TWO CONSENTING ADULTS ENGAGED IN A SEXUAL ACT, WHEN SUDDENLY, THE MALE BRUTALLY FISTS THE FEMALE, CAUSING PROFUSE BLEEDING AND TEARING

R v Kellett

[2020] QCA 199

This is an appeal against conviction for rape and unlawfully causing grievous bodily harm. Two consenting adults engaged in a sexual act, when suddenly, the male fisted the female’s vagina, causing it to bleed and tear.

Facts: 

• Before meeting the appellant for the first time the complainant and the appellant had exchanged messages and photos of a sexual nature, including image of themselves undressed, and in her case an image of her vagina with her fingers inserted.
• The appellant arrived at her house “agitated and cranky, and jittery”. As he came in the front door he put his hand around her throat and pushed her against the wall, starting to kiss her. Complainant told him to calm down, and he did.
• Appellant attempted to have anal sex, but desisted when she told him she felt uncomfortable.
• At a point before the appellant inserted his hand, he hit her three times on the face, using an open hand.
• Then, the appellant asked for lubrication, pinned the complainant on the bed, and unexpectedly, inserted his hand and then formed a fist inside complainant’s vagina.
• Notwithstanding complainant’s screams and protests, and telling him to stop, appellant said "One, two, three" and thrust his fist even further.
• The appellant withdrew his hand and it became apparent that the complainant was losing a substantial quantity of blood from her vagina. She was taken to hospital and underwent surgery.
• Complainant lost 2 litres of blood, and sustained two full thickness tears to the vaginal wall, one 10 cm and the other 2 cm long.
• Appellant was convicted after a trial on two counts: count 1, rape, and count 2, unlawfully causing grievous bodily harm. The appellant was sentenced to concurrent terms of imprisonment: seven years on the rape count, and six years on the count of grievous bodily harm. Each offence was declared a serious violent offence, with the consequence that the appellant would be required to serve 80 per cent of each period.
• Appellant challenges his conviction on the rape count only, on the ground that trial judge erred in failing to direct the jury as to s 24 of the Criminal Code 1899 on mistake of fact in respect of the issue of consent.
• Appellant also seeks leave to challenge the sentences imposed upon him, on the ground that the sentence for grievous bodily harm was manifestly excessive in the circumstances, and that the judge erred in the declaring each offence a serious violent offence (SVO).

Issue: Did the complainant consent to the fisting, and was the consent communicated? Did the judge err in making the SVO declaration? Was the sentence on count 2 manifestly excessive?

Law:

1. This Court referred in R v Makary:

“It follows that before s 24 (mistake of fact) can arise for a jury’s consideration in connection with the issue of consent there must be some evidence that raises a factual issue about whether the accused believed that the complainant had a particular state of mind and also believed that the complainant had freely and voluntarily given consent in some way. Inevitably, that will require some evidence of acts by a complainant that led the defendant to believe that the complainant had a particular state of mind consisting of a willingness to engage in the act and believed also that that state of mind had been communicated to the defendant, that is, that consent had been “given”.”

Analysis:

• There was no discussion or warning that the appellant intended to insert his hand to engage in fisting. Self- evidently, fisting is a different thing from merely inserting a finger or fingers, as it involves forming a fist with the hand once the hand is inserted.
• There were three occasions when the appellant had combined physical aggression with sexual activity, and on each occasion the complainant had objected to it: the choking incident at the start, his expressed desire to have anal sex and the attempt to do so, and hitting her on the face three times.
• Taking into consideration that the choking incident involved the appellant displaying "immediate significant aggression", and that once the appellant had received the lubrication he effectively pinned the complainant to the bed, and that the appellant said he was going to fist the complainant and "immediately and before she had any time to react in any way, he pushed his hand forcefully inside her," the appellant’s conduct was brutal, degrading, forceful, injurious, thereby justifying the making of a serious violence offence (SVO) declaration under section 161B of the Act.
• The medical examiner’s opinion was that a fully formed fist could not be forced in so that the mechanism was that a cone of fingers would have to be inserted first, then a fist formed. The brutality of the second thrust demands the making of an SVO.
• The learned sentencing judge also explained the reason why he imposed six years on the grievous bodily harm count, and seven years on the rape. It was a differentiation driven by the significant difference between the maximum penalties in respect of each count. The maximum for grievous bodily harm was 14 years, and the maximum for rape was life imprisonment. The submissions made by defence counsel were that the range was from “six to seven”, which sits conformably with the sentences actually imposed, leaving aside the aspect of the SVO declaration. As defence counsel submitted, if an SVO was made: “then it’s got to [go] below eight”. And so it was.

Conclusion:

The fisting took place without consent. Appellant gave no indication or warning of what he intended, his only statement coinciding with the insertion of his hand into the complainant’s vagina. Sentencing judge was correct in his characterisation of the conduct as brutal, degrading, forceful, injurious and contemptuous of the complainant. The appeal against conviction is dismissed. Leave to appeal against sentence is refused.