R v Kelly

[2020] NSWDC 742

District Court

New South Wales

Medium Neutral Citation:

R v Kelly [2020] NSWDC 742

Hearing dates:

14 August 2020

Decision date:

14 August 2020

Jurisdiction:

Criminal

Before:

Haesler DC DCJ

Decision:

Aggregate sentence of 10 years with a non parole period of 7 years.

Catchwords:

CRIME – Commit act of indecency with person 16 years or over - Assault with act of indecency - Sexual intercourse without consent- multiple acts.

SENTENCING – Relevant factors on sentencing – early guilty plea - victim impact – background of deprivation - family support- an above average risk of re-offending on release - limited insight- need for intensive custodial‑based treatment

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Abbas and Others v R [2013] NSWCCA 115

Attorney General’s Application No. 1: (2002) 56 NSWLR 146

Bugmy v The Queen (2013) 249 CLR 571

Thompson v R (2000) 49 NSWLR 383

Category:

Sentence

Parties:

Kane Dalton Kelly (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Mr S Fraser, Public Defender (for the offender)

Solicitors:
Legal Aid NSW (for the offender)
Ms N Olender (for Director of Public Prosecutions)

File Number(s):

2019/00300222

Publication restriction:

The names of the complainants are not to be published, nor is any other material that could lead to the identification of those complainants: s578A of the Crimes Act 1900.

SENTENCE – ex tempore revised

1. The names of the complainants in this matter are not to be published. In this judgment a pseudonym is used for the name of each of them. Sometimes because the term “victim” is used in legislation that word is used in sentencing proceedings. Obviously each of the complainants was the victim of an offence, but the word victim at times carries a loaded meaning. Nothing any of the complainants in this matter did caused these crimes to be committed. Nothing any of the complainants did allowed these offences to be committed against them. Nothing these complainants did encouraged, justified or in any way led to the offences being committed against them. If there are, as the complainant in the last incident said, people in the community who for some reason want to blame victims of sexual offending for their behaviour they should think again and hang their heads in shame.

Introduction

2. Kane Kelly, when in the Local Court, entered pleas of guilty to eight serious offences, each of which carries sentences of imprisonment as maximum penalties. He also asked that I take into account one matter on a Form 1. He reaffirmed that acknowledgment of guilt through his counsel today.

3. There are eight matters for sentence:

• four counts of commit act of indecency with a person over 16. Section s 61N(2) Crimes Act 1900, as it then was, carried a maximum penalty 18 years imprisonment;

• one count of assault with act of indecency, s 61L Crimes Act, as it then was; maximum penalty five years’ imprisonment;

• three counts of sexual intercourse without consent, s 61I Crimes Act; maximum penalty 14 years imprisonment, and Parliament has said that a standard non-parole period of seven years applies.

4. I take into account the matter on the Form 1 when I come to sentence for sequence 7, the first of the sexual intercourse matters. I do not sentence for that matter but it is a relevant factor that I take it into account in accordance with the guideline judgment: Attorney General’s Application No. 1: (2002) 56 NSWLR 146 at [39] – [42]; Abbas & Others v R [2013] NSWCCA 115. It does lead to a greater sentence as I must take into account harm to the community and the need for specific deterrence.

5. Because the pleas were entered in the Local Court every indicated sentence will be reduced by 25%. That reduction for the utilitarian value of a plea of guilty is required by law: s 25D Crimes (Sentencing Procedure) Act 1999. When I come to formulate the aggregate sentence in this matter I will take care not to undermine the value of the plea of guilty in each matter by the process of accumulation.

6. While it is perhaps of little comfort to the complainants in this matter the Court also recognises that to delay a matter and take a matter to trial means that complainants are held in a state of suspense until the matter is finally resolved by verdict. The earlier the plea of guilty the earlier a complainant can attempt to put offences committed against them behind them and get on with rebuilding their lives. They are matters of some significance where the complaints are of sexual offences: Thompson v R (2000) 49 NSWLR 383 at [3]

Agreed facts

7. There are agreed facts before the Court. They are detailed. I will only refer to them here as briefly as is necessary in order to give some indication of what occurred and why I have arrived at the indicated sentences.

8. On 1 February 2012, the complainant, a 21‑year-old woman was going for a run along Kenny Street in Wollongong. She saw a person, who later was found (and admitted by him) to be the offender, riding a pushbike slowly behind her. As he rode past she saw that he was holding his penis in his hand and masturbating. She was understandably shocked. As the offender looked at her she gave him a middle finger gesture and ran back home and reported the incident to police.

9. At 10pm on 5 February 2012 the complainant, another 21-year-old woman, was walking to work on Ellen Street, Wollongong. She sensed someone was walking behind her. It was the offender pushing a pushbike. There were no other people around, the streets were deserted. She, out of politeness, apologised to him because she thought that she had caused him to stop riding his bike. He did not respond to that apology appropriately, to the contrary, he wrapped his arm around her waist and pulled her backwards, causing her to stumble. As she did so she felt his erect penis pressing against her back. She was panicked and started to scream. There was a brief struggle. He let her go. She saw that the man had his penis out of his pants.

10. She reported the incident and an examination of her clothing found a mark. It was semen. It was collected, forensically examined and a DNA profile “A” was placed on the DNA database. It was unable to be matched with any other profile at that time.

11. The third incident occurred at 5.45pm on 1 March 2012. The third complainant, a 17 year old was walking on the footbridge at Northfields Avenue, Wollongong, near the cycle track. She saw the offender walking behind her pushing his bike. He caught up with her and then, as she glanced towards him, she saw that he was masturbating.

12. The fourth incident occurred later on 1 March 2012 at 6.17pm. The 41-year-old complainant was in the same area riding her pushbike home from Wollongong University. She saw the offender riding his bike towards her. He had his shorts down and was holding his exposed penis; he appeared to be masturbating. It took her, not surprisingly, a few seconds to comprehend what he was doing, and what he was doing left her in shock. The area is described as very isolated, but is commonly used by staff and students of the university.

13. The fifth incident occurred at 6.30pm on the same day, 1 March 2012. The complainant in that case was a 19-year-old student at the university. She was walking on the cycle track. She saw the offender walking towards her. At first she did not realise what he was doing. He appeared to be expressionless and calm. But he had his penis in his hand, swinging it around. He appeared to be following her, with his penis still in his hand. She reported the matter to University security officers. Soon after the offender who was placed under arrest.

14. Three of the complainants who were asked to participate in a computerised identification presentation. Unfortunately they did not identify this offender and he was allowed to go without charge.

15. No other incidents are reported until the final matter brings the offender to court for sentence.

16. After midnight after New Year, 1 January 2014, the 21-year-old complainant was alone along Fairy Meadow Beach. She had celebrated New Year's Eve and was walking from a party in Towradgi toward North Wollongong. There were only a few people on the beach, some fishing; some gathered around a fire. It was dark but moonlit.

17. She was approached from behind by the offender. He grabbed her around the neck. She felt like she could not breathe. She said, “Don’t kill me, what do you want?” He said, “I want sex”. He took her towards the sand dunes. He told her to take her pants off. She did and he then put her face down on the sand and had penile/vaginal intercourse with her. That is the matter on the Form 1.

18. He then told her to move over a wire fence, further into the sand dunes. He held her and made her move at his direction. She had pulled up her underwear and shorts but again he told her to take her clothes off. She did as ordered. She was pushed facedown onto the ground and again sexually assaulted by him putting his penis inside her vagina. He then removed his penis and inserted it into her anus; he was forceful and it hurt her. He then demanded that she suck his penis. She did as ordered but this act caused her to gag; she had trouble breathing, she thought she was going to vomit. After the act of oral intercourse each of the acts of intercourse were repeated. The whole incident took about half an hour.

19. Throughout her ordeal she continued to say, “Don’t kill me.” The offender’s response was, “You’re going to have to be doing a lot of sucking.” She was on her stomach throughout much of the sexual assaults upon her; but occasionally he would push her head and ask her questions.

20. Three offences for sentence are particularised, the first act of penile/vaginal intercourse, the second, penile/anal intercourse and the third, oral intercourse.

21. After the acts of intercourse, and while the offender was questioning her, the complainant saw some people on the beach people. She called for help. The offender stood and ran. Four young men came to help. They stayed with her until the police came. A T-shirt left by the offender was seized.

22. She was subjected to a forensic examination, as were her clothes. The DNA profile taken from swabs, part of the sexual assault examination kit, matched the previously unmatched “profile A” that had been taken after the 5 February 2012 matter.

23. Police continued their investigations. In July 2019 they were able to obtain a covert DNA sample from Kane Kelly. That profile matched the profiles obtained in 2012 and 2014. Kelly was arrested on 25 September 2019. He participated in a Record of Interview but made no admissions. He did agree to undertake a further forensic procedure and ultimately, as we know, he entered pleas of guilty rather than contesting his guilt by taking the matters to trial.

Objective seriousness

24. It goes without saying that for a man to approach a woman in a public place when they are alone and expose his penis to them is brazen and would be deeply disturbing to whoever witnessed the incident. A number of the complainants found it hard to believe it was actually happening. They are serious crimes but in the scheme of things pale into insignificance in relation to the other matter.

25. The second incident involved an assault and an act of indecency. A woman alone at night, going about her lawful business, was approached, manhandled and then indecently assaulted in a manner which could only be designed to humiliate that person. It was a serious infringement of that woman’s rights; it requires a just and appropriate penalty.

26. The matter from 1 January 2014 involves an escalation of criminal activity that shows a similar disdain for the complainant. There are three acts of sexual intercourse for sentence. There is no indication that any protection was used. The brief descriptions I have given indicate that the acts individually involved gross intrusions, not just to the physical integrity of the complainant, but also into her apparent worth as a human being. No regard was had by the offender to her; he acted solely and selfishly for his own gratification. And, as the complainant in her Victim Impact Statement correctly identifies, not just for sexual gratification, but for the gratification that comes to some from subjecting another to their total and complete control.

27. There were three forms of sexual intercourse. Each here was individually as gross as the other and each had significant consequences to the complainant at the time and subsequently.

28. The complainant was approached in an isolated location where she was perfectly entitled to be. It was in the early hours of the morning and she was isolated from any help. I know the area. I know how pleasant it can be to walk along the beach under the moon in the early hours of the morning. I can well imagine how her sense of euphoria at bringing in the New Year was interrupted, and perhaps permanently disturbed. Her reverie that morning was ruined by the events that subsequently occurred.

29. I take into account each individual assault. I take into account their degree and nature. They were part of a series of acts involving a gross violation of the victim’s personal and sexual integrity over a period of at least half an hour. The acts that form the offence were accompanied by threats and actions designed to put her in real fear. The acts for sentenced were exacerbated by the degradation of the victim by words and actions of the offender and by his repetition of those sexual acts. What occurred involved a complete disregard for her as a fellow human being.

30. I note that reference was made in Crown submissions to s 21A(2)(m) Crimes (Sentencing Procedure) Act 1999. Multiple acts were charged and I cannot sentence for uncharged acts. I can take into account all relevant factors including the context within which the acts for sentence occurred. But I have to be careful when I synthesise all those matters because I will be indicating individual sentences and formulating a just and appropriate sentence to the totality of the offending, not just for this incident but the other incidents. I have to be careful in any synthesis not to double count matters that aggravate the sentences to be indicated and the aggregate sentence that will be imposed.

The complainants

31. I have received two Victim Impact Statements. The complainant of the first act of indecency matter wrote a short note saying that the actions of 1 February 2012 have caused her to change how she lives her life. She now avoids running in the area. She has lost confidence about going out running or walking by herself. She is wary if she sees single males while walking at night. She always ensures that she can hear and see what is occurring around her. Such heightened vigilance is entirely understandable, but in a community we should not have to live that way, we should feel safe and secure going out and about.

32. The complainant for the January 2014 offences read her Victim Impact Statement to me. I will not repeat it all, but some matters should be put on the record. She told me that at the time she was happy and content as a young woman and looking forward to the rest of her life. She was minding her own business and says, “I had every right to be there and deserved the right to get home safe that night.” That is something that all in our community should expect.

33. She says “terrified” is an inadequate description about how she was feeling that night. She said, as I readily understand, it was a horrible event. She said it was the worst hour or so of her life. She stressed, in particular, that it was not just the sex, it was the fact that she felt so worthless and had been stripped of her dignity and power.

34. She expressed the concerns that her parents felt for her and the impact the offence against her had on them. She expressed her concern about the indignity of the forensic examinations. Her bravery in coming forward and subjecting herself to that examination is recognised. There are occasions when people would rather not come forward, not report offences, because of the indignities that are required to ensure that perpetrators are ultimately caught. It is tragic that the offender was able to remain at large for a period of time, but it was only because she came forward and submitted to the indignity of a sexual assault examination that he was, in fact, able to be caught. She should be proud of herself for what she did.

35. She told me of the long road she was travelling; learning to respect herself and to overcome feelings, which she accepts are unjustified, but feelings nevertheless of shame and embarrassment. She told me that she will be forever tainted by the experience and of her fear she will never completely be healed. She concludes, “Kane Kelly stole my happiness, he stole my self-worth, my dignity and years of my life that I’ll never get back”.

36. I will take those matters into account. While the material put before me, and my own experience, indicates that such sexual assaults on strangers are rare it is also the experience of the Court that when a person comes forward and makes their statement and a person is sentenced it allows for the complainant to continue the process of recovery, to turn down the volume and focus on the future not the past.

37. I have to formulate a sentence that is a measure of what occurred and balances the needs of the community and the need for appropriate punishment and structure a sentence which takes into account the case for the offender. No victim of sexual violence should ever measure their own worth against the sentence that is imposed.

Case for the offender

38. Turning now to the case for the offender. Until he was arrested for this matter he had a record of offending which was, in the scheme of things, relatively minor; he had never before been in prison. He was not, from when he committed the first offence, a person of good character, but it is accepted that a first gaol sentence, as is intended, will have a significant impact on a person.

39. He provided the Court with a letter, which I have read. He speaks of his family, he speaks of his partner, his mother and his son. He asks me to give him a second chance. He tells me that he believes he has changed for the better with the help of God.

40. He notes that gaol is no place for rehabilitation; perhaps the truest thing he has said. He says that he was high on drugs at the time. I am not sure why he thought that might act as a matter in mitigation, perhaps he did not. The fact that someone is high on drugs cannot and does not mitigate. In fact, the fact that someone was high on drugs can sometimes exacerbate an offence because a person high on drugs can do things that are bizarre and unusual and act more violently than a person who is not. In any event it is not a mitigating factor in any offence, let alone a matter such as this, to say “I was just on drugs.” At best it can help me understand why it occurred.

41. He speaks of his “reckless behaviour.” His behaviour was not reckless. On each occasion his behaviour was seriously and deliberately criminal.

42. There are expressions of remorse, perhaps regret for the harm he has caused his new partner, who was not aware of his background when she took up with him, and of concern for his mother.

43. His partner has written a letter, as has his mother. With great respect to them the references do not speak of the man for sentence. I am sure that he is capable of presenting to them as a person with some good in him. They have promised their continuing support and the continuing support of others in the community. Pro-social support in the community is one important factor in whether a person reoffends on release and is a matter I do properly take into account.

44. I am assisted, as always, by the report of Ms Godbee, psychologist. A judge is entitled to be sceptical of opinions unsupported by any factual detail, but there is no reason here to doubt the opinions of Ms Godbee, they appear to be well-founded. They are not uncritical, they do not parrot statements of good intentions; to the contrary, the report contains a fair and frank assessment of this offender.

38. The report mentions, and I am prepared to accept, that the offender has some significant health problems and will require surgery, during his time in custody. He will need to see a gastroenterologist. And, until something can be done about his prolapsed haemorrhoids and other digestive issues he will find it more difficult every day he is in custody because he cannot manage himself in the prison environment, he cannot shower when he wishes, he cannot attend to his personal hygiene when he wishes, and the only pain medication available to him in custody is the occasional paracetamol. He will, at least until he can get to the top of a waiting list and then undergo surgery, suffer his time in prison harsher than someone who does not have those conditions, matters I take into account.

39. Ms Godbee sets out Kelly’s personal history. He grew up the youngest of four children. His parents had what he described as an on and off relationship. His father had a history of substance abuse and violence towards his mother. His father died when he was 13 years old but his mother has always been close to him and is here in court today. He has always felt safe and loved. He says that violence was normalised when he was a child and claims that he himself suffered a form of sexual abuse as a young person. He described his childhood as traumatic and depressive. It had some sad aspects to it, matters that I take into account. But while I do take them into account it does not come to the level of what are commonly referred to as Bugmy factors: Bugmy v The Queen (2013) 249 CLR 571. That background of deprivation may have helped form the man who committed these offences.

40. He reports regular drug use, but able to form relationships and work in the community until reasonably recently when he was, apparently, assaulted by a group of strangers in 2018. He reports heavy drinking, cannabis use from the age of 13 and reports a drug history from the age of 20 involving the drug methylamphetamine. It may be, as I said, that he was using methylamphetamine at the time, but as Ms Olender, who appears for the Director, points out, he was able to maintain a relationship and a job during the period that he was offending.

41. Although Ms Godbee notes he endorsed some of the indicators of post-traumatic stress and has been prescribed antidepressants while in custody, no formal diagnosis of any mental illness is put forward. She reports his understandable concerns about separation from his partner and his young son.

42. A risk assessment using two recognised instruments was performed - a Static-99 and the RISK procedure. Ms Godbee notes that it is notorious among those who understand these matters that reoffending rates for sexual offenders in general are substantially lower than for general offending. But here, having looked at both static and dynamic factors (which she lists in detail), she concludes that Kelly presents as an above average risk of re-offending on release.

43. Matters that could manage that risk and reduce it include; dealing with his substance abuse, mental health and interpersonal difficulties and, in particular, what she described as his limited insights into these issues. He needs targeted and specific treatment and it would be to his advantage if he takes every opportunity to engage in programs while he is in custody.

44. She notes that since the commission of the 2014 offence he appears to have made have made some changes to his life and appears to have abstained from methylamphetamine abuse. He will need intensive custodial‑based treatment and he will require engagement in drug and alcohol treatment while in custody. She recommends he participate in the EQUIPS programs if they can be made available to him. He will need, on release, to continue with such programs as he has not “owned” his offending. He has no real insight as to his offending.

45. I prefer Ms Godbee’s opinions in relation to the offender’s lack of insight and risk to his own self-assessment. A point urged on me by Ms Olender.

46. There has been a delay of six years in bringing this matter to court; that is not the fault of any complainant. It is apparent from the material I have available to me that Kelly has been able to lead a normal life in the community. He has demonstrated that fact, as there is no evidence he has offended in a sexual or indecent manner in the last six years. But he has escaped justice for that period and he has enjoyed a life free from punishment for his crimes during that time. His most significant victim, on the other hand, has been, and remained until his arrest, in an extended state of anxiety and that the contrast here is fairly stark.

47. I must sentence for eight offences. There must be some accumulation. I must take care not to double-count matters of aggravation. I must take care not to reduce by the process of accumulation the impact of the required discount for the plea of guilty. Ultimately, the total aggregate sentence must be just and appropriate to all the offender’s crimes, their seriousness and his own case.

48. A case for special circumstances was put by Mr Fraser, Public Defender who appears for Mr Kelly. I have given the matter careful consideration. I cannot extend the appropriate sentence or lengthen its parole period to provide for additional supervision. I cannot reduce the period that must be spent in custody to a degree that it does not properly reflect all the purposes of sentencing. There will be a modest finding of special circumstances, but only a modest one. It reflects the need to take into account the process of accumulation, and those other subjective matters to which I have referred, the longer Kelly is supervised in the community the better.

49. I have benefitted from the written and oral submissions of Ms Olender and Mr Fraser. I thank them for those submissions. I have sought in these remarks to refer to matters that they raised with me.

SYNTHESIS

57. There is a basic right of everyone in our community to go about free from harm and attack. There is a basic right for all women in our community to be able to go about in our community free from harm and attack. Woman must be free to go out alone in isolated areas without fear of attack. Every attack upon a woman where an attempt is made to devalue them devalues us as a community.

58. Each of the complainants in these matters is to be commended for coming forward. If they did not come forward the offender would still be free, and perhaps offend again. Each of the offences, but the 2014 offences in particular, involved predation, predation on a vulnerable person. The 2014 case in a particular. That offence was brutal in its complete lack of any concern for the complainant, and for the devastating impact anyone who thought about the matter would expect would continue as a result of such attack. Drug use is no excuse.

59. Sentencing courts have an obligation to vindicate the dignity of each of the complainants. Sentencing courts have an obligation to express the community’s disapproval of the offending. In cases, particularly the 2014 matters and the assault with act of indecency matter, there is a legitimate community expectation that particular offences of the type and seriousness here will merit severe punishment, and that is particularly so for the sexual intercourse without consent matters.

60. A proper sentence marks the Court’s view of the seriousness of the crime and should let others know the retribution which will fall upon them if they commit similar crimes. A proper sentence in such cases, particularly the 2014 matters, requires the removal of the offender from the community for a significant period. It also requires that he be subjected to supervision and monitoring for as long as is practicable.

61. A proper sentence also has to take into account that this offender will be released into the community at the expiry of his non-parole period, should he co‑operate with authorities. A person should not be released in a worse position than when they went into custody. Kelly cannot be detained forever. All the research and all the experience of the Court says that the longer a person spends in custody the less likely they are to be able to lead a normal community life, more than they were before they went in. His release will be subject to approval by the State Parole Authority but ultimately he will be released.

62. The Court has to balance all of those factors and ultimately synthesise an appropriate sentence.

Orders

63. I have to indicate the sentences for each matter. I will deal with them in chronological order.

• In relation to Sequence 1 - Commit act of indecency with person 16 years or over (01/02/2012), I indicate a sentence of four months.

• In relation to Sequence 2 - Assault with act of indecency (05/02/2012), I indicate a sentence of one year and ten months.

• In relation to Sequence 3 - Commit act of indecency with person 16 years or over (01/03/2012), Sequence 4 - Commit act of indecency with person 16 years or over (01/03/2012) and Sequence 5 - Commit act of indecency with person 16 years or over (01/03/2012), in each matter I indicate sentences of four months.

• In relation to Sequence 7 Sexual intercourse without consent (01/01/2014), taking into account the matter on the Form 1, as it carries a standard non parole period I indicate a sentence of seven years and ten months with a non-parole period of five years and nine months.

• In relation to the penile/anal matter, Sequence 8 Sexual intercourse without consent (01/01/2014), I indicate a sentence of seven years and six months with a non-parole period of five years and six months.

• In relation to the oral intercourse matter, Sequence 9 Sexual intercourse without consent (01/01/2014), as it carries a standard non parole period I indicate a sentence of seven years six months with a non parole period of five years six months.

64. Each of the indicated sentences has been reduced by 25% to take into account the utilitarian value of the plea of guilty.

65. There will be an aggregate sentence of ten years’ imprisonment. That sentence will commence on 25 September 2019. There will be a non-parole period of seven years. Kelly will be eligible for consideration for release to parole on 24 September 2026. The balance of the term of three years will commence the following day. The total sentence will expire on 24 September 2029.

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Decision last updated: 08 December 2020