R v KI

[2019] ACTSC 292

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v KI

Citation:

[2019] ACTSC 292

Hearing Date:

17 October 2019

DecisionDate:

17 October 2019

Before:

Elkaim J

Decision:

See [23]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Act of Indecency on a person under 10 years

Legislation Cited:

Crimes Act 1900 (ACT) s 61(1)
Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33
Magistrates Court Act 1930 (ACT) s 90A

Cases Cited:

R v Girvan (Supreme Court of the Australian Capital Territory, Refshauge ACJ, 25 September 2013).
R v LE [2018] ACTSC 143

Parties:

The Queen (Crown)

KI (Offender)

Representation:

Counsel

V Wei (Crown)

S McLaughlin (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Offender)

File Number:

SCC 169 of 2019

ELKAIM J:

1. On 23 July 2019 the offender pleaded guilty in the Magistrates Court to two charges of committing an act of indecency upon a young person under the age of 10 years, contrary to s 61(1) of the Crimes Act 1900 (ACT). The charges were then committed for sentence under s 90A of the Magistrates Court Act 1930 (ACT).

1. The maximum penalty for each offence is 12 years imprisonment.

1. The pleas of guilty were entered at an early stage and are of significant utilitarian value. I think the offender is entitled to a discount of 25% on his terms of imprisonment.

1. Count 1 relates to the offender’s son, ‘T’ aged five. Count 2 relates to his daughter, ‘M’ aged three. The offender and the mother of the children are separated.

1. On 4 May 2019 the offender had the two children at his home for weekend access. The offender usually wears no clothes while he is at home. During the morning T touched the offender’s penis which commenced to become erect. The offender told his son to “cut it out”. He began to leave the room but while doing so he touched T’s penis. It seems that the offender imposed upon his children the requirement to wander about the house naked.

1. Sometime later T sat on the offender’s leg and began to rub the offender’s penis, which again became aroused and pressed against the child’s intergluteal cleft for about a minute. He realised the conduct was inappropriate and moved the child away.

1. On the same day M was sitting on a couch alongside the offender. She was wearing a nightgown but no underwear. She began to touch the area around her vagina. According to the Agreed Statement of Facts the offender, apparently not considering that she was only three years of age, developed the totally deviant thought that the child needed to be aroused. However, I note the offender denies this element in the pre-sentence report, so I will not use it as a factor in assessing the severity of the offences.

1. He used his right finger to rub the child’s clitoris. He then removed his finger from her vagina and licked it in order to achieve some lubrication. He saw the child smile and thought she was having an orgasm. He removed his finger.

1. Both charges concerned an act of indecency. Within the limits of this charge I assess the facts as being above medium objective seriousness.

1. The offender was born in 1981. He is currently 38 years old. Besides some traffic matters he does not have a criminal record. Although offences of this type are often committed by persons with no criminal record, I nevertheless think that this offender is entitled to have the absence of a criminal record taken into account.

1. The offender was initially raised by his mother. He was apparently subjected to physical and sexual abuse by his mother and uncles. As a result he moved to live with his father where he was more comfortable. He formed a good relationship with his stepmother who has provided a reference (Exhibit 1). She refers to the difficulties that the offender faced with his biological mother, where there was obviously a particularly disgraceful environment.

1. Besides T and M the offender has two older children from a previous relationship. T and M also have another sibling from the same relationship.

1. The offender left school after Year 12. He has had different employments since, the most recent being in a records management role.

1. The offender has no problems with alcohol or drugs. His physical health is good, although he does suffer from hyperthyroidism, which was controlled by medication, but the condition has improved over the last 12 months.

1. The offender told the authors of the pre-sentence report that “he was disgusted and ashamed of his behaviour”. I accept that the offender has shown genuine remorse.

1. He suggested that his offending may have been a product of having been offended in a similar matter in his own childhood. One reaction to his own abuse would have been to ensure his own children were not abused. I accept however that, as contrary to logic as it may seem, persons who have been abused themselves often become abusers as an involuntary result of their own treatment.

1. The pre-sentence report assesses him as having a low to medium risk of general reoffending and a low risk of sexual reoffending.

1. There is a victim impact statement from the mother of the children. She noticed the children talking about inappropriate actions by the offender. She is concerned that they have now lost a father figure, and also about their general social interactions as they grow up.

1. The offender was arrested on 11 May 2019 and has been in custody ever since.

1. I was referred to a number of cases to indicate current sentencing practices. The offender submitted that his case was most similar to R v Girvan (Supreme Court of the Australian Capital Territory, Refshauge ACJ, 25 September 2013). The Crown submitted that the facts in R v LE [2018] ACTSC 143 were more comparable. All cases are different so it is difficult to say that one set of facts is more or less like another. Nevertheless, I accept both of these cases are very roughly comparable and do illustrate a sentencing pattern.

1. Sentencing requires looking at a number of factors, most of them set out in s 33 of the Crimes (Sentencing) Act 2005 (ACT). Sections 6 and 7 are also important because they identify the objects and principles of sentencing. Section 10 states that full-time imprisonment should be regarded as a last resort. There is no alternative in this case. The offender is in prison and he should remain there for some time longer.

1. It is accepted by the parties that the offence relating to M is objectively the more serious of the two offences. I think a longer sentence for Count 2 will provide for a degree of accumulation, bearing in mind that both offences were committed on the same day and within a close time of each other.

1. I make the following orders:

(a)Count 1 (CC2019/5381) the offender is sentenced to 18 months imprisonment (reduced from 24 months) to commence on 11 May 2019 and end on 10 November 2020.

(b)Count 2 (CC2019/5383) the offender is sentenced to 20 months imprisonment (reduced from 27 months) to commence on 11 May 2019 and end on 10 January 2021.

(c)The total period of imprisonment is 20 months.

(d)I set a non-parole period of 13 months imprisonment to commence on 11 May 2019 and end on 10 June 2020.

I certify that the preceding twenty three [23] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.

Associate:

Date: 17 October 2019