New South Wales Court of Criminal Appeal CITATION : Regina v Kennedy [2000] NSWCCA 527 FILE NUMBER(S) : CCA 60398/99 HEARING DATE(S) : 4 December 2000 JUDGMENT DATE : 13 December 2000 PARTIES : Regina v Michael Graham Kennedy JUDGMENT OF : Simpson J at 1; Howie J at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 95/11/0865 LOWER COURT JUDICIAL Payne DCJ OFFICER : COUNSEL : S.J. Odgers SC (Appellant) M. Grogan (Crown) SOLICITORS : D.J. Humphreys (Appellant) S.E. O'Connor (Crown) CATCHWORDS : Sexual intercourse with child 10 to 16 years - relevance of prior good character LEGISLATION CITED : Crimes Act 1900 - s 66C(1) DECISION : Leave to appeal granted. Appeal dismissed. IN THE COURT OF CRIMINAL APPEAL 60398/99 SIMPSON J HOWIE J WEDNESDAY 13 DECEMBER 2000 REGINA v MICHAEL GRAHAM KENNEDY JUDGMENT 1 SIMPSON J: I agree with the orders proposed by Justice Howie and with his reasons therefor. 2 HOWIE J: This is an application for leave to appeal against sentences imposed by her Honour Judge Payne in the District Court after a jury convicted the applicant of five offences of having sexual intercourse with a child between the ages of 10 and 16 years contrary to s 66C(1) of the Crimes Act. Each of the offences carries a maximum penalty of 8 years imprisonment. 3 The applicant was sentenced by her Honour in respect of each offence to a minimum term of 2 years 8 months with an additional term of 1 year 8 months. All of the sentences were to be served concurrently and were to date from 26 May 1999, the date upon which the applicant went into custody. The applicant will be eligible for release to parole on 26 January 2002. 4 The applicant had stood trial on six offences of aggravated sexual intercourse without consent but the jury acquitted him entirely of the first count in the indictment and convicted him of the alternative counts in respect of the five remaining counts. Her Honour was required to sentence the applicant in accordance with those verdicts. There was no dispute as to the factual basis upon which Judge Payne was to sentence the prisoner. The facts, therefore, can be very briefly stated. 5 The complainant in each matter was a thirteen-year-old girl who was under legal custody of a friend of the prisoner named Colby. The prisoner understood that that there was at least a quasi-parental relationship between Colby and the complainant. The trial judge found that the applicant thought that the child was 15 years of age because shortly before the offences were committed, he had given her a doll for what he understood was her 15th birthday. 6 In respect of each of the acts of intercourse the trial judge sentenced the applicant on the basis that, although the complainant was not consenting, the applicant believed that she was. This was consistent with the jury's verdicts in finding the applicant guilty of the alternative counts in the indictment. 7 The offences all occurred on the one day when Colby and the complainant came to Sydney. The date was unclear but was alleged to have been between 2 July and 28 August 1994. The first offence occurred in the back seat of Colby's vehicle, after Colby had told the complainant to get into the back of the vehicle with the applicant. The applicant pulled the complainant's head down on to his penis and held her head there while she fellated him. 8 The next four offences occurred later that day in a motel room where Colby and the complainant were staying. Colby had set up a video machine to tape the activity that would occur in the motel room. Three of the offences committed by the applicant on this occasion involved separate acts of penile vaginal intercourse. One of those acts of intercourse involved the penetration of the complainant's vagina by both the applicant's penis and Colby's penis simultaneously. The last offence involved the applicant holding the head of the complainant while she fellated him. 9 The trial judge found that the each of the offences involving vaginal intercourse was a serious instance of an offence under the section. Her Honour was clearly correct to come to that view. The complainant was aged 13 years and the applicant was aged 56. The offences in the motel room were committed in company with Colby, who the applicant knew was acting in breach of a position of trust in which he stood in relation to the complainant. It was conceded in submissions on behalf of the applicant that her Honour was entitled to take this matter into account. Although that concession was withdrawn by senior counsel appearing for the applicant during oral argument, I believe that the initial concession was well-founded. 10 Her Honour was right to find that the involvement of Colby, particularly in respect of the joint act of sexual intercourse, increased the objective seriousness of the offences in the motel room. As her Honour stated, these offences were serious acts of exploitation of a vulnerable and immature female. In those circumstances the fact that the prisoner thought the complainant was aged 15 years was of less weight than might otherwise have been the case. 11 The fact that the applicant believed that the complainant was consenting is not in my view a matter of mitigation. If he had known that she was not consenting then he would have been guilty of the more serious offence in respect of which the jury had acquitted him and for which a substantially higher maximum sentence is provided. 12 Nor is there in my opinion any significant mitigation in the fact that some of the sexual activity on this day was initiated by the complainant in light of the fact that the applicant knew that the sexual conduct was being instigated and encouraged by Colby and what the applicant understood to be the nature of the relationship between Colby and the complainant. Her Honour rightly rejected the suggestion that the applicant was seduced into the commission of the offences by the complainant at the instigation of Colby as not accurately reflecting the facts. Her Honour found that the applicant was a very willing and active participant in the conduct occurring both in the motor vehicle and the motel room. 13 The submission was made on behalf of the applicant that these were offences falling at the bottom of the scale for this type of offence. In my view that is a gross underestimation of the criminality involved in the offences committed by the applicant taking into account the nature of the sexual activity in the motel room, the real or perceived age difference between the complainant and the applicant and the fact that the offences were committed in company. 14 Even accepting that some of the sexual activity between the complainant and the applicant may have been initiated by the complainant at the prompting of Colby, the applicant knew that both he and Colby were taking advantage of the complainant's particularly vulnerable position as a result of the nature of her relationship with Colby. The applicant was simply prepared to exploit the opportunity offered him to gratify his own sexual appetite. The nature of the sexual conduct engaged in by the applicant and Colby in the motel room shows the extent to which they were prepared to take advantage of the complainant. 15 Although the offences all occurred on one day, there were two distinct incidents and the applicant had time after the offence committed in the motor vehicle to realise the criminality of his conduct. Yet he went to the motel room when invited there some time later by Colby and it was the applicant who approached the complainant in the motel room, commenced to kiss and then undress her before removing his trousers. 16 Although after he was convicted and before sentence the applicant told a probation officer that he was admitting his guilt for these offences, the remorse and regret he expressed for the effect of his conduct on others did not encompass the complainant. As a result of the late acceptance of responsibility he was considered suitable for a sex offender treatment programme. No doubt this was a matter which was considered by her Honour in finding special circumstances. 17 Judge Payne in the course of her remarks referred to statements contained in a number of decisions of this Court when she was considering the policy behind the section and the approach that she was to take in sentencing for an offence under s 66C. Her Honour stated that the purpose of the section was to protect immature females from being used as the objects of sexual gratification and that there was to be an element of general deterrence in sentencing for such an offence. Her Honour was clearly correct in this approach. 18 Although we have been referred to the same cases in an attempt to show that the sentences imposed by her Honour were outside the range of her discretionary judgment I am not satisfied that they were. The sentences imposed were heavy sentences for a person of the age and antecedents of the applicant and taking into account that he was to serve his first sentence on protection. But the sentences were justified by the facts of the offences for which he was being sentenced. 19 A particular complaint is that her Honour erred in the manner in which she approached the antecedents of the applicant and testimonials tendered on his behalf that were before the court. Her Honour said: I give weight to this prior good character and the references although this subjective consideration is of less importance in cases of this kind. See R v Levi (unreported CCA(NSW), 15/5/97. 20 The submission was made that this was an unacceptable generalisation and any such principle that might exist in relation to sentencing for child sexual assault offences could have no application to the facts of this case. 21 It is unnecessary for the purposes of determining this appeal to consider the circumstances in which a court may legitimately determine that it will give less weight to prior good character as a mitigating factor. Generally speaking such a situation might arise where general deterrence is important, the particular offence before the court is serious and it is one frequently committed by persons of good character. Another situation may be where the prior good character of the offender has enabled him or her to gain a position where the particular offence can be committed. 22 Less weight might also be given to prior good character in a case where there is a pattern of repeat offending over a significant period of time. That will frequently be the case in child sexual assault offences because such offences are often committed during a period of an ongoing relationship between the offender and the complainant. But that was not this case. 23 Although general deterrence was important in the present case, it was also significant that the offences occurred on a single day. The applicant was entitled to be sentenced on the basis that these offences arose from a peculiar set of circumstances and were aberrant behaviour on his part. That was significant both to an assessment of his criminality and his future rehabilitation. 24 There was no reason why the applicant was not entitled to have full weight given to the fact that this was uncharacteristic conduct and that otherwise he was a worthwhile member of the community. 25 However, that being said, it seems to me that the objective seriousness of the offences committed by the applicant fully justified the sentences imposed by her Honour and I do not believe that any lesser sentence should be imposed. 26 Leave should be granted but the appeal dismissed. ************ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.