District Court New South Wales Medium Neutral Citation: R v Kelly [2014] NSWDC 34 Hearing dates: 6 March 2014 Decision date: 06 March 2014 Before: Berman SC DCJ Decision: Sentenced to an effective overall sentence consisting of a non-parole period of 4½ years and a head sentence of 7½ years Catchwords: CRIMINAL LAW - Sentence - Voluntary disclosure - Indecent assault - Sexual assault - Attempting to have sexual intercourse without consent - Complainant drugged by offender - Repeat offending Category: Sentence Parties: The Crown Nathan Kelly Representation: Solicitors: The Director of Public Prosecutions George Sten & Co - Offender File Number(s): 2012/39505 Publication restriction: There is to be no publication of the name of the complainant or of any material which may tend to identify the complainant SENTENCE 1HIS HONOUR: In this matter, it was the disclosure by the offender of what he had done, in particular the criminal offences he committed, which led to the complainant going to police and him now facing a significant period in gaol. Offenders who voluntarily disclose their wrongdoing are rare and substantial leniency is often accorded them, but it remains a fundamental rule of sentencing that a sentence must reflect the objective gravity of an offender's conduct. Here the offender's conduct was serious indeed. 2He took advantage of the vulnerability of the complainant on one occasion and then created vulnerability on another so that he could sexually assault her. Despite his voluntarily disclosure of the latter offences which led the complainant revealing to police all offences, it remains the case that the offender must go to gaol for a significant period of time. 3The offender met the complainant whilst they were both living in New Zealand in 2009. A friendship developed. It was clearly a close friendship but not as close as the offender desired. In particular, he wanted there to be a sexual component to their relationship but the complainant made it clear, apart from on one occasion which I will shortly mention, that she did not want such a relationship with the offender. 4At various points of time since 2009, the offender and the complainant have lived in the same premises often sharing the same bed. Whilst there has been physical contact, it has not been sexual apart from incidents I will now describe. In 2009, whilst they were sharing premises, the offender suggested to the complainant that she was treating him like a boyfriend but not having sex with him. He then asked the complainant to move out. At this point, the complainant agreed to have sex with the offender and a consensual sexual encounter took place. Following that, the complainant made it clear to the complainant that this was not something that she desired to recur. 5They moved to Australia separately but have regularly shared premises. In 2012 the offender was sharing a house in Glebe. There was a party held there in May 2012. After the party the complainant slept in the bedroom of the offender as was common practice. They did not share a bed but sometime in the morning the complainant woke to feel someone stroking her right side. She asked, "What are you doing?". He said, "Sorry" and returned to where he was sleeping. She went back to sleep but woke up a few hours later to see the offender standing next to her bed breathing heavily. He had his hand pressed against his penis outside his underwear. Once again she remonstrated with him and he returned to where he was sleeping. 6A short time later she again awoke. This time she could feel breath against the back of her neck. She turned around and saw the offender kneeling next to her bed. She said, "What's going on, what the fuck is wrong with you?" before the offender again went back to where he was sleeping. 7Not surprisingly in the morning the complainant confronted the offender about his actions. He said: "It's because of what happened before, because we've had sexual contact before. I'm drawn to you. I don't know what it is but I'm just attached". 8No charges arise out of that conduct. 9We now move to an unknown Sunday evening in June 2012. The offender and the complainant attended the Hillsong Church together. He took her home to Penrith where she was living at that time. They agreed that they would spend the night in the lounge room. They went to sleep fully clothed under blankets on separate couches. She woke to find the offender running his hands up and down the sides of her body before cupping her buttocks with his hands. She forcibly removed his hands and said, "God, what the fuck". The offender said, "I'm sorry". In no uncertain terms the complainant told the offender what to do, "Get back on your fucking couch and go to fucking sleep". 10Despite this, despite the complainant making it abundantly clear to the offender that his physical advances were unwelcome in the extreme, the complainant woke up again a short time later to find that the offender had placed his hands on her breasts and began cupping them with his hands. Once again she forcibly removed his hands and told him to "fuck off". The offender replied, "I can't help it" and the complainant said: "Get the fuck away, get the fuck on your side, stay the fuck there, we'll talk about this shit in the morning". 11When she woke up next ,still during the night, she discovered that the offender was lying on the floor next to her. She formed the impression that he had been standing over her and had lain down on the floor as she stirred. She asked him what he was doing and he replied, "I don't know". In the morning the complainant confronted the offender about his actions. He claimed he could not help it. 12It appears that the offender was of the belief that the pair were a couple. They engaged in another discussion about this and not having sex. The complainant declined to have sex with the offender. It appears that the offender then took matters into his own hands. 13On 11 October 2012 the complainant began staying at the offender's home in Glebe on a permanent basis. She slept in the lounge room. The offender lived at that address with two other housemates, one of whom he knew through the Hillsong Church. 14A couple of weeks later after the complainant moved in there was a Halloween party held at the Glebe address. The complainant remembers having about five cups of wine. She recalls asking the offender to get her a drink. The next morning she had a strong headache and was feeling queasy. She attributed this to her alcohol consumption and did not think much of it but a few days later the offender told the complainant what he had done. He said this: "There's something I've got to tell you since we're being all open and honest. I've actually done some things to you. The night of the party I put sleeping pills in your drink." 15He pointed to his penis and said, "I put it in your mouth". He said: "I tried anal with you but I don't know if it was in or not. I hope you can find it in your heart to forgive me, I'm going to work on it". 16He began to cry and said: "I can't go to gaol, I'm scared of gaol, I don't want to be branded a rapist". 17The complainant began to cry when she was told of this. This of course is not at all surprising. The complainant did not immediately go to police. Other people were told. The complainant commenced a relationship with another person living in the Glebe address and moved into his room. Representatives of the Hillsong Church were made aware of what occurred and eventually on 20 November 2012 the complainant attended Glebe Police Station and reported what had happened. 18Some representatives of the Hillsong Church telephoned the offender on 29 November and asked him to come in for a chat. During the conversation which ensued, the offender admitted that he would go to where the victim was sleeping and feel her up, that is touch her breasts and vagina, that he would masturbate while standing over her while she was sleeping, that at the Halloween party on 27 October 2012 he put sleeping tablets in her drink and while she was drugged he got the complainant to perform oral sex on him and tried to have anal sex with her but he was not sure if he penetrated her. 19Later still police intercepted a number of telephone conversations between the complainant and the offender. At one stage he said this: "You know I had, it wasn't just the whole feeling you up, that I'd actually put sleeping pills in your drink once and yeah, I had like oral sex with you and yeah, and maybe anal, that's, I don't know, I couldn't tell and that's it". 20He then apologised to the complainant. He was arrested the same day. 21The offender has no prior convictions. He has no real excuse for his conduct. It appears that he was obsessed with having a sexual relationship with the complainant and when she would not agree to this he took advantage of her vulnerability when she was sleeping and actually brought about her vulnerability by drugging her so that he could sexually assault her in two serious ways indeed. 22He suggested to the author of the pre-sentence report and the author of a psychological report tendered today that his upbringing was less than ideal, but there is little in what he complained about to explain why he would do what he did to the complainant in this manner. 23As far as his work history is concerned he has had no problems getting a job in the past. He reported some learning difficulties but has nevertheless been able to complete training with the Hillsong Church and plans to pursue further tertiary studies. His IQ is in the normal range. 24He has a history of drug use and alcohol abuse but there is no suggestion that any of his misconduct occurred in the context of him being intoxicated or that he was otherwise acting out of character. He told the author of the pre-sentence report that the basis of his relationship with the complainant stemmed from him providing a caring and protecting role as opposed to a sexual relationship. He acknowledged that this was an underlying source of tension in the relationship and he considered his offending to have occurred in this context. 25It should not need to be said but it must be: People are entitled to refuse sexual contact with friends just as much as they are entitled to refuse sexual contact with strangers. Nothing in the relationship between the complainant and the offender could in any way justify his repeated offending. 26The first two offences of indecent assault occurred in the complainant's home and the second occurred after she had made it abundantly clear that what he did on the first occasion was most unwelcome. Then on the next occasion he used a sleeping tablet which had been prescribed to him, because of difficulties that he had had sleeping, to place the complainant in a position where she was completely unable to defend herself against his unwanted sexual activities. 27The offender now faces sentence for two offences of indecent assault, an offence of using an intoxicating substance to commit an indictable offence, that carrying a maximum penalty of 25 years imprisonment, and two offences involving sexual intercourse without consent, one an attempt. They both carry 14 years imprisonment with a standard non-parole period of seven years. I have taken into account in all cases the maximum penalties and where appropriate the standard non-parole periods in determining the appropriate sentences to impose in this case. My reasons for not imposing the standard non-parole period appear in these remarks on sentence. 28Consistent with the offender's voluntary disclosure of his guilt in relation to the offences committed at the Halloween party, he pleaded guilty at the earliest opportunity. The sentence I impose upon him will be thus 25% less to reflect the utilitarian value of his pleas. 29As well, his pleas of guilty and his voluntary disclosure say a great deal about his remorse. Although he did not give evidence before me, I nevertheless accept that he was remorseful for what he has done because he voluntarily admitted to the complainant what he had done to her after he had drugged her, recognising that there was a significant risk that he would to gaol because of his revelations. 30Notwithstanding the seriousness of his conduct, in other areas he has a good character and has good prospects of rehabilitation. It is to be hoped that these offences arose out of unique circumstances and will thus not ever be repeated. Despite that, personal deterrence is not irrelevant in this case and of course general deterrence remains of prime importance. 31Ms Sten who appeared for the offender today recognised that a sentence of imprisonment was required. She submitted that if the sentence I chose was two years or less, then an intensive corrections order may be appropriate. I regret to say that a sentence of two years would be wholly inadequate given the objective gravity of the offender's conduct, even recognising that it was the offender's voluntary disclosure of what he had done at the Halloween party which has led to him facing these charges. 32I impose sentence as follows. For the two offences of indecent assault, the offender is sentenced to imprisonment for 12 months to date from 6 March 2014. For the offence of sexual intercourse without consent, the offender is sentenced to imprisonment. I set a non-parole period of two and a half years to date from 6 September 2014 with a head sentence of five years. The offence of attempting sexual intercourse without consent, I impose a non-parole period of two years with a head sentence of five years, also to date from 6 September 2014. For the offence of using an intoxicating substance to commit an indictable offence, I impose a non-parole period of three years to date from 6 September 2015 with a head sentence of six years. The non-parole period will expire on 5 September 2018 on which day the offender is eligible to be released to parole. The overall sentence I have imposed is one consisting with an effective non-parole period of four and a half years and a head sentence of seven and a half years. ********** 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. Decision last updated: 16 April 2014