R v KA

[2024] NSWDC 610

District Court

New South Wales

Medium Neutral Citation:

R v KA [2024] NSWDC 610

Hearing dates:

21 June 2024

Date of orders:

26 July 2024

Decision date:

26 July 2024

Jurisdiction:

Criminal

Before:

Tupman DCJ

Decision:

1. Offender is convicted.

2. For Count 10, offender is sentenced to 3 years imprisonment with a NPP of 18 months.

3. For Count 11 and 12, offender is sentenced to 6 months fixed term imprisonment.

Catchwords:

CRIME – sentence – after trial – Count 10 – sexual intercourse with child between 10 and 16 – contrary to s66C Crimes Act – maximum penalty 8 years imprisonment – Count 11 and 12 – indecent assault – s61E(1) Crimes Act – maximum penalty 4 years imprisonment

OFFENCES – historical child sexual assault offences – between 1989 and 1992 – victim aged between 14 and 16 – offender aged between 19 and 20 – cousins – offender stayed overnight at victim’s family home – Count 10 – offender removed victim’s pyjamas and laid on top of her – penile vaginal intercourse – victim in pain and bleeding – Count 11 and 12 – offender entered victim’s room while asleep – lifted blanket and touched her genital region and breast area – offender arrested 8 February 2022

OBJECTIVE SERIOUSNESS – Count 10 – occurred in victim’s home – unprotected sex – some force – brazen – middle range – Count 11 and 12 – opportunistic and brief – lower range – lengthy and detailed VIS

SUBJECTIVE CASE – offender now 54 – no criminal record at the time – committed offences since – successful rehabilitation following imprisonment – secure childhood – difficulty at school – went “off the rails” – drug and alcohol use – bankrupt in 2008 – now carer for aging parents – persistent depressive disorder

SENTENCE – general deterrence – no discount – delay – youth at time of offending.

Legislation Cited:

Crimes Act 1900 (NSW): ss 61E(1), 66C(1)

Crimes (Sentencing Procedure) Act 1999 (NSW): ss 3A, 5, 21A

Cases Cited:

R v Gavel [2014] NSWCCA 56

Category:

Sentence

Parties:

Rex (Crown)
KA (Offender)

Representation:

Counsel:
C Dodds (Crown)
B Robinson (Offender)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Legal Aid NSW (Offender)

File Number(s):

2022/00037241

Publication restriction:

There is to be no publication of any details that might identify or tend to identify the victim or the offender.

JUDGMENT

1. This is the sentence judgment in the matter of KA who is before the Court for sentence after trial. He faced trial before a jury between 8 and 27 March 2024 on 12 counts in an indictment dated 6 March 2024.

2. He was found not guilty on counts 1, 6, 7 and 8 and discharged on those counts. He was found guilty on counts 10, 11 and 12 and they are the subject matter of the sentences now before me. The jury was unable to reach either unanimous or majority verdicts in relation to the remaining counts and was discharged. The Director of Public Prosecutions has subsequently elected to take no further proceedings on those counts, namely, counts 2, 3, 4, 5 and 9.

3. The accused has been in custody bail refused following the verdicts on 27 March 2024, and as such the sentences will be backdated to commence on that date.

4. The offences for sentence are as follows:

1. Count 10 is an offence that between 1 January and 31 December 1990 at Coogee, the offender had sexual intercourse with the named victim who was then a person aged between 10 and 16, namely 14 or 15. This is an offence contrary to s 66C(1) of the Crimes Act 1900 (NSW) then in force which carries a maximum penalty of 8 years imprisonment.

2. Counts 11 and 12 are offences which occurred at the same time. They are both offences of indecent assault occurring between 31 December 1989 and 13 February 1992 at Coogee when the offender indecently assaulted the same complainant. These offences are both contrary to s 61E(1) of the Crimes Act then in force and each carries a maximum penalty of 4 years imprisonment.

5. The relevant facts are to be distilled from the evidence at trial which has been usefully summarised as annexure A to the Crown’s written submissions which is before the Court as MFI 1. There has been no objection on behalf of the offender in relation to the content of this annexure and I accept that it appropriately summarises the evidence which was before the jury, in large part from the victim or complainant as she then was.

6. I accept from that document, given that it mirrors the evidence given at trial, that at the time of the offences the victim was aged between 14 and 16. The offender was born in March 1970 and was aged between 19 and 20 at the time of the offences. The offender is the victim’s cousin. During her early childhood the victim lived with her family in the Cessnock area where her parents operated a fruit shop. They moved to Sydney when she was about 6 and moved back to the Cessnock area for a period of time. She then moved with her family, comprising her mother and father, older brother and sister, back to Sydney in 1987, not long after she turned 12. She attended school in Sydney and then in 1989 the family moved to Coogee where her parents operated a fruit shop, which was also part of their residence, living above the shop. The offender would sometimes stay overnight at the victim’s family home and then go to work at his own family’s fruit shop in Bondi Junction the next morning. The offender’s family, as I recall the evidence, lived in the Belrose area at the time.

7. The facts relevant for count 10 involve one of those occasions when he was staying overnight. I accept from the jury’s verdict, based on the evidence of the complainant, that on such an evening in 1990, the offender was sleeping on a pullout sofa in the upstairs living area of the victim’s house nearby the room where the victim and her sister slept. He was 19 or 20 at the time and she was 14 or 15. The victim had left her bed to get something and was walking past the sofa bed on which the offender was lying. The offender said, “Come here. Come here, quick.” She said no and walked away, but he grabbed her hand and said, “Come here quick.” He then removed the bottom half of her pyjamas, lay on top of her and inserted his penis into her vagina. She felt pain and said, “No. You need to stop. It’s hurting me. You need to stop. It’s hurting so much.” I accept on the evidence she gave, which was in large part accepted by the jury, certainly in relation to this count, that he put his hand over her mouth to stop her from saying anything further

8. She noticed that she was bleeding, and the offender withdrew his penis and told her that she needed to clean herself and wash the sheets. She had a shower for about an hour, and I accept was crying and felt confused. The offender left and she subsequently put the sheets in the wash. She felt sore in her vaginal area and did not at the time understand exactly what had happened. She did not seek any medical attention at the time because she felt ashamed.

9. Sometime later she formed the view that the bleeding had occurred because the sexual intercourse had ruptured her hymen, in circumstances where she was a virgin at the time. That was the view that she subsequently held, although there was no other evidence about that apart from the view that she held. She did not tell anyone at the time about this event. They would appear to be the relevant facts for count 10.

10. Counts 11 and 12 both occurred at the same time on another evening when the offender was staying at the victim’s home sleeping on the sofa bed. Again, he was 19 or 20 at the time and the complainant was 14 or 15. The victim and her sister were both asleep in their room. The offender came into the room while she was asleep, lifted the blankets and started to touch her in her genital region under her pyjama bottoms but over her underwear. He also placed a hand or hands up through her pyjama top and touched her breast area on her skin. These two events would appear to have occurred either at the same time or very close to each other in time.

11. The victim told the offender to “Fuck off” which caused her sister to stir in the nearby bed and the offender left the room. Whilst there was no actual evidence of this, I accept that each of these indecent assaults occurred, as I have said, at more or less the same time and over a very short period of time.

12. The offender was not arrested in relation to these offences until 8 February 2022, so about 20 to 22 years after the offences.

13. Clearly these are all serious offences because they are child sexual assault offences. The Court is very aware of the adverse impact of sexual assault on children, often continuing for the rest of their lives, and including life changing psychological damage. R v Gavel [2014] NSWCCA 56 makes that clear. The District Court of New South Wales has, over many years, sadly seen this borne out in the unfortunately large number of such cases that come before the Court. It is for that reason that those who commit child sexual offences must expect condign punishment and where that sexual assault offence involves sexual intercourse, it would be a very rare and unusual case where anything other than a term of imprisonment would be the appropriate sentence.

14. The legislature has determined that if a sentence of imprisonment is imposed for offences involving the sexual assault of children, it is not open to order that such a sentence be served in the community by way of an Intensive Corrections Order, and so any term of imprisonment for an offence of the type covered by all of the counts in this matter, must be served full time. It is not argued in this matter on behalf of the offender that anything other than full-time custody is appropriate, and as already indicated, he has been in custody, in any event, since 27 March 2024, bail refused.

15. Count 10 involves the offender, an adult male relative of the victim, who herself was aged 14 or 15 at the time when he was aged 19 or 20, having penile-vaginal sexual intercourse with her. It occurred in her own home, which is a circumstance of aggravation. It occurred in a relatively open area, as I recall the evidence, of the upstairs of her house, close to her own bed where she was entitled to feel safe. It was apparently unprotected sex in that the offender did not use a condom and for whatever reason the sexual intercourse caused her to bleed.

16. The evidence does not allow for a finding about the duration of the sexual intercourse, but I accept more probably than not it lasted for a relatively short period of time. There is no evidence about whether or not the offender ejaculated but I accept more probably than not this did not occur because the sexual intercourse appears to have come to an end when the victim noticed she was bleeding. The was some force used, namely, that he put his hand over her mouth to stop her from speaking any further, and the victim herself said that it hurt a lot, but there is no evidence that significant force was used.

17. It was relatively brazen in that it was in what I understand to have been a somewhat open area of the upstairs of her house, with her parents either downstairs or at the very least somewhere nearby. The risk of being discovered was high. There is no evidence that there had been any planning, however, and that this was anything other than a spontaneous offence at the time.

18. Both the Crown and counsel for the accused submit that in these circumstances this offence falls about the middle of the range in terms of objective seriousness, and I accept that joint submission. I also take into account the fact that the maximum penalty for this offence relevant at the time is 8 years and there is no standard non-parole period for this offence.

19. For counts 11 and 12, many of the same findings are relevant in terms of assessing the objective seriousness. Count 11 involved touching over the clothing in the genital region. Count 12 involved touching on the skin underneath the pyjama top on the victim’s breast area. In both cases, however, the offending would appear to have been opportunistic and very brief. Whilst they are both instances of child sexual assault, again I accept what was the joint submission of both the Crown and counsel for the accused, that these two offences fall towards the lower range of objective seriousness for offences of this type.

20. So far as counts 11 and 12 are concerned, it seems to me that had these been the only offences for sentence, it would have been open for the Court to consider dealing with them by way of Community Corrections Order with serious consideration as to whether or not in fact the s 5 threshold had been crossed. However, that is not a matter that has been the subject of any argument on behalf of the offender in this Court, no doubt because of practical realisation that that is not a matter that could be argued in relation to count 10.

21. However, according to the statistics published by the Judicial Commission, just under half of all sentences imposed in this Court, pursuant to this now repealed s 61E(1), are dealt with in a way that does not involve full‑time custody. Pursuant to the general provisions of s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) the Court must sentence in accordance with the current sentencing patterns, notwithstanding that these offences fall within the general description of historical child sexual offences.

22. The offender pleaded not guilty to these charges and went to trial. As such he is not entitled to any discount from what would otherwise be the appropriate sentence.

23. A matter which I take into account and which I am required to take into account pursuant to s 21A of the Crimes (Sentencing Procedure) Act, is the impact on the victim. There was a lengthy and detailed five-page victim impact statement tendered and read out in Court by the victim. I listened to that when it was read in Court and have reread it and considered it when determining the sentences in this matter. There are some difficulties involved in taking the whole of that statement into account because clearly the victim refers to what she alleges were many sexual assaults over a period of time, some of which at least were the subject of counts in the indictment where either the offender was acquitted by the jury or the Director of Public Prosecutions has elected to take no further proceedings.

24. However, I accept that the offences for which I do sentence the offender have had an adverse impact on the victim including emotional suffering and distress. The victim also refers to adverse physical and economic impacts on her. There is no evidence of harm to the victim which would elevate it to an aggravating factor however, and that is not argued on behalf of the DPP.

25. It is at least pleasing that the victim in that statement indicates that because of all of the work she has undertaken to improve herself and to deal with the issues that were caused as a result of the sexual assault, she now has stability in her life and considers herself to be successful, and particularly pleasing that she reports she now views herself as a survivor. It is to be hoped that the finalisation of these proceedings will allow her to continue on that path and continue to see herself as a survivor of child sexual abuse and continue to flourish.

26. I now turn to issues surrounding the offender. As I have said he was 19 or 20 at the time of the offending and is now 54. At the time of the offences he had no criminal record and he is entitled to have that taken into account in his favour, but given the nature of the offending and particularly so in relation to count 10, it is not a matter to which I give great weight. Since then, the offender has committed other offences which are not of a minor nature. One of those was an offence of break, enter and steal, committed in January 1992, for which he received a good behaviour bond of 3 years. The other is a conviction for an offence of knowingly taking part in the supply of prohibited drugs, which apparently occurred in 1994. He received a term of imprisonment for that with a non-parole period of 15 months, with parole of 15 months. That sentence commenced on 17 July 1997 and ended overall in January 2000. Subsequent offences, of course, cannot be taken into account as if they were prior offences but may be relevant to a Court’s determination of an offender’s prospects of rehabilitation. In this case, given the length of time that has since passed, and all of the other events surrounding the offender, to which I will soon refer, it seems to me that these subsequent offences are not relevant in determining the appropriate sentence for the matters before me.

27. Despite the acquittals on some charges and decision to take no further proceedings on others, and the fact that I am therefore sentencing only for three offences, it would not be appropriate to view these three offences in a vacuum or treat them as one-off offences. There was other evidence before the jury, including in relation to offences not the subject of specific charges but in support a tendency argument, together with some comments made by the offender to the psychologist which make that inappropriate. Each of these other non‑charged offences, however, was of touching only. The offender was in fact, acquitted of other charges of sexual intercourse or they have been no billed.

28. All of these other sexual intercourse offences as far as I can recall it, were instances of digital penetration or a form of sexual intercourse of a lesser nature than the subject matter of count 10. Count 10 is the only, and first, instance of penile-vaginal sexual intercourse so far as the evidence was before the jury. To that extent, it is a one-off instance of that particular form of sexual intercourse but it cannot be, and it is not, argued that the sexual offending covered by counts 10, 11 and 12 should be regarded as isolated acts, and I do not do so.

29. There has been delay in this matter, none of which has been caused by the offender. It has been around 20 to 22 years since these offences occurred and so, to a large extent, they are stale offences. The Court is entitled to take that delay into account. This is not a case, however, in which the offender has lived in a state of uncertain suspense ever since, as a result of the delay between offending and charging.

30. However, there is ample evidence of what has occurred in the meantime, and particularly so since the year 2000 when the second of two entries on his criminal record came to an end, which can be viewed by the Court as amounting to demonstrated rehabilitation, which the Court is entitled to take into account and which I do take into account when determining the appropriate penalty. That is one of the two bases on which the Court can view the impact of delay

31. I also take into account that at the time the offender committed these offences, not only was he a person with no prior criminal convictions, but he was young and had he come to be sentenced at the time, his youth would have been a significant factor with rehabilitation being given greater significance than perhaps some of the other purposes of sentencing. I do not sentence him, however, now as a young person. He is not being sentenced as a young offender. He was at the time, however, a young person, which is a matter that I take into account.

32. The sentences which I impose, of course, must carry a message of general deterrence, particularly so because these are child sexual assault offences. The community needs to know that those who commit offences of this type, even more than two decades ago, will face serious consequences most of the time involving terms of full-time imprisonment.

33. The Court also needs to consider the extent to which specific deterrence is necessary in any sentence. In this case, it seems to me it is not a matter of great significance, given the circumstances in which the offender has lived, the length of time between the offending and sentence and the steps that he has taken towards his own rehabilitation in the intervening period.

5. There was a psychological report tendered on behalf of the offender from Ms Anita Duffy, which I have read. Some of the offender’s history is to be gleaned from that report. There would not appear to be any dispute about the fact that I can take into account some of those aspects of history referred to in that report. I do accept that the offender had a relatively secure childhood after his parents emigrated to Australia. His parents appear to have been very hardworking and his father worked hard to establish a fruit and vegetable shop, which he ran for over 20 years and in which the offender also worked. He also at one stage opened a kebab shop and it would appear that the offender himself, when he was working, was a hardworking person working together with his family.

6. The offender did not do well at school and had reading difficulties. In the vernacular, he went “off the rails” to an extent, after leaving school and in 1994, probably because of the influence of various associates at the time, became involved in the use of drugs and alcohol and was ultimately charged and convicted of the drug supply charge to which I have already referred. As I have said, he spent time in gaol as a result of that offence. He was released, however, at the end of the 15 month non-parole period and continued to work with his father and in his own fruit and vegetable shops in the west of Sydney until he ultimately had to declare bankruptcy in 2008. This coincided with the separation from his fiancée, who he had been with for eight years. This led to a period of depression and anxiety in response to these stressors, for which he was prescribed medication and counselling and that would appear to have had a positive impact.

7. After the bankruptcy, he became the full-time carer for his aging parents and they all moved to The Ponds area of Sydney, which I understand to be north-west Sydney. He had a car accident in 2011 and suffered another bout of depression, requiring medication. He continued to care for his parents. He was charged with the offences before me in 2022, which triggered further episodes of anxiety and depression.

8. Ms Duffy undertook a personality assessment of the offender and found him to be socially conforming, with a strong sense of loyalty, responsibility and respect for authority. That is clearly a somewhat different person to the person who committed the drug supply offence in 1994 and is some indication, it seems to me, of his successful rehabilitation since that period of imprisonment.

9. I accept that he has a very strong sense of obligation to provide care for his parents, which has now become more complicated because his father’s condition of Parkinson's disease has deteriorated, requiring him to go into a nursing home, with the consequences that involves for his mother. Ms Duffy undertook a risk assessment of the offender and I accept her opinion that he is a low likelihood of sexual reoffending. I accept that not only on the basis of this assessment but on my own finding, based on the length of time between the offending and sentence and the lack of any other similar offences on his record, nor any suggestion of similar behaviour.

10. I also accept Ms Duffy’s submission that because he is measured by the Static-99R tool as low risk of recidivism, he will be ineligible for sex offender programmes either inside gaol or when he is released to parole. He may be able to access other programs whilst inside gaol, but there is no evidence about what they might be. It is the experience of the Court that once released to parole, in circumstances such as this, he is unlikely to be supervised for any length of time or provided access to anything by way of programmes.

11. I accept that his real level of distress at present is not just that he is in custody, but that he is in custody and unable to provide care for his parents. I accept that some levels of anxiety that he is exhibiting are largely as a result of this. There are a number of letters from and about family members tendered, and letters from real estate agents and the like establishing the propositions raised by those family members. As I have said, I accept that his elderly father has Parkinson's disease and since the offender went into custody, he has had to go into respite care because the offender was not available to care for him. His mother is 89, frail and, as I understand the material before me on sentence, relies on a walker and the like. She is not able to provide care for her husband without the assistance of the offender.

12. Further, his mother has limited ability to look after herself alone and is also having difficulty paying the rent for their property from her pension in circumstances where the offender is no longer contributing to that and her husband’s pension is being used in full to pay for his respite care. Neither of the offender’s siblings or other family members apparently are available to provide care for his mother and no one seems to have any space for her to live with them. There are letters from the various family members and other documents from which I accept that this is true.

13. His elderly parents have thus suffered hardship as a result of his incarceration thus far and for what will be his continuing incarceration. This will continue for as long as he remains in custody. The care that he has provided for his parents is a further real indication that he is a rehabilitated person. The level of hardship, although significant, however, is not of the exceptional type which would be required for the sentence to amount to anything other than one of full-time custody. It is, however, a factor that I am entitled and will take into account as a special circumstance in terms of determining the overall non-parole period for these sentences.

14. The offender has an ongoing mental health condition to which I have already referred. I accept Ms Duffy’s opinion that he suffers from persistent depressive disorder, which is moderate and includes anxious distress. I accept that this is likely to continue whilst he remains in custody and that this will render his time in custody more onerous, particularly with the overlay of the anxiety arising from his elderly parents’ situation. Further, his time in custody since March has included his contracting COVID-19 and his wing has been locked down for that and other reasons. This, it seems to me, is likely to continue.

15. He has some ongoing health conditions, largely arising from longstanding diverticulosis, requiring ongoing colonoscopies. He has been treated for this, however since being in custody, including being taken for a CT scan, so his physical health is not a matter which, it seems to me, is particularly relevant in determining the appropriate sentence.

16. I find that the offender’s prospects of rehabilitation are excellent. It does not require a finding that he has demonstrated true contrition and remorse in the way that that is defined, in order to make that finding. He has told Ms Duffy that he acknowledged sexual touching of the victim, even to the extent of digital penetration. He does not, however, admit the circumstances of count 10, but he does acknowledge his offending, at least to that extent. It could not, however, be viewed as true contrition and remorse. However, that does not affect my finding that his prospects of rehabilitation are excellent. This is based on his lack of any criminal history since 1994 and everything that he has done since being released from custody, including for a period of time working and then caring for his elderly parents and also his assessment by Ms Duffy of a low risk of reoffending. He is unlikely to offend again at all, on my finding, let alone by way of sexual offending.

17. So I then turn to the appropriate sentences. Count 10, of course, is the most serious of all of the matters before me. Taking into account all of the matters to which I have referred and all of the overall purposes of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act and of course, the finding which is not in dispute, namely that the threshold for imprisonment is reached in this case, I have concluded that a sentence of 3 years imprisonment is called for, for count 10.

18. For both of the indecent assault counts, in each case, I will be setting fixed terms of imprisonment of six months. Each of those should be concurrent with the other. They both occurred more or less at the same time.

19. Taking into account the overall criminality represented by count 10 and counts 11 and 12 together, there should be some partial accumulation but it seems to me very limited, because whilst counts 11 and 12 are offences that occurred on a separate occasion, the criminality is significantly lower and it seems to me that had they been the only matters for sentence, it is at least possible, if not likely, that something other than full-time imprisonment would have been ordered. Nonetheless, I have concluded that the s 5 threshold is necessary for each of them but the total criminality for all offences can be dealt with by an overlap of three months. Any more than that, it seems to me, would lead to an overall excessive sentence.

20. There are special circumstances as follows:

1. The fact of the offender’s mental health condition, making his experience of custody more onerous;

2. The hardship that has already and will continue to be suffered by his elderly parents, making it necessary for him to be released to the community as soon as possible;

3. The need for his release to the community as soon as possible, to undertake whatever rehabilitation may be available to him in the community, to continue his demonstrated rehabilitation, proved during the delay in these matters coming to Court.

50. Therefore, I make the following formal orders:

1. For all three offences, the offender is convicted.

2. For each of counts 11 and 12 there will be a fixed term of imprisonment of 6 months commencing on 27 March 24 and expiring 26 September 24.

3. For count 10, on the finding of special circumstances, there will be a non-parole period of 18 months, commencing on 27 June 2024, expiring 26 December 2025, with parole thereafter of 18 months, commencing 27 December 2025, expiring 26 June 2027, giving rise to an overall term of imprisonment of 3 years, commencing 27 June 2024, expiring 26 June 2027.

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Decision last updated: 20 December 2024