submitted that his Honour failed to identify the objective seriousness of each of the offences and that a number of matters indicated that counts 1-3 fell below a mid-range level of objective seriousness. Those matters were the age of the complainant, the absence of any violence or threat and in relation to count 1 being the first offence in time meant that it could not be seen as part of a pattern of behaviour.

16. [72]

    The applicant submitted that the lack of consent relied upon by the Crown was the victim's fear that the applicant would seek to take away her child or children if she complained to the mother or other authorities. However, there was no address by either counsel at the sentencing hearing whether in respect of the acts in counts 1-3 the applicant knew that the victim was not consenting or was reckless as to whether or not she was consenting. In those circumstances it was open to the sentencing judge to find that the acts were committed recklessly. In that way the objective seriousness was less.

17. [73]

    The Crown submitted that a reading of the Remarks as a whole shows that the sentencing judge did assess the objective seriousness by taking into account relevant factors and ultimately concluding that the offending conduct was extremely serious.

18. [74]

    The sentencing judge made the following relevant findings concerning the seriousness of the offending. His Honour first found that the offences were representative counts as the applicant had sexually abused the complainant from the time she was 15 until she was about 18 and the charged acts occurred in the context of ongoing sexual abuse. In that sense there could not be a suggestion that they were isolated acts.

19. [75]

    His Honour noted that for counts 1, 2 and 3 the applicant had had unprotected sex with the complainant with the result that she became pregnant on each occasion. For counts 2 and 3 his Honour referred to the applicant’s callous disregard for the victim in continuing to have unprotected sex after she had become pregnant the first time. His Honour referred to the direction the applicant gave the complainant after the birth of the first child to make up a story that she did not know who the father was and that he would have the child taken from her if she did not continue to have sexual intercourse with him. His Honour referred to the fact that the complainant was entitled to feel safe and protected within the confines of her family home. His Honour referred to the fact that after the second pregnancy a family friend who the complainant had been seeing was blamed for her pregnancy although she had not been in a sexual relationship with him.

20. [76]

    All of those matters are an indication of the serious nature of the offending in relation to counts 1-3. As far as count 4 is concerned the facts only have to be stated for it to be understood that it was objectively a very serious example of the offence.

21. [77]

    In Delaney v R; R v Delaney [2013] NSWCCA 150, in answer to a ground of appeal raised on a Crown appeal that the sentencing judge had failed to determine the objective criminality of the offences, Hoeben CJ at CL (Harrison and Beech-Jones JJ agreeing) said:

22. [78]

    Reading the Remarks on Sentence as a whole, I am satisfied that his Honour regarded the offending as a serious example of the offence charged in each case. In circumstances where no submissions were made by the applicant’s counsel at the sentence proceedings that the objective seriousness of counts 1-3 should be found to fall below the mid-range level of objective seriousness, the submission that this Court should make such a finding should be rejected: Zreika v R [2012] NSWCCA 44 at [75]-[81].

23. [79]

    I would reject this ground.

24. [80]

    The applicant drew attention to what the sentencing judge said (at ROS 11):

25. [81]

    The applicant said that in respect of counts 2-4 the sentencing judge wrongly characterised the victim as a "child" whereas s 61J identified a child as a person under the age of 16 years. The applicant submitted that the fact that the complainant was the stepdaughter was the circumstances of aggravation in s 61J(2) and formed an element of the charge.

26. [82]

    The Crown submitted that the description of “child” was not inapt where, at least for counts 1, 2 and 3, the applicant was effectively in the position of a stepfather to her as stepdaughter.

27. [83]

    In the first place, s 61J says nothing about children nor who is to be regarded as a child. The circumstance of aggravation in paragraph (2)(d) is simply that the alleged victim is under the age of 16 years.

28. [84]

    By the applicant’s plea he accepted that he was in a position of authority over the complainant, the reason being that she was in the position of a stepdaughter because she was the blood daughter of the applicant’s de facto partner. The evidence discloses that the complainant lived at home under that authority until a few months before the events which constituted count 4.

29. [85]

    Even if what his Honour said about children in a family situation was not strictly applicable to count 4, the circumstances of the offending in relation to count 4 were so serious that any reference to the complainant being a child at the time could not have made any difference and certainly does not constitute an error.

30. [86]

    I would reject this ground.

31. [87]

    The applicant submitted that the facts did not make clear where the offending took place except in respect of count 4 where it took place in a car away from the complainant’s home.

32. [88]

    In the applicant’s written submissions it was submitted that it was not an aggravating feature that the attack took place in the complainant's own home if that was where the applicant also lived. However, at the hearing of the appeal counsel for the applicant accepted that it had been authoritatively decided in R v Lulham [2016] NSWCCA 287 and Jonson v R [2016] NSWCCA 286 that simply because the perpetrator also lived in the home did not mean it was not an aggravating feature that the offence took place there.

33. [89]

    The Crown submitted that nowhere did the sentencing judge say that the offences were aggravated by virtue of being committed in the home pursuant to s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

34. [90]

    The sentencing judge does not refer to the offences being aggravated by having taken place in the complainant’s home. All that the sentencing judge said about the matter was (at ROS 4):

35. [91]

    However, if any of the offending took place in or about the home that was an aggravating feature under s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW). It is a reasonable inference from the agreed facts, which said that the complainant’s mother was working full-time and was away from home a lot leaving the children in the care of the applicant, that the offending in relation to counts 1-3 took place in or about the home.

36. [92]

    It is apparent from the Remarks that his Honour clearly understood that count 4 did not take place at home. Nor did his Honour suggest that such was an aggravating feature of count 4. No error is shown in relation to this ground.

37. [93]

    I would reject this ground.

38. [94]

    The only submission made by the applicant in relation to this ground, apart from assuming that a re-sentence would be necessary if error in relation to any of the other matters was found or the plea was allowed to be withdrawn, was that the sentence was a reflection of the initial assessment of the indicative sentences imposed by the sentencing judge.

39. [95]

    It is difficult to understand what that submission means. A determination that a sentence is manifestly excessive or is “unreasonable or plainly unjust” is a conclusion: Dinsdale v The Queen (2000) 202 CLR 321 at 325; [2000] HCA 54 at [6]. Intervention is warranted only where this Court can conclude that there must have been some misapplication of principle: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [72]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].

40. [96]

    If the submission was an attempt to identify error in the indicative sentences the applicant’s counsel did not say so. Although an indicative sentence is not open to an appeal, as Grove AJ said (Macfarlan JA and McCallum J agreeing) in R v Brown [2012] NSWCCA 199 at [17]:

41. [97]

    The offences were serious, in three cases resulting in pregnancy, and the pregnancy was used as a means of requiring the complainant to continue engaging in sexual intercourse with the applicant under the threat of losing her child or children. Count 4 was a violent rape conducted under the threat of killing the complainant. Count 1 had the added aggravation that the complainant was in the position of a stepdaughter. The psychological damage to the complainant and to her two sons is considerable, and the impact it has had on her inclusion in the Aboriginal community is amply demonstrated by her victim impact statement and the acceptance of that by the applicant.

42. [98]

    There is nothing about the sentence, or the indicative sentences for that matter, which suggests any error of principle has occurred. I would reject this ground.

Conclusion

1. [99]

   I propose the following orders:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal dismissed.

2. [100]

   BUTTON J: I agree with Davies J.