Director of Public Prosecutions v KC

[2023] ACTSC 213

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v KC

Citation: 

[2023] ACTSC 213

Hearing Date: 

2 August 2023

Decision Date: 

2 August 2023

Before:

Mossop J

Decision: 

1.    On the charge of sexual intercourse with a person under the age of 10 years (CC 2022/2998) the offender is convicted and sentenced to imprisonment for 18 months commencing on 20 August 2031 and ending on 19 February 2033.

2.    The non-parole period commences on 20 February 2020 and ends on 19 July 2026.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – offender pleaded guilty to charge of sexual intercourse with a person under the age of 10 – where offender was the victim’s next door neighbour – where offender already serving term of imprisonment for sex offence – where offender’s health is precarious – sentence of imprisonment imposed – sentence imposed partially concurrent with existing sentence

Legislation Cited: 

Crimes Act 1900 (ACT), ss 92D, 92E

Crimes (Sentencing) Act 2005 (ACT), ss 10, 34A

Cases Cited: 

CX v The Queen [2017] ACTCA 37

DPP v KQE (No 2) [2022] ACTSC 318

Tully v The Queen [2016] ACTCA 11

R v Bo (No 2) [2014] ACTSC 371

R v Hunt [2016] ACTSC 52

R v KC [2020] ACTSC 94

R v Middleton(No 2) [2020] ACTSC 123

R v Payne [2015] ACTSC 345

Parties: 

Director of Public Prosecutions

KC ( Offender)

Representation: 

Counsel

G Cuthel ( DPP)

J Cooper ( Offender)

Solicitors

Director of Public Prosecutions  

Aboriginal Legal Service (NSW/ACT) ( Offender)

File Number:

SCC 217 of 2022

MOSSOP J:  

Introduction

1․On 2 September 2022 the offender pleaded guilty to the charge of engaging in sexual intercourse with a person under 10 years of contrary to s 92E(1) of the Crimes Act 1900 (ACT). At the time the offender was charged (6 June 2022) he was a sentenced prisoner serving an aggregate term of 12 years’ imprisonment for sex offences committed against other young persons (R v KC [2020] ACTSC 94). The non-parole period of that sentence ends on 19 February 2026. The maximum penalty for the offence for which he is presently charged is 17 years’ imprisonment.

2․The offender’s name has been anonymised in the same way as it was in the earlier sentencing decision in order to protect the identity of the victims of his earlier offending.

Facts

3․The facts are agreed and set out in a Statement of Facts. They may be summarised as follows.

4․Between 1987 and 1998, the offender resided next door to the victim. The offender’s children and the victim were similar ages. His daughter and the victim would go to school together and would often visit each other’s homes to play together. The offender would be present on the occasions when the children played at his home. He would involve himself in their play and would create games for them. On one Queens’ Birthday long weekend, he arranged firecrackers for the celebration. On other occasions, he would take the horses kept in his back garden to the park and allow the children to ride the horses.

5․On at least three separate occasions, the victim was present while the offender played a particular game with the children. The game involved the offender telling a child to close their eyes while he put a finger in their mouth. When the offender removed his finger the child would have to guess which finger was in their mouth.

6․Between December 1993 and February 1995, the victim went over to the offender’s residence to see if the offender’s daughter was home to play. At this time she was between 8 and 9 years old, the offender between 33 and 35 years old. The victim knocked on the front door and was greeted by the offender. She was let inside and told that nobody else was home. The offender and the victim stood in the lounge and the offender asked the victim if she wanted to play a game and she replied “yes”. The offender said to the victim “let’s play the game”, referring to the game he had played with the victim and the other children on past occasions. The victim agreed and closed her eyes. The offender then placed his penis inside of her mouth. At the time, the victim could not identify that the offender had put his penis in her mouth. She recalls the penis as feeling soft and touching her tongue, cheeks and bottom lip.

7․During the act, the offender said words to the effect of “don’t forget to suck on it” in a playful tone. The victim performed a sucking motion with her mouth for about five seconds. Feeling that the object was bigger than a finger, she slowly opened her eyes and realised that the offender’s penis was inside of her mouth. The victim saw the offender’s pubic hair. The offender pulled his penis out of the victim’s mouth before placing it back into his pants. She heard him zip up his pants. Once the victim fully opened her eyes, the offender asked her a question to the effect of “which finger was it?” The victim proceeded to touch each of the offender’s fingers one by one, asking “was it this one?” The offender said “no” to each finger and laughed. The victim stated she had to go before exiting the house at the front door. The victim returned to her house, where her mother was sunbaking on the grass, looking relaxed. She was afraid to tell her mother of what happened, for fear of upsetting her. She first disclosed the incident to her mother when she was 16. In November 2021, she submitted an online report in relation to the matter and subsequently participated in an evidence-in-chief interview.

Objective seriousness

8․The offending was opportunistic. It was relatively brief. It involved a gross abuse of the power difference between adult and child. It involved a gross abuse of the trust between the families which involved an expectation that the victim would be safe in visiting the other family’s house. It involved the risk of sexually transmitted diseases. It involved the risk of psychological damage to a young child.

9․The offence of sexual intercourse with a person under the age of 10 years encompasses a wide range of offending. The physical circumstances involved in the act of sexual intercourse may vary significantly and the circumstances in which that offending occurs can vary significantly. Having regard to the broad range of offending covered by the offence provision, the current offending is in the low to mid-range of objective seriousness for this very serious offence.

Subjective circumstances

10․The offender is a 63-year-old Aboriginal man. He described a childhood in positive terms, growing up was the youngest of seven children in a prosocial environment. As he grew older he discovered more of his indigenous heritage and has expressed an ongoing interest in learning more about this family history. His parents and three of his siblings are now deceased. However, he continues to maintain contact with one of his sisters, who provides ongoing support. He was married for 35 years. He separated from his partner in 2017 due to the stress caused by earlier charges for sex offending. He has three adult children all of whom he has a positive relationship with. Prior to his incarceration, he was living with his daughter and one of his sisters in a home in New South Wales. He has stated a desire to return to this home when he is back in the community.

11․He left school during Year 11 after which he was an apprentice at a printer’s office. He worked as a printer for 20 years. Following this, he was a house husband for 10 years. His final period of employment was between 2007 and 2017 as a bus driver. However, following a degenerative injury, he was unable to work and ceased employment. He does not have problems with alcohol or illicit substances or antisocial associates.

12․The most significant feature of his personal circumstances is his medical condition. He suffers from Type 2 diabetes and a degenerative neck condition. In 2022 he suffered multiple strokes.

13․In June 2022, while in custody on the previous sentence, he suffered a transient ischaemic attack which affected his hand and arm. He suffered his first stroke and was admitted to Canberra Hospital in August 2022. He was returned to the Alexander Maconochie Centre (AMC) at the end of August 2022. On 28 November 2022, he suffered a more severe stroke which affected his right arm and right leg. He was discharged on 14 December 2022 and admitted into the University of Canberra Public Hospital Rehabilitation Stroke Ward. He has remained there except for the period between 24 May 2023 and 14 June 2023 when he was treated at the Calvary Hospital for a kidney and bladder infection. He is currently cared for in the University of Canberra Hospital. He remains in that ward. As a result of the strokes, his memory has been poor.

14․His current level of functioning following the strokes is limited. He can get out of bed by himself but needs a sling on his right shoulder to prevent dislocation. He needs assistance showering, dressing and going to the toilet. He needs to use a wheelchair but cannot push himself because his right arm is in a sling and he cannot use his left arm. He needs a urinary catheter.

15․The future accommodation for the offender in custody is uncertain. Given his complex needs, the AMC is attempting to establish systems which would allow him to be housed there. It is anticipated that he will be detained at the AMC rather than the hospital in the future.

16․He told the author of the pre-sentence report that he has no recollection of the events for which he is charged. He has been assessed as being a low to medium risk of general reoffending and as a very low risk of sexual reoffending by using the Static 99-R test.

Criminal history

17․The offender has a criminal history which involves sexual offending against relatives of his between 1979 and 1988. He was found guilty by a jury of those offences in 2020. He was given an aggregate sentence of 12 years’ imprisonment with a non-parole period of six years. The sentence commenced on 20 February 2020 and will end on 19 February 2032. The non-parole period will expire on 19 February 2026.

Plea of guilty

18․The offender pleaded guilty in the Magistrates Court after a brief of evidence had been prepared. The plea has significant utilitarian value. He is entitled to a reduction in sentence of 25 percent.

Time in custody

19․As the offender is a sentenced prisoner he has spent no time in custody attributable to present offence.

Consideration

20․It is uncontroversial that sexual offending against young children involves offending which may have long-term, deep-seated psychological impacts upon children. General deterrence of such conduct is an important sentencing consideration. However, the offender’s health circumstances make him an unsuitable vehicle for general deterrence and hence this must be a lesser consideration than it would otherwise have been. Denunciation and recognition of the harm done to the victim and the community remain important sentencing considerations. It is particularly important in a case such as the present, where the offender has a strong subjective case arising from his medical conditions, not to overlook the fact that the victim of the offending has had to live with the consequences of that offending for very many years.

21․Specific deterrence and rehabilitation of the offender will often be important considerations but are less significant in the present case because the offender, as a result of his ill health, is effectively disabled from future offending.

22․The offender had a long history of offending prior to the present offence, although, having regard to the fact he was only convicted in 2020 it is not a case where he has persisted in serious offending despite previous sentences being imposed.

23․The court must sentence in a manner consistent with s 34A of the Crimes (Sentencing) Act 2005 (ACT). In addition to the earlier sentencing decision relating to the offender which included a charge against s 92D, I was referred to a number of decisions relating to offences under s 92E: CX v The Queen [2017] ACTCA 37; Tully v The Queen [2016] ACTCA 11; R v Middleton (No 2) [2020] ACTSC 123; R v Hunt [2016] ACTSC 52; R v Bo (No 2) [2014] ACTSC 371; DPP v KQE (No 2) [2022] ACTSC 318; R v Payne [2015] ACTSC 345. Each of the factual circumstances in these cases was different. The subjective circumstances of the offender in the present case are significantly different from that in those cases.

24․I accept the submission made on behalf of the offender that, as a consequence of his health conditions, imprisonment will be a greater burden upon him than would be the case for a person without those health conditions. While I accept that by statute he will be provided with healthcare equivalent to that in the community, the lack of a significant population of elderly or disabled persons within the AMC affects the extent to which the facilities are designed to cater for such persons’ needs. The inevitable rigidity of the prison system will impose additional burdens upon the offender as a person suffering from significant disabilities. While I accept that the evidence does not directly address his longer-term prognosis, having regard to his current state of disability and the length of time since the strokes, I consider that his prognosis is guarded and that any improvement in his condition is unlikely to be sufficient to relieve the additional burdens that he suffers.

25․It is clear that the threshold in s 10 of the Crimes (Sentencing) Act 2005 is passed. In my view the appropriate starting point is a sentence of imprisonment of 24 months, reduced to 18 months on account of the plea of guilty. The sentence structure adopted in the earlier sentences involved a degree of concurrency and a degree of cumulation. Although the present offence is unrelated to the earlier offending, I consider that having regard to the overall period of imprisonment, it is appropriate to include a degree of concurrency with the earlier sentence. The sentence will be concurrent as to six months but otherwise cumulative, adding 12 months to the head sentence. In combination with the earlier sentence, the overall sentence is a sentence of 13 years’ imprisonment. The non-parole period will be reset at six years and five months, that is, adding slightly less than 50 percent of the amount by which the head sentence has been extended.

Orders

26․The orders of the court are as follows:

1.On the charge of sexual intercourse with a person under the age of 10 years (CC 2022/2998) the offender is convicted and sentenced to imprisonment for 18 months commencing on 20 August 2031 and ending on 19 February 2033.

2.The non-parole period commences on 20 February 2020 and ends on 19 July 2026.

I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop

Associate:

Date: