Regina v Kershaw

[2005] NSWCCA 56

CITATION:	Regina v Kershaw [2005] NSWCCA 56
HEARING DATE(S):	18/02/2005
JUDGMENT DATE:	1 March 2005
JUDGMENT OF:	Bryson JA at 1; Barr J at 28; Hoeben J at 29
DECISION:	(1) Leave to Appeal granted.; (2) Appeal dismissed.

CATCHWORDS:	CRIMINAL LAW - sentencing - sexual intercourse without consent Crimes Act s. 61 I - within marriage relationship - breach of AVO - consideration of forgiving and optimistic attitude of complainant - sentence imprisonment 5y non-parole 2y 6m not manifestly excessive - appeal dismissed.
LEGISLATION CITED:	Crimes Act 1900 , s.61I Crimes (Sentencing Procedure) Act 1999, s.32
CASES CITED:	R v. Comert [2004] NSWCCA 125 R v. Glen (unreported) NSWCCA 19 December 1994
PARTIES:	Brett David Kershaw - Applicant Crown - Respondent
FILE NUMBER(S):	CCA 2004/2592
COUNSEL:	R. Hulme SC - Applicant D. Arnott - Respondent
SOLICITORS:	S E O'Connor, Legal Aid Commission - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/21/3129
LOWER COURT JUDICIAL OFFICER:	Sides DCJ

2004/2592

BRYSON JA
BARR J
HOEBEN J

Tuesday 1 March 2005

Regina v. Brett David KERSHAW

Judgment

1 BRYSON JA: The applicant Brett David Kershaw applies for leave to appeal against the sentence imposed on him by his Honour Judge Sides Q.C. in the District Court at Campbelltown on Friday 26 March 2004. On 3 November 2003 the applicant pleaded guilty to a charge on indictment that on 2 December 2002 at Tahmoor he had sexual intercourse with Karina Kershaw without her consent and knowing she was not consenting. Mrs Kershaw and the applicant were married in or about 1987 and they are still married. Under s.61I of the Crimes Act 1900 the maximum penalty for the offence charged is imprisonment for fourteen years. The proceedings were listed for trial at Campbelltown on 3 November 2003 but the applicant pleaded guilty when indicted. The learned Judge heard evidence and proceedings relating to the plea of guilty on several days including 12 March 2004. On 26 March 2004 his Honour made Remarks on Sentence and sentenced the applicant to five years’ imprisonment, which commenced on 26 March 2004, with a non-parole period of two and a half years so that eligibility for parole is to commence on 25 September 2006. When sentencing the applicant the learned Judge took into account a further offence on a Form 1 document under s.32 of the Crimes (Sentencing Procedure) Act 1999 of contravening an Apprehended Violence Order (AVO). The ground of appeal is that the sentence was manifestly excessive.

2 This is the first custodial sentence to be imposed on the applicant. The applicant had several previous convictions, including Children’s Court matters and motoring offences, which are not of present significance. Presently significant is a conviction for common assault against Mrs Kershaw at Picton Local Court on 27 July 1998; on this occasion the applicant entered into a Recognizance to be of good behaviour for twelve months, to accept the supervision of the New South Wales Probation and Parole Service, and to attend Anger Management counselling as directed.

3 A Statement of Agreed Facts was admitted in evidence. The Agreed Facts may be summarised for present purpose as follows. Mrs Kershaw (39 years old), and Mr Kershaw (39 years old) have been married for about 16 years. In 2002 they lived together at 27 Straun Street, Tahmoor with their one daughter, Samara Kershaw who was then aged eight years old. Mrs Kershaw started sleeping on a mattress in the lounge-room after an argument on Thursday 28 November 2002. On Sunday 1 December 2002 Mr and Mrs Kershaw and their eight-year-old daughter were at home. There were arguments between the applicant and Mrs Kershaw through the afternoon and evening. During the evening the applicant pushed Mrs Kershaw really hard; she stumbled back and was upset, and she rang the police who attended and removed the applicant from the house, and obtained a Telephone Interim AVO. That night Mrs Kershaw slept on the mattress in the lounge-room and the applicant spent the night elsewhere.

4 The AVO had effect for 14 days and was accompanied by a Summons returnable at the Local Court of Moss Vale on 5 December 2002. The AVO contained standard orders restraining intimidating conduct and other conduct directed against Mrs Kershaw as the protected person, and additional orders restraining the applicant from entering premises where Mrs Kershaw resided or worked, specifically naming the house at 27 Struan Street, Tahmoor, whilst under the influence of alcohol, with some further supplementary restraints. That is to say, the applicant was not restrained against being at the house, but was restrained against being at the house or approaching Mrs Kershaw when under the influence of alcohol, liquor and/or illicit drugs.

5 The applicant returned to the house on the morning of 2 December 2002, and complained about Mrs Kershaw’s calling the police and obtaining the AVO. The applicant walked to the main bedroom, but returned shortly afterwards naked. Mrs Kershaw told him that she was not willing to have sex with him and was not going to change her mind about the AVO. He pulled back the doona and lay on top of her. She struggled, resisted and screamed, but she stopped screaming when she realised that their daughter who was sleeping in the nearby room might wake up; she continued to protest but the applicant proceeded to force intercourse on her. He then went to the bedroom. After a while Mrs Kershaw got up, got their daughter ready for school and made the child’s lunch in the kitchen. The applicant came to the kitchen and spoke to Mrs Kershaw again; and arguments continued. Mrs Kershaw left the house about 9.20 am, took their daughter to school and then went to Wollondilly Family Services at Tahmoor, where she complained to staff and later to police, who arranged for her to be medically examined. She returned to the house with their daughter about 9.15 pm. The applicant was there, arguments resumed, Mrs Kershaw called the police who arrived and arrested the applicant. On that night there was a lengthy electronically recorded interview in which the applicant denied Mrs Kershaw’s complaints. Later the police obtained DNA testing.

6 In the proceedings on sentence the applicant gave evidence which showed that he still had a relationship with Mrs Kershaw, that his primary focus in the relationship was to care for their daughter, and also to see Mrs Kershaw, and that he lived separately at Windang but visited Mrs Kershaw and their daughter sometimes once or twice a week, sometimes once a fortnight. A sexual relationship between the applicant and Mrs Kershaw continued; and arguments and disagreements continued, mostly revolving around their daughter or money, in a manner the applicant described as “fiery;” but the arguments did not involve physical force or threats of violence. The applicant had undertaken counselling and said that he reacted to disagreements by removing himself from the house and leaving.

7 Mrs Kershaw gave evidence in the proceedings on sentence and confirmed significant aspects of the applicant’s evidence, including the continuance of their sexual relationship on an occasional basis, and the applicant’s improvements in managing his anger. Her evidence showed that they met perhaps once every two weeks: usually the applicant visited Mrs Kershaw and their daughter at Tahmoor but sometimes Mrs Kershaw and their daughter travelled to Windang to see the applicant. The following appears in the oral evidence of Mrs Kershaw: (t9/28-30)

Q. How would you describe the relationship between the two of you at the moment?
A. It still has its ups and downs.

…

Q. You heard Mr Kershaw also say that there’s times when you still have disagreements?
A. Yes.
Q. Is that true? Do you still have disagreements?
A. Yes we do.
Q. And I think you heard him say that sometimes your arguments get a little bit fiery?
A. Yes we [are] both very verbal.
Q. You also heard Mr Kershaw say that now, if he thinks [that things] are getting out of control, he removes himself from wherever you are when the argument is occurring. Would you agree with that?
A. Yes I would.
Q. And I think the nature of the allegations and what happened around these events was some threats of physical violence as well as the actual physical violence perpetrated on you?
A. Yes.
Q. Has anything like that happened since these allegations arose?
A. No. I think actually it’s changed since Brett has completed the course.
Q. What areas have you noted are changing?
A. More to do with Brett’s anger, the fact that if a situation had got to the levels that it used to get to Brett wouldn’t have done the things that he does. Like now he would leave and he’s – I can’t really put it into a word but he just handles the situation totally different.
Q. Do you think maybe the best thing is that you both live apart now?
A. No not really. I actually think the course has actually helped more than anything in my view.
Q. Do you still have feelings for him?
A. Yes I do.
Q. You’re aware that it’s a very serious offence?
A. Yes I do.
Q. And there’s every possibility that a full-time custodial sentence may be imposed. What effect do you think such a course of action might have on your family?
A. As for my daughter it would be very devastating and the consequences of it would be left up to me to explain to her why her father isn’t around because I’ve never denied her the chance to pick up the phone whenever she felt like it and rang him and that could be you know three times in a day on a Saturday if that’s what she felt like, if there was something specific she wanted to tell her father I’d let her pick up the phone and ring him and talk to him, all the things that have occurred at school I’ve allowed her when she’s come from school to actually pick up the phone and tell him and I feel that the consequence of all this is going to fall back onto me.

Mrs Kershaw agreed that home life was more stable since the applicant moved out.

8 Although it was not precisely stated by either the applicant or Mrs Kershaw, their evidence tends to suggest that they had continued seeing each other throughout the whole period between the offence and the proceedings on sentence.

9 The applicant consulted a Psychologist, Keith Dawes, whose report was in evidence. The report dated 5 December 2003 is extensive and includes a psychometric assessment based on the IPAT self-administering anxiety questionnaire (which appears to me to have revealed nothing remarkable) and the Eysenck Personality Questionnaire-Revised (this again appears to me to have revealed nothing remarkable). I note that Mr Dawes’ assessment under the heading “Criminality” was:

Mr Kershaw scores at the higher end of the control “non-prisoner” population, and at the lower end of the prisoner population (mean 15.57, standard deviation 5.18). He is unlikely to be a repeat offender if he can resolve his marital arrangements.

10 In the course of his clinical evaluation of the applicant’s relationship with Mrs Kershaw, Mr Dawes reported, among other things,

5. Mr Kershaw said that his wife has had a prolonged physical relationship with a male co-worker from her place of employment. This has been discussed with him by his family Doctor, Dr Challender of Tahmoor, and has been subject to intense couples counselling by Ms Judy Green Psychologist of Lakesland. Some seven years ago the couple attended marital counselling with a Counsellor from the Wollondilly Family Services.
6. While in North Queensland, Karina Kershaw had him charged with assault and he was required to attend an Anger Management course conducted by the Queensland Corrective Services.
7. Currently, Mr Kershaw receives very many telephone messages from his wife ranging from message pleading for him to “come home” to “outright hostile vindictive” messages. It is not unusual for him to receive these messages in the middle of the night.

11 Mr Dawes’ opinion and recommendations were these:

Opinion
Brett Kershaw is a man who had entered into a marriage without effective marital relationship skills to a woman with similar deficits. This is a co-dependent relationship; it is based on untenable expectations. It appears that each’s expectations have not been met and that they remain together because of their daughter, but more likely because of quite dysfunctional needs.
Mr Kershaw knows that he has breached his AVO conditions by sexually assaulting his wife and expects to be given an appropriate sentence. I agree with him, yet I find it difficult to think that he may receive a sentence that may disrupt many of his future arrangements, because of his inability to find a solution to his domestic conflict.
The crisis that has arisen from the matters before this Court has given rise to some intense thinking for Mr Kershaw. He has yet to reach a resolution on how to proceed in his life.
Recommendations
Mr Kershaw needs a series of individual consultations with a qualified counsellor to assist him to reach a series of decisions that will strengthen his resolve in regard to his familial relationships.

12 A pre-sentence report dated 11 March 2004 by Ms Kathryn Baudinette, a Probation and Parole Officer, was also in evidence. History and review in this report include reference to supervision by the Probation and Parole Service of the applicant while on a one-year supervised Recognizance in 1998 on conviction for an assault on Mrs Kershaw, in the course of which he completed an Anger Management Programme run by the Queensland Department of Community Corrections. The report said: “ANGER MANAGEMENT The offender completed an eighteen-week Domestic Violence Programme run by ‘Lifecare’ and also participated in some one-to-one counselling. While Mr Kershaw’s attendance was good, no significant attitudinal changes were noted.” Under SUMMARY AND SENTENCING OPTIONS Ms Baudinette reported:

Mr Kershaw appears to have problems of management particularly when under the influence of alcohol, as testified by his criminal record. Whilst he has completed a small amount of one to one counselling and a domestic violence programme, it would appear that these therapeutic measures were not enough to effect a significant change in attitude. It is, therefore, considered that further therapeutic intervention would be a necessary adjunct to either a community-based or a custodial sentence.

13 In the course of submissions before the learned Judge it was accepted on behalf of the Crown that the applicant’s evidence showed true expressions of remorse.

14 On appeal Senior Counsel for the applicant contended that the applicant had never committed such an offence as that for which he is now sentenced, and had never been to prison before. It was further contended, correctly, that the applicant was remorseful and contrite for his conduct and its impact upon Mrs Kershaw, and that the Crown accepted that this was so. The learned Judge referred in the course of his reasons to there being some evidence of contrition, albeit belated, and said that this would be reflected in the sentence imposed. The words used by the learned Judge show however that in his Honour’s appraisal the significance of contrition was qualified because of the time at which it emerged, after some early denials of the offence. It seems unlikely that the element of contrition had any large part in the learned Judge’s determination of sentence.

15 Counsel contended that remorse was a significant mitigating factor and further contended:

The fact that [Mrs Kershaw] had continued her relationship with the applicant strongly supports the inference that she accepted that he was remorseful. It would not make sense for her continuing to see the applicant, and engage in sexual activity with him, if she thought anything to the contrary. This is particularly so in light of the difficulties she experienced with sexual activity and the sensitivity that the applicant was required to accord to her in such situations.

Counsel also submitted that“[t]o say that [the evidence of contrition] was ‘belated’ flies in the face of [Mrs Kershaw’s] attitude.”

16 It was also contended that the reduction of ten per cent expressed by the learned Judge to be made for the utilitarian benefit of the plea of guilty was very meagre, and in his submissions counsel contended “Saving [Mrs Kershaw], in a case such as this, from the need to give evidence at trial was particularly worthy of a greater level of discount.” Counsel also referred to what was said to be an anomaly in seeing what effect was produced by the discount of ten per cent which the learned Judge decided to apply: it was contended that, after applying the ten per cent discount, the sentence imposed on the applicant would indicate that the Trial Judge had imposed a head sentence of 5 years 6 months and 20 days which was an unusually odd figure for a starting point.

17 It is true that a recalculation of the sentence adopted by his Honour on the assumption that it was reached by applying a ten per cent discount to some period of time which had been the notional starting point produces a rather odd and unlikely figure as the starting point; but this line of reasoning is not an available critique of the learned Judge’s reasoning, as there might well have been some higher starting point, there was room for an allowance for contrition and for other mitigating factors to which the learned Judge referred; and in any event the attribution of mathematical precision to this discretionary process is spurious. The exercise is not a mathematical exercise, and it would usually be correct to interpret a reference to a percentage discount as a reference to the order of discount rather than to a mathematically precise discount. It is not in my opinion correct to treat a discount of ten per cent for the utilitarian value of a plea of guilty as meagre; ten per cent is quite a significant discount to make in a sentence of imprisonment, and in all reason the prospect of obtaining such a discount ought to have a significant part in attaining utilitarian values for the community at large, and also for the interests of persons who are in a position to make pleas of guilty. Over all, the learned Judge’s reasoning and conclusion show ample room for the allowance of a discount which was appropriate.

18 Counsel also made observations on the learned Judge’s treatment of the effect of Anger Management counselling upon the applicant’s attitude. Observations on this subject in the Remarks on Sentence include reference to the Pre-sentence Report dealing with the eighteen-week Domestic Violence Programme run by Lifecare. The learned Judge said (Remarks on Sentence 8-9)

The pre-sentence report observes, in connection with that course and counselling, that the Offender's attendance was good, but 'no significant attitudinal changes were noted.'

In contrast, the evidence given by the Offender and the victim painted a different picture in connection with what he had derived from the counselling and the Life Care Facing Up Program. In his evidence the Offender said that it had taught him about the underlying causes of anger and how to view oneself and that it was not okay to use emotions against others. He contrasted it with the anger management course that he had done after the 1998 offence. He said that course was designed to identify triggers to anger and to teach one how to respond. The more recent programs had taught him about emotional control and acting out. He said in evidence that he and the victim still had disagreements, sometimes fiery ones, but he now walks away. The victim gave evidence that, since the offence, the Offender had completed the course and the Offender handles situations differently than in the past. He walks away. Unfortunately this part of their evidence was not tested by cross-examination based on question and answer 146 to 148 of the ERISP interview or the opinion of the Probation Officer.

19 The learned Judge went on to review passages in the Ms Baudinette’s report relating to the applicant’s attitude to his relationship with Mrs Kershaw, the applicant’s assertion at times that he had no recollection of the offence, and the dysfunctional nature of the applicant’s relationship with Mrs Kershaw; and said: (Remarks on Sentence 10)

...the fact that [the relationship] is being maintained in some form is of concern in connection with his prospects of rehabilitation. In the past the Offender had the benefit of anger management programs, but the violence continued. Although the Offender and the victim painted a picture of significant change since the completion of the recent programs this is in the context of charges not yet being finalised and in marked contrast to the independent opinion of the Probation Officer. I note Mr Dawes is of the opinion that the Offender is unlikely to be a repeat offender if he can resolve his marital arrangements.

20 The learned Judge then went on to refer, extensively, to the objective seriousness of the offence, in the course of which his Honour said: (Remarks on Sentence 11-12)

His criminality is in no way lessened because the victim was his wife. In my view his criminality is aggravated because of that fact. He knew what impact the crime would have on her, that he had breached the trust and respect that existed between them in the past. With that knowledge he proceeded with the crime. This should be viewed in the context of the dysfunctional relationship. The crime was committed in the victim's own house, where she was entitled to feel free from such violation. There is no evidence that the Offender was affected by liquor at the time of the offence.

In all the circumstances I am not persuaded that his prospects of rehabilitation are any better that good. I am not persuaded that it is unlikely that he will re-offend. That proposition does not mean that I make a finding that he will re-offend.

21 It was contended that the learned Judge took a harsh view in the finding that the continuation of the applicant and Mrs Kershaw’s relationship is of concern in connection with prospects of rehabilitation. Counsel referred to passages in the evidence of Mrs Kershaw which appear to show, quite clearly, that she has a favourable view of the future of the relationship and of the applicant’s future conduct.

22 It is plain that the learned Judge in his assessment of the prospects of rehabilitation and of the significance of the relationship did not follow or adopt the interpretation made by Mrs Kershaw. I do not have the advantages which the learned Judge had of seeing the applicant and Mrs Kershaw and of hearing their evidence given orally. Mrs Kershaw’s understandings and expectations about the future should not have a prominent part in a sentencing decision. This is not a field of decision of which complainants in Mrs Kershaw’s position can take control. Her interpretation follows her experience over some years of their unsatisfactory relationship, involving an earlier conviction for assault followed by Anger Management counselling, complete disregard of an AVO and a serious crime committed against her, and it is in no way remarkable that the learned Judge took an altogether different view to hers. The Judge had before him Mr Dawes’ interpretation: “This is a co-dependent relationship; it is based on untenable expectations.”

23 Counsel for the applicant made observations on the learned Judge’s statement that “… his criminality is aggravated because of that fact” [i.e. that the victim was his wife]. It was submitted that his Honour was in error in regarding this as aggravating the gravity of the offence. In my view, the learned Judge expressed as well as it reasonably might be expressed an aggravating circumstance of the offence which it is difficult to define, and the force of his Honour’s conclusion is not reasonably open to observations about supposed anomalies when contrasted with commission of a crime in other places than in a home or against other persons than a person within a domestic relationship. Counsel referred to R v. Comert [2004] NSWCCA 125 and to observations by Sully J at 21-24 and Hidden and Hislop JJ at 29 about the circumstances of a reference in that case to the offence having been committed in the complainant’s own home. Those observations were not to uniform effect; they related to the case then under consideration and were not intended to establish and do not establish any general principle.

24 In cases involving domestic violence it happens from time to time that a complainant is shown to have a forgiving and optimistic attitude about violence in the relationship which it is difficult for others to understand or share. The sentencing process is not and of course should not be in the hands of complainants, and the merciful or relenting attitude of a complainant does not reduce the gravity of the offence and does not have much effect on the interest of justice in imposing an appropriate sentence. Cf R v. Glen (unreported, NSWCCA, 19 December 1994) per Simpson J.

25 It is clear that the learned Judge took a severe view of the gravity of the offence, and this was justified by the facts of the offence. The sentence imposed, while recognisably severe, was not in my opinion disproportionate to the offence itself. The maximum penalty prescribed by statute is high, there was a prior conviction for assaulting the same complainant, the offence was committed after undergoing supervision and counselling under a Recognizance, and a breach of an AVO occurred and was taken into account. The applicant responded to the AVO with aggressive violence. An AVO is an important measure to secure peace order and safety for the community and its members, and conduct in breach of an AVO merits punishment.

26 The sentence was recognisably severe, but in my opinion was not so severe as to show that the discretion to determine the sentence was affected by some error, or to show that it was manifestly excessive. In my opinion there is no ground for appellate intervention.

27 In my opinion the Court of Criminal Appeal should make the following orders:

(1) Leave to Appeal granted.

(2) Appeal dismissed.

28 BARR J: I agree with Bryson JA.

29 HOEBEN J: I agree with Bryson JA.

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