R v King

[2013] ACTSC 279

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v King
Citation:	[2022] ACTSC 252
Hearing Date:	22 August 2022
Decision Date:	15 September 2022
Before:	Kennett J
Decision:	See [35]–[38]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – historic child sex offence – commission of an act of indecency on a person under the age of 16 years – where offender is currently serving
sentence of imprisonment for like offences occurring around the same time as the subject offence
Legislation Cited:	Crimes Act 1900 (ACT) s 92K Crimes (Sentencing) Act 2005 (ACT) ss 34A, 65, 66
Cases Cited:	Bugmy v The Queen [2013] HCA 37; 249 CLR 571 CX v The Queen [2017] ACTCA 37 Mill v The Queen (1998) 166 CLR 59 R v King (Unreported, Supreme Court of the ACT, Refshauge J, 29 June 2012) R v King [2013] ACTCA 29 R v King [2013] ACTSC 279
Parties:	The Queen (Crown) Ian Harold King (Offender)
Representation:	Counsel
M Howe (Crown) J Cooper (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service (Offender)
File Number:	SCC 150 of 2022
KENNETT J:
Introduction

1. The offender, Mr King, has pleaded guilty to a charge of committing an act of indecency on a person under the age of 16 years. The offending occurred during, or around, September 1998. The offending is contrary to what was, at that time, s 92K(2) of the

Crimes Act 1900 (ACT). The maximum penalty is 10 years’ imprisonment.

2.       The offender is currently serving a lengthy sentence of imprisonment for similar offences. In 2012, he was sentenced by a judge of this Court for 25 sexual offences committed against five boys aged between 10 and 16 years: R v King (Unreported, Supreme Court of the ACT, Refshauge J, 29 June 2012). An original head sentence of

12 years’ imprisonment was increased to 19 years’ imprisonment on appeal: R v King

[2013] ACTCA 29. Subsequently, the offender pleaded guilty to five further sexual offences against boys. These offences concerned a further five victims, aged between

16 and either 17 or 18 years. A head sentence of five years’ imprisonment was imposed, partially concurrent with the existing 19 year sentence, and the offender’s

nonparole period was re-set to be a total of 12 years and four months: R v King [2013]

ACTSC 279. The offender’s nonparole period ended on 2 November 2020 and, prior to

the sentence I will impose today, his total head sentence was set to expire on 1 July 2030. Although he has been eligible to apply for parole for slightly over 22 months, the offender has not done so.

3.       The offender was the cricket coach of all but one of the ten victims of the sexual offences referred to in the previous paragraph. The one exception was the younger brother of a boy coached by the offender. The offences all occurred between 1989 and 1998.

Facts

4.       The victim was a promising junior cricketer in the ACT and first met the offender at a training session. The offender, who had played Sheffield Shield cricket for Queensland, was a club coach and a selector for the ACT Comets.

1. The offender appeared to take a genuine interest in the victim’s cricketing ability at

   these sessions and offered the victim one on one personal training sessions.

6.       On the day of the offending, the offender collected the victim from the victim’s home

and drove him to Phillip Oval where they trained together. The offender then drove the victim to Woden Plaza where they ate lunch together. At lunch the offender commented

on the victim’s talent and said that he saw the victim as being the next big thing. He

told the victim he could show him certain muscle groups and areas of the body that need to be strengthened and exercises to become a better fast bowler. The offender

then drove the victim to the offender’s residence in Lyons.

1. Inside the offender’s apartment, the offender showed the victim a poster of a diagram

   of the human body. He told the victim to stand in front of a full length mirror which was located at the end of the hallway purportedly so that he could show the victim relevant muscles. While the victim performed slow-motion blowing techniques, the offender instructed him to remove layers of clothing. When the victim was wearing only his underwear the offender stood behind the victim, leaned over and touched the right side

   of the victim’s groin area and said words to the effect of:

   These are the muscles that you need to be strengthened because they all – they’re all interconnected with your bowling. So if they’re not strong, your core isn’t strong. Your core

   isn’t strong, your glutes aren’t strong, your hamstrings not strong.

8.       The offender repeated this by touching the victim’s left groin area. He then instructed

the victim to remove his underwear, saying this was to make the muscles further visible. The victim complied, feeling frightened, humiliated and frozen. He stood in front of the mirror with his hands covering his penis. The offender instructed the victim to move his hands away from his penis because he could not see the specific muscle to which he was pointing. The victim complied and moved his hands away from his penis. The

offender again touched the victim’s right groin area and said words to the effect of “your groin needs to be strong because if your groin’s not strong, your quads aren’t strong”.

The offender brushed his hand twice across the victim’s penis as he moved his hand

between the victim’s right and left groin areas.

9.       The offender asked the victim if he masturbated. The victim said yes. The offender then

touched the victim’s penis and held it in his right hand. He said words to the effect of

“Masturbating is good. It releases endorphins and chemicals which help with muscle

development”. He moved his hand up and down the victim’s penis. He said to the victim

that he must like it as his penis became erect. The offender continued to move his hand

up and down the victim’s penis for two to eight minutes. The victim ejaculated. The

offender said words to the effect of:

You must like it because you came. There’s nothing wrong with that. It’s healthy, normal,

natural and it’s good for your development, muscle growth and strength.

10.     The victim got dressed and sat on a couch. The offender asked the victim if he had ever masturbated to porn and if he would like to masturbate to porn now. The victim declined. The offender made reference to other cricket players coming over and masturbating to porn.

11.     During the drive home, the offender made reference to organising another one on one training session. The victim later engaged in another one on one training session without incident.

Victim impact statement

12.     I have taken into account the victim impact statement, which the victim read to the Court during the sentence hearing. He eloquently described a degree of loss and harm that is tragic, albeit not unexpected given the type of offending. He spoke about how he felt

stripped of his innocence and something that gives people “joy and a beautiful outlook on life”. He described how the offending has affected his ability to make and maintain

relationships and caused him to “think the worst” of new people he meets. It is clear

the harm caused by the offending is profound, complex and long-lasting:

For years, I had never been able to fully understand the impact this kind of abuse has on someone, the full mental and emotional damage it can cause. The scars are so engrained and so deep that some will never fully heal and I will have to live with them for the rest of my life.

Objective seriousness

13.     Offences of this nature are always serious, although not all are equally serious. The following factors contribute to the seriousness of the present offending.

(a)	There was a significant age difference between the offender, who was 55, and the victim, who was 13.
(b)	The offender’s conduct occurred for his own sexual gratification. There may

be an extent to which the offender believes he has done nothing wrong, and that his actions were, as he said to the victim, for his muscular development, or otherwise a part of a role he saw he had as a mentor. This belief was

described in a clinical psychologist’s report, extracted in the 2012 proceeding, as appearing genuine, but “mainly oriented towards acceptably

explaining the behaviour to himself”: R v King (Unreported, Supreme Court

of the ACT, Refshauge J, 29 June 2012). It makes little difference to the severity of this offence how successfully the offender has convinced himself its commission was not wrong. There is no reason why the conclusion of

the Court of Appeal that there was “an element, even a large element, of

personal sexual gratification in [the offender’s] conduct” (R v King [2013]

ACTCA 29, [75]) should not be applied to the present offending.

(c)	The offending occurred in the home of the offender, a place where the victim was rendered particularly vulnerable by his lack of familiarity with the area and isolation from trusted adults. The victim could not easily have escaped when he started feeling uncomfortable.
(d)	There was a relationship of trust between the victim and the offender. The offender was a professional cricket coach. The victim was an aspiring cricketer who believed the offender could assist him in becoming a better athlete. Given the professional success of the offender, the victim is likely to have admired the offender and been hopeful that he would become something of a mentor. This relationship of trust is similar to that between a teacher and their student.
(e)	The conduct was protracted and of a kind which is in the upper range of that

captured by s 92K(2). The victim was lured to the offender’s house. The

offender instructed the victim to remove items of clothing one by one until he was naked. The offender then repeatedly brushed his hand across the

victim’s penis before he held the victim’s penis and masturbated him until

he ejaculated. The offence therefore included acts more serious than conduct such as kissing (which was also captured by s 92K(2)). More serious acts (including fellatio and cunnilingus) were at the time of the

offending included in the definition of “sexual intercourse” in the Crimes Act

1900 (ACT) and covered by separate provisions.

14.     I note that the victim was not among the youngest of those against whom these offences are sometimes committed. That moderates their seriousness to some degree. I nevertheless consider that the offending was in the upper range of objective serious, albeit towards the lower end of that range.

Subjective features

15.     In R v King (Unreported, Supreme Court of the ACT, Refshauge J, 29 June 2012), Refshauge J set out relevant subjective features in some detail. The same features were summarised by and not challenged in the Court of Appeal: R v King [2013] ACTCA

29, [45]–[58]. I have proceeded on the basis that relevant facts concerning the
offender’s life history were correctly found in the earlier proceedings.

16.     The offender had a traumatic upbringing. He never met his father, who was an African-

American sailor. His mother’s second partner was reportedly a violent alcoholic. From

the age of 11 the offender reported going to Aboriginal bush camps where he witnessed significant alcohol abuse, violence and promiscuity and had his first experiences of sexual activity. From adolescence he obtained money through child prostitution initially in public toilets and later with fellow workers.

17.     Between the date that the Court of Appeal re-sentenced the offender (26 July 2013), and the date Refshauge J sentenced the offender in relation to further offences (7 November 2013), the High Court decided Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy). Bugmy confirmed that a background of profound deprivation, such

as the offender’s, may mitigate a sentence because the offender’s moral culpability is

less than that of an offender who has not suffered the same disadvantage. Bugmy also

requires that I give this consideration “full weight” despite the offender’s advanced age

because growing up in an environment surrounded by alcohol abuse and violence may
leave marks that do not dimmish with the passage of time: Bugmy at [43]).

18.     Counsel for the offender submitted that a lesser sentence should be imposed for the present offending than for similar offending considered by the Court of Appeal, because the Court of Appeal did not have the advantage of seeing the reasoning in Bugmy. The

extent to which the offender’s upbringing was taken into account by the Court of Appeal is not entirely clear, although I note that the sentencing Judge had cited the offender’s “appalling background and upbringing” as among factors necessitating some

moderation in the sentence given (Unreported, Supreme Court of the ACT, Refshauge J, 29 June 2012). The reasons of the Court of Appeal do not indicate any departure from this approach.

19.     On 27 January 2013, the offender was violently attacked by another inmate of the AMC. He sustained a serious injury to his left eye, which was replaced with a prosthetic eye.

The Court of Appeal found that the offender’s continuing disability and need for

protection in prison will make prison more difficult for him than other prisoners: R v King
[2013] ACTCA 29, [80]. There is no reason to depart from that assessment

20.     Some matters arising since the judgment of the Court of Appeal should be noted.

21.     Counsel for the offender asserted that the offender has voluntarily engaged in and completed a sex offender program and submitted that this indicates a different attitude to his offending to the one that was taken into account in previous proceedings. I accept

that the offender’s engagement in a sex offender program represents a positive step

towards him understanding his offending. However I have given it only limited weight. There was no expert evidence before me to suggest that the offender has changed his attitude towards his offending; nor is there any statement from the offender to that effect. A letter from the offender states that he completed the Adult Sex Offender

program (ASOP) in 2017 and that “[t]he ASOP allowed me to discover who I am leaving

me feeling like a human being”. It does not persuade me that the offender feels

significant remorse or understands the harm he has caused.

22.     The offender is now 79 years old. He has health issues including macular degeneration and is awaiting a cataract operation. It was submitted that following the operation there

will be a period where the offender will be almost blind. The offender’s age and ill health

are matters to be taken into account, as is the possibility that the sentence I impose may lead to him spending the rest of his life in prison. However, as explained in CX v

The Queen [2017] ACTCA 37 at [39]–[40], these considerations cannot be allowed to

overwhelm other sentencing considerations or lead to a sentence that fails to reflect

the community’s abhorrence of crimes of the present kind.

23.     I accept and give weight to the fact that prison is more difficult for the offender than for the general prison population. Although the assault committed on him occurred almost

a decade ago, he is likely to continue to fear for his safety. The offender’s poor eyesight

will heighten this fear.

24. Finally, I note that it is explained in earlier decisions that the offender has achieved much of benefit to the community. He was employed for a time at the Department of Aboriginal Affairs and together with Professor Paul Zimmet worked on issues related to diabetes in Indigenous communities. However, s 34A(b) of the Crimes (Sentencing) Act 2005 (ACT) provides that the court must not reduce the severity of a sentence it would otherwise have imposed on an offender because the offender has good

character, to the extent that the offender’s good character enabled the offender to

commit the offence. The Court of Appeal found the offender’s prior good character

should be given less weight because it facilitated the commission of the offences.
Pursuant to s 34A(b), I give it no weight at all.

Other sentencing considerations

Mill v The Queen Principles

25.     There is some complexity involved in sentencing an offender who has already been sentenced in respect of similar offending that occurred at around the same time. This complexity was addressed in R v King [2013] ACTSC 279, where Refshauge J found that the approach to be taken in situations where a new victim has come forward (giving rise to the need for another sentence) is relevantly the same as situations where sentencing has been delayed because the offender was serving a prison sentence in a different jurisdiction. At [4], his Honour extracted the following passage from Mill v

The Queen (1998) 166 CLR 59, 66–7 where the High Court addressed the latter

situation:

In our opinion, the proper approach which his Honour should have taken was to ask what

would be likely to have been the effective head sentence imposed if the applicant had committed all three offences of armed robbery in one jurisdiction and had been sentenced at the one time. It is most unlikely that the applicant would have been sentenced to eight years on the first count, eight years with six years of it concurrent on the second count, and eight years cumulative on the third count, making an aggregate head sentence of eighteen years. Yet that, it seems to us, is the practical effect of the sentence imposed by his Honour. On the other hand, the notional exercise which we have just described tends towards a conclusion that a sentencing court dealing with all three offences at the same time would have dealt with the third offence in a similar manner to that adopted when dealing with the second, namely, by imposing a sentence of eight years with five or six years of it concurrent with the earlier sentences. The aggregate head sentence in that event would have been either twelve or thirteen years.

26.     I have adopted this approach, which is an application of the principle of totality. It has, among other things, required me to consider the degree of concurrency that was afforded by the Court of Appeal and by Refshauge J in 2013, particularly where the offences concerned different victims.

27.     At Annexure A of these reasons is a table showing how the sentence I impose today sits in the context of the sentence the offender is already serving.

Plea of guilty

28.     A plea of guilty was made at almost the earliest opportunity in the Magistrate’s Court.

It had significant utilitarian value. A discount of approximately 25 per cent is appropriate.

Court of Appeal Sentences

29.     The parties submitted that the sentences imposed by the Court of Appeal in R v King [2013] ACTCA 28 provide useful comparatives. It was put that counts 8, 12 and 15 in particular involved offending of a substantially similar nature to the instant offence. Count 8 involved the offender putting on a pornographic movie in his house and masturbating the victim (a 15 year old with the pseudonym D) until he ejaculated. Count 12 involved another victim (with the pseudonym J, who was either 12 or 13 years old

at the time of the offending) walking out of the shower at the offender’s house before

the offender told him to go into the bedroom to masturbate. The offender then

masturbated J’s penis until he ejaculated. Count 15 involved the offender masturbating J’s penis in the offender’s house and holding J’s hand on the offender’s penis. The

sentence imposed by the Court of Appeal for each offence was 34 months. The Court of Appeal did not make clear what discount was afforded for plea of guilty, but Counsel submitted, and I accept, that it was something in the vicinity of 15 to 20 per cent.

30.     It is rare for offences for which a sentence has already been imposed to be so similar to an offence before a sentencing judge. The factors set out at [13] which I consider place the instant offence at the upper range of objective seriousness were each present in Counts 12, 13 and 15, although it is possible that the present offending was somewhat more protracted. Similarly, as I have set out above, there are substantial similarities between the subjective features present today and present in 2013.

31. I note that section 34A(a) of the Crimes (Sentencing) Act 2005 (ACT) requires me to sentence the offender in accordance with the sentencing practice, including sentencing patterns, at the time of sentencing. It was not suggested to me that the Court of

Appeal’s decision does not represent current sentencing practice.

Consideration

32.    Sentencing considerations relevant in this matter including general deterrence, accountability, denunciation, and recognition of the harm done to the victim.

33.     Taken together, the subjective circumstances relevant to this sentence mean that the head sentence that I impose is significantly less than would otherwise have been appropriate. The offender concedes that the s 10 threshold has been crossed. It is clear that no sentence other than one of imprisonment is appropriate. Prior to the discount

for the plea of guilty I have imposed a sentence of three years and five months’

imprisonment.

34. I am required to re-set the nonparole period as the imposition of a further term of imprisonment automatically cancels the existing nonparole period: ss 65 and 66 of the Crimes (Sentencing) Act 2005 (ACT). This is a largely formal step because the time I propose to add to his nonparole period is less than the time that has passed since that period came to an end. In other words, the offender will continue to be eligible to apply for parole. The ratio between the revised nonparole period and total head sentence (including the sentence I impose today) is slightly lower than that fixed by Refshauge J in 2013 for the reasons set out above.

Orders

35.     The orders of the Court are as follows.

36. I convict the offender of an act of indecency upon a person under the age of 16 contrary to s 92K(2) of the Crimes Act 1900 (ACT) (CC2022/5397).

37.     I impose a sentence of two years and seven months’ imprisonment (reduced from three

years and five months for the plea of guilty) from 1 November 2029 to 31 May 2032.

38.     I set a new nonparole period on the total of the sentences imposed by the Court and the Court of Appeal of 12 years and 11 months, from 3 July 2008 to 2 June 2021.

I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Kennett

Associate:

Date:

Annexure A

Sentences imposed by Court of Appeal: R v King [2013] ACTCA 29

Count Number	Offence	Sentence imposed by Court of Appeal
Count 1	Act of indecency on person 10-	30 months’ imprisonment
16 years	commencing 3 June 2008 and
expiring 2 January 2011
Count 2	Sexual intercourse with a	3 years 4 months’ imprisonment
person 10-16 years	commencing 3 October 2008 and
expiring 2 February 2012
Count 3	Act of indecency on person 10-	20 months’ imprisonment
16 years	commencing 3 September 2010 and
expiring 2 May 2012
Count 4	Act of indecency on person 10-	20 months’ imprisonment
16 years	commencing 3 December 2010 and
expiring 2 August 2012
Count 5	Act of indecency on person 10-	9 months’ imprisonment commencing
16 years	3 February 2012 and expiring 2
November 2012
Count 6	Act of indecency on person 10-	20 months’ imprisonment
16 years	commencing 3 June 2011 and
expiring 2 February 2013
Count 7	Act of indecency on person 10-	30 months’ imprisonment
16 years	commencing 3 December 2010 and
expiring 2 June 2013
Count 8	Act of indecency on person 10-	34 months’ imprisonment
16 years	commencing 3 February 2011 and
expiring 2 December 2013
Count 9	Act of indecency on person 10-	30 months’ imprisonment
16 years	commencing 3 October 2011 and
expiring 2 April 2014
Count 10	Act of indecency on person 10-	20 months’ imprisonment
16 years	commencing 3 December 2012 and
expiring 2 August 2014
Count 11	Act of indecency on person 10-	30 months’ imprisonment
16 years	commencing 3 July 2014 and expiring
2 January 2017
Count 12	Act of indecency on person 10-	34 months’ imprisonment
16 years	commencing 3 September 2014 and expiring 2 July 2017
Count 13	Sexual intercourse with a	3 years 4 months’ imprisonment
person 10-16 years	commencing 3 November 2014 and
expiring 2 March 2018
Count 14	Act of indecency on person 10-	30 months’ imprisonment
16 years	commencing 3 January 2016 and
expiring 2 July 2018
Count 15	Act of indecency on person 10-	34 months’ imprisonment
16 years	commencing 3 January 2016 and
expiring 2 November 2018
Count 16	Act of indecency on person 10-	3 years’ imprisonment commencing 3
16 years	May 2016 and expiring 2 May 2019
Count 17	Sexual intercourse with a	3 years 9 months’ imprisonment
person 10-16 years	commencing 3 May 2016 and expiring 2 February 2020
Count 18	Sexual intercourse with a	3 years 9 months’ imprisonment
person 10-16 years	commencing 3 November 2016 and
expiring 2 August 2020
Count 19	Act of indecency on person 10-	32 months’ imprisonment
16 years	commencing 3 March 2018 and
expiring 2 November 2020
Count 20	Act of indecency on person 10-	3 years 6 months’ imprisonment
16 years	commencing 3 November 2017 and expiring 2 May 2021
Count 21	Sexual intercourse with a	3 years 9 months’ imprisonment
person 10-16 years	commencing 3 March 2018 and expiring 2 December 2021
Count 22	Sexual intercourse with a	4 years’ imprisonment commencing 3
person 10-16 years	January 2019 and expiring 2 January 2023
Count 23	Maintaining sexual relationship	12 years’ imprisonment commencing
with a person under 16 years	3 July 2014 and expiring 2 July 2026
Count 24	Sexual intercourse without	4 years’ imprisonment commencing 3
consent	January 2023 and expiring 2 January 2027
Count 25	Sexual intercourse with a	3 years 4 months’ imprisonment
person 10-16 years	commencing 3 March 2024 and expiring 2 July 2027

Sentences imposed by Supreme Court: R v King [2013] ACTSC 279

Count 1	Sexual	intercourse	without	2 years 10 months’ imprisonment
consent	commencing 2 July 2025 and expiring
1 May 2028
Count 2	Sexual	intercourse	without	2 years 10 months’ imprisonment
consent	commencing 2 September 2026 and
expiring 1 July 2029

Count 3	Act of indecency without	1 year 4 months’ imprisonment
consent	commencing 2 October 2028 and
expiring 1 February 2030
Count 4	Act of indecency without	8 months’ imprisonment commencing
consent	2 September 2029 and expiring 1 May
2030
Count 5	Act of indecency	6 months’ imprisonment commencing
2 January 2030 and expiring 1 July
2030

Sentence imposed by Supreme Court: R v King [2022] ACTSC 252

Count 1	Act of indecency on person 10-	2 years seven months’ imprisonment
16 years	commencing 1 November 2029 and
expiring 31 May 2032