R v Kerr

[2019] NSWDC 680

District Court

New South Wales

Medium Neutral Citation:	R v Kerr [2019] NSWDC 680
Hearing dates:	13 August 2019
Decision date:	13 August 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of seven years nine months with a non-parole period of five years. For orders see [65] -[72]
Catchwords:	SENTENCING – Indecent assault of child. SENTENCING - relevant factors on sentence – early guilty plea – impact of child sexual assault – each a serious example – Form 1 – standard non parole period a guide – impact on child – apology – remorse – ill health - deterrence – retribution – recognition of harm caused.
Legislation Cited:	Children’s (Criminal Procedure) Act 1987 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900
Cases Cited:	Attorney General's Application No 1 [2002] 56 NSWLR 146 BT v R [2010] NSWCCA 267 Grube v R [2005] NSWCCA 140 GSH v R [2009] NSWCCA 214 JDX [2017] NSWCCA 9 LB v R [2019] NSWCCA 151 Markarian v The Queen (2005) 228 CLR 357 Postiglione v The Queen (1997) 189 CLR 295 R v Herring (1956) 73 WN (NSW) 203 R v KNL [2005] NSWCCA 260 R v NJK [2011] NSWCCA 151 Ryan v The Queen (2001) 206 CLR 267 Tepania v R [2018] NSWCCA 247 The Queen v Pham [2015] HCA 39 Thompson (2000) 49 NSWLR 383 Weininger v The Queen (2003) 212 CLR 629
Texts Cited:	The social dynamics and impacts of institutional child sexual abuse, D Kenny, Judicial Officer’s Bulletin, September 2017, Volume 29 No 8
Category:	Sentence
Parties:	Mark Kerr (the offender) Director of Public Prosecutions
Representation:	Counsel: Ms K Stares (for the offender)   Solicitors: Legal Aid NSW (for the offender) Ms J Walshe (for the Director of Public Prosecutions)
File Number(s):	2018/00237783
Publication restriction:	The complainant is referred to in this judgment by a pseudonym.The name of the complainant is not to be published, nor is any other material that could lead to the identification of that complainant: s578A of the Crimes Act 1900; s15A Children (Criminal Proceedings) Act 1987.

Judgment

1. The complainant is referred to in this judgment by a pseudonym, pursuant to s15A, Children (Criminal Procedure) Act 1987. There is to be no publication of any information or other material that identifies or is likely to lead to the identification of the complainant. Identification information has been removed from this version of the judgment to comply with the statute.

Introduction

2. On 2 August 2018 Mark Robert Kerr was arrested and charged with a number of sexual offences committed against Dianne between 2010 and 2013. Kerr was then in his early 40s, Dianne was seven or eight years old. Dianne had revealed the abuse in July 2018 after she was taught at school about healthy and unhealthy relationships.

3. Kerr admitted his guilt in the Local Court. An indictment was presented today simply to cure errors in the committal documentation. He is to be sentenced for the six offences for which he has accepted his guilt. Each were laid pursuant to the now repealed s 61M(2) Crimes Act 1900. He asks when I sentence him for five of those offences that I take into account on Forms 1, 13 other offences committed against Dianne.

4. Kerr has been in custody since his arrest. He is presently 52. Dianne is now 15.

Serious offences

5. There are five incidents described in the agreed facts. The five incidents were part of a course of conduct that extended over the time Dianne lived with the offender and afterwards on occasions when she stayed over for a weekend.

6. During the relevant period Dianne, I presume to give her mother some respite, stayed with the offender and his wife. She was a guest in their home and she was under the offender’s authority.

The first incident

7. The first incident occurred when the child went in to sleep with the offender and his wife because she was scared in her own bed. The offender’s wife left early in the morning. This left Dianne in bed alone with the offender. She woke to see the offender masturbating: Form 1 matter. The offender then grabbed Dianne’s hand and placed it on his penis. He moved her hand up and down on his penis until he ejaculated. He told her that he was sorry and he would never do it again. He made her promise not to tell anyone: offence 1.

The second incident

8. The second incident occurred after the offender asked Dianne to come into his bedroom to look at pictures on a computer. When she did so she saw that he was sitting naked on his bed masturbating. He grabbed her by the hand and pulled her towards him. As he did so she said, “Why do I have to do this? Why can’t you do it yourself?” the offender said something to the effect of, “It was better”: Form 1.

9. The offender then placed his hands underneath the child’s clothing onto her skin and rubbed her breast area: Form 1. The offender then put his hands down underneath the victim’s pants and onto her skin and rubbed her vagina, Count 2, before returning the child’s hands to his penis and moving it until he ejaculated: Form1. Again, he said he was “sorry”, again he said “I won’t do it again”.

The third incident

10. The third incident follows a similar pattern but there was some escalation in the activity, in the sense that he asked the child to go into his bedroom and removed the child’s lower clothing and his own clothing. He then licked his hand and placed it on the child’s vagina, rubbing it: Form 1. He then began to masturbate while continuing to rub the child’s vagina: Form 1. Count 3 involved him placing his penis against the child’s vagina. He then masturbated in the presence of the child: Form 1. Similar promises not to do it again were made.

The fourth incident

11. The fourth incident occurred some weeks later. The offender came into Dianne’s bedroom. As he did so he was rubbing his hands on his penis and saying, “I like doing this. I’d rather do it with you”: Form 1. He then removed his lower clothing and the child’s pants and underpants. He spat directly onto the child’s vagina and on his penis. He rubbed the saliva on his penis, and the saliva on the child’s vagina: Form 1. He then rubbed his penis against the child’s vagina for a period of time: Count 4. He then masturbated himself to ejaculation: Form 1.

The fifth incident

12. The fifth incident repeated the pattern of the first, in that the child came into the offender and his wife’s bed one night when she was scared. She woke to find that the offender’s wife had left for work. The offender then removed his and the child’s clothing. He spat onto his hands and rubbed it on his penis and on her vagina: Form 1.

13. Count 5 involves him rubbing his penis against the victim’s vagina for a period of time.

14. Count 6 involved him repositioning the child on her back then placing two fingers on the outside of her vagina. She complained at the time that this was causing her pain and he stopped.

15. There are four further matters on the Form 1 in relation to count 6. They relate to a further act of rubbing the penis against the child’s vagina and his masturbating to ejaculation in the child’s presence.

16. The agreed facts go on to say that after the child stopped living with the offender and his wife she would return on occasions and similar types of offending, as described, occurred. She said on almost every occasion the offender would apologise and tell her that he would not do it again, and that she was told not to tell anyone or she would not be able to see him again.

17. The child did not have a relationship with her own biological father. She told police that she looked to the offender as a father figure. She said that at the time she had no understanding of what was occurring, but disclosed later when she realised the seriousness of being done to her.

Objective seriousness

18. Every act that involves the sexual exploitation of a child is serious. This is one important reason for the high maximum penalties and high standard non‑parole period then, and now, fixed for such offences. Where offences are committed by a man to whom a child has gone for care and protection this aggravates each offence. Where offences are repeated courts must consider that course of conduct and the potential for exacerbation of the harm caused.

19. Important considerations include here;

1. The incident assaults involve skin-on-skin contact. As Latham J observed in GSH v R [2009] NSWCCA 214:

“It is difficult to justify finding below the mid-range for an offence under 61M(2) constituted by the touching of the genitalia of a nine year old girl.”

2. Each offence involved direct physical contact with either the accused’s penis or the child’s genitals.

3. Each act took some time.

4. One act, count 6, hurt the child.

5. Psychological harm resulted.

6. There was quite an age difference between Kerr and the child.

7. Kerr was effectively her carer and abused his position of trust.

8. Dianne was in the house to which she was sent and was subject to the offender’s direction. She had gone to that house for care and protection, not abuse.

9. Dianne was seven or eight, the range encompassed by the offence goes up to 16. The younger the child the more serious the offence: R v KNL [2005] NSWCCA 260.

20. As the penalty must reflect what was done, in short summary; the first offence involved Dianne’s hand being put around the offender’s penis and being used to masturbate him until he ejaculated. The second offence involved the offender moving his hands underneath the victim’s pants and underpants and onto the victim’s skin where her vagina was rubbed. The third offence involved the offender placing Dianne’s legs upwards and then while in positioning himself between her legs and rubbing his penis against her vagina. The fourth offence involved another act of rubbing his penis against the child’s vagina for a period of time. The fifth and sixth offences involve first the rubbing of the penis against the vagina for a period of time and then placing the fingers on the outside of the vagina, causing the child pain.

21. Each individual offence was serious. Each was of a similar order of seriousness. Offence 5 does not have a Form 1 attached to it.

22. It would appear that the activity progressed from the initial masturbation activity through to skin on skin contact with the penis and vaginal area, falling short of penetration.

23. Each crime is a serious example of its type. Kerr exploited Dianne’s vulnerability and innocence. Each offence showed callous disregard for the child’s physical and mental wellbeing. That there may be worse examples of such offending does not diminish their seriousness. Courts are required to analyse and compare horrors inflicted upon others as part of the calculus for converting human behaviour in all its forms to units of punishment: Weininger v The Queen (2003) 212 CLR 629.

24. The process of comparing and contrasting the actual offence with the abstract one is not necessary, nor is it necessary to identify features of the offence which were or were not taken into account when considering the role of the standard non‑parole period. But the standard non‑parole period has to be considered against my assessment of objective seriousness of this matter when it comes to synthesise the ultimate penalties indicated for each offence and the aggregate sentence which will be imposed: Tepania v R [2018] NSWCCA 247, at [103] to [120].

25. It is accepted that there are considerable adverse outcomes for any child victim of sexual assault. Children are socialised to be respectful and subservient to authority figures. Reactions to indecent assaults such as the offences now before the Court as expressed in the Victim Impact Statement are sadly and tragically common. They include guilt, shame, embarrassment and confusion.

26. There are many and varied behavioural responses by children to such abuse. No set of behavioural responses are unique because of the diversity of the abuse experience. Impacts can be highly individualised. However, it is common that child sexual assault can lead to problems with interpersonal relations, feelings of betrayal of trust, powerlessness, guilt and shame about the experience. Longer term effects have been identified including a number of psychological conditions: see The social dynamics and impacts of institutional child sexual abuse, D Kenny, Judicial Officer’s Bulletin, September 2017, Volume 29 No 8.

Victim Impact Statement

27. As Dianne’s Victim Impact Statement makes clear, the psychological harm caused by the offences endures. She told me of her current schooling and how she was having trouble with school as she kept running away from home and drinking and smoking. She told me of her mother’s worry about her and how emotionally she has little self-confidence or self-worth. She says her emotions are often extreme and she lacks self-control.

28. She tells me that she is working hard on changing this, but feels she is constantly stuck in a nightmare. Her sleep is disturbed; she has anxiety and fear. She has had suicidal thoughts and has self-harmed. She speaks of the torment which still drives her crazy. She says she “can be laughing and crying at the same time”. She says in conclusion, “I just want to heal and I just want inner peace”.

29. She is to be commended for her bravery and courage in coming forward to the police. If children do as she did they are generally believed. It is hoped that the conclusion of these proceedings will enable her to find some peace.

30. Courts and the community recognise the harm that is caused victims of crime from such matters, and it is an important part of the sentencing process which ultimately must synthesise a number of competing factors. Dianne should never be asked to measure the penalty imposed upon Kerr as against her own harm.

31. One matter that requires careful attention is the maximum penalty and the standard non‑parole period. Both provide important sentencing measures to be balanced with all other factors. They do invite comparison between this case and other cases, but it is not appropriate to look first at the maximum or the standard non‑parole period and simply proceed by way of making proportional deductions: Markarian v The Queen (2005) 228 CLR 357 at [30] and [31].

32. Section 61M(2) Crimes Act, now repealed, carried a maximum penalty of 10 years. The standard non-parole period was eight years. The ratio between that maximum and the standard non‑parole period was the subject of judicial criticism. In BT v R [2010] NSWCCA 267, RS Hulme J, described the relativity between the maximum and the standard non-parole period as “absurd.”

33. Other courts have noted the curious relationship between the maximum and the standard non‑parole period. It is,

“uncontroversial fact that it is not mathematically feasible to set a head sentence for a s 61M(2) offence that is close to the mid‑range while also giving weight to the standard non‑parole period”: LB v R [2019] NSWCCA 151, at [39]

Nevertheless, an eight year standard non‑parole period has been prescribed by Parliament and the Courts must give effect to it: R v NJK [2011] NSWCCA 151, at [40].

34. I must also give effect to the basic principles of sentencing law set out in the Crimes (Sentencing Procedure) Act and at common law. One important principle is the sentence of imprisonment should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of that crime’s objective circumstances: Hoare v The Queen (1989) 167 CLR 348 at 354.

35. There are reasons here for not imposing the standard non‑parole period. They include the early guilty plea, the need to take into account accumulation and the principle of totality, my finding of special circumstances and the subjective case made for the offender.

Form 1 matters

36. Five of the six matters had related matters on the Form 1. As required by the Crimes (Sentencing Procedure) Act 1999, I take these matters into account when I determine the appropriate penalty for the offence to which they relate. I do not in any sense impose a sentence of the matters on the Form 1. They do here however operate to increase the sentence that would otherwise be appropriate. I do so as part of the instinctive synthesis approach to sentencing explained by McHugh J in Markarian. The increase recognises the need for personal deterrence and retribution for the crime for sentence: Attorney General's Application No 1 [2002] 56 NSWLR 146, at [39] – [42]. Sometimes, as here, that increase can be substantial: Attorney General’s Application No. 1 at [18] and Grube [2005] NSWCCA 140.

Other cases

37. I have had regard to sentencing judgments for the Court of Criminal Appeal and this Court, and to the Judicial Commission of Statistics. A helpful table of cases was provided by Ms Stares who appears for the offender: MFI 2. The consistent application of principle must always be considered. The guidance offered by appellate courts and other decisions of this court is always welcome. Past sentence can serve to establish a range or what is called by lawyers a yardstick. However, every offence and every individual for sentence is different.

38. Sentencing is and remains a discretionary judgment. The mix of factors that must be weighed in determining the appropriate sentence will never be precisely the same as in a past case or cases: The Queen v Pham [2015] HCA 39.

Early plea

39. The early guilty pleas will be taken into account. I will reduce the otherwise indicated sentences by 25% to take into account their utilitarian value. In Thompson v R (2000) 49 NSWLR 383, Spigelman CJ noted that there are three reasons why a plea of guilty should attract a lower sentence than would otherwise be imposed:

1. First, the plea is practical manifestation of remorse or contrition;

2. Second, the plea has utilitarian value to the efficiency of the criminal justice system;

3. Third, in cases involving children or sexual matters there is a particular value in avoiding the need to call victims to give evidence.

40. I will take care when accumulating the sentences not to erode the benefits of the plea.

41. Kerr has a criminal record. The matters in the Children’s Court which were put before me are strictly admissible and cannot be taken into account: s 15 Children’s Criminal Procedure Act 1987. Of particular importance is a plea in 1993 to one count of intercourse with a child under 16 and acts of indecency. Kerr went to gaol for 18 months with a nine month non‑parole period. Material in relation to that sentencing is before me: exhibit C.

42. Kerr is not entitled to the leniency often given to first offenders. It is clear that he has failed to learn the lesson meant to be taught by gaol. Past behaviour is possible indication of future behaviour. Twice this offender has committed sexual offences on a child in his own home. These are matters that must be taken into account and synthesised. He is not to be punished, however, for his past offending, but it does mean there is concern about his future risk should he be placed in a similar situation ever again.

Subjective material

43. The offender wrote a letter to me, or more accurately, Dianne. He said:

“I am so sorry in my heart and soul of the injustice I have put you through, the innocence and trust I have broken to you and your family. I am sorry that my solid stupidity has given you an emotional scar for life. A burden. Sorry again.”

44. While not an oath, one would expect any rational person to hold such emotions. The fact they were expressed is, at least, a step on the way towards rehabilitation. But of course a court must be guarded before accepting such sentiments. They are easy to express, and I suspect he would have expressed them back in 1993, but he still offended against Dianne.

45. The Reverend Tukutama, Parklea Correctional Centre Chaplain, in a letter to me, dated 9 August 2019 , says that so far as he is aware the offender has dealt with him openly, expressing shame and remorse while not disclosing the exact nature of the offending.

46. There is evidence that the offender suffers from, and has suffered since a teenager, from epilepsy. At times that epilepsy has been difficult to manage, but is currently managed by medication. Any medical condition, any serious medical conditions such as epilepsy, is hard to manage and in a custodial environment while it can be managed will present difficulties both for the offender and Justice Health, matters I can and do take into account.

44. There is also evidence, as would be expected, that the offender will serve his sentence while subject to protection. It is a matter I take into account, but it is a matter that relates to almost every person who is charged with similar offences.

45. Ms Dombrowski’s report of 29 July 2019 is helpful to my determination of the matter. It contains a number of statements by Kerr which attempt to minimise his offending behaviour, or his earlier crimes. It also contains some fairly frank admissions, such as a concession that what he did to Dianne was done for his own sexual gratification and that he exploited her “total innocence.” Accordingly, I do not regard his comments to the psychologist as making excuses for his behaviour.

46. The background material is helpful. The report notes he grew up in a supportive family and did well at school, but left aged 15. The onset of epilepsy when a teenager interfered with his capacity to work. Until the medication regime was improved he spent quite a bit of his life on a disability support pension. He has symptoms of low mood and depression. He reports being sexually abused as a teenager, a matter that he still finds confusing.

47. He reports a history of social isolation, this is confirmed in both of the reports that were before Judge Gibson in the 1990s and before me today; a history of social isolation. His marriage in 1997 gave him some stability and support. He has a daughter and he feels her loss intently. How, on release, he relates to his family, what support he gets, whether he can continue to have contact with his daughter unsupervised, and in particular contact with those with whom his daughter will socialise, is not a matter for me to predict. But, he will need help adjusting to normal community life. It may be that when he is released to parole he will be without significant community supports.

48. His remorse and confusion appears genuine. He is not inherently antisocial. But Ms Dombroski notes, para 18:

“He understands the moral and ethical issues underpinning the illegality of his offending behaviour. He is unable to account for why he overstepped legal and moral boundaries when he committed the subject offences, and had limited insight into the causes of his offending behaviour.”

52. She used the past tense there, but reading the report as a whole it is clear that he still has limited insight into the causes of his offending behaviour. He will need considerable assistance, both in custody and in the community, engaging with offence specific treatment in order to understand the true criminality of what he did.

53. The material from the psychologist and the offender was not on oath. It took a common form. The author appears well qualified. She does not appear to be merely parroting words at odds with other material as occurred in JDX v R [2017] NSWCCA 9. The report is comprehensive; it did assist me. It is not controversial. But as with all such reports tendered without objection, it needs to be read with a degree of judicial scepticism. It is relevant, it goes to the offender’s management on release and in custody and his prospects for the future. It allows me some understanding of the man for sentence.

54. I am prepared to accept that belatedly the offender has some remorse for what he did. More particularly, he appears regretful for destruction he has wrought on his own life and the life of his family, particularly his daughter.

55. I will be making a modest finding of special circumstances in this matter. The more assistance he can be given adjusting to normal community life after a lengthy period in custody the safer the community will be and better his chances of avoiding reoffending.

Accumulation and totality

56. Each count involved a discrete criminal act. Each had common features, and the purposes of sentencing apply to each of them. Those purposes overlap. The sentences should not simply be accumulated one on the other, but should be made partially cumulative. The aggregation of all the indicated sentences must be a just and appropriate measure of the total criminality involved: Postiglione v The Queen (1997) 189 CLR 295.

57. The combined sentence or the aggregate sentence should operate to appropriately punish and reflect what was done to Dianne. But it should not operate to destroy his prospects of rehabilitation and reform. The offender must be released into the community. The longer the sentence the more severe the sentence. But public confidence in the administration of justice also requires the Court avoid some sort of discount for multiple offending.

Submissions

58. I am grateful to both Ms Stares for the offender and Ms Walshe for the Director of Public Prosecutions for their submissions. I trust that this judgment does justice to them. Ms Stares puts appropriate emphasis on the early acceptance of responsibility which spared the child not just the ordeal of giving evidence in trial, but having to anticipate the possibility of giving evidence. It also enabled her to receive earliest indication that her version of events was at the Local Court accepted by the offender. That acceptance of responsibility is important to Kerr’s future prospects.

59. Ms Stares notes that any future risk will be circumscribed by lack of opportunity to offend as efforts can be taken to avoid the offender having the sort of contact with young girls that led to his offending in the past.

60. Ms Walshe still notes a concern by the community that there will be future offending and a lack of obvious insight by Kerr into his offending behaviour. Her other written submissions comprehensively address all matters and were helpful in my attempt to avoid error.

Synthesis

61. Matters such as this, then and now, carry high maximum penalties and a high standard non-parole period. Those penalties were built into the sentencing process because of a requirement expressed clearly by Parliament for sentences that reflect both general deterrence, specific deterrence and the need to extract appropriate retribution. Retribution is the notion that reflects the community’s expectation that an offender will suffer punishment and for particular offences will merit severe punishment: Ryan v The Queen (2001) 206 CLR 267.

62. Retribution is a term often used interchangeably with deterrence: see R v Herring (1956) 73 WN (NSW) 203, at [205]:

“A proper sentence marks the Court’s view of the seriousness of the crime and should let other wrongdoers know that retribution will fall upon them if they commit similar crimes.”

63. Courts have an obligation to consider all of the purposes of sentencing, synthesise them and take account of the fact that they point in different directions. Courts have to impose a sentence with community protection in mind. The offender must be released to the community. It would be sad and tragic if he was released in a worse state than when he went in. To work on his rehabilitation he will need help.

64. Ultimately, courts have an obligation to vindicate the dignity of the child victim, to take into account the harm done to her, her family and the community, and to express the community’s disapproval of the offending.

Orders

65. There will be indicative sentences. I also have to indicate a non‑parole period. The indicated sentences reflect a reduction for the early plea of guilty. I have taken care that the process of accumulation does not reduce that benefit. For counts 1, 2, 3, 4 and 6 I take into account the matters on the Forms 1.

66. Count 1 (Seq 21) taking into the matter on the Form 1, I indicate a sentence of 3 years 2 months with a non-parole period of 2 years.

67. Count 2 (Seq 24) taking into the matters on the Form 1, I indicate a sentence of 3 years 2 months with a non-parole period of 2 years.

68. Count 3 (Seq 28) taking into the matters on the Form 1, I indicate a sentence of 3 years 9 months with a non-parole period of 2 years 5 months.

69. Count 4 (Seq 32) taking into the matters on the Form 1, I indicate a sentence of 3 years 9 months with a non-parole period of 2 years 5 months.

70. Count 5 (Seq 35) I indicate a sentence of 3 years 2 months with a non parole period of 2 years

71. Count 6 (Seq 38) taking into the matters on the Form 1, I indicate a sentence of 3 years 9 months with a non-parole period of 2 years 5 months.

72. The aggregate sentence in this matter will be seven years and nine months. There will be a non-parole period of five years. The sentence will commence on 2 August 2018. The offender will be eligible for consideration for release to parole on 1 August 2023. There will be a balance of the sentence of two years and nine months. Total sentence will expire on 1 May 2026.

**********

Decision last updated: 20 November 2019