R v King

[2017] NSWDC 297

District Court

New South Wales

Medium Neutral Citation:	R v King [2017] NSWDC 297
Hearing dates:	6 July 2017
Date of orders:	06 July 2017
Decision date:	06 July 2017
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	The offender is sentenced to an aggregate sentence of imprisonment consisting of a non-parole period of 18 months and a head sentence of 2½ years
Catchwords:	CRIMINAL LAW – Sentence following trial – Grooming – Indecent assault – Foreseeable harm –Imbalance of power relationship – Clever use of technology by child to obtain evidence of wrongdoing – Offender continues to deny the undeniable - Breach of trust – Vulnerable victims
Legislation Cited:	The Crimes Act
Category:	Sentence
Parties:	The Crown Roger Robert King
Representation:	Counsel: Ms B Baker – The Crown   Solicitors: Director of Public Prosecutions – The Crown Greg Walsh & Co – The offender
File Number(s):	2015/217447
Publication restriction:	There is to be no publication of the name of the complainants or of any material which may tend to identify the complainants

SENTENCE

1. HIS HONOUR: An important part of deciding what sentence to impose upon an offender concerns the harm caused by the offender’s crime. Greater awareness by judges of the effects of sexual offending on the victims of such crimes has led to a significant increase in sentences for that type of offence over the past few years. Yet the law is that I must effectively ignore this increased awareness. I must sentence a sexual offender according to sentencing principles and ranges which we now know to be wrong. Indeed some of the statements made in cases, including cases in the Court of Criminal Appeal in the late 60s and early 70s, make for very uncomfortable reading.

2. I am aware that it is possible that the Royal Commission into Institutional Responses to Child Sexual Abuse is considering recommending a change in the law. Until such a recommendation is made and accepted, I will apply the law as it is, despite my obvious distaste for it.

3. I should emphasise something quite fundamental; the sentence that I will impose upon the offender is much more lenient than I would impose upon him if I applied present day sentencing principles and a proper understanding of the harm that sexual offending causes.

4. The offender now stands to be sentenced for offences involving two complainants. Without any disrespect to them at all, I will call them ‘A’ and ‘C’. My reasons for not using their proper names in this judgment, which may well come to be published on the internet and thus publically available, is obvious. I do not treat them as lesser human beings because I refer to them by initials.

5. Although the offence involving C came last in time, I will describe it first because of the importance the evidence regarding this offence played in the trial.

6. The offender was a Christian Brother. He still is. He taught maths and science at St Patrick’s College, Strathfield, a Catholic all‑boy’s school.

7. One day in 1987 the offender approached C and told him that he wished to speak to him about the fact that C had been getting into trouble recently. An arrangement was made whereby the offender would drive C home so that they could discuss things on the way. However, on the way home the offender began to ask C highly inappropriate questions concerning whether C possessed pornographic magazines. The offender asked C to collect some pornographic magazines from his home and C did so, giving them to the offender.

8. A little while after that the offender asked C whether he could drive him home again. C was suspicious as to what was going on. He made an excuse to delay this happening. He then equipped himself with his father’s dictaphone so that when the offender did drive C home for the second time, the conversation between them was recorded.

9. As soon as C left the company of the offender he played that recording to his brother who transcribed what he heard. Copies of the recording and copies of the transcript were made. A number of people were given those copies, some of whom gave evidence at the trial. Unfortunately all copies of the recording have been lost in the intervening years but fortunately a copy of the transcript was found in the offender’s personnel file at the school.

10. Despite the offender’s denials when giving evidence in the trial, I am satisfied that the transcript prepared by C’s brother is an accurate reflection of what the offender said to C. I make this finding for the following reasons:

11. Firstly, and most obviously, it is consistent with the jury’s verdict.

12. Secondly, the transcript is consistent with notes made by the then headmaster of the school who had heard the recording when he was interviewing the offender about the contents of the conversation with C.

13. Thirdly, a number of other witnesses who have heard the recording gave evidence as to the accuracy of the transcript.

14. And fourthly, if the transcript was inaccurate, especially if it is was deliberately so, then it is unlikely that the person who prepared the transcript would have handed both the recording and the transcript over at the same time.

15. Thus, I am satisfied beyond reasonable doubt, as were the jury, that at one stage in the conversation the offender showed C an advertisement in one of the pornographic magazines. That advertisement was for an anal vibrator, a “pulsator 240”. The offender asked C how that worked. That action by the offender forms the basis of count 8 on the indictment, an offence against s 61E(2A) of the Crimes Act for which the maximum penalty is four years imprisonment.

16. I am also satisfied beyond reasonable doubt that the offender was in effect sounding C out and grooming him in the hope that he would one day be able to indecently assault C. Fortunately C’s initiative in using his father’s dictaphone to record what the offender was doing thwarted the offender’s plans. That recording not only protected C but protected other boys at the school, because it was instrumental in the decision being made that the offender would never again teach at St Patrick’s College.

17. In assessing the objective gravity of this offence Mr Walsh points out that there was no touching involved. Of course had there been touching this would have been a more serious offence exposing the offender to a higher penalty.

18. There is no evidence of any great harm suffered by C. That is, perhaps, consistent with the recording giving him power over the offender rather than the offender having power over him. And as Mr Walsh points out, C appears to have been familiar with the content of the magazines and was thus not being exposed by the offender to any pornography with which he had not earlier come into contact.

19. The offences involving A occurred many years before, in either 1975 or 1976. The offender was not a teacher of A’s, but despite that the offender began paying special attention to A in the playground. They would have conversations and A noticed that when the offender was passing, the offender would make extended eye contact with him. This was something which pleased A. He enjoyed the attention being given to him by a teacher.

20. The offender was a keen camper and abseiler and he would arrange camps at which certain boys were invited to attend. At one such camp that A attended, circumstances came about that there was no room in any tent for A to sleep. The offender invited A to share his tent. Again, A was pleased by this development. Whilst in the tent the offender removed A’s belt and A went to sleep with the offender resting his hand on his, that is, A’s hip.

21. The Crown told the jury that this was part of the process of testing the waters, exploring the likelihood of that A would say something about the offender’s activities to someone else. It is consistent with the offender’s approach to C which I have earlier described.

22. Sometime after that camp, the offender invited A to join him in a preparation room attached to a science laboratory. This was after the offender had begun discussing sexual matters with A, and said to him at one stage “you’d make for an interesting experiment”. Once in the preparation room the offender said to A “Jesus wants us all to be happy”, unzipped A’s fly and began to fondle A’s penis. This represents count 1, an offence of indecent assault on a male for which the maximum penalty was five years imprisonment.

23. The offender then took A’s hand and placed it on his, that is, the offender’s penis, he having unzipped his own fly and exposed his penis. That is the basis of count 2, another offence of indecent assault on a male.

24. The offender then placed his hand on A’s head and moved A’s head down towards his penis until his penis actually touched A’s face. This is count 3, another offence of indecent assault on a male. It was this last action which caused A’s to begin to exhibit signs of considerable distress. He gave evidence that he was so upset by what was happening, and so unsure was he about what was going on, that he actually called out for his mother, despite the fact of course that she was nowhere nearby.

25. At this turn of events, which must have come as something of a surprise to the offender, the offender stopped what he was doing and attempted to calm A down, telling him that no one needed to know what had just gone on. They left the laboratory.

26. After that, A noticed that the offender did not pay him the special attention he had been paying him in the past. He blamed himself for that, thinking that he must have done something wrong.

27. When A recounted the events in his evidence before the jury he appeared to be reliving what occurred and exhibited a level of distress rarely seen, even in this court where similar evidence is given on a daily basis.

28. A was asked at trial why he had not told anyone about these events before he went to the Royal Commission and, in particular, why he had not told his parents. A’s evidence as to the reasons was delivered while he was again in a highly distressed state, sobbing as he told the jury why he had kept things a secret from his parents. He explained that his parents made many sacrifices so that they could afford the private school fees to send him and his brother to St Patrick’s College. His father was a taxi driver who worked seven days a week. His mother did various part-time jobs because they wanted to give their sons a good education. A explained that he could not bring himself to tell his parents that their sacrifices had in fact put him in harm’s way.

29. A has prepared a victim impact statement. It was read to the Court on his behalf this morning. It is an eloquent demonstration of the harm that these sorts of offences cause: Lifelong harm; Significant harm; Harm which extends beyond difficulties with intimate relationships, and can, as it did in A’s case, affect his whole life; he even contemplated suicide on two occasions.

30. It is important that a sentence imposed on an offender reflect the harm which his or her offences cause. The harm that A describes was entirely foreseeable and understandable given the nature of the indecent assaults, and the relationship between the offender and A, a relationship where the offender had power over A by reason of his position in the school.

31. The offender relied on his good character at trial. A number of witnesses were called, all of whom expressed the opinion that the allegations made against the offender were inconsistent with their assessment of his character. Each, however, gave evidence that, had the offender said those things which appeared in the recording made by C, they would have to admit that their assessment of the character of the accused was flawed. The concessions made by the character witnesses were clearly correct. They did not know the true character of the accused because they did not know that the accused had a tendency to have a state of mind of sexual attraction to the boys at school, and to act upon that sexual attraction.

32. A letter, today, was tendered by Mr Walsh. That letter was written by the offender’s sister. She suggests that without exception a number of people who know the offender would have wished to testify that there has never been a glance, an awkward moment, an instance from which her brother’s behaviour has been questioned.

33. Those people, and perhaps even the offender’s sister, were not present at the trial. They have expressed their opinion to the offender’s sister not knowing exactly what the accused did, not knowing that there was overwhelming evidence that he had done what C did, and that a jury has been satisfied beyond reasonable doubt, as would I have been, that the offender did what A alleged.

34. In any case, as Mr Walsh concedes, it was the offender’s good character which facilitated the commission of the offences in the first place. That is not to say, that I have ignored what the offender has done in his life. In particular, that there has been no suggestion since he ceased teaching at St Patrick’s College that he has committed any other offence of this kind, or indeed any offence at all.

35. The offender is now 79 years of age. He left school at 17 and for many years worked as a teacher in various schools both in New South Wales and Queensland. After his position as a teacher at St Patrick’s College was terminated he began work as a lecturer at a tertiary education institute. He has now retired from that job. Before I refused him bail he lived with friends in the Wallacia area and he intends to return there, or to another friend’s address, upon his release from custody.

36. A feature of the presentence report is the offender’s continued denial of guilt in these matters. He continues to profess his innocence even where he knows the accuracy of the transcript of the conversation he had with C which was tendered in the trial.

37. Of course, he is not to be punished for pleading not guilty. Nor is he to be punished for the resulting need that the complainants, particularly A, to go through the experience of giving evidence at a jury trial.

38. But his lack of remorse is relevant, not because it is an aggravating feature that he is not sorry for what he has done, but because there is no mitigation flowing from the offender saying that he was sorry for the harm that he has caused, particularly to A.

39. Despite this lack of remorse there does appear to be a low risk of reoffending, not because the offender says that he is going to take steps not to do in the future what he admits he has done in the past, but because he is old and unlikely to be put in a position in the future where he can commit offences of this type. In that sense he does have good prospects of rehabilitation despite failing to acknowledge the obvious - that he did what he has been found guilty of doing.

40. Mr Walsh made submissions regarding the relevance of his client’s age. It is certainly not the law that the prospect of an accused dying in gaol prevents an appropriate sentence being imposed.

41. On the other hand I do take into account that prisons are not places of luxury. Prisons are not places which old men going to prison for the first time would find comfortable. The offender is currently held in protection. There is a risk that he will serve the entirety of his sentence in that manner and a risk that if he does, that will involve harsher conditions of custody than would otherwise be the case. I have taken both of those risks into account.

42. Mr Walsh made a number of appropriate concessions. I have already referred to his concession that the offender’s good character facilitated the commission of the offence. Mr Walsh also conceded that his client’s conduct represented a gross breach of trust. He was a teacher at the school. His victims were vulnerable because of their age and the fact that they were students at the school and the relationship between the two made the impact of the offending more serious.

43. Mr Walsh conceded that the four offences for which I must sentence the offender were not isolated acts.

44. I should say something as to the objective gravity of the first three offences on the indictment, those concerning indecent assaults on A. We now know that the extent of harm suffered by the victim of an offence is not always directly related to how Courts have traditionally regarded the seriousness of physical contact amounting to an indecent assault. But with that qualification other forms of sexual connection covered by s 81 of the Crimes Act have been regarded in the past and I will regard them for the purposes of these remarks on sentence as more serious.

45. I do not regard all three offences as of equal seriousness. The action of the offender pushing A’s head down towards his penis such that his penis actually touched the face of A was a particularly intimate action as far as A was concerned, and, as I have already mentioned, it was that act which caused A to call out for his mother.

46. Count 3 on the indictment is more serious than counts 1 and 2 looking at matters from an objective point of view.    Accepting that a range is not a point, I also accept Mr Walsh’s submission that the three offences are in the midrange of objective seriousness.

47. Submissions were made regarding delay. I have already mentioned the reason for the delay in prosecuting the offender for the offences involving A. The reason for delay involving the offence concerning C is different. C did go to the authorities. Police and Youth and Community Services became involved, but for reasons which are not entirely clear, even though at least some people had actual copies of the recording, a decision was taken not to prosecute C.

48. There has been a considerable delay between the offending and today when the offender is to be sentenced for what he did. This is a relevant factor but not a strongly mitigating one. There is no evidence that having been asked to leave the school the offender has spent the intervening years fearing the knock on the door which would ultimately lead to this day coming. He appears to have got on with his life, unconcerned that he might have to face punishment for what he did.

49. Although the offences involving A all occurred as one continuous course of conduct, there were three separate acts. Each separate act added to the harm caused to A. Each separate act was a different act of criminality. It was objectively worse for the offender to commit those three offences rather than just one. Partial accumulation is required. The offender should not get the impression that having committed one offence he can do two other offences without being separately punished for them.

50. It was implicit in Mr Walsh’s submissions that a custodial sentence was required. I have had no trouble coming to that conclusion. These offences, even applying olden day sentencing principles and ranges, are such that a custodial sentence is required to reflect the objective gravity of the offender’s conduct, and to deter others who may wish to give vent to their sexual urges by committing sexual assaults upon those under their authority. This sentence should act as a deterrent to such people.

51. It is one of the fundamental aspects of sentencing that we impose sentence to protect the community and members of it, particularly vulnerable members of society such as children who are vulnerable to the predations of their teachers who seek inappropriate outlets for their sexual urges.

52. There are special circumstances in this case, I referred to two, the likelihood that the offender will spend his time in custody in protection and the fact that this is the offender’s first time in custody.

53. I will impose an aggregate sentence of imprisonment, but before I announce the indicative sentences and the aggregate sentences I wish to return to the beginning. These sentences would be much longer but for the law which binds me as to the appropriate sentencing range for offences committed some time ago.

54. The indicative sentences are as follows:

1. For count 1, 18 months’ imprisonment;

2. For count 2, 18 months’ imprisonment;

3. For count 3, two years’ imprisonment;

4. For count 8, six months imprisonment.

5. I impose an aggregate sentence of imprisonment consisting of a non‑parole period of 18 months with a head sentence of two and half years that is to date from 12 May 2017 and so the non-parole period will expire on 11 November 2018 on which day the offender is to be released to parole.

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Decision last updated: 02 November 2017