R v Kellett

Case [2020] QCA 199

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kellett [2020] QCA 199

PARTIES:

R
v
KELLETT, Damien James
(appellant/applicant)

FILE NO/S:

CA No 209 of 2019
DC No 1143 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 19 July 2019; Date of Sentence: 24 July 2019 (Reid DCJ)

DELIVERED ON:

15 September 2020

DELIVERED AT:

Brisbane

HEARING DATE:

12 June 2020

JUDGES:

Morrison and Mullins JJA and Jackson J

ORDERS:

1.   The appeal against conviction is dismissed.

2.   Leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant and the complainant were participating in an encounter of consensual sexual acts when, unexpectedly, the appellant penetrated the complainant’s vagina using a manoeuvre called “fisting” – where at trial what was in issue was whether the complainant had consented to it, and how the appellant had done it, i.e. one hand movement only as opposed to two movements, and gradual rather than sudden – where the appellant was convicted on two counts: count 1, rape, and count 2, unlawfully causing grievous bodily harm – where the appellant challenges his conviction on the rape count only – whether the verdict of the jury was unreasonable and cannot be supported having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where defence counsel deliberately adopted the tactic of eschewing reliance upon mistake of fact under s 24 of the Criminal Code – where defence counsel also specifically declined the opportunity of having the trial judge direct on s 24 when redirections were discussed immediately after the summing up – where the position adopted by defence counsel could not prevent the trial judge from raising s 24 in the summing up if there was evidence that raised it – whether the learned trial judge erred in failing to direct the jury as to the provisions of s 24 of the Criminal Code (mistake of fact) in respect of the issue of consent – whether there is evidence giving rise to a reasonable doubt that the appellant had a reasonable but honest mistaken belief as to consent to fisting – whether the issue of the appellant’s reasonable but honest mistaken belief as to the complainant’s consent should have been left to the jury

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the appellant attacked redirections given towards the end of the jury’s deliberations – where they arose after the jury sent a note, which asked for assistance because they were having difficulty reaching a unanimous agreement – where in the redirections, the jury were told not to speculate about the appellant’s state of mind – where the…

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R v Kellett [2020] QCA 199
Case
[2020] QCA 199
Decision Date

CaseChat Overview and Summary

The appellant in the case of R v Kellett appealed against his conviction for rape and the sentence imposed. The appellant and the complainant were engaged in consensual sexual acts when the appellant unexpectedly performed a manoeuvre called "fisting" without the complainant's consent. The appellant was convicted on two counts: count 1, rape, and count 2, unlawfully causing grievous bodily harm. The appellant challenged his conviction for rape, arguing that the jury's verdict was unreasonable and could not be supported by the evidence. The court was required to determine whether the verdict was unreasonable, whether there was a misdirection or non-direction regarding the provisions of section 24 of the Criminal Code, and whether the sentence was manifestly excessive or inadequate.

The court found that the jury's verdict was not unreasonable, and the evidence supported the conviction. The court further found that there was no misdirection or non-direction in respect of section 24 of the Criminal Code, as the defence counsel had deliberately chosen not to rely on mistake of fact. Additionally, the court held that the sentence was not manifestly excessive or inadequate, as the sentencing judge had relied on appropriate factors in determining the sentence.

The appeal against conviction was dismissed, and leave to appeal against the sentence was refused. The court's orders were to dismiss the appeal against conviction and refuse leave to appeal against the sentence.

Orders

Orders of the court

1. The appeal against conviction is dismissed.

2. Leave to appeal against sentence is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I would refuse the application for leave to appeal against the sentences.Conclusion For the reasons above I propose the following orders:1.The appeal against conviction is dismissed.2.Leave to appeal against sentence is refused. MULLINS JA: I agree with Morrison JA, but will add some observations in relation to the mistake of fact ground. The prosecution’s case was that there were two movements of the appellant’s hand that penetrated the complainant’s vagina without the consent of the complainant and that, if the jury were not satisfied beyond reasonable doubt that the first penetration was without consent, the prosecution’s alternative basis for the count of rape was the second movement of the appellant’s fist inside the complainant’s vagina that occurred after the complainant had withdrawn her consent. The defence case was that there was only one movement of the appellant’s fist that caused both injuries to the complainant’s vagina and that one movement was done with the complainant’s consent. The ground of appeal based on s 24 of the Criminal Code (Qld) that there was an evidential basis for leaving mistake of fact to the jury was relevant only to the initial penetration of the complainant’s vagina by the appellant’s hand. The consent that was in issue was whether the complainant had consented to penetration by “fisting”. The analysis of the evidence undertaken by Morrison JA shows that there was no discussion between the appellant and the complainant prior to the act of penetration by fisting. The squeezing of the lubricant by the complainant into the appellant’s hand, which the appellant asked the complainant to do, was not done in the context of any foreshadowing by the appellant of penetration by fisting. For the penetration by fisting not to constitute the offence of rape, it had to be done with the consent of the complainant to penetration by that means. The minimum evidential basis to justify a direction based on s 24 in respect of the consent of a complainant in the context of a charge of a sexual offence, was set out by McPherson JA (with whom McMurdo P and Ambrose J agreed) in R v Millar [2000] 1 Qd R 437 at [7]:“To sustain [a failure to direct the jury in terms of s 24(1)], it is necessary for the appellant to show that there was material on which the jury could legitimately have entertained a reasonable doubt about that issue, which was whether the appellant honestly and reasonably believed that the complainant had consented to his inserting his finger in her vagina.” After referring to that statement made by McPherson JA in Millar, Fraser JA in R v FAV [2019] QCA 299 at [6] then expanded on the aspects of the evidence that were required to establish the evidential basis for leaving s 24 to the jury in respect of a mistake of fact about the consent of the complainant. That discussion focused on the aspect of “consent” that requires that it must be “given” by the complainant. That was also emphasised by Sofronoff P in R v Makary [2019] 2 Qd R 528 at [54]. Relevantly, as Fraser JA explained in FAV at [6], there must also be evidence relevant to whether any belief by the appellant that the complainant had given consent was a reasonable belief. See also Makary at [56].

Ratio Decidendi

Legal Principle Established

In the course of submission on the sentencing hearing, defence counsel made a number of points. It was accepted that the fisting was a dangerous thing to do and that the appellant had to be sentenced on the basis of callous disregard for the consequences of the act.[98] It was also accepted that the two counts merged for sentencing purposes, because the grievous bodily harm was caused in the course of the rape.[99] When submitting that the case did not warrant an SVO, the submission was made that if it was imposed then “it’s got to [go] below eight”, and the range should be “six to seven”.[100][98]AB 257.[99]AB 252 line 47 to AB 253 line 20.[100]AB 260 lines 34, 46.Consideration The learned sentencing judge made it plain that the imposition of an SVO declaration was warranted because of the nature of the offending. It was accepted by both sides that the injuries met the definition of grievous bodily harm. However, his Honour took the view that a feature which distinguished this case from the ordinary run of grievous bodily harm cases was the way in which the injuries were inflicted. They occurred in the course of a rape carried out by the act of fisting. In particular the injuries were caused because of the rapid distention of the complainant’s vagina by the appellant’s forming a fist and thrusting it into the vagina. It was the second thrust which was the central factor leading to the imposition of the SVO. The factual basis upon which the appellant was sentenced was that he gave no indication or warning of what he intended, his only statement coinciding with the insertion of his hand into the complainant’s vagina. That took place without consent. It caused immediate pain and the complainant cried out and started to resist. Notwithstanding that unmistakable objection and resistance, and signs of considerable pain, the appellant made the second thrust with his fist, inflicting greater harm. I respectfully agree with the learned sentencing judge’s characterisation of the conduct as brutal, degrading, forceful, injurious and contemptuous of the complainant. I also agree that it was open to conclude, as his Honour did, that the act was designed to humiliate and degrade. It is those factors upon which his Honour relied as warranting the imposition of the SVO. In my view, it cannot be said that it was not open to his Honour to do so. The appellant relied upon certain passages of his evidence at the first trial, to rebut the suggestion of contempt for the complainant and that he did not care.[101] What he said was that he: asked her if she was OK when he pulled his hand out; got her a towel to put between her legs; put her singlet on her; got another towel; was worried about her; calmed her down; helped the paramedics to get in and stayed out of their way; and did not go to the hospital because he did not want to put her through more than had already happened.[101]Supplementary AB 193 line 1 to 195 line 8; 203 line 33; 205 line 12; 210 line 11; 214 lines 18-36; 216 line 1; 217 lines 3-15; 219 lines 24-33; 220 lines 10-24; 225 line 38 to 226 line 2; and 227 lines 1-13.