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R v Kellan (a pseudonym)

R v Kellan (a pseudonym)

Case [2021] ACTSC 314 5 November 2021

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Kellan (a pseudonym)
Citation:	[2021] ACTSC 314
Hearing Date:	4 November 2021
DecisionDate:	5 November 2021
Before:	Mossop J
Decision:	See [51]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – three counts of engaging in sexual relationship with child under special care – one count of act of indecency – where the offender was the father of the victims of the offending – general deterrence, denunciation and recognition of harm to the victims – guarded prospects of rehabilitation – significant sentences of imprisonment imposed
Legislation Cited:	Crimes Act 1900 (ACT), ss 56, 61(2), 92EA Crimes (Sentencing) Act 2005 (ACT), s 35
Cases Cited:	R v BJW [2000] NSWCCA 60; 112 A Crim R 1 R v Degioannis [2019] ACTSC 47 R v KC [2020] ACTSC 94
Parties:	The Queen ( Crown) Ayden Kellan (a pseudonym) ( Offender)
Representation:	Counsel T Lee ( Crown) K Archer ( Offender)
Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender)
File Number:	SCC 156 of 2021

MOSSOP J:

Introduction

In order to protect the identity of the victims of the offending addressed in these reasons, the victims, the offender and other persons referred to will be identified by pseudonyms.

The offender, Ayden Kellan, has pleaded guilty to the following offences:

(a)CC2021/3709: engaging in a sexual relationship with Julianna, a child under his special care contrary to s 56(1) of the Crimes Act 1900 (ACT). The maximum penalty for this offence is 25 years’ imprisonment.
(b)CC2021/3455: engaging in a sexual relationship with Lillian, a child under his special care contrary to s 56(1) of the Crimes Act.
(c)CC2021/3710: engaging in a sexual relationship with Nicole, a child under his special care contrary to s 56(1) of the Crimes Act.
(d)CC2021/4152: committing an act of indecency on Mia, a person under the age of 16 years contrary to s 61(2) of the Crimes Act. The maximum penalty for this offence is 10 years’ imprisonment.

The offender is the biological father of Julianna, Lillian and Nicole. He is a stepfather to Mia.

Facts

The facts in relation to the offending are agreed and are set out in a statement of facts. The conduct engaged in by the offender in involves sexual interference with three of his daughters and one of his stepdaughters. The facts may be summarised as follows.

In January 2010, the offender married Lorraine. The offender, whose first wife had died in 2008, brought five biological children into the relationship, including Julianna, Lillian and Nicole. Lorraine brought three biological children into the relationship, including Mia.

Shortly after their marriage in 2010, the blended family moved into a house in Kambah (the first Kambah house). There was a blue six-person spa in the backyard.

In December 2010, the family moved to a larger house in Kambah (the second Kambah house). The blue spa was relocated to the backyard of…

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 Kellan (a pseudonym)

Details

AGLC: R v Kellan (a pseudonym) [2021] ACTSC 314
Case: [2021] ACTSC 314
Decision Date

CaseChat Overview and Summary

The case of R v Kellan involved a father who had engaged in sexual relationships with his three daughters and an act of indecency with his stepdaughter. The offender pleaded guilty to the offences and the legal issues before the court were the objective seriousness of the charges, the subjective circumstances of the offender, and the appropriate sentence. The court found that the offences were of high objective seriousness due to the age of the victims and the breach of trust involved. The court also considered the offender's acceptance of responsibility, his lack of a criminal history, and his prospects of rehabilitation. The court ultimately sentenced the offender to a head sentence of 13 years and three months with a non-parole period of eight years and six months. The court also imposed concurrent sentences for the individual charges. The court emphasised the importance of general deterrence, denunciation, and recognition of the harm done to the victims in imposing the sentence.

Orders