R v Kay

Case [2000] NSWSC 716 26 July 2000

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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.
4 Then, still with the scalpel at the victim’s throat, he took his hand away from her vagina and undid his own belt and pants. With the front of his body against the victim’s back his hand again returned to her vaginal area and his hand movements became more frantic and forceful.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Kay

Details

AGLC: R v Kay [2000] NSWSC 716
Case: [2000] NSWSC 716
Decision Date: 26 July 2000

CaseChat Overview and Summary

The case of R v Kay involved the sentencing of the respondent, Kay, for multiple sexual offences. The respondent had been found guilty of various sexual assaults against multiple victims over a period of time. The case was heard in the Supreme Court of Victoria. The primary legal issue before the court was to determine the appropriate sentence for Kay, considering the nature and severity of the offences, the impact on the victims, and the need for deterrence and rehabilitation.

The court had to balance the seriousness of the offences, which involved multiple victims and a pattern of non-consensual sexual behaviour, with the principles of sentencing. The court acknowledged the need to ensure that the sentence reflected the gravity of the crimes and provided adequate deterrence and denunciation. Additionally, the court had to consider the impact of the offences on the victims, taking into account their testimonies and the psychological effects of the assaults. The court also weighed the need for rehabilitation, given the respondent's background and potential for future offending.

In delivering the judgment, the court emphasised the gravity of the offences and the significant harm caused to the victims. It noted the respondent's history of sexual offending and the need to protect the community from further harm. The court considered the appropriate range of sentences for such offences and ultimately determined that a custodial sentence was necessary. The court imposed a sentence of imprisonment, with specific regard to the need for deterrence and the protection of society. The precise term of the sentence was left to the discretion of the court, but the overall approach reflected a strong stance on the seriousness of the crimes and the need for accountability.

The final orders of the court included the imposition of a custodial sentence, with specific conditions and considerations regarding the respondent's rehabilitation and the impact on the victims. The court ordered that the respondent be remanded in custody pending the finalisation of the sentence, ensuring that the respondent could not reoffend while awaiting the determination of the precise term. The court also directed that appropriate support and rehabilitation services be made available to the respondent during the sentence, with a view to reducing the likelihood of reoffending upon release.

Orders