R v Kertz

[2019] NSWDC 561

District Court

New South Wales

Medium Neutral Citation:	R v Kertz [2019] NSWDC 561
Hearing dates:	23 May 2019
Date of orders:	30 May 2019
Decision date:	30 May 2019
Jurisdiction:	Criminal
Before:	Buscombe DCJ
Decision:	Sentenced to an aggregate term of imprisonment of one year and ten months commencing on 23 May 2018 and expiring on 22 March 2020 with an aggregate non-parole period of one year and four months, expiring on 22 September 2019.
Catchwords:	CRIME — Possess prohibited weapon CRIME — Violent offences — Detain for advantage SENTENCING — Penalties — Aggregate term of imprisonment
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Weapons Prohibition Act 1998
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Harold Kertz (Offender)
Representation:	Counsel: N Keay (Crown)   Solicitors: Townsend (Offender)
File Number(s):	2018/161770
Publication restriction:	Statutory non-publication order of identity of complainant

SENTENCE

1. HIS HONOUR: The offender is to be sentenced in relation to two offences. One is an offence of possession of a prohibited weapon under s 7(1) of the Weapons Prohibition Act, which occurred on 19 May 2018.  The weapon was a pair of handcuffs, and is an offence to which the offender had entered a plea of guilty in the Local Court.  The offence has a maximum penalty of 14 years' imprisonment, and there is an applicable standard non‑parole period of five years. 

2. The second offence is an offence which I found the offender guilty of after a judge alone trial, being an offence that on 19 May 2018 in Gundaroo he detained KF without her consent, with the intention of obtaining an advantage; namely, sexual gratification. That is an offence under s 86(1) of the Crimes Act, and has a maximum penalty of 14 years' imprisonment, and there is no applicable standard non‑parole period.

The facts

3. The facts concerning the offence under s 86(1) of the Crimes Act, are fully set out in the judgment I have delivered in relation to the trial, which I will refer to as the verdict judgment; the following is taken from that judgment.

4. The victim and the offender were known to each other for over a year prior to the night of 19 May 2018, they having met during the offender's employment at the victim's local garbage tip.  The victim had also met the offender's wife prior to that date.  Up until the events on the evening of 19 May 2018, the victim regarded the offender as a friend.  The offender had attended the victim's premises on other occasions prior to 19 May 2018 to assist in the chopping of wood.  The victim's home was in a somewhat remote location, a considerable distance from a road, with no close neighbours.  The offender lived more than an hour's drive from the victim's premises.

5. On the afternoon of 19 May 2018, the offender had attended the victim's premises to again assist her in chopping up wood.  He attended the victim's premises about 4.39pm and had left by 5.52pm.  During the time that he was at the victim's premises that afternoon, he disclosed certain matters about his past.  The offender recorded, without the knowledge of the victim, a number of phone calls between them that took place between 5.52pm on 19 May 2018 and 20 May 2018.  The offender and the victim also exchanged a number of text messages during the period 5.52pm on 19 May to 9.02am on 21 May last year.  I discussed those calls and text messages in detail in my judgment when delivering my verdict.

6. The content of the recorded phone calls and the text messages revealed in summary the following.  As at the date of the calls, the offender and the victim were friends, and they each considered there was a level of trust between them, and they both had an interest in bondage sexual activity.  The offender had a sexual attraction to the victim and wanted to engage in bondage sexual activity with her, but the victim was not interested in engaging in that activity as at the conclusion of the call, which occurred at 11.16pm, but had indicated she might be prepared to engage in that activity with the offender under the right conditions, in particular that she chose to engage in the activity, and that the offender's wife had knowledge that they were doing so.  No invitation was given to the offender by the victim to attend her premises, and he at no time told her he was coming to her premises or sought to correct the impression he had given in the earlier text messages and phone calls that he was at his own premises, which was quite some distance from the victim's premises.

7. As I said in the verdict judgment, I found the victim to be a compelling witness, in terms of her evidence, as to what occurred once the offender arrived at her premises.  My findings of fact beyond a reasonable doubt are consistent with my general acceptance of her evidence as to what then occurred.

8. The offender entered the victim's premises some time after 11.35pm on 19 May 2018, being the time at the conclusion of the third recorded phone call.  The victim went to the front door of her premises in order to let her dog out, and when she did so, she found the offender standing at her front door.  The offender entered her premises, and the victim said something like, "No way".  The victim then went into the lounge room and the offender pushed her onto the lounge, and the victim asked the offender if he was going to hurt her, and the offender responded, "But you like being hurt".  The offender got onto the lounge, and the victim slid down onto her knees.  The offender reached and pulled the victim's arm behind her back, and pulled out a pair of handcuffs.  The victim said words to the effect of, "No, no, don't", but could not get away from the offender because he was too strong.  The victim gave evidence that the offender cuffed both of her hands, one handcuff was on very tightly, but the victim was able wriggle her hand out of the other one.  The offender then slapped her twice across the face.  The offender around this time said more than once, "Are you full of shit", and that he had to know if she was "full of shit".  The victim responded, "I don't know", and kept saying, "No".

9. The offender told the victim he needed a drink; the offender undid the cuff on the hand the victim had not been able to free by herself, and she went to the kitchen to get the offender a drink of water.  The offender drank the water and said he had to do what he had done to see if she was "full of shit".  He then said that he was going to leave, and went to the front door of her premises.  The offender then said he had to see the tapes of the victim, which were in the shed, this no doubt being a reference to the tapes of the victim discussed in the recorded phone calls.  The offender kept saying that he had to see the tapes, and put his hand on the victim's elbow and effectively forced her to go where the tapes were kept in a shed on the premises.

10. For the reasons given in my verdict judgment, the detention offence commenced from that point in time.  The offender had his hand on the victim as she went to the shed where the tapes were kept.  The victim told the offender she did not know if she still had the tapes, but she obtained them, as she was scared, and she perceived that the offender was very angry.  The offender and the victim returned to the lounge room, and the offender required the victim to plug the hard drive that had been retrieved from the shed into the computer, but none of the files opened.  When the files would not play, the offender said that he was going to go, and that the victim was "full of shit".  The offender told the victim that he had recorded their phone conversations and threatened to play them to persons she knew.  The offender then left the victim's premises.  The offender smelled of alcohol whilst at the victim's premises.

11. There were phone calls and text messages from the offender to the victim after he left her premises; I discussed those in my verdict judgment in some detail.  I note that at 12.15am on 20 August 2018, the offender sent a text message to the victim which said, "Sorry, I didn't think you'd be like that to me after the conversation".  There were other messages, similar in tone and content to that, which I set out in my verdict judgment.  At 1.27am, the offender sent a text message to the complainant which said, "I'm home, hope you feel better".

12. In accordance with the findings I made in my verdict judgment, as at the time the offender removed the handcuffs from the victim, he was aware that the victim was not consenting to any conduct directed towards his sexual gratification.  From that point on, as I said in my verdict judgment, I am satisfied beyond reasonable doubt that what occurred is what the victim gave evidence of, i.e., that the offender in effect held her by the arm and forced her to go to the shed and retrieve what was thought to be recordings of her engaging in bondage activity.  I am also satisfied beyond reasonable doubt that the offender forced her without her consent to return to the lounge room of the premises and to attempt to play to him those recordings.  I am satisfied he did so because he was angry with the victim because she did not engage in bondage activities with him.  From the point the offender removed the handcuffs from the victim, he knew that she was not consenting to any actions which were directed towards his sexual gratification.  Police subsequently executed a search warrant of the offender's premises and found the handcuffs the subject of the prohibited weapon offence.

13. I note that there is a victim impact statement before me.  Clearly, the victim impact statement indicates that the offender's offences had a significant adverse impact upon the victim, whose trust in male friends has been reduced as a consequence of the offender's conduct towards her.

My assessment of the objective seriousness of the offences 

14. In relation to the detention offence, the period of detention was relatively short, being considerably less than an hour. The offence occurred at the victim's home, which is an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act.  I have had regard also to the fact that the offender arrived at the victim's home uninvited, late at the night, and the victim's home was in a relatively remote location.  The purpose of the detention was for sexual gratification, being the desire to view what was thought to be recordings of the victim engaging in bondage sexual activity.  The detention was brought to an end when the offender decided to leave the property when the relevant recordings could not be played.  The offence would have been distressing for the victim.  The offence, in my opinion, given its short duration, and that it came to an end when the offender left the premises, is well below a notional mid‑range offence, and towards the bottom of the range, but not at the very bottom.  Given the nature of the prohibited weapon, I consider that offence to be towards the bottom of the range.

Offender’s Subjective Case

15. I turn to the offender's subjective case.  He is 60 years of age.  He has a significant criminal history, although there have been no other offences, apart from those I have to sentence him for, since he was sentenced in 1996.  In particular, I make note of the following.  In 1987 he was sentenced to imprisonment for two counts of armed robbery; in 1993 he was sentenced in relation to a number of counts of possessing a prohibited weapon; in 1996 he was sentenced for offences of escape lawful custody, indecent assault, sexual intercourse without consent, and detaining a person for advantage.  The remarks on sentence in relation to the 1996 sentences were placed before me on this sentence.  I note the victim in the sexual offending and of the detention offence, which was dealt with in 1996, was a woman known to the offender whom he had befriended.  I note also that those offences, like the detention offence that I have to sentence the offender for, were committed after the offender had been drinking.

16. Clearly, the offender's record disentitles him to leniency here, although, given the gap in offending, I consider that it is not an aggravating factor under s 28A of the Crimes (Sentencing Procedure) Act.

17. The offender has been in custody since 23 May 2018, and the sentence will be backdated to that date.

18. There is before me a sentence assessment report, which has attached to it a psychological report by an Alex Kwon, psychologist; a report prepared by a psychologist Lynne Magor‑Blatch; a report by the offender's GP, and a number of testimonials.  The offender's wife also gave evidence before me. 

Family Background

19. In terms of his family background; when a relatively young boy in 1970, his family migrated to Australia from Germany.  According to what he told Ms Magor‑Blatch, the migration to Australia was something not discussed with the offender and his siblings; he reported feeling isolated upon his arrival in Australia, as he did not speak English at that time.  The offender described his mother to the psychologist as a "violent alcoholic" who beat him and his siblings with a whip until he was about 15 years of age.  He told the psychologist that at 15, he left home and joined a travelling carnival. 

20. Ms Magor‑Blatch described the offender's self‑reported childhood background as "very dysfunctional and traumatic", and expressed the opinion that his antisocial behaviour, significant depression and anxiety stem from his violent upbringing.

21. He is married, and his wife gave evidence before me.  They have married before, but divorced, and have since remarried.  His wife remains very supportive of the offender; he was living with her prior to his arrest, and he intends to live with her upon his release from custody.  He has two adult children from another relationship, and they remain supportive of him. 

22. The report from his general practitioner, which is dated 6 July 2018, records that he has fibrosis of the liver, which is linked to his alcohol abuse.  It also records that he has a history of a crush fracture at his L12, his lumbar spine, which he sustained in an industrial accident in 1984.  He was prescribed the pain killer, OxyContin, and according to his wife, a nurse, he is not receiving the same dosage of that drug in custody that he received when he had his liberty, and he has complained to her of pain.  He is currently using a walking frame, and his mobility is restricted.  His wife gave evidence, which I accept, that his general health has deteriorated, in her opinion, while he has been in custody.  He was clearly not using a walker for mobility as at the time of his arrest, yet he currently is. 

23. I consider these medical conditions, in particular the need to use a walking frame, means that his time in custody will be more arduous than it is for other offenders who do not have the medical conditions that the offender has.

Education and employment history

24. In terms of his education and employment history, at the time of his arrest he had been in fulltime employment for 18 months at the local tip near where he was residing.  There are testimonials before me to the effect that he has assisted a number of persons in his local community, and was a person who worked hard at his employment. 

Substance use

25. In terms of substance use, he used illicit drugs in his younger years, but there appears to have been no illicit drug use for quite some time.  The detention was committed after he had been drinking a considerable quantity of alcohol, and he has a history of alcohol abuse in the past. 

Psychological history

26. Ms Magor‑Blatch considered that the offender met the criteria for diagnosis of alcohol dependence, posttraumatic stress disorder, major depressive disorder, recurrent generalised anxiety disorder. 

Response to supervision

27. In the past, it is recorded in the sentence assessment report that his response to supervision by Community Corrections has been satisfactory, and he engaged in services as directed, and completed his parole in 2007. 

Attitude to the offence

28. In terms of his attitude to the offence, he maintains his innocence, which is of course his right, but it means that there is no remorse.  Having said that, I do note that there were messages sent by him on the night of the incident apologising to the victim, in essence for his conduct.

The future and risk of re-offending

29. The sentence assessment report assesses the offender as having a medium risk of re‑offending; he is recorded in the sentence assessment report as having no insight into how his offending behaviour impacted upon the victim. 

30. The psychological report attached to the sentence assessment report records him having an average risk of sexual re‑offending; that report was prepared on the basis of the Crown's summary of evidence in the trial, and not my findings of fact, and I have had regard to that fact in assessing what weight to give to the psychological report. 

31. The sentence assessment report records that he expressed a willingness to undertake any suitable intervention to address his offending behaviour.  The psychological report that was attached to the sentence assessment report recorded that he did not wish to engage in any such programmes; this could be because the psychologist's report focused on programmes to address sexual offending recidivism, and clearly, in the offender's eye, this offence was not a sexual one.

Sentence

32. He entered a plea of guilty in the Local Court to the possess prohibited weapon offence, and I will allow him a 25% of his sentence for the utilitarian value of his plea for that offence. 

33. Although he has no remorse, I think his prospects for rehabilitation are reasonable, given the lengthy gap in offending, and his previous response to supervision, and the continuing support of his wife. 

34. I do not see a basis for finding special circumstances here. 

35. On my findings, the handcuffs were not used in the actual detention offence, which I found the offender guilty of, although they were used in the lead‑up to the offence.  I will use the aggregate sentence provisions; if I had not used those provisions, there would have been some measure of accumulation of the sentences, given the discrete offences involved. 

36. I have had regard to the objectives of sentencing referred to in s 3A of the Act.  Women should be able to live their lives without men entering their homes uninvited, late at night, and detaining them against their will for the purpose of sexual gratification.  General deterrence must be reflected in the sentence, as well as personal deterrence, given the offender's record.

37. Given the seriousness of the two offences, and the offender's prior history, a sentence of imprisonment is the only appropriate sentence.  The maximum penalties and in relation to the weapons offence, the standard non‑parole period, have been taken into account as a legislative guidepost.  As I said, I will use the aggregate sentence provisions, I will record the indicative sentences first, and in relation to the possess prohibited weapon offence, I will record an indicative non‑parole period, as there is an applicable standard non‑parole period.  I have departed from the standard non‑parole period because of my assessment of the level of objective seriousness and the plea of guilty to that offence.

38. On the possess prohibited weapons offence, there is an indicative sentence of six months' imprisonment, with an indicative non‑parole period of four months. [1]

    1. Upon revision it would appear uneccesary to nominate an indicative non-parole period as the total indicative term was only 6 months.

39. On the detain for advantage offence, there is an indicative sentence of 18 months.

40. I will not require Mr Kertz to stand, because he is appearing via video link, and he is on the walker.

41. I impose an aggregate sentence of one year ten months, with a non‑parole period of one year and four months.

32. The sentence commences on 23 May 2018, and expires on 22 March 2020.

33. The non‑parole period expires on 22 September 2019.

34. The earliest date you may be released to parole is the date of the expiry of the non‑parole period, which is 22 September this year, and you should be released that day pursuant to a statutory parole order on certain conditions.  Whether you are in fact released on 22 September this year to parole remains, however, a matter for the State Parole Authority, which will no doubt take account of your behaviour in prison in determining whether you are released then or on another date.

35. In a nutshell, the indicative sentences on the possess prohibited weapons offence is six months, with a non‑parole period of four.  On the detain for advantage offence it is 18 months.  There is a total aggregate sentence of one year and ten months, with a non‑parole period of one year and four months.  It commences on 23 May 2018.  The non‑parole period expires on 22 September 2019.  The sentence expires on 22 March 2020.

Orders

46. Sentenced to an aggregate term of imprisonment of one year and ten months commencing on 23 May 2018 and expiring on 22 March 2020 with an aggregate non-parole period of one year and four months, expiring on 22 September 2019.

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Endnote

Decision last updated: 14 October 2019