R v Kennedy

[2019] NSWDC 466

District Court

New South Wales

Medium Neutral Citation:	R v KENNEDY [2019] NSWDC 466
Hearing dates:	19 July 2019
Date of orders:	05 September 2019
Decision date:	05 September 2019
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Sentenced
Catchwords:	CRIMINAL – sentencing – sexual intercourse with child – aggravated indecent assault – plea of guilty – mild intellectual impairment – psychotic illness
Legislation Cited:	Crimes Act, 1900 Crimes (Sentencing Procedure) Act, 1999 Crimes (Sentencing Procedure) Act, 1999
Cases Cited:	R v MW [2019] NSWDC 307 Muldrock v The Queen (2011) 244 CLR 120 Tepania v R [2018] NSWCCA 247 in R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 Jolly v R [2013] NSWCCA 76 R v PGM [2006] NSWCCA 310 RJA v R [2008] NSWCCA 137; (2008) 185 A Crim R 137 Bravo v R [2015] NSWCCA 302 Mills v R [2017] NSWCCA 87 R v AA [2017] NSWCCA 84 MLP v R (2006) 164 A Crim R 93 R v Hemsley [2004] NSWCCA 228 Hamid v R [2006] NSWCCA 302 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Ngati v R [2014] NSWCCA 125 R v Joel Kershaw [2019] NSWDC 99 Cahyadi v R [2007] NSWCCA 1
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Michael James KENNEDY (Offender)
Representation:	Counsel: Ms Mendes (for the Offender)   Solicitors: Ms Morgan (for the Crown
File Number(s):	2018/16776
Publication restriction:	The court reminds all concerned that the relevant legislation provides that there must be no publication of the name of the victim or anything that tends to identify the victim.

REMARKS ON SENTENCE

The court reminds all concerned that the relevant legislation provides that there must be no publication of the name of the victim or anything that tends to identify the victim.

1. On 8 March 2019 the offender appeared at the Wagga Wagga Local Court and pleaded guilty to two charges, namely:

1. That (he) on 16 January 2018 at Ashmont in the State of New South Wales did have sexual intercourse with TT who was at that time under the age of 10 years (namely) of the age of 8 years, contrary to s 66A(1) of the Crimes Act, 1900 and further

2. That (he) on 16 January 2018 at Ashmont in the State of New South Wales did enter (a dwelling house) at Ashmont with intent to commit a serious indictable offence therein, (namely) aggravated indecent assault, contrary to s 111(1) of the Crimes Act.

2. The pleas of guilty were adhered to at the sentence hearing at the Wagga Wagga District Court on 19 July 2019 and accordingly the offender is entitled to the full 25% discount for the utilitarian value of the pleas of guilty.

3. The maximum penalty for the offence contrary to s 66A(1) of the Crimes Act is life imprisonment. The maximum penalty for the offence contrary to s 111(1) of the Crimes Act is 10 years imprisonment. In respect of the charge contrary s 66A(1) of the Crimes Act Parliament has specified a standard non-parole period of 15 years imprisonment. There is no standard non-parole period specified in respect of the charge contrary to s 111(1) of the Crimes Act. In respect of the charge contrary to s 66A of the Crimes Act I acknowledge that I am engaged in a one-step instinctive process in which two of the principal guideposts are the maximum penalty and the standard non-parole period.

4. In addition to the two matters to which I have already referred, the offender asks that when passing sentence in respect of the offence contrary to s 66A of the Crimes Act I take into account two further matters on a Form 1 document, namely charges of Incite Person Under 10 to Commit an Act of Indecency and Commit Act of Indecency towards a person Under 10 years. In dealing with those matters on the Form 1 I will need to apply the principles enunciated by the Court of Criminal Appeal in the Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No 1 of 2002 otherwise known as the Guideline Judgment on Form 1 matters reported at (2002) 56 NSWLR 146.

Facts

5. The facts are before the Court by way of a set of agreed facts. For the purpose of proceeding to sentence I am satisfied beyond reasonable doubt of the following. I will refer to the victim either by initials or as the victim and give very general information about some detail in order to maintain the victim’s anonymity.

6. The offender at the time of the offending was 22 years of age and lived at a flat at an address in Ashmont, a suburb of Wagga Wagga with his partner and their infant son. The victim was 8 years of age having turned 8 the previous month. In 2012 she immigrated to Australia. The victim and her mother resided in the flat next door to the offender. Units 4 and 5 of the block of flats were vacant at the time.

7. On 16 January 2018 the victim attended summer school and was dropped off back at her home at about 2pm by a friend of her mother who stayed for some time. The mother’s friend went to a bedroom to have a nap.

8. The offender was at his flat with his partner and their infant son and a friend and her daughter. When children from the victim’s flat went out to play the friend’s daughter joined them.

9. The offender left his flat and walked outside to where the children were playing and said to the victim, “come here”. The victim then followed the offender to flat 4, which was vacant, and led the victim to one of the bedrooms. It is this conduct to which the charge contrary to s 111(1) of the Crimes Act relates.

10. Once in the bedroom the offender partially removed his pants and lowered the shorts and underpants worn by the victim. He then placed his penis into the victim’s vagina. The victim began to cry and the offender removed his penis from the victim’s vagina. The victim then pulled up her underpants and shorts. The intercourse is the conduct to which the charge contrary to s 66A of the Crimes Act relates.

11. Meanwhile the offender’s partner went outside and inquired of the other children as to the whereabouts of the offender and they told her that he was with the victim. She then went initially to flat 5 and then to flat 4 and on walking in saw that the bedroom door was closed. She heard someone say “play with it”. This relates to the charge of Incite Act of Indecency on the Form 1.

12. The offender’s partner then opened the bedroom door and she saw the victim and the offender lying on the floor facing each other. The offender was wearing black pants and underpants, both of which were lowered to just above his knees. The offender’s partner could also see that the offender’s penis was erect and that he was touching and moving it with his hand. This relates to the remaining matter on the Form 1.

13. Upon seeing his partner the offender jumped to his feet and pulled up his pants. His partner screamed and ran out of the flat. As she was running the offender grabbed her in an attempt to stop her going to their own flat. The partner yelled, “get off me you sick cunt”. The offender’s partner told her friend that Michael was doing stuff with the victim. She then phoned the offender’s brother, told him that the offender was doing stuff with a little girl and asked him to come over.

14. The friend of the victim’s mother and the friend of the offender’s partner then began to search for the victim. She was found hiding in a unit complex next door and was taken to her mother. When asked whether he (offender) did anything to her the victim replied “yes”. A triple-0 call was made and what had occurred was explained to the operator. The victim’s partner also asked the victim “did he do anything” to which the victim said, “yes”.

15. Police attended and found the victim visibly upset and crying. The victim showed police where it occurred and said, “he touched me where it’s naughty”. The victim told police that it was Michael who lived next door. The victim was taken by ambulance to the local Base Hospital where she was examined.

16. The offender was arrested and taken to the Police Station where he was interviewed. Police also examined the scene at flat 4 and noticed damage to the wooden external door to the rear of the flat. The victim’s clothing was also examined.

Assessment

17. As the charge contrary to s 66A of the Crimes Act carries a standard non-parole period it will be necessary to make an assessment of the objective seriousness of the matter. A complicating feature is the level of intellectual functioning of the offender.

18. A letter dated 29 October 2015 from Dr Luke Johnson, Consultant Psychiatrist of Wagga Wagga, says in part:

“Michael Kennedy is a long term patient of mine. He suffers from schizophrenia with co-morbid intellectual disability. Michael struggles with managing his behaviour despite reduction in his auditory hallucinations…He continues to make sexually inappropriate comments on occasion and struggles with poor impulse control…”

19. There is also a report by Dr Olav Nielssen, Psychiatrist of 16 July 2019, which is part of exhibit 1 on sentence. At p 7 of that report the following is noted:

“Dr Johnson noted that Mr Kennedy developed symptoms of psychosis in early 2014 after using cannabis, on a background of treatment with psychostimulant medication…”

20. Dr Nielssen diagnoses the offender (see p 8) as having mild intellectual disability, psychotic illness and substance use disorder. The doctor goes on to say that, “the diagnosis of a mild intellectual disability was made on the basis of the history of learning problems at school, the information and diagnoses in the various reports, the accounts of his social performance, despite very supportive parents and his presentation during the recent interview”.

21. At p 9 the following appears at the report:

“The impairment in consequential thinking and impulse control associated with his mild intellectual disability and the exacerbation in his underlying psychotic illness around the time of the offence were substantial contributing factors to his offending behaviour, which are likely to have affected his perception of the events, his ability to judge right from wrong and his ability to exercise proper control over his behaviour”.

22. I note that none of the experts who have provided reports have defined or explained the term “mild intellectual disability”. In the matter of R v MW [2019] NSWDC 307 a similar issue arose. In that matter the court had the benefit of a report from an experienced psychologist who said:

As such Mr W meets the criteria for what, in Australia, is technically called mild intellectual disability. The word mild should not be misinterpreted in that the condition involves substantial deficits in reasoning, problem solving, planning, abstract thinking, judgements, academic learning and experiential learning.”

23. The point of repeating that in this decision is in an attempt to prevent any misinterpretation of the expression “mild intellectual disability”. In any event it is tolerably plain from the reports when read and taken as a whole that the offender does indeed have those deficits. It is important to note that that the reports include not only reports prepared specifically for these proceedings but also much earlier reports going back many years to when the offender was a child.

24. In Muldrock v The Queen (2011) 244 CLR 120 the High Court said at [50] (footnotes omitted):

“The assessment that the appellant suffers from a "mild intellectual disability" should not obscure the fact that he is mentally retarded. The condition of mental retardation is classified according to its severity as mild, moderate, severe or profound. Mental retardation is defined by reference to both significantly subaverage general intellectual functioning and significant limitations in adaptive functioning. "Significantly subaverage intellectual functioning" is defined as an intelligence quotient (IQ or IQ-equivalent) of about 70 or below. The position is well explained in a discussion paper published by the New South Wales Law Reform Commission:

‘A person's intellectual disability can be classified as 'mild', 'moderate', 'severe' or 'profound', based upon certain IQ (intelligence quotient) ranges. A further category, 'borderline', is also used to indicate people just above the mild range in terms of intellectual functioning. A person with a 'severe' or 'profound' disability may be unable to learn basic social skills such as speech, walking and personal care, and is likely to require supported accommodation. The majority of people with an intellectual disability have a 'mild' level of intellectual disability and 'can learn skills of reading, writing, numeracy, and daily living sufficient to enable them to live independently in the community.' These classifications have limited utility and can sometimes be misleading. For example, such terms may suggest to criminal justice personnel, who do not have a full understanding of the disability involved, that a 'mild' intellectual disability is inconsequential.’ (footnotes omitted)”

25. Clearly the “mild intellectual disability” is not inconsequential. The moral culpability of the offender is reduced because of that mild intellectual disability.

26. In the decision of Tepania v R [2018] NSWCCA 247. Johnson J (Payne JA, Simpson AJA agreeing) said at [112]:

“In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at 324-325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at 55-56 [171]-[172] (Callinan J).”

27. His Honour a little later on the issue of moral culpability said at [119]:

“Taking into account an offender’s moral culpability on sentence may be seen as consideration of one of the many factors which bear on sentence (sometimes pulling in different directions) which form part of the exercise of instinctive synthesis that the law requires: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at 377-378 [52] (McHugh J).”

28. Initially in her outline of submissions (MFI 2 on sentence) Ms Mendes submitted that the matter was towards the low end of the mid-range. In oral submissions when an inquiry was made of counsel as to whether assessment took into account what was said in Tepania Ms Mendes submitted that the offending was below mid-range.

29. The Crown submitted that the offending involved a degree of cunning; the victim was taken to a vacant apartment, the victim was taken from her mother, there is considerable disparity in the age of the victim and the offender and the offender did not know the child well. It was also put that the child would have found the offending horrifying. There could be no doubt that all of this is correct. The Crown submissions continued that the child was crying and the offender continued offending with the form 1 matters despite desisting with the intercourse. The intercourse was penile-vaginal. The Crown submitted that, even taking into account the effect of the decision in Tepania, these matters put the matter into the upper end of the mid-range.

30. Going to the offending, Simpson J (as her Honour then was) said in R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 at [24]:

“It is not possible to create some kind of hierarchy of the seriousness of the various kinds of sexual intercourse contemplated by s 66A and defined by s 61H. It is the facts and circumstances of each case including the nature of the intercourse that makes the proper evaluation of objective seriousness”.

31. In Jolly v R [2013] NSWCCA 76 Bellew J (Hoeben CJ at CL, Slattery J agreeing) said at [72]:

“…The nature of the sexual intercourse which occurs in offending of this nature should not be considered in isolation, and then ranked in some form of hierarchy (see R v King [2009] NSWCCA 117 at [36] per McClellan CJ at CL).”

32. Generally, the younger the victim the more serious the offence will be regarded – see for example R v AJP at [35], R v PGM [2006] NSWCCA 310 at [36] and RJA v R [2008] NSWCCA 137; (2008) 185 A Crim R 137 at [14].

33. In Bravo v R [2015] NSWCCA 302 Hulme J Beazley P, Johnson J agreeing) said at [42]:

“As was observed in R v Gavel :

‘[97] … It is erroneous to attempt to rank forms of sexual intercourse in some hierarchy so as to determine their objective seriousness. The objective seriousness of offending is to be determined according to the entirety of the facts and circumstances of the case in question: Doe v R [2013] NSWCCA 248 at [54]; Simpson v R [2014] NSWCCA 23 at [33]-[34].’”

34. His Honour went on to say at [45]:

“45   … Similarly, the absence of an aggravating feature of physical violence does not operate in mitigation. The same can be said about the absence of physical pain, humiliation and threats. These arguments are akin to saying, “the offence is less serious because it could have been more serious”. As Grove J observed in Saddler v R [2009] NSWCCA 83; 194 A Crim R 452:

“[3]    It is a well-established common law sentencing principle that the absence of a factor which would elevate the seriousness of offending in a particular case is not a matter of mitigation. In plain language, it does not make what has been done by an offender less serious because it could have been worse.””

35. In Mills v R [2017] NSWCCA 87, R A Hulme J (Leeming JA and Beech-Jones J agreeing), in addition to referring again to Grove J’s statement in Saddler, said:

“57   Much of the applicant's argument under this ground was devoted to pointing out matters which were absent that, if present, might have made the offence more serious than it was. However, because a matter of aggravation is not established beyond reasonable doubt it does not follow that a matter of mitigation is established (Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [66]-[69]). The fact that it is possible to identify factors which are absent which if present would have made the offence more objectively serious does not make the offence less serious than it is: Mammone v R [2013] NSWCCA 95 at [35]. As Grove J put it succinctly in Saddler v R [2009] NSWCCA 83; 194 A Crim R 452 at [3], “In plain language, it does not make what has been done by an offender less serious because it could have been worse.”

36. On the issue of the sexual assault being of limited duration there is the decision of R v AA [2017] NSWCCA 84, which was an unsuccessful Crown appeal. Beech-Jones J at [56] said:

“…While the short duration of a sexual assault “would not ordinarily be considered as a factor which reduces the objective seriousness” of such an offence (R v Daley [2010] NSWCCA 223 at [48]; Cowling v R [2015] NSWCCA 213 at [16]), it was open to His Honour to have some regard to it (see Russell v R [2010] NSWCCA 248 at [61])”.

37. Fullerton J in her judgment in R v PGM at [36] cites with apparent approval Kirby J in MLP v R (2006) 164 A Crim R 93 at [22], in that:

“…The section is concerned with the protection of the vulnerable from sexual exploitation and violation. No doubt, as a generalisation, the younger the child the more defenceless and vulnerable. However, the entire class of children under the age of 10 years is vulnerable”.

38. The victim was eight, which is towards the upper end of the age range contemplated by the section. The child was taken from the immediate presence of the mother to a vacant flat in the same block. The intercourse was penile/vaginal. There was some forethought by the offender in that he told the victim to go with him and he then took her to that vacant flat. It was not entirely opportunistic. There was no actual force used. The matter would be more serious had force been used. The offender desisted when the victim cried and the intercourse occurred for a short period of time although the offender did commit the matters on the Form 1 as part of the one episode of offending. The criminality of the actual entry into the vacant flat with the intention of indecently assaulting the victim is covered by the offence contrary to s 111(1) of the Crimes Act, although it remains part of the overall circumstances of the offending.

38. I have detailed the circumstances of the offending in dealing with the Crown’s submission. The matter would be more serious if there was force used by the offender. The matter would be more serious if the child was younger. The section contemplates sexual intercourse with a child under 10.

39. Considering all of these factors and including in the assessment the issue of the psychiatric condition and the intellectual impairment of the offender as the decision in Tepania requires the court to do, the matter is in the mid-range of seriousness. Given the nature of the offence pleaded, as the offence the offender had the specific intent to commit the matter contrary to s 111(1) of the Crimes Act is also within the mid-range.

Criminal History

41. In 2014 the offender was dealt with pursuant to s 10 of the Crimes (Sentencing Procedure) Act, 1999 in respect of a charge of Negligent Driving. He has been dealt with in the ACT for a drink driving matter. There are no other matters recorded against him. There is nothing in the nature of matters of violence or indecent or sexual assaults recorded against him. For all practical purposes the offender has no relevant criminal history and is entitled to be dealt with as such.

Subjective case

42. I will go initially to the issue of what Ms Mendes describes in the outline of her submissions (MFI 2 on sentence) as the offender’s limited cognitive impairment. I have already extracted from the reports of Dr Nielssen and Dr Johnson when dealing with the issue of the objective seriousness of the matter.

43. Dr Nielssen notes (pp 3-4) that the offender started seeing Dr Johnson at the age of 18 after he started hearing voices and Dr Johnson prescribed anti-psychotic medication and an anti-depressant. The offender has had significant weight gain (about 25 kg) since going into custody. The offender told Dr Nielssen that he drank a lot of alcohol but he stopped drinking regularly when he started to drive. He smoked cannabis from the age of eighteen years and he started hearing voices after he commenced smoking cannabis. He has also had a problem with gambling.

44. The offender also told Dr Neilssen that he has worked as an apprentice baker. The offender’s father gave evidence and expanded on this. I will deal with the evidence of the offender’s father later in these remarks. Dr Nielssen also interviewed the offender’s parents. Two relatives have schizophrenia and the offender’s younger brother also has learning difficulties. The offender went to speech therapy and had regular visits to the Royal Far West service.

45. Dr Nielssen noted (p 8) that:

“Mr Kennedy was easily distracted and his attention waned as the interview progressed. There was no obvious impairment in his registration and retrieval of information although his information retrieval was lacking in detail in a way that was consistent with low intelligence. His interpretation of questions was rather literal, and his general knowledge was limited, consistent with intelligence in the intellectually disabled range.”

46. I have earlier set out the diagnosis. The further diagnosis of psychotic illness was made by Dr Nielssen (p 8) on the basis of the symptoms described by the offender, the descriptions of the mental state by his parents and the diagnosis made by the his treating psychiatrist. The doctor goes on to note that the offender reported the onset of hallucinations of the voice of his late grandfather and another person from around the age of eighteen, partly controlled by treatment with anti-psychotic medication. At p 9 Dr Nielssen opines that the offender’s condition would probably be best described as a form of schizoaffective disorder as the offender was described as having both delusional beliefs and to be accelerated in his behaviour when not taking medication.

47. As previously set out when dealing with another aspect of this matter, at p 9 of the report Dr Nielssen says:

“The impairment in consequential thinking and impulse control associated with his mild intellectual disability and the exacerbation in his underlying psychotic illness around the time of the offence were substantial contributing factors to his offending behaviour, which are likely to have affected his perception of the events, his ability to judge right from wrong and his ability to exercise proper control over his behaviour.”

48. Dr Nielssen clearly is of the opinion that there is a causal connection between the offending and the intellectual impairment and the underlying psychotic illness.

49. Apart from the report of Dr Nielssen prepared for these proceedings the court is also assisted by reports from Dr Luke Johnson - a treating psychiatrist - and a Confidential School Counselling Report (exhibit 6 on sentence). The reports from Dr Johnson are dated 12 May 2014, 2 July 2014, 29 October 2015, 10 September 2016, and 19 January 2018.

50. Dr Johnson notes at the beginning of the report of 12 May 2014 that the offender has a history of intellectual disability and “recent worsening auditory hallucinations on a background of worsening suicidal ideation”. In that report Dr Johnson diagnosed the offender as suffering from a drug induced psychosis. The brief report of 2 July 2014 notes that the offender continues to experience auditory hallucinations. In the (again brief) report of 29 October 2015 Dr Johnson notes that the offender suffers from schizophrenia and co-morbid intellectual disability. On 10 September 2016 Dr Johnson noted that the offender had been stable for four months on Risperidone. The report of 19 January 2018 notes that the offender did not attend an appointment arranged for December 2017. I note that this was close to the offending.

51. Not only is there a recent diagnosis but there is ample material on which the court can conclude that the psychotic illness is not something that has only been recently diagnosed and further that the intellectual disability has been noted over a number of years. In this regard I note that the School Counsellor Summary Report (exhibit 6) sets out that the offender in 2002 achieved in the mild range of intellectual disability. It should be obvious from what I set out when dealing with the objective seriousness of the matter that the word “mild” in this context should not be misinterpreted.

52. The High Court in Muldrock v The Queen said at [54]-[55](footnotes deleted):

“The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community. 

In this case, there was unchallenged evidence of the causal relation between the appellant's retardation and his offending in the reports of Dr Muir and Ms Daniels. The fact that the appellant possessed the superficial understanding of a mentally retarded adult that it was wrong to engage in sexual contact with a child and that he told childish lies in the hope of shifting the blame from himself were not reasons to assess his criminality as significant, much less to use him as a medium by which to deter others from offending”. 

53. Ms Mendes refers to the decision of R v Hemsley [2004] NSWCCA 228 at [33] in the outline of her submissions. Apart from Muldrock v The Queen from which has been extracted in the paragraph immediately above there are other decisions that I note and take into account, in particular the judgment of Johnson J in Hamid v R [2006] NSWCCA 302 at [90]-[117], the judgment of Bell J (as her Honour then was) in Heine v R [2008] NSWCCA 61 at [26] and the judgment of McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]-[178]. I also note the judgment of Beech-Jones J in Ngati v R [2014] NSWCCA 125 where his Honour said at [45]-[46]:

“In this case it is not contended that the applicant was suffering from a "mental illness". However, it can be accepted that the intelligence testing revealed a deficit in the applicant's intellectual functioning that could answer the description "intellectual handicap". In Muldrock at [54] the High Court stated that questions as to a causal relation are less likely to arise in sentencing such offenders because they "lack ... capacity to reason, as an ordinary person might, as to the wrongfulness of [their] conduct" and this will, "in most cases", substantially lessen their moral culpability for the offence. This is illustrated by the facts in Muldrock. In Muldrock there was "unchallenged evidence of a causal relationship between the appellant's retardation" and his commission of sexual offences towards children (Muldrock at [55]). In particular, a psychiatrist had assessed the appellant in that case as being aware of the wrongfulness of his own conduct but had observed that it was "only a superficial awareness" (Muldrock at [52]), and a psychologist had concluded that he had little control over his "acting out behaviour" (Muldrock at [41]).

[46] Nevertheless the approach stated in Muldrock is only expressed to be apposite to "most cases" of an offender with impaired intellectual functioning. It does not necessarily apply to all. The task still remains to consider the evidence of the intellectual retardation and the facts of the particular offence. In this case, his Honour noted the degree of planning that was involved by the applicant in the commission of the offences. His Honour concluded that the applicant was "fully aware" that his conduct was "seriously wrong". Considered in this context, the finding that he was "fully aware" was clearly a reference to the applicant having a sufficiently deep understanding of its wrongful nature and consequences.”

54. In the matter presently under consideration there is clear evidence of the causal connection between the intellectual impairment and the psychiatric condition suffered by the offender and the offending. The evidence as the intellectual impairment of the offender was unchallenged.

55. In the present matter there was some planning but it was not in any way significant. The Crown submitted that the reaction by the offender when the witnesses intervened indicated that he knew immediately that what he was doing was very wrong and that the disability was not so profound that he was not able to make appropriate decisions. While not being critical of the Crown for making that submission the point made by the Crown needs to be considered in light of the concluding part of [55] of the judgment of the High Court in Muldrock v The Queen extracted earlier within these reasons.

56. Given the totality of the evidence, including the historical material relating to the offender’s level of intellectual impairment and the psychiatric condition, I am satisfied that this is one of those cases where the offender is an inappropriate vehicle for general deterrence and the moral culpability of the offender is substantially reduced. Accordingly the sentence that is ultimately imposed in this matter will not be as severe as it would be if the offender did not have the intellectual impairment that he does.

57. The offender’s father Mark Kennedy gave evidence at the sentence hearing. The offender’s brothers and their partners were also present in support of the offender. He and his wife were aware of the facts that were before the court. The offender told his father that he was sorry for what he put the family through.

58. Mr Kennedy senior realised that the offender had learning difficulties when the offender was about 4 or 5 years of age. He told the court of the interventions by the Far West at Manly. When the offender was 18 he was referred to Dr Luke Johnson who is the author of some of the reports. The offender has been on medication for a number of years. He was medicated by Ritalin for ADHD. He is aware that his son is currently being medicated while he is in custody. He is aware of his son’s substantial weight gain. He was aware that his son was bullied at school.

59. Details were then given of the offender’s employment history. He obtained an apprenticeship as a baker at Brumby’s Bakery but had difficulties with the theory component at TAFE. He was towards the end of the apprenticeship when he was involved in an accident with hot water and could not continue. He was aware that his son had issues with literacy. The offender has also worked at an abattoir and Mr Kennedy senior had to assist the offender in completing the various forms.

60. It seems that Mr Kennedy Senior and the offender’s mother had concerns about the relationship between the offender and his partner who is named in the facts. The offender and his partner lived in the unit and it was the first time the offender had lived without being supervised although Mission Australia assisted. The offender’s mother made an appointment for the offender with Dr Johnson in December 2017 but that was not kept.

61. Mr Kennedy Senior and his wife went on holiday together in December and January 2017-2018 and when they returned the offender’s father noticed that there was something wrong. This was only a matter of weeks before the offending occurred. They soon became aware that the offender was not taking his medication.

62. On the day of the offending a call was received from the offender’s partner who was hysterical. Mr Kennedy senior went to his son as he wanted to be with him. He has visited the offender in custody which had often involved driving to Sydney or Nowra as the offender is held in protection. They regularly speak on the phone. The family present in court were prepared to continue to assist and support the offender upon his eventual release from custody.

63. Under cross-examination Mr Kennedy senior told the court that the offender had also had part time work in a fast food restaurant and gardening. The offender was apparently able to manage his affairs and he got a car at 18. He did ask his son about taking medication. The offender could function in the work place. This evidence must be seen in the context of the medical evidence and the meaning of the expression “mild intellectual disability”.

Submissions

64. Ms Mendes relied upon the contents of MFI 2, some of which has already been dealt with. She put and I accept that the court would find that the offender suffers from a mild intellectual disability. Submissions were also made on the psychiatric condition. Reference was made to my remarks on sentence in R v Joel Kershaw [2019] NSWDC 99. Comparisons were made between that and the present matter in that it was put that the present matter is less serious than Kershaw noting that involved a younger victim and two separate acts of intercourse. The Crown maintained in submissions that this matter is more serious noting in particular the circumstances and the nature of the offending. Ultimately it seems to me that little is to be achieved by comparing the two matters. This matter will need to be determined on its own facts and circumstances.

65. It was submitted that I would find on balance that the offender was remorseful. The expression of remorse as recounted by the offender’s father was in the context of what the offender had put the family through rather than an expression of remorse for his offending and acceptance of his conduct. At p 8 of his report Dr Nielssen sets out that at the interview the offender’s speech was poorly articulated and simple in form in a way that was consistent with below average intelligence. At p 9 of the report Dr Nielssen says that the offender appeared to accept responsibility as far as he is able to do so within the limitations of his low level of intellectual function. The Crown opposed a finding that the offender was remorseful. In ordinary circumstances there would be entirely insufficient to justify a finding of remorse. However, this matter is not an ordinary matter. Taking into account the intellectual impairment I am, with some hesitation, prepared to find on balance that the offender is remorseful. However, that finding does not attain much weight.

66. Ms Mendes then submitted on various parts of the judgment of the High Court in Muldrock to which I have referred and from which I have extracted earlier in these remarks.

67. It was put that the matter was a most unusual case and a number of submissions were made on the general circumstances of the offending, all of which have been referred to and dealt with in considerable detail earlier in these remarks when dealing with the objective seriousness of the offending.

68. Ms Mendes submitted that the court would make a generous finding of special circumstances on the bases of the offender’s age, this is his first time in custody, the need for intensive and extensive supervision, the need for assistance in re-integration into the community and the need for a number of agencies to be involved when the offender is eventually released. The Crown did not oppose a finding of special circumstances. For the reasons articulated by counsel for the offender there is in my opinion a need for a generous finding of special circumstances.

69. In MFI 2 on sentence Ms Mendes submits that the court would find that the offender has good prospects of rehabilitation given the absence of criminal history, the highly supportive family and the treatment plan to ensure that he remains compliant with his medication.

70. Dr Nielssen opines (p 10) that the offender may derive some benefit from sexual offender counselling that was appropriate to his level of intellectual function. However the doctor goes on to say that in the long term his likelihood of reoffending is more closely related to his adherence to treatment antipsychotic medication, abstinence from cannabis and stimulant drugs and appropriate social supports including assistance with financial management and supported employment.

71. Further, Dr Nielssen goes on to say at pp. 9-10:

“The probability of a further offence of a sexual nature is difficult to estimate because of his combination of mental illness and intellectual disability and the scales used to estimate the probability of recidivism are not relevant to a person with his combination of disorders. Sexual offenders as a whole have a low rate of recidivism. However, intellectual disability is thought to carry a worse prognosis because of the impaired capacity to learn from past mistakes and to exercise self-control in the presence of strong sexual interest, whereas psychotic illness is readily treated and consistent treatment is associated with a much better prognosis. Mr Kennedy can also count on the continued support of his parents”.

72. Clearly the offender enjoys considerable family support and there will be a support network for him upon his release. However, essentially because of the cautionary note and tenor of the opinion of Dr Nielssen I am not prepared at this stage to find on balance either that there are good prospects of rehabilitation or that the offender is unlikely to reoffend. Much will depend on the matters referred to by Dr Nielssen and to an extent how the offender engages and reacts on release. I accept however that if he remains compliant with medication and remains abstinent from illicit substances his prospects of rehabilitation and not reoffending are very much enhanced.

73. I have dealt with the oral submissions made by the Crown in the course of dealing with the various issues within these reasons.

General remarks

74. The parties agree that the sentence should commence from 16 January 2018. The offender has been in custody solely referable to these matters since that date and accordingly the sentence and non-parole period will commence on that date.

74. As I observed to the Crown at the beginning of the sentence hearing the charge contrary to s 111(1) of the Crimes Act is probably unnecessary given that the other charge carries a maximum sentence of life imprisonment and that all of the relevant facts and circumstances can be taken into account in determining the appropriate sentence in that matter. The offending to which the charge contrary to s 111(1) of the Crimes Act is all part of the circumstances of the offending in the other matter. It seems to me that this is one of the rare cases where wholly concurrent sentences can be imposed. However, the principles enunciated in decisions such as Cahyadi v R [2007] NSWCCA 1 at [27] will need to be properly applied. As I propose to impose wholly concurrent sentences and there are two charges I see little point in imposing an aggregate sentence.

75. I must give proper regard and effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act, 1999. Section 3A sets out the purposes of punishment, namely:

1. to ensure that the offender is adequately punished for the offence,

2. to prevent crime by deterring the offender and other persons from committing similar offences,

3. to protect the community from the offender,

4. to promote the rehabilitation of the offender,

5. to make the offender accountable for his or her actions,

6. to denounce the conduct of the offender, and

7. to recognise the harm done to the victim of the crime and the community.

77. Section 5(1) of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the maximum penalties, the standard non-parole period prescribed for the offence contrary to s 66A of the Crimes Act and the nature of the offending it is inevitable that there must be a substantial sentence of imprisonment imposed. I did not understand counsel for the offender to submit otherwise.

78. In respect of the offence of Sexual Intercourse with a Child Under 10 years of age and taking into account the matters on the form 1 document given all of the circumstances including the intellectual impairment of the offender, which issue I have dealt extensively within these reasons I am of the opinion that the appropriate starting point is 12 years imprisonment from which is deducted the 25% for the utilitarian value of the plea which results in a total sentence of 9 years imprisonment.

Orders

79. In respect of each of the matters to which the offender pleaded guilty he is convicted.

80. In respect of the charge contrary to s 111(1) of the Crimes Act (H68505687 sequence 6) the offender is sentenced to a fixed term of 18 months imprisonment to commence on 16 January 2018 and which expired on 15 July 2019.

81. In respect of the charge contrary to s 66A(1) of the Crimes Act, (H68505687 sequence 5) taking into account the matters on the form 1 document, the offender is sentenced to a non-parole period of 5 years 9 months to commence on 16 January 2018 and which will expire on 15 October 2023. Thereafter there will be a balance of term on parole of 3 years and 3 months to commence on 16 October 2023 and which will expire on 15 January 2027.

82. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.

83. The non-parole period is approximately 63% of the total sentence which indicates a generous finding of special circumstances the reasons for which have been enunciated within these reasons.

84. I direct that copies of the report of Dr Nielssen and all of the reports of Dr Luke Johnson be annexed to the warrant that accompanies the offender to custody.

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Decision last updated: 05 September 2019