Regina -v- Kelly [2000] NSWCCA 168

New South Wales Court of Criminal Appeal

CITATION : Regina -v- Kelly [2000] NSWCCA 168 FILE NUMBER(S) : CCA 60275/99 HEARING DATE(S) : 14/04/00 JUDGMENT DATE : 14 April 2000

PARTIES : Regina Francis Reginald Kelly JUDGMENT OF : Dowd J at 1; Hulme J at 16

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0283 LOWER COURT JUDICIAL Ducker DCJ OFFICER :

COUNSEL : Mr M Grogan (Cown) Mr A P Cook (App) SOLICITORS : S E O'Connor T A Murphy CATCHWORDS : Twenty seven counts of sexual assault with child under sixteen years - plea of guilty - dealy between offence and sentence LEGISLATION CITED : Crimes Act 1900 DECISION : Leave to appeal granted; Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL

60275/99

HULME J DOWD J

FRIDAY 14 APRIL 2000

REGINA v FRANCIS REGINALD KELLY

1 HULME J: In this matter I will ask Dowd J to give the leading judgment. 2 DOWD J: The applicant who was fifty-eight years of age at the time of conviction, is now two months short of his sixtieth birthday. He pleaded guilty to thirty-six counts before his Honour Judge Ducker QC on 5 February 1999. Counts 1 to 27 involved the now repealed s.61B(1) of the Crimes Act 1900 ("the ACT") being offences of sexual intercourse without the consent of a child under sixteen years which carried a maximum penalty of ten years' penal servitude and the remaining nine counts were offences of indecent assault contrary to s.61E(1) of the Act carrying a maximum penalty of four years and six months imprisonment. 3 The applicant was sentenced to a minimum term of five years to commence on the date of sentencing, that is 5 February 1999, followed by an additional term of three years and six months. On seven of those counts his Honour grouped the respective convictions in terms of category and sentenced for the six counts of penile/vaginal intercourse to a period of eight and a half years dating from the date of sentence, being a minimum term of five years and an additional term of three and a half years. In respect of the other sexual intercourse counts which involved digital penetration and fellatio, being counts 1 to 3 and 5 to 24, the applicant was sentenced to a fixed term of three years penal servitude to be served concurrently with part(?) of the minimum term for earlier counts. 4 For counts 28, 29 and 30, his Honour fixed term of one year and for counts 26, 27, 31 and 36, a fixed term of three years. 5 The offences occurred over a period of approximately five years against three sisters who were children of the applicant's friends. During the period in which the offences were committed the eldest victim was aged between eight and thirteen, the second between seven and ten and the youngest between five and ten years. Twenty-eight of the thirty-six counts relate to the eldest of the three girls, there being a total of twenty-five offences of sexual intercourse without consent committed over that period. Fourteen of those offences involved digital interference five of those offences involve fellatio and six of them involved penile/vaginal intercourse. 6 Most of the penile/vaginal intercourse offences took place towards the end of the period during which the offences were being committed. Six of the offences involved the second girl, they being found in counts 26, 27, 31 and 34 in the indictment. Two of the offences were digital in nature and at least one involved the touching of the applicant's penis. Two offences involved the youngest girl, each being an offence of indecent assault. 7 In 1986 the offences came to an end because they had began to weigh on the applicant's conscience to the extent that he confessed to his wife and the parents of the girls that he had been sexually molesting them for a number of years. I note that the applicant at the time was a married man with a family of his own. 8 The Court has not been provided with reasons for the extraordinary delay between then and the charging of the applicant. He was given credit by his Honour the sentencing judge for what his Honour termed was an act which must have taken courage to do and was honourable to do. 9 Indeed, the delay to sentencing in February 1999 until this appeal comes before this Court, which is some fourteen months, has not been explained to the Court either but the applicant entered a plea on his arraignment and it is a matter to his credit that he pleaded guilty to the offences and that he confessed the offences. 10 It must be remembered, of course, that at the time of the plea the witnesses were no longer young girls but were adult women. The circumstances of the offences disclose a despicable course of conduct over a long period of time. The pressing nature of the offences and the circumstances in which they occurred are in some senses quite unbelievable. However, it is manifestly clear that the applicant preyed upon these young girls and breached the trust that had been placed in him. 11 The grounds of appeal on which the applicant relies as a basis for this application, and ultimately, for the appeal itself is that inadequate weight was given to the delay between the offence and the handing down of the sentence and it should be a mitigating feature on the sentence. There is no doubt that as a matter of practice that delay in coming to trial of a case is a factor to be taken into account. However, as his Honour pointed out, that people who choose to prey on young children must expect that at some point in time, even after some period of time, the matters may well be exposed and it is, in my view, not a matter that his Honour did not take daily into account and his Honour gave it little weight. In my view, there is nothing in the particular case because of that delay that obliges the Court to give undue weight to the fact of delay. 12 The other ground of appeal relates to the insignificant attention that his Honour gave to the question of the plea of guilty. There is no doubt that his Honour took into account the fact of the plea of guilty and in his Honour's careful judgment, has given credit not only to the plea of guilty but to the confession itself. I do not consider, however, in the light of the enormity and the number of the offences involving three separate young girls, now women, and the significant period over which they occurred, and the circumstances and the predatory nature of the offences, that it could be said that his Honour gave insignificant weight to either the delay or a plea of guilty. The offences are very serious and a large number over a lengthy period of time. 13 The sentence is, in my view, notwithstanding the then limited range available of penalties at the lower end of the range itself and his Honour could only have achieved the result that he did by the taking into account of the effect of delay and the fact of the plea of guilty but in looking at the task which this Court is obliged to look at, then the Court on appeal, if leave be granted, is of the opinion that some other sentence, in this case less severe, is warranted in law, it should quash the sentence. 14 In my view, there is no question that a less severe penalty is warranted in law, notwithstanding his age. What he did to these three young girls and the circumstances of it would, in my view, warrant a heavier penalty than was imposed in this case. 15 I can see no basis for this Court interfering other than to the extent that I would grant leave to appeal but I would dismiss the appeal. 16 HULME J: I agree with the orders proposed and with his Honour's reasons. The order of the Court is that leave to appeal is granted but the appeal is dismissed. **********