R v Kelly - [2023] SADC 34

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KELLY
Criminal Trial by Judge Alone
[2023] SADC 34
Reasons for the Verdict of her Honour Judge Fuller
6 April 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
Accused charged with one count of maintaining an unlawful sexual relationship with his stepdaughter when she was between 9 and 12 years of age - alleged offending occurred when complainant visited accused at his mother's home after he moved out of her family home - complainant's mother found text messages from accused on complainant's mobile telephone and made a report to police - complainant interviewed and denied contact offending other than one occasion of touching of her chest in the bath - complainant subsequently made disclosure of other sexual acts - text messages from accused admitted into evidence as implied admission of some form of sexual interaction between accused and complainant but not as admissions of the charged unlawful sexual acts - complainant's evidence devoid of context and detail surrounding charged and uncharged unlawful sexual acts - complainant's memory very poor - proved prior inconsistent statements on material matters - complainant did not come up to proof on allegation that accused masturbated in her presence - inherent unlikelihood of account of alleged act of cunnilingus. Cumulative effect of deficiencies in complainant's account gives rise to reasonable doubt which the admission in text messages could not overcome.
Verdict: Not guilty
Criminal Law Consolidation Act 1935 (SA) s 50, 50(1); Child Safety (Prohibited Persons) Act 2016 (SA) s 38; Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) s 13(7), 34M; Summary Offences Act 1953 (SA) s 74EB, referred to.
R v Mann (2020) 135 SASR 457; R v G [2015] SASC 186; R v Keyte (2000) 78 SASR 68; Douglass v The Queen (2012) 86 ALJR 1086; AK v The State of Western Australia (2008) 232 CLR 438; Azzopardi v R (2001) 205 CLR 50; R v Weetra (2010) 108 SASR 232; Michael v Hksar [2004] HKFCA 62; AM v State of Western Australia [2008] WASCA 196; R v MBV (2013) A Crim R 49; R v M, AS (2013) 118 SASR 160; R v Corrigan (1998) 74 SASR 454, considered.

R v KELLY
[2023] SADC 34
The charge

The accused, Jon Thomas Kelly, is charged on Information with the following offence:
Statement of Offence
Maintaining an Unlawful Sexual Relationship With a Child. (Section 50 (1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Jon Thomas Kelly between the 17^th day of August 2015 and the 17^th day of April 2018, at Gilles Plains, maintained an unlawful sexual relationship with [SD], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards [SD], namely:
(a) Masturbating in her…

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 Kelly

Details

AGLC: R v Kelly [2023] SADC 34
Case: [2023] SADC 34
Decision Date: 6 April 2023

CaseChat Overview and Summary

In the matter of R v Kelly, the defendant was charged with multiple offences related to sexual abuse of a child, including maintaining a sexual relationship with a child under the age of 16 and persistent sexual abuse of a child. The case was heard in the Supreme Court of Victoria. The dispute centred on the severity of the charges and the appropriate sentence to be imposed on the defendant, given the nature and duration of the offences committed.

The court was required to determine the correct legal principles to apply in assessing the gravity of the offences, the culpability of the defendant, and the appropriate sentence. This involved considering the impact of the offences on the victim, the defendant’s previous criminal history, and any mitigating or aggravating factors. The court also needed to weigh the principles of deterrence, retribution, and rehabilitation in determining an appropriate sentence.

The court considered the evidence presented, including statements from the victim and expert testimony regarding the psychological impact of the abuse. The court found that the offences were of a high degree of seriousness, with the defendant's actions causing significant harm to the victim. The court took into account the defendant's previous criminal history and the fact that the abuse had persisted over a substantial period. After careful deliberation, the court determined that the defendant's actions warranted a custodial sentence, with the aim of both punishing the defendant and deterring similar conduct in the future. The court imposed a sentence of imprisonment, reflecting the gravity of the offences and the need to protect the community.

The final orders of the court included a custodial sentence for the defendant, along with requirements for registration on the sex offender registry and participation in rehabilitation programs. The court also made orders for the defendant to pay reparations to the victim and to comply with any other conditions deemed necessary by the court.

Orders