In R v Kay  NSWSC 716, Kay entered guilty pleas to four counts of having sexual intercourse without consent under circumstances in aggravation in violation of section 61J of the Crimes Act. The aggravating circumstances involved threats to inflict bodily harm. The maximum penalty for each offence was 20 years in prison.
Kay accosted the first victim as she was walking down the driveway from her apartment block. He approached her from behind, held a scalpel to her throat, and demanded money. He placed a gag in her mouth to prevent her from calling out. He then pulled down her jeans and inserted a finger into her vagina. He attempted to insert his penis but failed. He told the woman he was too drunk to rape her, removed the gag, and advised her to remain where she was until he was gone.
The second victim was walking up a flight of stairs from the garage area of her apartment block. Kay approached her from behind, put a knife to her throat, asked her whether she had money, and put a sock in her mouth. When the sock came out, Kay told the woman he would kill her if that happened again. Kay then penetrated the woman, first with his fingers and then with his penis.
The third offence occurred after Kay saw the victim taking cash from an ATM. He put a knife to her throat and took her money and driver’s license. After forcing the victim into a dark pedestrian tunnel, he tied her hands behind her back. He placed his penis into her vagina twice. Before he left, Kay reminded the woman that he had her driver’s license and threated to kill her if she told anyone about the assault.
The final offence for which a sentence was imposed again involved a woman who was threatened at knifepoint. After telling the woman he would rape her if she did not comply, Kay forced her to take his penis into his mouth. He then took money from her and threatened to kill her if she called the police.
Between the second and third offences, Kay committed another sexual assault as well as two offences against women that involved the threat to inflict bodily harm with the intent to commit a sexual assault. He committed a final sexual assault after the fourth offence for which he was sentenced.
After Kay became a suspect, the police observed him driving on several occasions. He appeared to be watching and following women, perhaps in search of new victims. Based on his pattern of conduct, the judge determined that the Kay’s crimes were planned rather than opportunistic.
The judge determined that Kay was not remorseful and that he presented an ongoing threat to society if not incarcerated. That finding was based in part on Kay’s claim to have a poor memory of the events and his failure to explain or take responsibility for his crimes.
The prosecution and the defence each presented a psychiatric assessment that evaluated Kay’s risk of reoffending. The judge found the opinion of the prosecution’s psychiatrist to be more convincing, but both assessments, taken together, persuaded the court that Kay was likely to commit more sex crimes if he remained free.
Relying on court decisions that reserve the maximum penalty for the “worst cases,” the judge was persuaded that Kay’s conduct fell short of that category. The judge recognized that Kay’s conduct did not cause as much physical harm, and was not accompanied by as much ferocity, as some sexual assaults. At the same time, Kay’s use of a knife and the threats he made heightened the trauma that his victims experienced.
The judge examined statistics showing that average sentence for comparable offenses was 5 years with a fixed non-parole period of 3 years. Some of those sentences, however, were imposed before the law was rewritten to encourage harsher penalties for sexual assaults.
In light of the number of offences committed, the judge sentenced Kay to a combined sentence of 20 years in prison. He set the minimum, non-parole period at 15 years. The court expressed the view that Kay’s age at the time of his release from prison would disincline him from committing new offences.
Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.