R v KENNEDY [2011] NSWDC 223

District Court New South Wales

Medium Neutral Citation: R v KENNEDY [2011] NSWDC 223 Hearing dates: 14 December 2011 Decision date: 14 December 2011 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Sentenced to imprisonment for an effective term consisting of a 3 year non-parole period and a period of eligibility for parole of 2 years, making a total sentence of 5 years. Catchwords: CRIMINAL LAW - Sentence - Act of indecency - Sexual intercourse with a person above the age of 10 years and under 16 years - Aggravated sexual intercourse - Form 1 Cases Cited: R v Bakewell (unreported NSWCCA 27 June 1996) Category: Sentence Parties: The Crown William Kennedy Representation: Mr B Hughes SC - Crown Mr D Marr - Offender Director of Public Prosecutions Legal Aid Commission - Offender File Number(s): 2010/12719 Publication restriction: There is to be no publication of the names of the complainants or of any material which may tend to identify the complainants

sentence 1HIS HONOUR: William Kennedy's life has at least until recently been a cascading series of terrible events involving orphanages, boys' homes, time in an adult gaol despite being only seventeen, service in Vietnam where awful events occurred, alcoholism, and, at about the time the offences I am about to describe occurred, a somewhat pathetic lifestyle. 2It is terrible, indeed, that two victims of Mr Kennedy's offences came into contact with him and suffered significantly as a result. They have been harmed greatly by what he did to them. It is important to bear that harm firmly in mind when I consider the appropriate sentence to impose upon the offender. 3The complainants, and I repeat, there is to be no publication of any evidence identifying or tending to identify them, first met the offender when he was invited by their father to live with him in a caravan where he, too, was living. The two sisters visited their father on the weekends, living with their mother at other times. The offender took advantage of his proximity to these young girls to sexually assault them in a number of ways. Two of those offences appear on the indictment to which the offender has pleaded guilty and other offences appear on two forms 1, one attached to each of the offences on the indictment. 4I will describe the offences. In March 1986, A was visiting her father. She slept on a lounge in the annexe to the caravan and the offender slept on a mattress on the floor. He turned to A and said "I've got something for you to feel". He grabbed her hand and put it on his penis moving it up and down. He was naked and he ejaculated. He then got a handkerchief and wiped A's hand and wiped himself as well. This is the first offence, an offence of committing an act of indecency appearing on the form 1 attached to count two on the indictment. 5The following year somewhere between March and July of 1987, B, A's sister, was watching television in the annexe. The offender slipped his hand into her underpants and rubbed her vagina. That is an offence also appearing on a form 1, an offence of indecent assault of a child. It is attached to count one on the indictment. 6A month later, the offender further indecently assaulted B by taking his hand and putting it on the outside of his clothes over his erect penis. That is also on the form 1 attached to count one. 7We then move to November 1990. Once more, the children were at the caravan park. A was by now fourteen years of age. The offender invited them into his caravan. The children went in confident that nothing would happen to either of them if they were in the company of each other. They were sadly wrong. After giving the sisters a coca cola and chocolate, he asked them to lie down on the bed with him and the two girls did so. A did not want to leave B alone. He lay down, that is the offender lay down in the middle of the bed with the two girls either side of him. As soon as they got into bed, he put his hand down A's tracksuit pants, an offence of committing an act of indecency towards a child under the age of sixteen appearing on the form 1 attached to count two and has inserted his finger into B's vagina. That is count one on the indictment, an offence of having sexual intercourse with a person above the age of ten years and under the age of sixteen. B was twelve years of age at the time. The maximum penalty for that offence is eight years imprisonment or at least it was at the time. 8The following year in June 1991, A went to visit the offender. She was fifteen years of age at this time. When they met, they stayed out the front of his caravan and talked for a while. He invited her to come inside. She agreed but only on the proviso that the door remained open. She told the offender that she would not be coming back to the caravan park. The offender apparently took this last opportunity to do what he did. He said "Now you are a woman and that you might not come back, I'm going to give you something before you go away. I'm going to get you before anyone else does". He clearly indicated an intention, and a desire, to have sex with A before anyone else could. He closed the front door and locked it. He pulled her over to his bed and removed her tracksuit pants and underpants. He pushed her onto the bed and put his fingers inside A's vagina. He said "Just relax. If you relax, it won't hurt as much" and knowing that she was not consenting to what he then did, he climbed on top of her and put his penis inside her vagina. 9Fortunately, they were interrupted. He only managed to thrust his penis in and out about six times before there was a knock on the door. A was in pain and was bleeding. She was also, not surprisingly, upset. The offender opened the door and explained to the caller, falsely, that A had just got her period and was upset and A went away. That offence is count two on the indictment, an offence of having sexual intercourse with A without her consent knowing that she was not consenting in circumstances of aggravation, that circumstance being that at the time of the offence, she was under the age of sixteen years. That offence carries a maximum penalty of twenty years imprisonment. 10There matters rested for many years. Eventually, however, A told a psychologist what had happened to her. She then went to the police and reported what had occurred. Cleverly, the police arranged for her to make a number of telephone calls to the offender which were lawfully recorded. In those telephone calls, she asked if difficulties she had had in her life were from when they were "mucked around" and he said that he felt terrible for ever touching her. He said " All I know is that I never had actual sexual intercourse with you or anything like that". He said that he did not remember much from his past and apologised for things, whatever it was that he did. 11He was arrested on 8 January 2010 when he attended a police station. He denied the allegations at that stage but did state that his memory was very poor. It was not until late in the piece, that he finally admitted these allegations by pleading guilty to the two offences on the indictment and admitting his guilt in relation to the offences on the forms 1. 12I began these remarks on sentence by briefly referring to the cascading series of terrible events that have befallen Mr Kennedy. He was born in 1950. There are a number of siblings in his family but he has no real knowledge of many of them. He was put in an orphanage when he was five after being cared for by his maternal grandmother because his mother did not want him. He had no real contact with his father until a chance meeting many years later dashed any hope that he might be adopted. 13He spent time at Yasmar before running away to Victoria. Whilst in Victoria, as a seventeen year old, he committed two offences, offences that would today not see a custodial sentence imposed. Indeed one of them is no longer an offence at all. He was convicted of having insufficient means and illegally using a motor car. Remarkably, he was sent to an adult gaol, Pentridge. This was at a time shortly before Ronald Ryan was due to be hung. He says that he witnessed rehearsals for the hanging. He was eventually released and he came back to Sydney. They then went back to a boy's home where work was found for him. 14As part of his regular appearances in the Children's Court, a magistrate suggested to him that he join the Army so at the age of twenty he enlisted. It was at that time that the war in Vietnam was on and he was sent to Vietnam. There, as is distressingly common, he was exposed to terrible events which have had an awful effect upon him but his experience was worse than most. He was injured when either a rocket propelled grenade exploded or he was shot but much worse was an incident where, as a sentry, he fired upon a member of his own platoon killing him, one of those events that sometimes occurs in the fog of war. He was exonerated but, of course, blames himself and has done for years to come. He was particularly troubled by the circumstance that the person that he shot was a family man with children. After being honourably discharged, he joined Comalco where he was put in a division with former Vietnam veterans. Most of them were heavy drinkers and his alcoholism developed. His drinking was extreme, leading to his hospitalisation. 15Mr Marr tendered today an assessment filled out by the offender for the Department of Veteran Affairs in the early nineties. It revealed the terribly pathetic lifestyle that he had at that time where he was deeply unhappy. 16He has been involved in a number of relationships and has a number of children. One of them gave evidence on his behalf today. He explained the consequences for him of the offender's incarceration. They were certainly not extreme and are common place. I will, however, take them into account as part of the general mix of subjective factors. 17Mr Watson-Munro has examined Mr Kennedy for the purposes of preparing a report for the Court. He describes one of the worst cases of post-traumatic stress disorder which he has ever seen. Mr Watson-Munro has been criticised from time to time in various circles but I note that in this case, his report was tendered without objection from the Crown and he was not required for cross-examination. I will, therefore, take into account the opinions expressed by Mr Watson-Munro. He explained that those with post-traumatic stress disorder often have problems with impulse control and on top of that, the offender was abusing alcohol at the time of these offences. 18On the other hand, of course, he was clearly aware that what he was doing was wrong. He could have been under no illusions as to how seriously his conduct would be regarded by society, and the authorities, in the event that it was made known. 19It is tragic that the lives of the complainants in this matter have intersected with the life of the offender. In two victim impact statements which they read to the Court, the complainants have eloquently set out the consequences for them of the offender's crimes. Those significant and distressing consequences are common in cases of this kind. In considering the victim impact statements, as Mr Marr pointed out to me, I have to apply the principles set out in the Court of Criminal Appeal decision of R v Bakewell (Unreported, NSWCCA, 27 June 1996) and I do that. 20I want to say something about one aspect of the victim impact statements and I want to say it emphatically. In both of them the complainants express the feeling that they were in some way to blame for the criminal acts of the offender. They felt that at the time, they felt the heavy hand of responsibility upon them which led to them failing to disclose these offences for many years. It needs to be stated emphatically that they were, and are, blameless. The entire fault for these offences lies with one person and one person alone, the offender. As I said, he knew that what he was doing was wrong. He had the power to not do it but he went ahead anyway to satisfy his sexual desires. 21The experiences of life suffered by the offender have led to him suffering an identifiable and significant mental illness. It is agreed that for those reasons less weight should be given to the principle of general deterrence. It nevertheless remains important. Also as a consequence of his mental illness, he will do his time in custody harder than what otherwise would be the case. He suffers from physical problems as well which I have taken into account in this regard also. Prison is a terrible place for everyone but especially so for those who are frail and at risk of violence from the violent men with whom the offender will be spending a significant period of time in the future. 22There is the risk that the offender will serve at least some of his sentence on protection and there is the risk that if that occurs, he will serve his sentence in conditions of custody which are worse than those of the general prison population. I have taken both of those risks into account in formulating the appropriate sentence. 23I mentioned before that general deterrence remains important although of less weight in the present case than in others. I want to speak now about specific deterrence. 24The last of these offences occurred in the early nineties. There is no suggestion that the offender has committed other offences since then. It is a case where he is entitled to say that these offences were isolated and were the product of the situation which existed at that time. Because the offences have not been repeated, I am able to find that specific deterrence does not play a significant part in the formulation of the sentence that I will shortly announce. 25What remains crucially important, however, is retribution. Courts must mark in a very concrete way the wrongfulness of the offender's conduct. Judges do this by imposing sentences which can, on occasions, be considered harsh in order to bring home to others just how wrong it is to sexually abuse children. 26There is another aspect of the delay that I should mention. It does not appear that the offender has spent the intervening years racked with guilt, always afraid of the knock on the door and the coming of this day. There is no evidence that he has been unable to put the matter behind him, at least until he was arrested. 27It is common ground that I have to sentence the offender in accordance with the tariff and maximum penalties that existed at the time of the offence; the Court of Criminal Appeal has made it clear that that is what I must do despite the obvious difficulties which that brings about. Information regarding tariffs for various offences pre-dating the introduction of the sentencing information system by the Judicial Commission is hard to come by. In some cases there are publications available to assist a judicial officer, but in other cases there are not. 28The Court of Criminal Appeal says that judges are able to use their own experience of the law, but gives no guidance to what happens when the judge does not have any experience as to what sentencing practices were many years ago. Judges are also required to take into account such matters as whether the offender would have been dealt with under the Sentencing Act or the Parole of Prisoners Act , a circumstance which does not arise here. 29There is much to be said for the idea that the change in sentencing practices which has occurred over the last twenty years is a recognition that twenty years ago they were flawed. Nevertheless the law is that the offender receives the benefit of that earlier misunderstanding as to what sentence levels should be. 30It is agreed by the lawyers in court that over the past twenty years there has been a growing realisation on the part of the judiciary of just how harmful offences of this kind are, and that has been one of the factors which has led to sentences increasing, in some cases significantly. I repeat, however, the offender is to be sentenced in accordance with the tariff and maximum penalties that existed at the time of his offending, not in accordance with the tariff that exists now. 31Mr Marr, who appeared for the offender, conceded (and appropriately so), that nothing less than fulltime custody was appropriate given the gravity of his client's offending; he asked me to find special circumstances in his client's favour, a finding I will make given his age and the psychiatric problems from which he suffers. 32The offender is sentenced as follows. For count 1 on the indictment taking into account the Form 1 matters attaching to that count, the offender is sentenced to imprisonment. I set a fixed term of eighteen months to date from 14 December 2011. On count 2 on the indictment the offender is sentenced to imprisonment. I set a non-parole period of two years and a head sentence of four years to date from 14 December 2012; that means that the effective term of imprisonment the offender must serve is a non-parole period of three years, a period of eligibility for parole of two years, making a total sentence of five years. The offender is eligible to be released to parole on 13 December 2014.