R v KAY [2000] NSWSC 716

New South Wales Supreme Court

CITATION : R v KAY [2000] NSWSC 716 FILE NUMBER(S) : SC 70084/97 HEARING DATE(S) : 1.3.99; 17.3.99; 28.4.99; 25.6.99; 3.12.99 JUDGMENT DATE : 26 July 2000

PARTIES : Regina Graham James KAY JUDGMENT OF : Hulme J at 1

COUNSEL : Crown: RA Hulme Prisoner: MJ Joseph SC SOLICITORS : Crown: SE O'Connor Prisoner: Russo & Partners CATCHWORDS : Criminal law - sentence - sexual assault - multiple offences DECISION : Imprisonment for 20 years including non-parole period of 15 years

- 51 - IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

NO: 70084/97 Wednesday, 26 July 2000 HULME J R v Graham James KAY REMARKS ON SENTENCE

1 The Prisoner has pleaded guilty to four counts of sexual intercourse without consent in circumstances of aggravation, viz. that at the time of the commission of the offence he threatened the victim with actual bodily harm. The offences arise under Section 61J of the Crimes Act and each renders the Prisoner liable to imprisonment for 20 years.

2 I have been also asked to take into account in sentencing the Prisoner for the offence referred to in the third count of the indictment, four further offences on a schedule signed by the Prisoner. Two of these are identical in nature with the four previously mentioned. The other two are of threatening to inflict actual bodily harm with intent to have sexual intercourse. Section 61K of the Crimes Act prescribes that the maximum penalty for these offences also is 20 years imprisonment. The circumstances of the eight offences - of which I am satisfied beyond reasonable doubt despite a limited amount of evidence from the Prisoner to the contrary - were as follows. A. Indictment Count 1 3 At about 12.15 am on 23 December 1995 victim 1 was walking down the driveway of a block of units where she lived at Balgowlah. The Prisoner approached her from behind and placed one hand across her mouth and a scalpel or, as the Prisoner described it, a works knife, against her throat. He said "don't say anything or I'll cut you", pushed her against a fence and said "where's your money". He stuffed what the victim thought was a dark sock in her mouth and fondled one of her breasts. The Prisoner then demanded the victim put her hands over the fence and she did. He then undid the belt and zip of the jeans the victim was wearing and put a hand down insider her underpants and rubbed her labia. He removed his hand and pulled the victim's underpants down and returned his hand to her genitals, on this occasion inserting a finger into her vagina and thrusting it in and out for some time.