Director of Public Prosecutions v King

[2024] ACTSC 59

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v King

Citation: 

[2024] ACTSC 59

Hearing Date: 

14 November 2023

Decision Date: 

7 March 2024

Before:

Baker J

Decision: 

See [80].

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –historic child sex offences – sexual intercourse without consent – act of indecency without consent – maintain sexual relationship with young person – three victims – where offender is currently serving sentence of imprisonment for like offences against other victims – Bugmy considerations – offender now elderly and in poor health.

Legislation Cited: 

Crimes Act 1900 (ACT), ss 54(1), 56(1), 60(1), 92D(1), 92E(2), 92K(2)

Crimes (Sentencing) Act 2005 (ACT), ss 33, 34A, 65, 66

Cases Cited: 

Benn v R [2023] NSWCCA 24

Bugmy v the Queen [2013] HCA 37; 249 CLR 571

CX v The Queen [2017] ACTCA 37

Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428

DPP v Fitzgerald (a pseudonym) [2023] ACTSC 194

DPP v Mitchell [2023] ACTSC 117

DPP v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428

DPP v Small (No 2) [2023] ACTSC 274

Hili v The Queen [2010] HCA 45; 242 CLR 520

Mill v The Queen [1988] HCA 70; 166 CLR 59

O'Brien v The Queen [2015] ACTCA 47

R v CJK [2009] VSCA 58; 22 VR 104

R v Cooksley [2022] ACTSC 339

R v Degioannis [2019] ACTSC 47

R v Gommeson [2014] NSWCCA 159

R v KC [2020] ACTSC 94

R v Kellan (a pseudonym) [2021] ACTSC 314

R v King (ACT Supreme Court, unreported, 29 June 2012)

R v King [2013] ACTCA 29

R v King [2013] ACTSC 279

R v King [2022] ACTSC 252

R v King (unreported, Supreme Court of the ACT, Refshauge J, 29 June 2012)

R v Page [2021] ACTSC 207

R v Pham [2015] HCA 39; 256 CLR 550

R v Porter (No 3) [2022] ACTSC 236

R v Sirl (No 4) [2020] ACTSC 23

The Queen v Ware (a pseudonym) [2022] ACTCA 14

Parties: 

Director of Public Prosecutions

Ian Harold King ( Offender)

Representation: 

Counsel

D Swan ( DPP)

S Lynch ( Offender)

Solicitors

ACT Director of Public Prosecutions

Aboriginal Legal Services ( Offender)

File Number:

SCC 153 of 2023

BAKER J:

Introduction

1․The offender, Ian Harold King, is currently serving a lengthy sentence of imprisonment in respect of sexual offending against numerous victims, each of whom he met in the course of his role as a senior coach of promising junior cricketers in the Australian Capital Territory.

2․He now comes before the Court to be sentenced for the following eight additional offences involving a further three victims over a five year period from 1997 to 2001:

(a)Count 1: CAN2023/6354 – persistent sexual abuse of child or young person, namely Owen Morgan (a pseudonym), contrary to s 56(1) of the Crimes Act 1900 (ACT).

(b)Count 2: SCCAN2023/453 – sexual intercourse with a young person, namely Owen Morgan (a pseudonym), contrary to s 92E(2) of the Crimes Act 1900 (ACT).

(c)Count 3: CAN2023/6353 – persistent sexual abuse of child or young person, namely Andy Rowland (a pseudonym), contrary to s 56(1) of the Crimes Act 1900 (ACT).

(d)Count 4: CAN2023/454 – sexual intercourse with a young person, namely Andy Rowland (a pseudonym), contrary to s 92E(2) of the Crimes Act 1900 (ACT).

(e)Count 5: CAN2023/6351 – persistent sexual abuse of child or young person, namely Damon Macdonald (a pseudonym), contrary to s 56(1) of the Crimes Act 1900 (ACT).

(f)Count 6: SCCAN2023/455 – sexual intercourse without consent against Damon Macdonald (a pseudonym), contrary to s 92D(1) of the Crimes Act 1900 (ACT).

(g)Count 7: CAN2023/6349 – act of indecency without consent against Damon Macdonald (a pseudonym), contrary to s 60(1) of the Crimes Act 1900 (ACT) (a representative count, which encompasses offending on a number of occasions).

(h)Count 8: CAN2023/6350 – sexual intercourse without consent against Damon Macdonald (a pseudonym), contrary to s 54(1) of the Crimes Act 1900 (ACT) (a representative count, which encompasses offending on a number of occasions).

3․The maximum penalty for counts 1 and 3 is imprisonment for 25 years. The maximum penalty for counts 2, 4 and 5 is imprisonment for 14 years. The maximum penalty for counts 6 and 8 is imprisonment for 12 years. The maximum penalty for count 7 is imprisonment for 5 years. These maximum penalties are an important “yardstick” against which to assess the sentences to be imposed: R v Ware (a pseudonym) [2022] ACTCA 14 at [90] – [93].

Background

The offences

4․The offender was a prominent first-class cricketer in the late 1980s. He subsequently became a senior cricket coach in Canberra. He met each of the victims in this capacity. Each of the victims were talented young cricket players who had accepted the offender’s offer of attending “one-on-one” training sessions with him. During the training sessions, the offender committed various sexual offences against each of the victims on multiple occasions.

Owen Morgan

5․In 1996, the offender was coaching Mr Morgan’s older brother. The offender met Mr Morgan for the first time at his brother’s cricket game. The offender offered Mr Morgan personal training sessions commencing in March 1997. Mr Morgan and his parents agreed to the sessions. The offending against Mr Morgan occurred over two distinct periods: first, between March and October 1997; and second, between March and October 1998. Mr Morgan was aged 14 and 15 years old during the first period, and was between 15 and 16 years of age during the second period. The offender was between 52 and 55 years of age during the period of the offending.

6․In March 1997, Mr Morgan commenced training with the offender on a one-on-one basis. On the first training session, Mr Morgan and the offender attended Phillip Oval before returning to the offender’s home.

7․When they arrived at the offender’s home, the offender told Mr Morgan to remove his shirt and stand in front of a mirror so that the offender could indicate which muscles he needed to strengthen to improve his cricketing skills. The offender then told Mr Morgan to remove his pants and continued to indicate to various muscles around the victim’s lower abdominal region that needed to be strengthened to improve his sporting skills.

8․The offender then placed his hand on Mr Morgan’s penis and masturbated it. He directed Mr Morgan into his bedroom and onto the bed. The offender continued to masturbate Mr Morgan’s penis with his hand. The offender then performed oral sex on Mr Morgan. Mr Morgan ejaculated into the offender’s mouth (count 2).

9․The offender told Mr Morgan that what had occurred was “natural” and that by doing this it would improve his cricketing ability.

10․From that time until the end of the cricket pre-season in October 1997, Mr Morgan continued to have individual training sessions with the offender on a weekly basis. During those sessions, the offender and Mr Morgan attended the Philip Oval before returning to the offender’s home. At the offender’s home, the offender masturbated and performed oral sex on Mr Morgan. He also often cuddled and massaged Mr Morgan’s body. The offender repeatedly told Mr Morgan that what was occurring was to improve his cricketing ability. He also mentioned that Mr Morgan’s other teammates were undertaking the same training sessions. 

11․Based on the date range (March 1997 to October 1997) and the frequency of the training sessions, it is agreed that there were between 28 and 35 “training sessions” during which the offender committed sexual acts against Mr Morgan during the first period.

12․In March 1998, the one-on-one training sessions recommenced (the second offending period) at the same frequency, and involving the same frequency of sexual activity, as the first offending period.

13․During one of the “training sessions” in the second offending period, the offender played a pornographic movie in front of Mr Morgan and instructed Mr Morgan to have sex with a blow up “sex doll” whilst watching the movie. Mr Morgan did as he was directed, while the offender watched.

14․In about October 1998, Mr Morgan stopped attending training sessions or the offender’s home. It is agreed that during the second period, between 29 and 35 “training sessions” took place during which the sexual acts occurred (count 1).

15․Approximately ten years later, in 2008, the offender was first remanded in the Alexander Maconochie Centre for unrelated child sex offences. Police identified Mr Morgan as a person whom the offender had coached. Mr Morgan told police that he had been subject to inappropriate behaviour, but that he did not then wish to provide a formal statement as he did not want the offending to become known.

16․In 2022, Mr Morgan contacted ACT Policing and provided an Evidence in Chief Interview. The offender declined to be interviewed concerning this offending at this time.

Andy Rowland

17․The offending against Mr Rowland also occurred over two distinct periods, the first between March and October 2001, and the second between October 2001 and March 2002. Mr Rowland was 15 years old during the first period and was 15 to 16 years old during the second period.  The offender was between 57 and 59 years of age during the period of offending.

18․The offender first met Mr Rowland in 2001 at the State Cricket Championship trials. Mr Rowland was selected for the ACT under-15s team, which the offender coached. In March 2001, Mr Rowland attended a cricket competition in Queensland. Following this competition, the offender asked Mr Rowland’s parents if he could do some one on one sessions with the offender. Mr Rowland’s parents agreed.

19․Mr Rowland attended his first one on one session with the offender in March 2001. The offender picked Mr Rowland up from his home and drove him to an oval. After training, they went back to the offender’s address. Whilst there, the offender told Mr Rowland to stand in front of a mirror and directed him to take off all his clothes. The offender then pointed out the muscles which were important for playing cricket. The offender grabbed Mr Rowland’s penis at this time.

20․Mr Rowland attended one-on-one training with the offender about once a month during the off session, from March to October. The offender touched Mr Rowland’s penis on each of these occasions. This was agreed to have occurred on approximately 8 occasions.

21․The second offending period commenced in October 2001, during the cricket season. During the season, on weekends when Mr Rowland’s parents were not available, Mr Rowland slept at the offender’s house before attending cricket games.

22․On the first occasion that Mr Rowland slept at the offender’s house, the offender performed oral sex on the victim (count 4). The offender subsequently performed oral sex on the victim each time the victim slept at his address (count 3). This occurred on approximately four occasions over this cricket season.

23․Mr Rowland declined to speak to police when they first contacted him in 2008. However, in 2022, Mr Rowland contacted police and agreed to participate in an Evidence in Chief Interview. The offender declined to participate in a record of interview concerning this offending.

Damon Macdonald

24․Damon Macdonald first met the offender in 1999 during a cricket team training session.  At the time, the offender was the coach of the senior team, and Mr Macdonald was playing in the under-16s team. Mr Macdonald was 15 years old when they met. The offender was between 56 and 58 years of age during the period of offending.

25․In March 2000, when Mr Macdonald was 16, the offender invited Mr Macdonald to have one-on-one training sessions with him. Mr Macdonald was a young aspiring cricket player, and he believed that the offender had taken a genuine interest in advancing his cricketing ability. Mr Macdonald agreed to participate in the training.

26․The first training session occurred on a weekend in March 2000.  The offender and Mr Macdonald attended an oval in Woden, before returning to the offender’s home. The offender positioned Mr Macdonald in front of a full length mirror and instructed him to remove his shirt and pants. The offender removed Mr Macdonald’s underwear. He then directed Mr Macdonald to his bedroom, where he began to masturbate Mr Macdonald’s penis for approximately 5 minutes. Mr Macdonald did not obtain an erection. The offender told Mr Macdonald that to be a professional sports person and a good cricketer, he needed to learn to relax when he was under pressure and when he was outside of his comfort zone.

27․The next incident occurred after the following training session. The offender again masturbated Mr Macdonald. On this occasion, Mr Macdonald obtained an erection.

28․This became a regular pattern over the following three years, occurring approximately once per fortnight, primarily after training. Over time, the incidents progressed from the offender masturbating Mr Macdonald’s penis with his hand to the offender kissing and performing oral sex on Mr Macdonald (count 6).

29․During the cricket season, Mr Macdonald would return to the offender’s home after team training sessions. During the off season (March to October), Mr Macdonald would return to the offender’s home after one-on-one personal training sessions. At this time, the offender would masturbate or perform oral sex on Mr Macdonald until ejaculation. Offending would also occur on occasions that did not involve cricket training, such as after the offender took Mr Macdonald to the movies (count 5).

30․The offender told Mr Macdonald that he was engaging in the same sexual activities with Mr Macdonald’s other teammates. The offender laughed whilst telling Mr Macdonald about his teammates’ reactions to the offending.

31․The second period of offending was between 17 November 2001 and October 2002, after Mr Macdonald’s 18^th birthday. The offender continued to offend against Mr Macdonald. This included masturbating Mr Macdonald’s penis and kissing and performing oral sex upon him (count 8).

32․The last incident between the offender and Mr Macdonald occurred in October 2002 after a game of cricket, in which Mr Macdonald scored 99. The offender kissed Mr Macdonald and masturbated Mr Macdonald’s penis with his hands to ejaculation (count 7). After this occasion Mr Macdonald did not attend any further one-on-one training sessions with the offender and did not attend the offender’s home as part of group training.

33․Over the offending period, the offender purchased Mr Macdonald sporting equipment (including a cricket bat, helmet, pads and gloves), other items such as meals and movie tickets. He also developed a close relationship with Mr Macdonald’s family. He spent Christmas day with the family in 2001.

34․Mr Macdonald first disclosed the offending to his then girlfriend in 2005 and to a former teammate in 2007. He then disclosed the offending to numerous people between 2011 and 2017, before participating in an Evidence in Chief Interview in 2018.  After the offender declined to participate in a record of interview, Mr Macdonald told police that he was not in a position to proceed with the investigation. However, in 2022, Mr Macdonald contacted police and requested that the investigation be re-activated as he was now in a position to proceed with the matter.

Subjective circumstances (s 33(1)(m) of the Crimes (Sentencing) Act 2005 (ACT))

Personal background

35․The offender has had a dysfunctional and traumatic upbringing, which was outlined in a Pre-Sentence Report and an Adult Sex Offenders Program (ASOP) Exit Report, each prepared by ACT Corrective Services; and a document entitled “My Story” authored by the offender.

36․The offender was one of nine siblings, all of whom had a different father to him. The offender’s father was an African American sailor. His maternal grandparents were Aboriginal, but his mother was outcast following her marriage.

37․The authors of the offender’s Pre-Sentence Report observed that the offender reported that he had never met his father and that he suffered “horrendous” abuse by his mother’s subsequent partner, an alcoholic who was also violent towards the offender’s mother. He grew up in an overcrowded house on the northern outskirts of Brisbane. He was surrounded by “heavy drinking, fighting, half naked bodies laying around engaged in ‘sexuals’ behaviours”.

38․From a young age, the offender was forced to share his sleeping area with drunken adults. He was forced to fondle the genitals of men and women. He stated that he “soon learnt the hard way about the facts of life and sexual behaviours”. When he disclosed to adults around him, he was accused of lying and was told that he was lucky that people liked him. He felt lonely and lost and would run away and hide in isolated places. He was afraid of his stepfather, and also of police, fearing that he would be taken away from his mother. He also recalled having been excluded from his family due to his dark skin.

39․When the offender was 11 years old, he commenced going to “Aboriginal bush camps” where he was frequently exposed to alcohol abuse, physical and sexual abuse and neglect: R v King [2022] ACTSC 252 at [16].

40․The offender attended three different schools before he left schooling in around year 6 or year 7. From then, he made money selling papers, which he supplemented by performing sexual favours for men who bought him food and gave him money in exchange for masturbation or oral sex. He explained that “as long as I had money to give Mum for the rent and food I didn’t care how I made the money”. When the offender was 15 years old, he got a job at an abattoir in Brisbane. The meat workers looked after him and invited him on fishing trips, but the offender discovered that “heavy drinking smoking and sex was the price” of those trips.

41․From ages 17 to 27, the offender excelled in sport, playing at a representative state and national level in a number of different sports, including both boxing and cricket.  He retired from boxing after suffering from concussion, but continued to play cricket at a first grade level. He represented Queensland as a cricketer in the Sheffield Shield competition.

42․In the late 1980s, the offender was offered a consultancy job by the Aboriginal and Torres Strait Islander Commission.

43․In 1987, the offender arrived in the ACT as a part of his employment as a sports consultant. The offender commenced coaching in cricket after this time.

Mental health

44․Mr Sutton, psychologist, indicated that the offender had “almost certainly” sustained major developmental damage during his formative years. Mr Sutton explained that the offender “did not gain the capacity for normal adult relationships, being emotionally, and cognitively only able to interact with adolescents”.

45․Mr Sutton stated that the offender has “neurotic components to his personality” and elements of “psychosexual arrested development, egocentricity, schizoid and schizotypal social isolative patterns.” He said that as the offender “has no internal capacity to think his way through internal needs and no social network within which to discuss them, he has no brakes on his behaviour.”  Mr Sutton concluded that the damage to the offender’s “psyche and psychosexual development is … irreparable.”

Physical health

46․The offender is elderly. He is now over 80 years old. He has had a knee replacement and has a number of health conditions including diabetes, hypertension, ischaemic heart disease, arterial fibrillation, cataract, cardiomyopathy, chronic kidney disease and asthma.

47․On 27 January 2013, the offender was the subject of a physical assault within the Alexander Maconochie Centre by another inmate. As a result, the offender sustained a serious injury to his eye and is now required to wear a prosthetic eye: R v King [2022] ACTSC 252 at [19]. The offender’s ongoing disability and need for protection in prison will render his imprisonment more onerous on the offender than it would be for other prisoners: R v King [2013] ACTCA 29 at [80].

Criminal history

48․The offender has previously been sentenced to the following terms of imprisonment:

(a)In 2012, the offender was sentenced for 25 sexual offences committed against five boys aged between 10 and 16 years old. Refshauge J imposed a head sentence of 12 years’ imprisonment upon the offender: R v King (unreported, Supreme Court of the ACT, Refshauge J, 29 June 2012).  That 12 year head sentenced was increased on a prosecution appeal to 19 years’ imprisonment, with a non-parole period of 11 years and 10 months: R v King [2013] ACTCA 29.

(b)In 2013, the offender was sentenced for a further five sexual offences against five different boys aged between 16 and 18. Justice Refshauge imposed a further head sentence of five years’ imprisonment to be partially concurrent with the existing 19 year sentence. The offender’s non-parole period was re-set to be a total of imprisonment for 12 years and four months: R v King [2013] ACTSC 279.

(c)In 2022, Kennett J convicted the offender of a further sexual offence (act of indecency on a person under the age of 16 contrary to s 92K(2) of the Crimes Act 1900 (ACT)). Justice Kennett sentenced the offender to a further two years and seven months’ imprisonment, to be partially concurrent with the existing sentence: R v King [2022] ACTSC 252.

49․Annexure A to these reasons is a table particularising each of the above sentences.

50․The offender’s criminal history also includes some minor traffic offences and convictions of stealing, which are of no relevance to the present proceedings.

Sentencing Considerations

Nature and circumstances of the offences (s 33(1)(a) of the Crimes (Sentencing) Act)

51․The severity of the offending is amply demonstrated in the description of the offending that I have set out above. As with his previous offending:

(a)Each offence involved a significant age difference between the offender, a mature adult in his 50s, and the victims, who were aged 14 to 18 years old at the time of the offending: R v King [2022] ACTSC 252 at [13(a)].

(b)The offending occurred for the sexual gratification of the offender: see R v King [2022] ACTSC 252 at [13(b)].

(c)The offending occurred in the offender’s home, where the victims were rendered vulnerable by reason of their isolation from trusted adults: see similarly R v King [2022] ACTSC 252 at [13(c)].

(d)The offending constituted a grave breach of trust between the offender, the victims and their families: see similarly R v King [2022] ACTSC 252 at [13(d)]. The power imbalance between the appellant, as the victims’ team and individual coach and an admired former first grade cricketer, and the victims, who were talented, young aspiring cricketers, was extreme.

(e)The offending was not opportunistic, but was planned and premeditated. The offender preyed upon the victims’ interest in cricket, and used the promise of one-on-one coaching to afford him the opportunity to engage in the offending.

52․The offences of persistent sexual abuse are each serious instances of that offence. They were prolonged, each spanning more than one season, and involved different sexual acts.

53․Counts 7 and 8 are representative counts. As described in The Queen v CJK [2009] VSCA 58; 22 VR 104 at [36] – [68], in sentencing for these counts, the Court is entitled to take into account the “whole picture” of the course of offending.

Victim Impact Statements

54․The three victims each provided Victim Impact Statements which provided the Court with important insight into the profound effects that the offending has had upon them.

55․In his Victim Impact Statement, Mr Morgan explained that the offending was a “secret that [he has] held onto for a long time”, which he was required to hold “close” because of his fear of what people would think and say and his fear of letting his loved ones down. Mr Morgan spoke of his shame. However, he also described how the reporting of the offending has brought home that the offending is not his “cross to bear”. He is a strong victim who wishes to tell his story to "stand up and be counted on for the next generation".

56․In his Victim Impact Statement, Mr Rowland described how the offender had stolen his innocence, confidence, hopes and dreams. He disclosed that he now has difficulties with trusting those close to him. He explained that he felt that the offending was his fault for a long time and that he often blamed himself for it. He also described how his close family members also blame themselves for the offending. He described how recovering from the offending has been a "long rough road" and expressed sadness at what he could have achieved if the offending had not occurred.

57․In his Victim Impact Statement, Mr Macdonald described the pain, anguish and shame that the offending caused him to feel over many years. He described feeling “dirty, not good enough and different to everyone else”. He spoke about how the offender preyed upon him and took advantage of the trust that had been placed in him. Mr Macdonald described how the offending against him has rendered it difficult for him to fully trust anyone close to him. He also described the emotional difficulty he has faced in disclosing his abuse to his family, in particular because the offender had also fostered a relationship with, and groomed, Mr Macdonald's family.

58․There can be no doubt that the offending has resulted in lifelong harm to each of these men.

Responsibility and Remorse (ss 33(1)(i) and 33(1)(w) of the Crimes (Sentencing) Act)

59․The offender has participated in an Adult Sex Offender Program (ASOP) whilst incarcerated. The report from the ASOP indicated that Mr King “appeared to gain some insight” into his offending and identified his own sexual abuse as contributing to his attitude towards abusive behaviour. Importantly, the report noted that the offender now recognises that he had a number of “cognitive distortions” relating to the offending such as thinking the victims would “enjoy” the offending behaviour because “[he] enjoyed it as a teenager”.

60․In the course of the ASOP the offender was tasked with reflecting on the victims’ experiences but showed “only limited ability to do so without minimisations and underlying distortions”. The ASOP report found that the offender’s ability to empathise with his victims appeared to be complicated by his “resentment and anger about having to pay victim compensation with money he expected to receive for his own injury”.

Risk of re-offending and prospects of rehabilitation

61․The ASOP report put before the Court summarises the offender’s progress in that program. The ASOP report assessed the offender as being at a “moderate-high” risk of re-offending. Mr Sutton expressed the view in his psychological report that in light of the offender’s “distorted thinking processes” it is difficult to predict his risk of future offending. However, in view of the offender’s advanced age, I consider that his risk of re-offending can be assessed as low.

Good character (s 34A(b) of the Crimes (Sentencing) Act)

62․Like Kennett J and the Court of Appeal, I am satisfied that the appellant’s prior good character enabled the offender to commit the offences. Accordingly, I have given the offender’s prior good character no weight in determining the sentences to be imposed: s 34A(b) of the Crimes (Sentencing) Act; R v King [2022] ACTSC 252 at [24].

Guilty plea (s 33(1)(j) of the Crimes (Sentencing) Act)

63․The offender entered pleas of guilty to all offences with which he was charged in the Magistrates Court. I will afford the offender a 25% discount in respect of each count owing to those pleas.

Current sentencing practice (s 33(1)(za) of the Crimes (Sentencing) Act)

64․Section 33(1)(za) of the Crimes (Sentencing) Act requires the Court to consider “current sentencing practice” when determining the appropriate sentences to be imposed. Section 34A(a) of the Crimes (Sentencing) Act further provides that for sexual offending against a child, a court “must sentence the offender in accordance with sentencing practice, including sentencing patterns, at the time of sentencing”.

65․I have considered the sentences previously imposed on the offender in respect of like offending (nothing, where applicable, the differences in maximum penalties as between the different counts). I have also considered the sentences imposed in R v Kellan (a pseudonym) [2021] ACTSC 314; DPP v Mitchell [2023] ACTSC 117; DPP v Small (No 2) [2023] ACTSC 274; R v Degioannis [2019] ACTSC 47; R v KC [2020] ACTSC 94; R v Sirl (No 4) [2020] ACTCA 37; DPP v Fitzgerald (a pseudonym) [2023] ACTSC 194; R v Cooksley [2022] ACTSC 339; R v Ware (a pseudonym) [2022] ACTCA 14; 17 ACTLR 273; R v Page [2021] ACTSC 207; and R v Porter (No 3) [2022] ACTSC 236 (appeal against the severity of the sentence pending).

66․However, I have also borne in mind that the purpose of these comparative cases is to promote and ensure consistency in the application of relevant principles: Hili v The Queen [2010] HCA 45; 242 CLR 520. The sentences imposed in those comparative cases illustrate, but cannot define, the possible range of sentences available, and these sentences do not cap the sentencing discretion: R v Pham [2015] HCA 39; 256 CLR 550 at 560 [29]; Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at 445 [51] – [53].

Determination

67․There can be no question that a lengthy period of imprisonment is required. As Refshauge J previously observed in respect of other offending committed by this offender, “there is nothing redeeming or mitigating in these offences”: R v King [2013] ACTSC 279 at [22]. The offending constituted a grave breach of trust. In respect of each victim the offending was prolonged, planned, and pre-meditated.

68․As outlined above, the offender has a profoundly disadvantaged background. It is apparent that the offender’s psychological development was damaged by the physical and sexual abuse that he himself suffered as a young boy through to his teenage years. I am satisfied that the offender’s moral culpability for his offending is significantly reduced by reason of this background: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at 594 [40] – [44].

69․However, a finding of a reduction in moral culpability does not always entail a substantial reduction in the sentence to be imposed. In some cases, the need for denunciation and recognition of the harm caused must predominate. This is such a case. The offender preyed upon the victims’ passion for cricket and their aspirations to satisfy his own sexual desires. As the victims eloquently described in their victim impact statements, the offender stole their innocence, confidence, hopes and dreams, inflicting deep trauma and pain upon each of them. From a young age, they have borne the shame of the offender’s offending and have carried the weight of the secrets that he imposed on them. The offending has impacted every aspect of their lives, particularly their relationships with their family and friends. The sentences to be imposed must recognise the profound, multifaceted and lifelong harm that the offender has caused to these victims, and to their broader families. The sentences to be imposed must also denounce the offending on behalf of the entire community.

70․The offender is now in his 80s. As the offender himself recognises, the sentence that must be imposed for this offending is likely to have the effect of a life sentence upon him. I will take into account the fact that the offender’s age and disability will make prison more difficult for him. However, I also bear in mind that these considerations cannot lead to a sentence that fails to reflect the community’s abhorrence of the present crimes: see similarly CX v The Queen [2017] ACTCA 37 at [39] – [40].

71․The most difficult aspect of the present sentencing task concerns the application of the principle of totality. The principle of totality requires the Court to impose a sentence that is “just and appropriate” in all of the circumstances: O’Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244 at [26]. In the present case, there are three aspects of the totality principle which must be taken into account in determination of the appropriate sentence to be imposed.

72․First, some of the offences are encompassed within the criminality of other offences (for example, offences of sexual intercourse without consent that are encompassed within the period covered by an offence of persistent sexual abuse of a child). Where the offences are not “distinct and separate”, the sentences to be imposed should be concurrent, or largely concurrent, to ensure that there is not double punishment for that offending: O’Brien at [26(d)].

73․Second, a number of the offences relate to separate victims. The sentences to be imposed must recognise the separate and individual harm that the offending inflicted upon each of these victims: O’Brien at [26(c)]; R v Gommeson [2014] NSWCCA 159 at [100] – [116]; Benn v R [2023] NSWCCA 24 at [183].

74․Finally, the present sentences must be imposed in a context where the offender is serving sentences for relevantly identical offending involving many more victims. The High Court held in Mill v The Queen [1988] HCA 70; 166 CLR 59 at 66 [16] that the “proper approach” in this situation is “to ask what would be likely to have been the effective head sentence if the [offender] had … been sentenced [for all offences] at the one time”. That is easier said than done, particularly where, as here, an offender is being sentenced for numerous serious offences against multiple victims, but is already serving a lengthy sentence in respect of other serious offences against multiple victims.

75․In the present case, I will take into account each aspect of the totality principle in determining the appropriate level of accumulation of the sentences to be imposed.

76․The imposition of a further term of imprisonment automatically cancels the existing non-parole period: ss 65 and 66 of the Crimes (Sentencing) Act. It will be necessary for me to reset overall the non-parole period. In their submissions before me, the parties observed that the non-parole period set by Kennett J was 54% of the head sentence, which was slightly less than the 57% ratio set by Refshauge J. The offender's counsel invited me to adopt a similar approach to the setting of the non-parole period in the present case.

77․However, it must be borne in mind that “the actual period of full-time imprisonment will often be more important than its mathematical relationship with the head sentence”: The Queen v Ruwhiu [2023] ACTCA 18 at [112] – [113]. Ensuring that the separate criminality involved in the current offending is reflected in the sentence imposed requires that there be a real increase in the overall non-parole. Doing so will result in a somewhat higher ratio of the new overall non-parole period as against the overall head sentence. I have been careful to impose sentences (both an overall period), and an overall new non-parole period which are just and appropriate in all of the circumstances.

78․The sentences that I will impose for each count prior to the imposition of the discounts will be as follows:

Count 1:   15 years’ imprisonment

Count 2:   3 years and 6 months’ imprisonment

Count 3:   11 years’ imprisonment

Count 4:   3 years and 6 months’ imprisonment

Count 5:   9 years’ imprisonment

Count 6:   3 years’ imprisonment

Count 7:   18 months’ imprisonment

Count 8:   2 years and 6 months’ imprisonment

79․Recognising the complete overlap in criminality between each of Counts 1 and 2; Counts 3 and 4; and Counts 5 and 6, I will impose sentences for these pairs of counts which are entirely concurrent. The sentences that I will impose for Counts 6, 7 and 8, which involve the same victim, but different criminal acts at different times, will be partially concurrent. There will be partial but less concurrency as between the sentences to be imposed for counts relating to different victims, recognising the principles that I have set out above concerning the application of that aspect for the totality principle. The overall sentence will be imprisonment for a period of 23 years. To accord with the High Court’s decision in Mill, the sentences that I impose for the present offending will have substantial concurrency with the offender’s existing sentences.

Orders

80․The orders of the Court are as follows:

(1)In respect of Count 1: CAN2023/6354 – persistent sexual abuse of child or young person, namely Owen Morgan (a pseudonym), you are convicted and sentenced to a term of imprisonment of 11 years and 3 months, commencing on 31 May 2026 and expiring on 30 August 2037.

(2)In respect of Count 2: SCCAN2023/453 – sexual intercourse with a young person, namely Owen Morgan (a pseudonym), you are convicted and sentenced to a term of imprisonment of 2 years 7 months and 15 days, commencing on 16 January 2035 and expiring on 30 August 2037.

(3)In respect of Count 3: CAN2023/6353 – persistent sexual abuse of child or young person, namely Andy Rowland (a pseudonym), you are convicted and sentenced to a term of imprisonment of 8 years and 3 months, commencing on 28 February 2035 and expiring on 27 May 2043.

(4)In respect of Count 4: SCCAN2023/454 – sexual intercourse with a young person, namely Andy Rowland (a pseudonym), you are convicted and sentenced to a term of imprisonment of 2 years, 7 months and 14 days, commencing on 14 October 2040 and expiring on 27 May 2043.

(5)In respect of Count 5: CAN2023/6351 – persistent sexual abuse of child or young person, namely Damon Macdonald (a pseudonym), you are convicted and sentenced to a term of imprisonment of 6 years and 9 months, commencing on 27 November 2040 and expiring on 26 August 2047.

(6)In respect of Count 6: SCCAN2023/455 – sexual intercourse without consent against Damon Macdonald (a pseudonym), you are convicted and sentenced to a term of imprisonment of 2 years and 3 months, commencing on 27 May 2045 and expiring on 26 August 2047.

(7)In respect of Count 7: CAN2023/6349 – act of indecency without consent against Damon Macdonald (a pseudonym) (a representative count, which encompasses offending on a number of occasions), you are convicted and sentenced to a term of imprisonment of 1 year 1 month and 15 days, commencing on 26 February 2047 and expiring on 9 April 2048.

(8)In respect of Count 8: CAN2023/6350 – sexual intercourse without consent against Damon Macdonald (a pseudonym) (a representative count, which encompasses offending on a number of occasions), you are convicted and sentenced to a term of imprisonment of 1 year 10 months and 14 days, commencing on 17 July 2047 and expiring on 30 May 2049.

(9)I will impose a new non-parole period of 25 years’ imprisonment, which will commence on 3 July 2008 and end on 2 July 2033.

(10)The head sentence will expire on 30 May 2049.

I certify that the preceding eighty [80] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Baker

Associate:

Date: 7 March 2024

ANNEXURE A

Sentences imposed by Court of Appeal: R v King [2013] ACTCA 29
Count Number		Offence		Sentence imposed by Court of Appeal
Count 1		Act of indecency on person 10-16 years		30 months’ imprisonment commencing 3 June 2008 and expiring 2 January 2011
Count 2		Sexual intercourse with a person 10-16 years		3 years 4 months’ imprisonment commencing 3 October 2008 and expiring 2 February 2012
Count 3		Act of indecency on person 10-16 years		20 months’ imprisonment commencing 3 September 2010 and expiring 2 May 2012
Count 4		Act of indecency on person 10-16 years		20 months’ imprisonment commencing 3 December 2010 and expiring 2 August 2012
Count 5		Act of indecency on person 10-16 years		9 months’ imprisonment commencing 3 February 2012 and expiring 2 November 2012
Count 6		Act of indecency on person 10-16 years		20 months’ imprisonment commencing 3 June 2011 and expiring 2 February 2013
Count 7		Act of indecency on person 10-16 years		30 months’ imprisonment commencing 3 December 2010 and expiring 2 June 2013
Count 8		Act of indecency on person 10-16 years		34 months’ imprisonment commencing 3 February 2011 and expiring 2 December 2013
Count 9		Act of indecency on person 10-16 years		30 months’ imprisonment commencing 3 October 2011 and expiring 2 April 2014
Count 10		Act of indecency on person 10-16 years		20 months’ imprisonment commencing 3 December 2012 and expiring 2 August 2014
Count 11		Act of indecency on person 10-16 years		30 months’ imprisonment commencing 3 July 2014 and expiring 2 January 2017
Count 12		Act of indecency on person 10-16 years		34 months’ imprisonment commencing 3 September 2014 and expiring 2 July 2017
Count 13		Sexual intercourse with a person 10-16 years		3 years 4 months’ imprisonment commencing 3 November 2014 and expiring 2 March 2018
Count 14		Act of indecency on person 10-16 years		30 months’ imprisonment commencing 3 January 2016 and expiring 2 July 2018
Count 15		Act of indecency on person 10-16 years		34 months’ imprisonment commencing 3 January 2016 and expiring 2 November 2018
Count 16		Act of indecency on person 10-16 years		3 years’ imprisonment commencing 3 May 2016 and expiring 2 May 2019
Count 17		Sexual intercourse with a person 10-16 years		3 years 9 months’ imprisonment commencing 3 May 2016 and expiring 2 February 2020
Count 18		Sexual intercourse with a person 10-16 years		3 years 9 months’ imprisonment commencing 3 November 2016 and expiring 2 August 2020
Count 19		Act of indecency on person 10-16 years		32 months’ imprisonment commencing 3 March 2018 and expiring 2 November 2020
Count 20		Act of indecency on person 10-16 years		3 years 6 months’ imprisonment commencing 3 November 2017 and expiring 2 May 2021
Count 21		Sexual intercourse with a person 10-16 years		3 years 9 months’ imprisonment commencing 3 March 2018 and expiring 2 December 2021
Count 22		Sexual intercourse with a person 10-16 years		4 years’ imprisonment commencing 3 January 2019 and expiring 2 January 2023
Count 23		Maintaining sexual relationship with a person under 16 years		12 years’ imprisonment commencing 3 July 2014 and expiring 2 July 2026
Count 24		Sexual intercourse without consent		4 years’ imprisonment commencing 3 January 2023 and expiring 2 January 2027
Count 25		Sexual intercourse with a person 10-16 years		3 years 4 months’ imprisonment commencing 3 March 2024 and expiring 2 July 2027
Sentences imposed by Supreme Court: R v King [2013] ACTSC 279
Count 1	Sexual intercourse without consent		2 years 10 months’ imprisonment commencing 2 July 2025 and expiring 1 May 2028
Count 2	Sexual intercourse without consent		2 years 10 months’ imprisonment commencing 2 September 2026 and expiring 1 July 2029
Count 3	Act of indecency without consent		1 year 4 months’ imprisonment commencing 2 October 2028 and expiring 1 February 2030
Count 4	Act of indecency without consent		8 months’ imprisonment commencing 2 September 2029 and expiring 1 May 2030
Count 5	Act of indecency		6 months’ imprisonment commencing 2 January 2030 and expiring 1 July 2030
Sentence imposed by Supreme Court: R v King [2022] ACTSC 252
Count 1	Act of indecency on person 10-16 years		2 years seven months’ imprisonment commencing 1 November 2029 and expiring 31 May 2032