R v King (a pseudonym) - [2019] NSWDC 608

District Court

New South Wales

Medium Neutral Citation: R v King (a pseudonym) [2019] NSWDC 608
Hearing dates: 12 September and 18 October 2019
Decision date: 24 October 2019
Jurisdiction: Criminal
Before: Colefax SC DCJ
Decision:
Aggregate term of imprisonment of 6 years with a non parole period of 3 years 7 months.

Catchwords: CRIME - SENTENCE - Sexual intercourse with a person 10 years or over and under 16 years.
Category: Sentence
Parties:
Regina (Crown)
King (a pseudonym) (Offender)
Representation:
Mr Carnell (ODPP)
Mr McAuliffe (Counsel for the offender)

File Number(s): 2018/203159
Publication restriction: Non publication order made of the name of the offender or the victim or anything else which might identify either of them, directly or indirectly.

Judgment

To the extent necessary, I confirm the non-publication order which I have previously made of the name of the offender, and the victim, and of anything that might identify either of them – directly or indirectly.
King, you appear for sentence today in relation to two principal offences which you committed in 1991.
Both offences involve contraventions of the then s 66 C (1) of the Crimes Act – that is, sexual intercourse with a person 10 years or over and under 16 years.
The maximum penalty for that offence at that time was 8 years imprisonment. There was no standard non-parole period.
In addition, in relation to the first principal offence, you have asked me to take into account three matters on a Form 1 which I have certified; furthermore, in relation to the second principal offence, you have asked me to take into account five matters on another Form 1 which I have also certified.
Although the offences were committed almost 29 years ago, recent legislative amendments require me to sentence you, bearing in mind the then applicable maximum penalty, in accordance with current sentencing patterns and practices – and not those at the time of the offending. And in that context, I am specifically to have regard to the current understanding of the trauma sustained by a child as a result of sexual abuse.
The facts surrounding the two principal offences and the matters on the relevant Form 1 are contained in a document entitled Statement of Agreed Facts. Those facts may be summarised as follows.
By the end of 1990, your marriage had come to an end. It upset you greatly.
One of your brothers lived on a rural property just outside of Sydney on which was constructed a large house which had been converted into four units. Your brother lived in that house with his wife and their four children: three boys and a girl. Her name was Harriet (a pseudonym).
To help you with getting over the broken marriage, your brother provided you with accommodation - a self-contained unit - in that house.
You moved in toward the end of 1990 when you were 24 and Harriet was 12 years old.
On a weekend in January 1991 Harriet walked into your unit. Your brother and sister in-law had taken two of Harriet’s brothers to a cricket match and she remained behind.
After Harriet came into your unit at about 2pm, she sat down and innocently began talking to you – her uncle - during the course of which you asked her what time everybody else would be getting home. This was not an innocent question. Harriet told you she expected them to be home about 6:00pm – that is, about 4 hours later.
You inappropriately asked her whether she had a boyfriend and whether she had ever been kissed. To both questions, Harriet answered “No”.
Then you began to sexually assault her.
First, you roughly placed your right hand on her knee and then her thigh. Whilst doing so, you forcefully kissed her. You then rubbed your hand up and down her vagina on the outside of her clothing. Harriet struggled against you and told you to stop. She stood up but you grabbed her and pulled her back onto the lounge and unzipped her shorts and started to kiss her again. Harriet was scared and unable to move.
It is these facts which constitute the first of the matters on the Form 1 to be taken into account with the first principal offence - that is, an indecent act with a person under 16 years of age.
Because it can be seen as part of a continuous course of conduct with that first principal offence, it will result in a slight but not meaningful increase in the sentence for that first principal offence, the facts of which I now turn to.
Having unzipped her shorts, you then put your hand inside Harriet s underwear and started rubbing her vagina. You then penetrated her vagina with two of your fingers. You caused Harriet pain and she was crying by your forceful and rough penetration of her.
When you finished, you pulled your fingers out of her vagina and they were covered in blood.
Harriet was crying and covering her face with her hands.
This digital penetration of Harriet’s vagina constitutes the first principal offence of sexual intercourse with a person under 16 years of age.
In terms of its objective seriousness for an offence of its kind, it is a mid-range offence. It is additionally aggravated by the fact that it occurred in the victim’s home.
You then pulled Harriet’s hands away from her face and placed one of them on your pants. Although the agreed facts do not expressly say so, the only rational inference from those facts is that you had ejaculated. You placed her hand on your pants in order that she might feel the ejaculate.
It is this conduct which constitutes the second matter on the Form 1 to be taken into account with the first principal offence – that is, another indecent act with a person under 16 years of age. Because it can also be seen as part of a continuous course of conduct with that principal offence, it will result in a slight but not meaningful increase in the sentence for the first principal offence.
After you had done these terrible things to Harriet, you quite wickedly told her that she was not to tell her parents or anyone else - and that if she did tell anyone, you would have to hurt, not only her, but whomever it was that she told. And she believed you.
After you extracted her agreement not to tell anyone through this use of fear, she left the unit. Harriet was shaking and crying. She went to a bathroom where she vomited. She had a shower and noticed blood on her underpants, her vagina and her inner thighs.
The following weekend, which was towards the end of January 1991, you told your sister in-law that you wanted Harriet to come to your unit to do some cleaning and some odd chores for which you would pay her.
Harriet told her mother that she did not want to do this but ultimately she was persuaded to.
About 10am on one of those days of that weekend, Harriet went to your unit and saw a list of chores you had left for her.
Whilst Harriet was doing the washing, you returned. You grabbed her from behind and pulled her into the kitchen. You pushed her up against the stove. You started smelling her hair. You told her that you could not stop thinking about her.
You then started to kiss her and to grab her right breast and to squeeze and fondle it. You were also rubbing your body against hers. Harriet was shaking scared and started to cry. She pushed you away. You squeezed her breast again and then told her that she was not to tell anyone. In the circumstances, Harriet could only have understood that as being a repeat of the threat to cause harm which you had made the weekend before.
Having extracted her agreement not to tell anyone, you released her breast which you had been squeezing and Harriet returned to the part of the property where her parents lived.
Harriet did not tell anyone what had happened that day because she was terrified.
It is these facts which constitutes the third matter on the Form 1 to be taken into account with the first principal offence – that is, a third indecent act with a person under 16 years of age. Unlike the other two matters on the relevant Form 1, it could not be seen as part of a continuous course of conduct in connection with the first principal offence. It will result in a meaningful increase in the penalty for that principal offence.
The next weekend, which was a weekend in February 1991, Harriet’s mother and brothers were in your unit at the farm. Harriet came looking for her mother.
A short time after Harriet was in your unit, her mother left and you contrived to persuade her brothers to leave with the result that only you and Harriet were left in the kitchen. When you were alone with her, you said something quite inappropriate to her. She then left.
Later that day, at about lunch time, your brother sent Harriet to your unit to look for her brothers as lunch was ready. You quite untruthfully told Harriet that her brothers were in your unit. She walked in and saw that they were not there.
I am satisfied beyond reasonable doubt that this was a deliberate (but opportunistic) trick on your part to gain further access to Harriet on her own.
You threw Harriet onto the lounge and quickly unzipped your jeans. You then forced her to masturbate you.
That is the first matter on the Form 1 relevant to the second principal offence. Although it occurred at about the same time as that offence, this act could not be regarded as part of the continuous course of conduct constituting the second principal offence and, therefore, it will result in a meaningful increase in the penalty for that offence.
You then put your hand up her skirt and, again, as on the first occasion, you forcefully and aggressively digitally penetrated Harriet’s vagina.
Your disgraceful behaviour was only interrupted by one of Harriet’s young brothers who came looking for her. She and her brother then ran home.
When Harriet got home, she saw that there was blood in her underpants. This was a result of what you had done to her.
This digital penetration of Harriet’s vagina is the second principal offence.
In terms of its objective seriousness for an offence of its kind, it is slightly below a mid-range offence. But it is not towards the lower end of the range as Counsel on your behalf submitted. As with the first principal offence, it is additionally aggravated by the fact that it occurred in the victim’s home.
Shortly after this incident, you moved out of that unit into another part of the premises. Unfortunately for Harriet, the room to which you moved was adjacent to hers, so you were able to tap on the wall on many occasions and this would cause her to cry in her bed. There is, however, no evidence that you were aware of her reactions.
On an occasion not long after you changed rooms, one of the members of the family told Harriet that you wanted to see her. She went to your room. You were in bed.
When Harriet went into your room, you threw back the sheets and exposed your erect penis. You grabbed her hand and forced her to masturbate you. You demanded that she perform fellatio on you, which she refused to do. Harriet then started to cry, and you again threatened to hurt her (and others) if she told anybody.
This is the second matter on the Form 1 to be taken into account with the second principal offence. It will result in a meaningful increase in the penalty for that offence.
You then grabbed the back of Harriet’s head and pushed her head down towards the top of your erect penis. You tried to force her to perform fellatio on you and, indeed, her lips did touch the top of your erect penis. She tried to pull away from you but you were stronger than her.
Fortunately, a member of the family called out and this gave Harriet the opportunity to run from the room.
This is the third matter to be taken into account in connection with the second principal offence. It also will result in a meaningful increase in the penalty for that offence.
Some weeks later, in early March 1991, a barbeque was being held at the farm premises. You sat next to Harriet at an outside table. Your brother and sister in-law, two of Harriet’s brothers, and a friend of one of those brothers were all there as well.
Whilst you were sitting next to Harriet, and whilst these other family members were present, you brazenly put your hand on the outside of her leggings and started to rub her vagina quite hard over the top of those leggings. Harriet then fled from the table - using the presence of mosquitos as an excuse. I am satisfied that the only rational inference in the circumstances is that she was still afraid of you hurting her and others as a result of earlier threats that you had made.
It is this conduct which constitutes the fourth matter on the Form 1 to be taken into account in connection with the second principal offence. It will result in a slight increase in the penalty for that offence.
On another weekend at around about this time, a party was held at the farm house. Harriet was lying on the trampoline with one of her brothers. You came into the yard and told a lie to that boy. You told him that his father wanted to see him. This was just an excuse to get the boy to leave.
You then got onto the trampoline and on top of Harriet. You tried to kiss her; however, she was able to pull away. You then forcefully kissed her and started fondling her breasts. She struggled but you were too powerful for her. You grinded your body up and down hers.
Eventually, this 12 year old girl, using all of her strength, pushed you away and was able to flee into the house.
It is this conduct which constitutes the fifth and final matter to be taken into account with the second principal offence. It will result in a slight increase in the penalty for that offence.
You were arrested in relation to these offences on 2 July 2018 and you have been held continuously in custody since that date solely referable to these offences.
Harriet has provided the Court with a victim impact statement. It is clear from that statement that the consequences of your abuse of her have been profound and continuing – and notwithstanding that she has a successful marriage and four children of her own. The psychological scars which you inflicted on her as a child remain vivid and powerful for her and significantly compromise her enjoyment of life, including her enjoyment of her own family.
As I have said, you were 24 years old when you committed the two principal offences and the eight matters on the two Form 1s over what seems to have been a three month period – a three month period of horror for Harriet. Whilst each offence or matter might have been opportunistic, the period of time over which they were committed is not insignificant.
You are now 53 years of age.
You were the youngest of six children to your parents.
You were sexually abused as a child – the first occasion was when you were five years old and the second occasion was when you were eight years old. The nature of the abuse is not revealed in the material before me. I have not overlooked, however, that even what previously may have been regarded as low levels of sexual abuse of a child can have catastrophic consequences for that child.
There is no evidence, however, that those experiences – whatever they may have been – had any causal connection with your sexual offending in relation to your niece.
Your childhood was otherwise unremarkable.
You left school at 15 years of age and you have been a hard worker since that time.
I have earlier mentioned that you moved into your brother’s house following the failure of your first marriage. Following the failure of that relationship, you abused illegal drugs for a time – including whilst you were staying at your brother’s house. But I am not persuaded that either the fact of the failure of the marriage (and the consequential depression) or the abuse of drugs had any relevant causal connection with your sexual offending in relation to your niece – which I am satisfied was generally opportunistic.
You had no convictions at the time of your offending, and more significantly, you have had no convictions in the years which have followed.
You have formed a new relationship in recent times which is a healthy one. Your partner is supportive of you, notwithstanding your offending conduct which has been recently revealed to her. Her family also remains supportive of you.
You are held in high regard by many responsible members of the community in which you live, notwithstanding that they also know what you did to Harriet all those years ago.
By reference to your limited criminal record, the period of time which has elapsed since the offending, and the various other matters raised in your psychologist’s report, I am satisfied that your prospects of reoffending are almost negligible and, therefore, your rehabilitation is complete – and has been for some time.
Accordingly, the principal of specific deterrence – that is, fixing a sentence that will deter you from reoffending - and the principal of protecting the community are both significantly reduced.
However, the principal of general deterrence – that is, imposing a sentence which will deter others from sexually offending against children - remains fully engaged. This is because sexual offending against children has profound and deleterious effects upon the victims for many years, if not the whole of their lives. The Courts have a duty to send a message to those who sexually abuse children that such conduct will not be tolerated and that significant punishment will be delivered notwithstanding any delay in prosecution – although delay does remain a relevant consideration, especially in the context of your undoubted rehabilitation.
In this context I accept that your expressions of remorse are genuine.
You entered pleas of guilty at the first available opportunity and accordingly you are entitled to the full discount of 25 per cent for the utilitarian value of the pleas.
In relation to each offence, no sentence other than one of full-time imprisonment is appropriate.
Given the period of time over which the two principal offences occurred, there must be partial accumulation of the sentences.
I intend imposing an aggregate sentence.
Consequently, it is necessary for me to state the indicative sentences underpinning that ultimate aggregate sentence.
In relation to the first principal offence – and taking into account the three matters on the relevant Form 1 – the indicative sentence is imprisonment for 4 years 6 months minus 25 per cent, that is 3 years 4 months.
In relation to the second principal offence – and taking into account the five matters on the relevant Form 1 – the indicative sentence is imprisonment for 5 years 6 months minus 25 per cent, that is 4 years 1 month.
Through your Counsel you have sought a finding of special circumstances to vary the ratio of the non-parole period to the head sentence. The Crown has conceded that such a finding in the circumstances of this case is open. I make such a finding.
King, of the two offences of sexual intercourse with a person over 10 years of age but under 16 years of age I sentence you to an aggregate term of imprisonment of 6 years.
I fix a non-parole period of 3 years 7 months to date from 2 July 2018 and which will expire on 1 February 2022.
I fix a balance of 2 years 5 months to date from 2 February 2022 and which will expire on 1 July 2024.
Whether you are admitted to parole is a decision for the Parole Authority.
You will now go with the officers.

Decision last updated: 29 October 2019

Medium Neutral Citation:	R v King (a pseudonym) [2019] NSWDC 608
Hearing dates:	12 September and 18 October 2019
Decision date:	24 October 2019
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 6 years with a non parole period of 3 years 7 months.
Catchwords:	CRIME - SENTENCE - Sexual intercourse with a person 10 years or over and under 16 years.
Category:	Sentence
Parties:	Regina (Crown) King (a pseudonym) (Offender)
Representation:	Mr Carnell (ODPP) Mr McAuliffe (Counsel for the offender)
File Number(s):	2018/203159
Publication restriction:	Non publication order made of the name of the offender or the victim or anything else which might identify either of them, directly or indirectly.