New South Wales Court of Criminal Appeal CITATION: Kenny v R [2010] NSWCCA 6 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 15/12/2009 JUDGMENT DATE: 12 February 2010 JUDGMENT OF: Basten JA at 1; Howie J at 25; Johnson J at 53 DECISION: Leave to appeal is granted but the appeal is dismissed. CATCHWORDS: CRIMINAL LAW - sentence - relevant factors - sexual intercourse with child under 16 - whether use of internet and planning of offence constitute aggravating factors - whether public opprobrium or loss of public standing constitute mitigating factors LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 - s 21A(3)(f) Crimes Act 1900 - ss 61M(1), 66C(3) CATEGORY: Principal judgment Melbourne v The Queen [1999] HCA 32; 198 CLR 1 Ryan v The Queen [2001] HCA 21; 206 CLR 267 R v Jackson and Hakim (1988) 33 A Crim R 413 R v Hermann (1988) 37 A Crim R 440 CASES CITED : R v Dagwell [2006] NSWCCA 98 R v Allpass (1993) 72 A Crim R 561 R v Cobb [1999] FCA 158; 84 FCR 450 R v Poynder [2007] NSWCCA 157; 171 A Crim R 544 R v King [2009] NSWCCA 117 PARTIES: John Nils Alexander Kenny v Regina FILE NUMBER(S): CCA 2005/10987 COUNSEL: M M Cinque - Crown S Odgers SC - Applicant SOLICITORS: S Kavanagh - Crown Watsons Solicitors LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2005/11/0993 LOWER COURT JUDICIAL OFFICER: Blackmore DCJ LOWER COURT DATE OF DECISION: 13/02/2009 IN THE COURT OF CRIMINAL APPEAL 2005/10987 BASTEN JA HOWIE J JOHNSON J FRIDAY 12 FEBRUARY 2010 John Nils Alexander KENNY v REGINA Judgment 1 BASTEN JA: The applicant was sentenced by Blackmore DCJ on a count of having sexual intercourse with a girl under the age of 16 years to a term of imprisonment of two years, of which one year, three months constituted a non-parole period. The circumstances of the offence, together with other matters taken into account in sentencing the applicant, are set out in the judgment of Howie J and need not be repeated. 2 When the matter came before this Court on 15 December 2009, orders were made granting leave to appeal, but dismissing the appeal. By way of further elucidation of the reasons given by Howie J (with which I agree) I would add the following comments in respect of each of the grounds of appeal. Use of internet; planning offence 3 The first two grounds of appeal complained that the sentencing judge wrongly took into account as aggravating factors the use of the internet to establish contact and arrange for a meeting with the complainant and that there was a degree of planning of the offence. To treat such factors as matters of aggravation was erroneous, it was submitted, because the applicant held an honest belief that the victim was not under 16 years of age. 4 The factual basis for this complaint was uncertain. The sentencing proceeded on a set of "agreed facts" which included the statement that the complainant, some two months prior to the date of the offences, had told the applicant during an internet exchange that she was "15". 5 The statement further contained the following propositions: "On 10 June 2004 the defendant participated in a recorded interview, in which he claimed that at the relevant time he believed that the complainant was 16 years old. The defendant and the Crown accept that in the circumstances, this belief was not reasonable." 6 This statement is ambivalent as to whether or not the applicant held a belief as to her age. It was not an ambiguity which could be resolved, in the absence of evidence. The sentencing judge did not seek to resolve it but rather stated that the applicant had "accepted by his plea that he was at least reckless as to the fact that she was below the age of sixteen at the time the offences were committed": Judgment, p 4. 7 The manner in which his Honour took into account the state of mind of the applicant appears from the following passages (Judgment, pp 5-7): "His decision to use this internet chat page must have been a conscious decision. His use of this internet site to make contact with girls or young women is a disturbing factor in the case. … The facts reveal the lengths that the offender went to [to] meet the complainant. There is evidence which suggests that he groomed the complainant to procure her consent to this intercourse. Of course the offences took place in a motel room in a country town in New South Wales. The offender paid for the room. He also brought with him photographic equipment to record the occasion. To my mind the evidence does disclose considerable planning on his part and that planning amounts to an aggravating factor on sentence." 8 By referring to "this" internet chat page, his Honour was referring to the fact that the chat room "was advertised as being a place for 15 to 18 year olds to meet and chat via the internet": Judgment, p 2. It is relevant that, whatever the correct age of the complainant, the applicant used a chat site on which he might expect to meet persons who were under 16 years of age. Further, the events which constituted the offence were clearly planned in the way described by the sentencing judge. No doubt the conduct of the applicant would have carried a higher level of moral culpability if he had known that the complainant was under 16 years of age. However, that he was merely reckless as to that state of affairs does not render either his use of the internet site or the planning of the events constituting the offence irrelevant. They remain aggravating factors, although the degree of aggravation may depend upon where the offender's state of mind sits on the range from deliberate malice to inadvertence. There is nothing in the reasons given by the sentencing judge to suppose that his Honour used them in a way inconsistent either with principle or with the factual basis on which the matter proceeded. Public opprobrium 9 In addressing the applicant's personal circumstances, the sentencing judge noted (Judgment, p 9): "He apparently had a bright future with a political party at the time of the offending. He has suffered the public denigration that naturally flows from the revelation of such an offence. In his case the denigration was more pronounced due to his public position as a counsellor. On the other hand the community expects and deserves high standards from their public representatives and naturally when offences as repugnant as those committed in this case are publicly revealed, there is a backlash against the public figure involved. I do not believe that such public humiliation is more than would naturally be expected given these offences and his public figure, such that the offender should be entitled to a finding that he has suffered extra curial punishment as a result." 10 By the third ground of appeal, the applicant contended that his Honour should have taken into account, by way of mitigation of penalty, the fact that he had suffered "public denigration" and "public humiliation". His Honour was wrong, the contention proceeded, to discount these factors on two bases, namely that there was an expectation of high standards from public figures and that the "backlash" was to be expected. 11 Although no complaint was specifically directed to the manner in which his Honour dealt with prior character, it is convenient to note that his Honour had taken into account (at p 8) the following circumstances: "He has no prior convictions whatsoever, he can be treated as a person of prior good character, although good character is not a matter of substantial mitigation in cases involving sexual offences with children." 12 In Melbourne v The Queen [1999] HCA 32; 198 CLR 1, a case not concerned with sentencing, both McHugh J at [33]-[35] and Gummow J at [62]-[67] noted the distinction between character and reputation, a distinction which also has relevance in relation to sentencing practice. As noted by McHugh J at [33]: "In its strict sense, character refers to the inherent moral qualities of a person …. It is to be contrasted with reputation, which refers to the public estimation or repute of a person, irrespective of the inherent moral qualities of that person." 13 The relevance of "good character" to sentencing for criminal offences has been questioned, as noted by McHugh J in Ryan v The Queen [2001] HCA 21; 206 CLR 267 at [30]. However, his Honour held that it was "an established mitigating factor in the sentencing process": at [31]. It is helpful to ask why that is so and to note that there are potential justifications which are relevant in the present context. For example, prior good character may be relevant to determining the level of penalty necessary to constitute a sufficient deterrent for the individual offender. Thus, it may more readily be accepted that a person who has otherwise conducted himself or herself honourably and decently will be dissuaded from further criminality by a relatively lenient sentence. 14 Reputation may also be relevant to the extent that for a person with a high reputation, its destruction, taken in combination with a relatively lenient sentence, may again provide a sufficient individual deterrent. 15 Against those considerations, there are other principles which underlie the sentencing exercise, including a broader educative effect or general deterrence, and the satisfaction of a community sense of the need for retribution and the affirmation of the importance of the underlying prohibition which has been breached. 16 The separation of these differing factors will not give rise to any mechanical approach to sentencing, but it may give rise to greater clarity of thinking and reasoning on the part of the sentencing judge. That is no less important in circumstances where statute prescribes that the fact that an offender "was a person of good character" is a mitigating factor in determining the appropriate sentence: Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(f). In part that is because the Court must nevertheless have regard to such a factor only if it would not be contrary to a rule of law to do so: s 21A(4). 17 As noted by Gummow J in Ryan at [68], reputation and good character may both be relevant in sentencing. His Honour continued: "For example, where the offence is an isolated lapse representing human frailty or the offence is one of strict liability, to a person valuing a good reputation the mere fact of conviction may be a punishment. 'Good character' in such a case also may indicate the capacity of the person to appreciate the censure inherent in the outcome of the criminal process and may suggest that repetition of the criminal conduct is unlikely." 18 It may also be important to distinguish the case where the person's reputation is, apart from its destruction, independent of the offence and the case where the person's reputation and office have been used or abused in the course of the criminal conduct. In the latter case, there may be good reason to disregard the destruction of reputation resulting from an abuse of trust: see R v Jackson and Hakim (1988) 33 A Crim R 413 at 436-437, referred to by Callinan J in Ryan at [176]. Callinan J, however, sought to qualify the principle stating, at [177]: "Of course the abuse of an office to commit a crime is greatly to be deplored but the crime of a person occupying an office of some prominence will often attract much greater vilification, adverse publicity, public humiliation, and personal, social and family stress than a crime by a person not so circumstanced. When these consequences are attracted they should not be ignored by the sentencing court." 19 The views of Callinan J in respect of public opprobrium in Ryan were shared by Kirby J in that case, particularly at [123]. His Honour acknowledged that "in cases of prolonged criminal activity, a previously demonstrated, or assumed, good character is of less importance than in other cases": at [111] referring to R v Hermann (1988) 37 A Crim R 440 at 448. After referring to the public identification of the appellant in that case as a paedophile, his Honour continued at [123]: "Where this occurs, the stigma will commonly add a significant element of shame and isolation to the prisoner and the prisoner's family. This may comprise a special burden that is incidental to the punishment imposed and connected with it. If properly based on evidence, it could, in a particular case, be just to take such considerations into account in fixing the judicial punishment required." 20 McHugh J in Ryan took a different view, noting the difficulty for a sentencing judge in assessing the degree of "public opprobrium" which would attach to an offence or a particular offender: at [53]. His Honour continued: "In the case of long sentences, taking into account the impact of public opprobrium or stigma would seem an impossible exercise and almost meaningless. In addition, taking public opprobrium or stigma into account would seem to favour the powerful and well known over those who were lesser known. I see no reason why the well known individual should get a lesser sentence than the person who is hardly known in his or her community." 21 His Honour was at pains to distinguish public opprobrium from "the loss of a job or similar personal or financial loss", being factors which his Honour thought could properly be taken into account: at [54]. No doubt the effect of such factors is more readily identifiable, but it must be the case that most offenders sentenced to significant terms of imprisonment will suffer such loss. It is not clear whether his Honour thought that the loss should be measured in absolute or relative terms, depending on the social status and rate of pay. 22 McHugh J also noted that "the worse the crime, the greater will be the public stigma and opprobrium": at [55]. His Honour doubted whether "the objectively appropriate sentence" for the greater offence should be reduced by reason of the disparity in public opprobrium or stigma. 23 None of these factors and considerations operate in a clear and constant way. Each must be assessed according to underlying principles of retribution, deterrence and the need to ensure that the penalty fits the crime. 24 In the present case, it may be said that the reasons given by his Honour could have identified more explicitly how the various factors were taken into account. Nevertheless, it cannot be said that the particular considerations his Honour identified were in any respect irrelevant, nor is it apparent from the overall result that they were improperly taken into account. For these reasons, the third ground of appeal was also unsuccessful. 25 HOWIE J: On 15 December 2009 this Court made orders granting leave to appeal but dismissing the appeal. These are the reasons why I joined in those orders. 26 The applicant stood trial in respect of a number of child sexual assault offences. However after the trial commenced, but before the complainant gave evidence, he pleaded guilty to two counts of having sexual intercourse with a child between the age of 14 and 16 years contrary to s 66C(3) of the Crimes Act 1900. He also asked the sentencing judge to take into account three matters on a Form 1 in relation to the second count on the indictment. The matters taken into account were two further offences under s 66C(3) and an offence of aggravated indecent assault contrary to s 61M(1) of the Act. The maximum penalty prescribed for an offence contrary to s 66C(3) is imprisonment for 10 years. 27 On 13 February 2009 Judge Blackmore sentenced the applicant as follows: on the first count on the indictment he ordered that the applicant enter into a good behaviour bond for a period of four years under which he was required to undergo supervision with the Probation and Parole Service. On the second count and taking into account the matters on the Form 1, he sentenced the applicant to a term of imprisonment made up of a non-parole period of one year and three months to date from 13 February 2009 with a balance of term of nine months. The applicant is eligible to be released to parole on 12 May 2010. 28 There are three grounds filed in support of the application for leave to appeal: 1. The sentencing judge erred in holding that the fact that [the] applicant made contact with the complainant through use of the Internet was a factor that aggravated the offences. 2. The sentencing judge erred in holding that the offences involved "significant planning" and a factor that aggravated the offences. 3. The sentencing judge erred in holding that the applicant's "public humiliation" was not a mitigating factor in the form of "extra curial punishment". 29 There was an agreed statement of facts presented to his Honour. They can be summarised briefly. In 2003 the complainant, who was 15 years of age, being born in April 1988, moved from Urunga to Brisbane. At this time the applicant was aged 33 years. The complainant participated in a "chat room" on the Internet meant for persons between the ages of 15 and 18. She had a profile of herself that misstated her age as 16. 30 In October 2003 the applicant made contact with the complainant in the chat room. The applicant wrote. "ASL?" which was an acronym for "age, sex and location". The complainant replied that she was 15, female and lived in Brisbane. 31 Contact between the two increased including by email and telephone. Over a period of six weeks the content of their conversations became increasingly sexual culminating in the complainant sending him photographs of herself and he sending her sexually explicit photographs of himself. 32 In December 2003 they arranged to meet in Urunga. The applicant travelled there and booked a motel room. Before they met and again at Urunga, the applicant told the complainant that sexual activity would only take place if she agreed to it. On 13 December 2003 they indulged in various acts of a sexual nature that gave rise to the offences before the sentencing Judge. These included both penile-vaginal and penile-anal intercourse. These acts gave rise to the first and second counts on the indictment. The latter act caused the complainant pain and the applicant ceased at her request. They took photographs of each other. The complainant was then aged 15 years and 8 months. 33 The complainant returned to Brisbane and remained in contact with the applicant by email and telephone in what was described as a "loving and caring relationship". The complainant's mother learned of their activity and notified the police. They commenced an investigation that included an officer posing as the complainant in communications with the applicant. The applicant was eventually arrested on 10 June 2004 with photographs of the complainant in his possession. 34 The agreed statement of facts contains the following: On 10 June 2004 the [applicant] participated in a recorded interview in which he claimed that at the relevant time he believed that the complainant was 16 years old. [The applicant] and the Crown accept that in the circumstances this belief was unreasonable. 35 The applicant had no prior convictions. There were in evidence psychological reports and a pre-sentence report. There is no suggestion that his Honour erred in the use he made of this material either in favour, or to the detriment, of the applicant. 36 The first ground of appeal refers to comments made by the Judge during the course of his sentencing remarks. The Judge quoted the following passage from my judgment in R v Dagwell [2006] NSWCCA 98: [41]………… The offences of which the respondent has been convicted and the method of procurement of the supposed consent of the complainant are both serious and insidious. Users of Internet chat rooms should be well aware that crimes committed in such circumstances are treated with great concern by the criminal justice system and will be dealt with severely. Children must be protected from themselves and from those who prey on their vulnerability by gaining access to them through means such as that used by the respondent. The only way that this policy can be achieved is by the courts imposing condign punishment upon those convicted of such offences in the hope that others who are minded to act in the same way might fear the consequences if they are caught. 37 His Honour then went on: For that policy to be implemented as stated, sentencing courts must pay particular attention to general deterrence when sentencing offences of sexual intercourse with children in circumstances where that sexual intercourse is procured through the use of the Internet. To my mind to properly reflect the community's disapproval of this sort of activity and the policy outlined above by the Court of Criminal Appeal, this court is required to impose a sentence of full-time custody with respect to these offences. However it should immediately be acknowledged that the circumstances of this case are not on all fours with that in [ Dagwell ]. In that case the offences to which the offender pleaded guilty were more serious charges carrying a lengthier maximum penalty. The girl involved there was 13 years old, whereas in this case the complainant was 15. In [ Dagwell ] the court was dealing with a case involving two distinct occasions of intercourse, whereas here the offender had sex with the complainant admittedly in a number of different ways on the one occasion. 38 The submission made on behalf of the applicant is as follows. The agreed statement of facts was based upon the proposition that the applicant had a belief, albeit an unreasonable one, that the complainant was 16 years of age. The Internet was not being used to prey upon the vulnerability of the complainant arising from the fact that she was under the age of consent because the applicant believed, unreasonably, that she was over the age of consent. Therefore, the use of the Internet was not a relevant factor. 39 I am unable to accept the argument. The applicant, aged 33, entered a chat room designed for persons between the ages of 15 and 18. There was a substantial risk, therefore, that one or more of the participants would be under the age of 16. The applicant was clearly seeking out a young person for the purposes of sexual activity. He was told that the complainant was aged 15, although the agreed facts indicated that he had forgotten that communication. Presumably this was part of the reason why he accepted that his belief that she was aged 16 was unreasonable. 40 By his use of the Internet the applicant developed the relationship with the child and it was always a risk that she might misstate her age. If a person uses the Internet to both meet and then groom a person for sexual purposes, general deterrence applies if, as a result, he has intercourse with an under-aged child in circumstances that amount to a criminal offence. I do not see why the courts should not discourage such conduct. I see no error in what the sentencing judge said in this regard. 41 The second ground is that the Judge was in error in taking into account that the offences were planned. The argument in the written submissions is as follows: "Given that the applicant was sentenced on the basis that he honestly believed that the complainant was 16, it is impossible to see how there was any planning in the commission of the offence". But the sexual acts between the complainant and the applicant were criminal, because his belief was unreasonable. Therefore his planning in order to commit the offences was to be taken into account as part of the circumstances of the offending regardless of the fact that he may have believed she was 16 years and that he was not committing an offence. This was not an offence occurring on the spur of the moment but was a result of forethought and planning. In my opinion it was open to the Judge to find the offences aggravated by the conduct leading up to their commission. 42 The third ground arises from the following passage in the Judge's sentencing remarks: The offender's personal circumstances can be dealt with relatively shortly. He does not claim other than a happy upbringing by caring parents. He apparently had a bright future with a political party at the time of the offending. He has suffered the public denigration that naturally flows from the revelation of such an offence. In his case the denigration was more pronounced due to his public position as councillor. On the other hand the community expects and deserves high standards from their public representatives and naturally when offences as repugnant as those committed in this case are publicly revealed, there is a backlash against the public figure involved. I do not believe that such public humiliation is more than would naturally be expected given these offences and his public figure, such that the offender should be entitled to a finding that he has suffered extra curial punishment as a result. There is no evidence of any additional penalty being meted out to the offender. To the contrary he remained in public office years after the revelation of these offences, which he now admits. 43 The written submission on behalf of the applicant is that, "extra curial punishment should be taken into account regardless of whether it may 'naturally be expected'". However as developed in oral argument the complaint is that the Judge did not take into account the loss of the applicant's political career. 44 There is little doubt that a court can take into account the effects upon the offender that have occurred as a consequence of the commission of the offence. It can be a financial loss, for example the loss of employment or superannuation benefits. It can be a physical injury that has occurred to the offender, for example serious injury to the driver charged with causing death or injury to some other person as a result of the use of a motor vehicle. But it can go further and include other types of disadvantages resulting from the offending. 45 In R v Allpass (1993) 72 A Crim R 561 the Court was concerned with a Crown appeal in respect of the digital penetration of the vagina of a 9 year old girl by a man aged 76. There was intense media coverage of the offence and the sentence imposed. The Court referred to some of the effects of the offence and its publicity as follows: The evidence showed that, following the events of 4 January 1992, the respondent and his elderly wife were subjected to a campaign of abuse and harassment, involving threats of serious injury to person and property. It should be added that the Crown concedes that it is relevant to the outcome of this appeal that this campaign intensified following the announcement of Judge O'Reilly's decision. It reached such a level that the respondent was forced into a psychiatric clinic for treatment, and, according to the evidence, he was pursued even there. The respondent and his wife have had to leave their home, removing their belongings under cover of darkness, and they now live elsewhere under assumed names. Quite apart from the decision of this Court, the respondent and his wife have paid a high price for his wrongdoing. This was one of the considerations taken into account by the Court in determining to dismiss the Crown appeal. 46 The applicant's original submission was that public humiliation could be sufficient to amount to extra-curial punishment. He relied upon R v Cobb [1999] FCA 158; 84 FCR 450. There a member of Parliament was sentenced for defrauding the Commonwealth as a result of claims he made as a parliamentarian. He received a suspended sentence and the Crown appealed. The sentencing Judge had remarked: I must also take into account what Mr Cobb has already suffered for his crimes.... Even if he is not imprisoned, he will have been very severely punished. The Full Court in dismissing the appeal simply quoted this passage of the sentencing remarks without comment. It is not clear from the judgment what punishment the respondent had suffered and that was taken into account by the sentencing judge. 47 The applicant also relied upon R v Poynder [2007] NSWCCA 157; 171 A Crim R 544. That was a case involving a solicitor, aged 50, who had made telephone calls, some to chat services, where for his gratification he spoke about sexual matters including, for example, planning the rape of a five-year old child and bestiality. In dismissing the Crown appeal, James J stated: 86 Some allowance could properly be made for the severe extra-curial punishment the respondent had suffered and would suffer, including the virtually certain loss of his profession of 25 years and his livelihood. Some allowance, albeit only limited, could be made for the public humiliation the respondent had suffered. 48 There was evidence in that case that the Legal Services Commissioner had initiated complaints against the respondent that, by reason of the conduct giving rise to the offences for which he was sentenced, the respondent was not a fit and proper person to hold a practicing certificate. The sentencing judge had acted on the basis that the charges would be pursued and the respondent would lose his profession as a solicitor. 49 Clearly that was a matter that could be taken into account as extra-curial punishment. My initial reaction was that public humiliation that arises from the commission of the offence should not alone give rise to a mitigation of sentence without more. However having regard to what Basten JA has written about this matter, the issue appears to be unresolved in the High Court and need not be determined for the purpose of disposing of this ground of appeal. Clearly there may be an exceptional case where it reaches such proportion that it has had some physical or psychological effect on the person so that it could be taken into account as additional punishment. That was in effect the position in Allpass. It was also the position in R v King [2009] NSWCCA 117 where media coverage of the respondent's sentence resulted in threats to him and made him a virtual prisoner in his own home. 50 In so far as in the present case his Honour was not prepared to take into account as a mitigating factor the public humiliation suffered by the applicant, I agree with that view. But even if it were wrong, the impact upon the sentence would be very slight. 51 In any event I do not apprehend any error in what his Honour said about the effects upon the applicant in the passage quoted above. It was a matter for his Honour as a factual finding to determine whether the impact upon the applicant's political career was a matter that should mitigate the sentence as extra-curial punishment. I am not persuaded he was wrong in the view he took on that issue. It should also be noted that in determining the impact upon the applicant of delay between the offence and sentence his Honour took into account the effect of the charges upon the applicant. He stated: Some of the delay here can be explained by the fact that the offender pleaded not guilty initially. However that cannot explain the entirety of the delay. Moreover the offender had to endure the glare of public attention as a result of the charge. He had a public position at the time of the commission of the offences and naturally his charging with these offences was a matter of public interest and concern. I believe there is substance in the submission that the delay in this matter had been so extensive that some allowance be made for it in mitigation on sentence. 52 In my opinion none of the grounds of appeal have been made out. 53 JOHNSON J: On 15 December 2009, I joined in orders granting the Applicant leave to appeal, but dismissing the appeal. I agree with the judgment of Howie J and the additional comments of Basten JA. ********** 15/02/2010 - Edit error - Paragraph(s) Cover sheet 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. 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