R v KC

[2020] ACTSC 94

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v KC

Citation:

[2020] ACTSC 94

Hearing Date:

20 February 2020

DecisionDate:

20 March 2020

Before:

Burns J

Decision:

See [68]–[73]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – three counts maintaining a sexual relationship with a young person – one count sexual intercourse without consent – finding of guilty by jury – where offending occurred in family context – last offending conduct occurred over 30 years ago – relevance of delay – offender demonstrated effective rehabilitation

Legislation Cited:

Crimes Act 1900 (ACT) ss 56, 92D

Cases Cited:

R v Degioannis [2019] ACTSC 47

R v EN [2019] ACTSC 354

R v King [2013] ACTCA 29

R v KN (No 2) [2019] ACTSC 5

R v Scheeren [2014] ACTSC 272

R v Sirl (No 3) [2019] ACTSC 355

R v Tully [2016] ACTCA 11

Parties:

The Queen (Crown)

KC (Offender)

Representation:

Counsel

P Dixon (Crown)

J Sabharwal (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Rachel Bird & Co (Offender)

File Number:

SCC 292 of 2018

BURNS J:

1. KC, on 6 December 2019 you were found guilty by a jury of three counts of maintaining a sexual relationship with a young person (contrary to s 56 of the Crimes Act 1900 (ACT) (the Crimes Act)) and one count of sexual intercourse without consent (contrary to s 92D of the Crimes Act). The maximum penalty prescribed for the offence of maintaining a sexual relationship with a young person is 25 years’ imprisonment. The maximum penalty prescribed for the offence of sexual intercourse without consent is 12 years’ imprisonment. These charges were Counts 1, 4, 9 and 10 on the Indictment. Other counts were alternatives and, as such, no verdicts were returned.

Factual background

1. Briefly put, it was established that between 31 December 1979 and 1 January 1982, you were in a sexual relationship with ND and that during that time, you engaged in sexual acts with her and she was your niece (Count 1). At that time, she was a young person, being between the ages of 11 and 13 years.   

1. It was further established that between 31 December 1979 and 1 January 1990, you were in a sexual relationship with UC and during that time, you engaged in sexual acts with her and she was your niece (Count 4). At that time, she was a young person, being between the ages of 5 and 15 years.

1. It was further established that between 31 December 1979 and 8 May 1988 you were in a sexual relationship with NM and during that time, you engaged in sexual acts with NM who was your niece (Count 9). She was a young person at the time, aged between 7 and 15 years. 

1. It was also established that when NM was 16 years of age, you performed cunnilingus on her without her consent (Count 10).

1. Your parents married and had seven children. You were one of those children. From at least 1980 you resided at an address in Ainslie, in the Australian Capital Territory (ACT), which I will refer to as the “Ainslie residence”, with your parents. You resided there until you married and moved to Florey, ACT. In addition to the Ainslie residence, the family would often visit a farm in Araluen in New South Wales. Your nieces and nephews would regularly attend the Ainslie residence before and after school, when they were sick, and during school holidays to be looked after as their parents worked.

Offending against ND

1. Count 1 on the Indictment is a charge of maintaining a sexual relationship with ND. Between 1980 and 1981, ND regularly attended the Ainslie residence with her sister to be cared for while her parents worked. Her grandparents, yourself, and your sister, were regularly at the premises as well as ND’s cousins.

1. Between 1980 and 1981 while ND was at the Ainslie residence, you regularly asked her to meet you outside at the wood pile, which was located behind the garage in the back right-hand corner of the backyard. While you chopped wood, you would play a game of “Truth, Dare, Double Dare or Command” with her. You would then get her to perform oral sex on you.

1. It was daytime the first time this occurred. You were chopping wood; she moved the smaller pieces of wood. You asked her if she wanted to play the game and she chose the “truth” option. You asked her a question and when she turned around to answer the question, she saw that you had pulled your jeans down to your ankles. You were wearing dark blue underwear. Once she had answered the question you pulled down your underpants, grabbed the back of her head and forced your penis in and out of her mouth until you ejaculated. She was at that stage between 12 and 13 years of age. 

1. This became a regular weekly occurrence between 1980 and 1981, ending just before your 21^st birthday. You told ND not to tell anyone because “she was the liar of the family and no-one would believe her”. This made her feel threatened and she did not tell anyone until about 1989 when she was 21 years old. She was in a car with her aunt and she told her aunt that she had been sexually assaulted by you when she was a child and that she had been made to give you oral sex when she was at her grandmother’s house. ND later told her mother and made her mother a promise that she would not report the matter whilst her grandmother was still alive.  

1. In assessing the objective seriousness of this offence, I take into account that you were in a position of trust and authority over the victim as her uncle. I also take into account the period of time over which the conduct occurred, being between one and two years.  I also bear in mind the age of the victim, which was between 11 and 13 years of age at the time.

1. I note that you attempted to normalise the offending conduct by making it part of a supposed game. You also used the fact that the victim was perceived by some in her family as dishonest in order to attempt to hide your offending. It is also important to recognise that multiple instances of conduct occurred at the victim’s grandparents’ house, which was a place where she should have been entitled to feel safe.  

1. Finally, I also take into account the nature of the sexual conduct. There were multiple instances of placing your penis in the victim’s mouth. This was degrading conduct and carried with it the risk of transmission of disease.

Offending against UC

1. I now turn to UC and Count 4 on the Indictment, which is also a charge of maintaining a sexual relationship with a young person. Between 1980 and 1989, UC would go to the Ainslie residence to be cared for while her parents worked. You were regularly at the residence. In 1982, when UC was eight years of age, her grandmother asked you and UC to go to Ainslie shops to buy some food. You both began to walk to the shops. On the way you told her that you needed to stop at a family member’s house, which was nearby, to get something out of the garage. When you arrived and you entered the garage and you searched the garage while UC sat down.

1. During this time, you approached her and asked her if she wanted to play a game called “Truth, Dare or Double Dare”. You then put your middle finger in her mouth and moved it in a backwards and forwards motion. You unzipped your jeans and told her to close her eyes. You then removed your finger and inserted your erect penis into her mouth. She did not know that it was your penis at that time. You instructed her to suck and you thrust your penis in and out of her mouth. You did this for about one minute before she partially opened her eyes and realised that it was your penis. She pulled her head away and left the garage. You followed her out of the garage while doing up your pants and attempted to normalise the game of Truth, Dare or Double Dare.

1. Later in 1982, UC, then aged between seven and eight years, was lying in the lounge room of the Ainslie residence under a blanket. Two of your other young nieces were also in the lounge room, being NG and NM. They were watching television when you entered the room.

1. You lay behind UC and got under the blanket. You engaged in general conversation with her while pulling her hips towards you. You then lowered her pants and pressed your erect penis against her body and attempted to penetrate her vagina or anus with your penis. You did this several times and repositioned UC in your unsuccessful attempts.

1. You stopped when your girlfriend came into the room. You then sat on the lounge with your girlfriend under a blanket and engaged in some form of sexual behaviour with her.

1. After this, you and UC were in the kitchen at the Ainslie residence. You were seated on a chair behind a movable bench. UC was standing in front of you facing away from you. You put your hands down her pants and underwear and touched her bottom. You also touched her vagina and played with it for a short time. You then put UC on your lap and moved her around on your lap. She could feel your erect penis through your pants. After this she got up off your lap. A short time later, NM was in the kitchen standing near you and UC left to go with her grandmother.  

1. Around 1988 or 1989, when UC was between 13 and 15 years of age and in Year 8 at high school, she was at the Ainslie residence when her grandmother asked her to go to the shops and collect some food with you. You drove her to the shops in Ainslie in your utility. While you were driving there, UC told you she was feeling cold. You reached over and put your hand inside her top and onto her left breast. You left your hand there for about one minute and said that you did not think she felt cold and that her heart was beating fast. She froze when you did this. While you had your hand on her breast, you continued with normal conversation. After this, the two of you went to the shop to purchase food before returning to UC’s grandmother’s house.

1. UC did not disclose these events to anybody until she was about 17 years old when she told her then-boyfriend that she had been sexually assaulted. She later told her mother. She made her mother promise not to tell anyone because she was not emotionally ready to take the matter any further and did not want her father to find out what had happened because it would upset him.

Offending against NM 

1. I will now return to the matters relating to NM. Count 9 is a charge of maintaining a sexual relationship with a young person relating to NM. In 1980, NM was at her house in Giralang in the ACT at a birthday party. She was about eight years old at the time. During the party she was playing with her cousins in her bedroom, when you entered the room. You told her to stay in the bedroom and the others in the bedroom left. She was standing at the base of the bed and you sat down on the bed.  You began to fondle her breasts and then her vagina under her clothing. You inserted one finger into her vagina and scratched her vagina with your nail causing it to bleed. You then stopped and re-placed NM’s underpants and left the room. She lay on the bed and cried for some time before leaving the room to look for her mother.

1. Before she could find her mother, you took hold of her and whispered to her that if she told anyone, you would say she was lying and that nobody would believe her. NM found her mother in the laundry and showed her mother her blood-stained underpants. She did not tell her mother what had happened.

1. The day after this incident, on 26 November 1980, NM went to the doctor about the injury to her vagina. Her mother told the doctor that she thought the injury was caused by an old bike that was rusted and weathered. NM was prescribed with medication that had to be applied twice daily to prevent the injury becoming infected.

1. Up until 1982, NM’s mother did not work. However in 1982, NG, NM’s sister, began kindergarten and their mother returned to work. NM changed school and attended a local primary school with her sister. When her mother worked, NM and her sister attended the Ainslie residence before and after school, if they were sick, and during school holidays. You were often at the residence when they were there.  

1. Between 1982 and 1988, you would take NM to an old white utility which was in the backyard of the Ainslie residence. You would sit in the front passenger seat of the vehicle and make NM kneel on the ground and perform oral sex on you. When she was younger, you told her to close her eyes and kneel on the ground. You then put your index finger into her mouth. She would then hear you unzip your pants and you would replace your finger with your penis. As she got older, you placed your penis straight into her mouth. You would also instruct her about what to do.  

1. Between 1982 and 1988, this would regularly happen when NM was at the Ainslie residence. On one occasion when this occurred, after you had finished with NM you called UC over and she knelt on the ground.

1. If it was raining outside, this would occur in the lounge room. There were usually three children at the residence, but they were not all in the room at the time this occurred. Sometimes after you had finished with NM you would call UC into the room.

1. This first occurred around 1982 or 1983 when NM was aged between 9 and 11 years. You told her to close her eyes and kneel on the ground while you sat in the passenger seat of the old utility. You placed your index finger in her mouth before replacing it with your penis and told her to perform oral sex on you, which she did. You gave NM verbal instructions about how to manoeuvre her hands and head.  

1. Between 1985 and 1988, NM would often run errands with you in your vehicle. On one occasion, your daughter was in a car seat in the back of the car and NM was seated in the front of the car. Your daughter was about three or four years old at this time. As you were driving past NM’s uncle’s house, you reached across and touched NM on the breast. Your daughter said words to the effect of, “Dad, do not touch [NM]. You can’t do that”. This caused you to stop.

1. During this time period, there were other instances where NM was in the car and you told her to perform oral sex on you. At other times, you told her to perform oral sex on you when you were at your residence in Florey.

1. On one occasion when NM was attending a local high school, between 1995 and 1998, she was at your residence in Florey. You sat down on the floor in the middle of the lounge room and asked her to masturbate your penis. She did so. While she was doing this, you said to her words to the effect of, “I’m going to see how long it takes you to make me come”. This took a long time and she had to change hands on numerous occasions because it made them sore. NM felt belittled because you kept laughing at her and saying words to the effect of, “You can’t do it”. Eventually you said that the two of you had better go back home so you both got in your vehicle and went home.

1. At another time between 1982 and 1988, NM and members of her family were at the property in Araluen. She was assisting in rounding up cattle. She was told, however, that she could not help round up cattle on horses because this was “men’s work”. Shortly after this, you took her horse riding and you were each riding your own horse. At one point, you told her to get off her horse and bend over a fallen tree. She complied with this. You then pulled her pants down and put your penis around her anal region. This did not last long and then you rode back to the house.  

1. On another occasion between 1985 and 1988, in Canberra, you and NM were in your red utility. At the time the vehicle was stationary and NM was performing oral sex on you. You ejaculated into her mouth and as you did this you pushed her head onto your penis causing her to gag and swallow the ejaculate. When she got home that night, she felt ill and as a result vomited. This was prior to her turning 16 years old. A short time later when she was performing oral sex on you again in your utility, you tried to ejaculate in her mouth again. However, she told you that she was not going to do it because it made her sick.  

1. In May 1987, NM, then aged between 14 and 15 years old, was at the Ainslie residence. She was kneeling down fellating you at the old utility in the backyard when she told you that she needed to go to the toilet. You did not allow her to go. At one point she got up off the ground and went towards the bathroom. You chased after her and grabbed her as she approached the back door of the residence. You insisted to have anal sex. She said “no” because she needed to go to the toilet. However, she bent over and you penetrated her anus with your penis. She remembered at that time she was menstruating. You engaged in anal intercourse with her for a couple of minutes before removing your penis from her anus. She saw that your penis was covered in faeces.

1. NM then went to the bathroom to clean herself up, which took some time. She used so much toilet paper that the toilet became blocked. After this incident, she became very ill and was taken to Canberra Hospital by her parents. She was admitted to hospital for three days with an abdominal infection. The doctor at the hospital asked her if she had been sexually assaulted, which she denied because she was frightened. She attended the hospital around May 1987.  

1. Prior to NM turning 16 years of age, she would regularly go to the Araluen property. While at the property she would ride motorbikes. You would often ride on the back of the motorbike while she drove. When you would ride on the back of the bike with her, you would often fondle her breasts or vaginal area over her clothes.  

1. On an occasion after May 1988, after NM turned 16 years of age, you were both in the back of the old utility in the backyard of the Ainslie residence. You asked her if she was 16 years old and she confirmed that she was. You then asked her to go into her grandmother’s room, and you went there together. You then told her to lay on her grandmother’s bed and relax and not to think about things. She did this. It was a sunny day and you closed the blinds in the bedroom. You pulled down her pants and performed cunnilingus on her until she orgasmed. You then said to her words to the effect of, “that was really good, wasn’t it?” That is the basis of Count 10, the charge of sexual intercourse without consent.  

1. This was the last incident between you and NM. At a point after this incident, NM was walking into her grandmother’s house when you grabbed her. She said to you that it was time that you left her alone because she had had enough. From that time on, you did not engage in sexual conduct with her.  

1. NM did not tell anybody what had happened as she was scared that no-one would believe her. Between 2006 and 2009 her uncle, NS, approached her and asked if she had been sexually assaulted by you and she confirmed that she had. Between

   
   

   2009 and 2010, she told her father that she had been sexually abused by you but did not provide details of what had happened. In 2017, she told her husband about what you had done to her.

Objective seriousness

Offending against UC

1. In assessing the objective seriousness of the offence with regard to UC, I take into account that you were in a position of trust and authority as the uncle of the victim. I also note the period of time over which the offending conduct occurred. It occurred over a period of seven years but not as consistently apparently as with ND. The age of the victim is important. She was somewhere between seven or eight years of age and

   
   

   13 to 15 years of age during the time that this conduct occurred. There was also an attempt to normalise the offending conduct by making it part of a supposed game. 

1. I also take into account that some of the conduct occurred at the victim’s grandparents’ house where she was entitled to feel safe. There was some skin-to-skin contact and at least one instance of oral sex which was degrading, and also carried with it the possibility of sexual disease.

Offending against NM

1. With regard to the objective seriousness of the offences concerning NM, I also take into account that you were in a position of trust and authority as her uncle. The offending occurred over a period from when the victim was about eight years of age until just before she turned 16 years old with regard to the maintaining a sexual relationship offence (Count 9) and, of course, just after she was 16 years with regard to the sexual intercourse without consent offence (Count 10). So that it appears that the relationship offence occurred over a period of approximately seven years.  

1. That conduct occurred with reasonable frequency, although the evidence does not enable me to say any more than that. The conduct frequently occurred at the victim’s grandparents’ house, which was a place where she was entitled to feel safe. I take into account the physical injury was occasioned to the victim on one occasion which required medical treatment. There was frequent unprotected oral sex and one instance of anal sex which was degrading and carried with it the possibility of disease.

1. One aspect of the conduct which was at the lower end of the range, was engaged in in front of your own daughter. I also take into account the fact that you used your position as an adult to persuade the victim not to report your conduct as you said that no-one would believe her.

1. With regard to the offence of sexual intercourse without consent that, of course, was also an offence committed in breach of your trust and authority as an uncle of NM. It appears to have been a calculated offence.  

Victim Impact Statements

1. A number of Victim Impact Statements were provided by the victims. ND provided a Victim Impact Statement which speaks of the significant ongoing emotional, psychological and social effects on her that this offending has had. Some members of her family have excluded her because she reported these offences. Her personal relationships, including her marriage, have suffered. She has required continuing counselling. She has not been able to hold down a job as she is too anxious. She now takes antidepressants. There has also been a significant financial cost in relation to her by reason of these offences.  

1. UC also speaks of the ongoing emotional, psychological and social effects on her. She speaks of anxiety attacks, depression and associated symptoms. It is clear that this conduct has also had a significant financial impact on her life. She feels isolated and finds it hard to maintain relationships. She is very protective of her son. It has also affected her relationships with men.

1. NM has developed negative behaviours to compensate for the emotional hurt that she has suffered. She has undergone counselling. The reporting of these offences has caused some members of her extended family to exclude her. She has suffered stress and anxiety, and this has affected her health. These events have affected her relationship with her husband. They are preparing to divorce, and that fact has had a negative impact on their children.  

Subjective features

1. A Pre-Sentence Report was prepared for the sentence hearing. You are currently

   
   

   60 years old and you were born in the ACT. You identify as an Aboriginal man. You are one of seven children and you have said that you had a happy childhood. Your parents and two of your siblings are deceased and you are currently estranged from another two siblings, but you still have good relationships with your other family members.  

1. You separated from your spouse in 2017 after 35 years of marriage due to stressors relating to the present charges, but you continue to have an amicable relationship with your spouse. You have three adult children with whom you have good relationships.

1. You completed Year 11 at school and then you were employed as a printer before becoming employed as a bus driver. It appears that you have a strong work history. You ceased work in 2017 due to a degenerative disease. You have no problems in relation to alcohol or drugs which need to be addressed.  

1. The Pre-Sentence Report notes that you continue to dispute your guilt with respect to these offences. The author of the Pre-Sentence Report assessed you as at below average risk of sexual reoffending.  

1. On your behalf, a letter from your wife was tendered at the sentence hearing. The tenor of that letter is that you have been a good husband and father and that you are hardworking. You are also willing to help others. A letter from your sister was also tendered. That speaks of your willingness to help others and the fact that you had supported your mother after your father had died. She speaks of always trusting you with her children. She notes that you were commended for your actions in 2008 for assisting a 13-year-old girl on your bus when she was being harassed by three males. I note that a copy of that letter of commendation from the ACTION bus operator was also tendered.  

1. A report from Universal Medical Imaging dated 30 July 2018 was tendered. It refers to degenerative spondylotic changes in the form of multilevel osteophytes and facet joint arthritis. It refers to disk prolapses at the C5-6 and C6-7 levels. It also states that you have described left-side neck pain extending to your upper left shoulder.  

1. A medical certificate, which is undated, was provided by a Dr Afifa Tahir. It refers to you having chronic medical conditions for which you need a full-time carer. There is a letter of referral from Dr Tahir to a neurology and pain specialist dated

   
   

   17 December 2019 that asks for investigation of pain which commenced in July 2019. There is a further letter from Ms Margaret O’Donovan, a physiotherapist, dated

   
   

   28 January 2020 which states that you have permanent movement restrictions in your neck and arm or shoulder.  

1. Finally, there is a letter from your daughter, who is also your full-time carer. She expresses concerns about your health and speaks of you having suffered a heart attack and also having problems eating and swallowing. She states that you need help getting dressed and being taken to appointments. She also states that she has not been abused by you in any way and the general tenor is that the offences of which you were found guilty by the jury are out of character for you. 

Consideration

1. It need hardly be said that sexual offences against children are considered particularly abhorrent by the community and its legislature. In part this is because of the likelihood that sexual molestation of children will have a long-lasting and detrimental psychological effect on the child. This is even more likely to occur where the molestation is perpetrated by a close family member. This is exactly what has happened here.  

1. You used your young nieces for your sexual gratification with no thought for their wellbeing or social and emotional development. Even now you continue to deny your victims the measure of closure and healing that may accompany admission of your guilt. You clearly value the support of your close family and some members of your extended family above the possibility of redress for your victims.  

1. You were entitled to maintain pleas of not guilty to the charges and the fact that you did so does not increase the seriousness of these offences. But your failure to acknowledge your guilt or to show any remorse disentitles you to any leniency in sentencing.  

1. The last of these offences occurred in about 1989, over 30 years ago. There is no suggestion that there has been any continuation of offending since that time, such that I am satisfied that you have effectively rehabilitated yourself and specific deterrence is not a necessary sentencing consideration.

1. The predominant sentencing considerations for offences such as the present are punishment and general deterrence. The community expects its courts to pass sentences commensurate with the gravity of the crimes and which will deter others from engaging in such criminal conduct.  

1. In sentencing you, I take into account the delay which has occurred from the date of offending until today. I make it clear that this is not a criticism of the victims. Their reasons for not immediately reporting your conduct and not reporting it for many years are perfectly understandable. Even now after so many years, I am sure that it has taken considerable personal courage on the part of the victims to come forward, and that their revisiting these issues has come at great emotional cost.

1. Nevertheless, delay is an objective fact. I take it into account, but I do not give it significant weight except to the extent that it has allowed you to demonstrate rehabilitation. You have not been held in a state of uncertain suspense as to whether you would be prosecuted for these charges over the period between when they occurred and when you were ultimately subject to prosecution. 

1. I take into account the evidence concerning your physical health. I accept that by reason of your age and health, you will find a term of imprisonment more onerous, but there is no evidence that your physical ailments cannot be properly addressed in prison or that a term of imprisonment will worsen those ailments.  

1. I take into account also the principle of totality in sentencing you for multiple offences. I am satisfied that the objective seriousness of these offences is such that no disposition other than immediate terms of imprisonment are appropriate.

1. In determining the length of these sentences, I have had regard to a number of sentences previously passed in this Court for child sex offences, including

   
   R v EN

   [2019] ACTSC 354, R v KN (No 2) [2019] ACTSC 5, R v Sirl (No 3) [2019] ACTSC 355, R v Degioannis [2019] ACTSC 47, R v Tully [2016] ACTCA 11, R v Scheeren [2014] ACTSC 272 and R v King [2013] ACTCA 29. None of these cases are identical to the present case but they do provide some assistance.

Sentence

1. On Count 9 (XO2019/31458), you are convicted and sentenced to

   
   

   eight years’ imprisonment, commencing on 20 February 2020 and expiring on

   
   

   19 February 2028.  

1. On Count 1 (XO2019/31455), you are convicted and sentenced to

   
   

   six years’ imprisonment, commencing on 20 February 2024 and expiring on

   
   

   19 February 2030.  

1. On Count 4 (XO2019/31456), you are convicted and sentenced to

   
   

   five years’ imprisonment, commencing on 20 February 2026 and expiring on

   
   

   19 February 2031. 

1. On Count 10 (XO2019/31467), you are convicted and sentenced to

   
   

   two years and six months’ imprisonment, commencing on 20 August 2029 and expiring on 19 February 2032.  

1. The aggregate sentence which I have imposed is one of 12 years’ imprisonment, commencing on 20 February 2020 and expiring on 19 February 2032.  

1. Taking into account your lack of previous convictions, your age and your health, I set a non-parole period of six years, commencing on 20 February 2020 and expiring on

   
   

   19 February 2026. 

I certify that the preceding seventy-three [73] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.

Associate: Sophie Hewitt

Date: 28 April 2020