R v King (a pseudonym)

[2019] NSWDC 377

District Court

New South Wales

Medium Neutral Citation:	R v King (a pseudonym) [2019] NSWDC 377
Hearing dates:	7 June 2019; 13 June 2019
Decision date:	13 June 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of ten years and four months with a non parole period of seven years and four months.
Catchwords:	SENTENCING — Relevant factors on sentence — Sexual assault – indecent assault – father and young daughter - late guilty plea – objective seriousness – victim impact – offender’s mental illness – learning difficulties – deprived background considered – admissions are not assistance to authorities - need for support on release – guidance from standard non parole periods – difficulty in applying that guidance.
Legislation Cited:	Children (Criminal Proceedings) Act 1987, Crimes Act 1900 Crimes (Administration of Sentences) Act 1999 Crimes (High Risk Offenders) Act 2006 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986
Cases Cited:	BT v R [2010] NSWCCA 267 Bugmy v The Queen (2013) 249 CLR 571 Clarkson v The Queen [2011] VSCA 157 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 Markarian v The Queen (2005) 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 R v Clinch (1994) A Crim R 301 R v Fernando (1992) 76 A Crim R 58 R v Gavel [2014] NSWCCA 56 R v GSH [2009] NSWCCA 214 R v KNL [2005] NSWCCA 260 R v MAK [2006] NSWCCA 381 R v NJK [2011] NSWCCA 151 R v Van Ryn [2016] NSWCCA 1 Tepania v R [2018] NSWCCA 247 Weininger v The Queen (2003) 212 CLR 629
Category:	Sentence
Parties:	George King (the offender) Director of Public Prosecutions
Representation:	Counsel: Ms F Graham (for the offender)   Solicitors: Aboriginal Legal Service (NSW/ACT) Limited (for the offender) Ms A Hughes, Solicitor Advocate (for the Director of Public Prosecutions)
File Number(s):	2017/00237646
Publication restriction:	The name of the complainant is not to be published, nor is any other material that could lead to the identification of that complainant: s578A of the Crimes Act 1900; s. 15A Children (Criminal Proceedings) Act 1987.

SENTENCE – EX TEMPORE REVISED

1. There should be no publication of anything that would identify the complainant given the family relationship between the offender and the complainant that would preclude any publication of the identity of the offender. It is likely that this judgment will be published and possibly reported in the press. When the press report this judgment, they are, I am sure, aware of the legal requirements on them. There is no formal non‑publication order. These matters operate by force of law, s 15A Children (Criminal Proceedings) Act 1987, s 47(8A) Crimes Act 1900, and Div 1 of the Criminal Procedure Act 1986.  When this judgment is taken out, in any publication that will go beyond the Court and the parties, the offender will be referred to by a pseudonym as will the complainant and any other persons mentioned.  These steps are to guard against identifying the child consistent with the statutory protections I have noted.

2. On 29 October 2018, the date listed for his trial at Wollongong District Court, George King accepted his guilt of three very serious offences committed upon his daughter, Leah. The pleas were in full satisfaction of a four count indictment. Although King had made admissions to some offences prior to, and on arrest, and had indicated a plea to count 4, in the Local Court, the Court was only notified there would be no jury trial in the week before the trial date. The three counts now for sentence are indecent assault on a person under the age of 16; and two counts involving aggravated sexual intercourse with a child under ten, without her consent, knowing she was not consenting. The indecent assault charge carries a maximum penalty of ten years imprisonment and has a standard non‑parole period of eight years: s 61 M(2) Crimes Act 1900. The sexual assault charges carry a maximum penalty of 20 years and have a standard non‑parole period of ten years: s 61 J(1) Crimes Act

Background

3. The offender was born in 1963.  He is an Aboriginal Australian. He who grew up in Port Kembla.  He has a history of intellectual and learning difficulties, and was for most of his childhood functionally illiterate.  He grew up in a family and a community where alcohol abuse was common; abuse that tragically reflects the socioeconomic circumstances of that part of the Wollongong community: see R v Fernando (1992) 76 A Crim R 58. He has a longstanding history of psychiatric illness. He was first diagnosed with schizophrenia in 2003. He has committed many criminal offences and spent a very significant part of his life in care or custody.

4. More often than not, his time in the community has been measured in months.  Although, prior to his arrest for these matters on 4 August 2017, he had been in the community for about three years.  He was released to parole on 26 September 2014.  This three‑year period appears to be the longest he has spent in the community. 

5. In the 1980s and 1990s, he was in a long‑term relationship with Helen.  They have five children.  Helen died in 2009.  The couple's youngest daughter, Leah, was born in May 1998.  Helen and her family, including Leah, lived in the Wollongong area.  After her mother's death, Leah lived at the family home, cared for by an older sibling.

The offences

6. On 29 August 2010, the offender was released from gaol and came to stay at the family home.  One night Leah, who was then 12 or 13 years old, woke to find her father lying on top of her.  Her pyjamas were down, his hands were on her external genitalia.  He said, "Be quiet, don't scream".  He put his hand over her mouth.  That is the indecent assault count for sentence.  Such incidents were not isolated.  This time, however, the offender pulled down his boxers and put his penis in the child's anus.  It hurt her.  He put a pillow over her head and continued to penetrate her for a couple of minutes.  He did not ejaculate.  The next morning she felt pain and there was blood on her anus.  That is the first sexual assault count.

7. King went back to gaol in May 2011.  He was released in March 2013 and was in the community until June 2014.  For a period, March 2013 to February 2014, he lived with a friend at a home a short distance from the home occupied by his daughter, Leah, and her siblings.  One night, Leah stayed over at the home King was living in.  She was told to stay in the spare room with her father.  During the night, he woke her and asked, "Do you want to play a game?"

8. What followed was no game.  It was a serious crime that involved the child being grabbed by the hair, forced to her knees and made to put her head near and her mouth on, his penis, which continued for about two minutes: count 4. The child left the room and slept on the couch.

9. In September 2014, King was again released from custody.  In December 2015, Leah complained of the abuse to her sister. Soon after, she spoke to police.  In June 2017, a lawful telephone intercept was placed on a call between King and Leah.  In it he acknowledged an act of oral intercourse and to lying on top of Leah.  He told her, "I'm sorry, Leah.  I'm really sorry.  I can't explain it.  I'm mental.  I'm mental in the head.  What I did was wrong.  I need a bashing for what I did to you.  I should just go and kill myself now".  On 4 August 2017, King was arrested.  A plea of guilty to count 4, the oral intercourse, was indicated in the Local Court. The other matters came to this court for trial.

Objective seriousness

10. An assessment of the objective gravity of any offence for sentence is always necessary.  There is an absolute prohibition on sexual activity with children.  This prohibition is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v The Queen [2011] VSCA 157; R v Gavel [2014] NSWCCA 56.

11. Every act that involves the sexual exploitation of a child is serious.  This is one important reason for the high maximum penalties and the high standard non‑parole periods fixed for such matters.  The high maximum penalties and standard non‑parole periods provide a measure of how serious such offences are viewed.  They carry with them an implicit instruction to courts that retributive sentences, with a focus on protection of children from exploitation, are required; therefore, invoking principles relating to both general and specific deterrence.  The high maximum and standard non‑parole periods reflect community abhorrence of, and concern about, adult sexual abuse of children; and the Courts must reflect that concern in the sentences imposed: Markarian v The Queen (2005) 228 CLR 357. In assessing objective seriousness, important considerations, here, include:

1. The actual character of the act of intercourse or assault, including the degree of physical contact involved.  Here, this indecent assault involves skin on skin contact.  As Latham J observed in R v GSH [2009] NSWCCA 214 "It is difficult to justify a finding below the midrange for an offence under s 1 (M2), constituted by the touching of the genitalia of a nine year old girl": GSH was cited with approval in R v Van Ryn [2016] NSWCCA 1.

When the criminal act involves sexual intercourse with a child, there is no rigid hierarchy of the different forms of intercourse and no one type of intercourse is by itself more or less serious than the other. What is of considerable significance is:  the nature of the intercourse; the degree of physical contact involved; the time over which the act occurred; and whether any harm, hurt or injury, both physical and psychological, resulted; and of course, the extent of that harm.  It is essential that all relevant circumstances be considered.

Little more needs to be said about an act of penile anal intercourse on a 12 or 13 year old girl; except, as here, to state the obvious.  It went on for a couple of minutes, resulting in immediate pain and bleeding. The forced oral intercourse was another degrading act.  That it was committed under the pretext of a game does not diminish, rather it compounds, its seriousness.

2. The age difference between the perpetrator and the child, is relevant in any matter, but it is of particular importance here because of the relationship between the child and the perpetrator.  Fathers are expected to protect and nurture, not abuse, their children.  The father of the child, whose mother has died, is in a particular position of trust.

3. Where the offence occurred and in what circumstances.  Here, a child was asleep in her own bed, or put to sleep in a bed, where others expected her to be safe:  that is, with her father.  She was, however, virtually helpless against attack by her father.

4. The age of the child relative to the range encompassed by the offence.  The younger the child, the more serious the offence: R v KNL [2005] NSWCCA 260. Here, Leah was, for the first incident, 12 or 13; and the second, 14 or 15.

12. It needs repeating; fathers are expected to protect and nurture, not abuse, children.  What occurred here involved a particular breach of trust.  Each crime is a serious example of its type.  King exploited his daughter's vulnerability and innocence.  That there may be worse examples does not diminish the seriousness of these offences.

13. The Courts are required to analyse and compare horrors inflicted on children.  To do so is part of the calculus of converting human behaviour, in all its forms, to units of punishment: see Weininger v The Queen (2003) 212 CLR 629. Each offence showed a callous disregard for the child's physical and mental wellbeing. Each offence showed no regard for her as a human being, let alone as a daughter.

14. The process of comparing and contrasting the actual offence with some abstract one is not necessary, nor is it necessary to identify features of the offences for sentence, which were or not taken into account, when considering the role of the standard non‑parole period: see Tepania v R [2018] NSWCCA 247 and s 54B(6) of the Crimes (Sentencing Procedure) Act 1999. Although not strictly necessary, I do find the objective facts affecting the relative seriousness of each offence put each in the middle of the range of what is already very, very serious offending. 

15. As the victim impact statement, made by Leah, makes clear: "Physical pain may heal, but psychological damage can endure and still endures."  Leah told me in her Victims Impact Statement that she is no longer a happy person: exhibit B.  Sometimes, she cannot see the point in living.  She said:

"It felt like [life] was ripped away from me, until I started to fight; because I couldn't live with the fear, knowing you were still around.  I couldn't focus on myself.  I was scared.  I needed to help myself, so I started taking medication every day and realised that I needed to do something about what I experienced as a young girl.  I wish no one ever did what you done to me.  I will never live a normal life because of what I have experienced."

16. Leah is to be commended for coming forward.  She told the truth, and she was believed.  She had experiences no child should ever have had to experience; but with help and her own courage, she can survive what was done to her and now move forward. 

17. Two aspects of sentencing involve just retribution and vindication of her dignity, as a survivor of sexual assault.  The sentences I have to impose, however, are only one indicator of the seriousness, with which the Courts view the crime. A Court sentencing an offender must take into account all purposes of sentencing and all relevant considerations.  This means a direct correlation between harm done and time to be served is impossible.  A victim of a crime, or the survivor of a crime involving sexual assault and indecent assault, should never equate or measure her injury and the harm suffered by her, with the punishment actually inflicted on the offender.

Maximum penalty, standard non‑parole periods 

18. Careful attention to maximum penalties and, where applicable, standard non‑parole periods, is always required by sentencing judges.  Both provide a sentencing measure to be balanced with all other relevant factors.  So far as the indecent assault is concerned, the maximum sentence is ten years imprisonment.  The standard non‑parole period is eight years.  That ratio has been subject to criticism: see BT v R [2010] NSWCCA 267. But constant criticism has not caused Parliament to alter that ratio. Courts must accordingly give effect to that standard non‑parole period as one guide to the exercise of the sentencing discretion: see R v NJK [2011] NSWCCA 151.

19. Adequate punishment, however, requires that each sentence bear proper proportion to the gravity of the crime committed.  This case makes a fairly obvious point.  I have assessed each offence objectively as falling into the middle of the range; but assessed objectively, the sexual intercourse offences are far worse offences than the indecent assault.  Yet, the standard non‑parole period for the indecent assault is eight years, and the standard non‑parole period for the sexual assault is ten: such is the burden of a sentencing judge.

20. There are reasons here for variation from the standard non‑parole period; they include the guilty plea and the subjective case of the offender.  Further, it is necessary that I impose an appropriate sentence for each offence, and then structure the sentences such that the overall sentence is just and appropriate to the totality of King's offending behaviour: see Mill v The Queen (1988) 166 CLR 59.

21. So far as the pleas are concerned, the count involving oral intercourse, count 4 on the indictment, should be reduced by 25%, to reflect when that plea was indicated.  The guilty pleas for counts 2 and 3 had some utilitarian value, even though entered very late, particularly as the child did not have to give evidence. But late pleas disrupt listing arrangements, and here, the child was kept in suspense until almost the last minute, as to whether she would or would not, have to give evidence.

22. I note that the matter was in the list from the time of arrest until 2018.  The pleas have other aspects to them that I will take into account generally. The utilitarian value of the late pleas for counts 2 and 3 will result in a reduction of the otherwise appropriate sentence by 10%.  I note Thompson's case, which indicates the particular value of a guilty plea in matters where children and sexual assault victims have to give evidence: R v Thompson (2000) 49 NSWLR 383, at [3].

Subjective matters

23. King's subjective case is set out primarily in the report of Dr Furst.  There was no evidence given on oath by King.  Here, however, there is no reason to doubt the bona fides of a respected psychiatrist.  I do caution myself that the history was not supported by evidence on oath but the focus of the report was on subjective matters.  This includes the offender's many problems as a child and young adult; and, so far as his mental health is concerned, a review of his extensive Justice Health file and the reports of other respected psychiatrists.

24. Dr Furst's conclusions are not controversial.  The report did not go in any significant way to the objective seriousness of King's crimes.  The material in it is in accord with all of the material before me.  It was relevant and allows me to have some understanding of the man for sentence.  There is evidence to support the conclusion King had a disadvantaged upbringing; marred by alcohol abuse and his own intellectual and learning difficulties.  He suffers from schizophrenia; a chronic psychotic illness characterised by delusional beliefs, disorder of thought form, difficulty processing information, and prominent mood symptoms.  He has used and abused illicit drugs and alcohol for most of his life.  He has a chronic problem, so far as alcohol and drugs are concerned.  He is aware of his illness, and continues to take his medication.

25. The effects of profound deprivation as a child do not diminish over time and should be given full weight.  King still displays many immature behaviours.  Within gaol, all decisions are made for him.  He has little opportunity to learn how to live a normal community life.  His capacity to mature and learn from experience was compromised by his background and his mental illness.  These factors remain relevant, despite a long history of offending: Bugmy v The Queen (2013) 249 CLR 571. His immaturity and his mental health condition did play some role in the commission of the offence, and can result in a modest reduction of sentence; because his moral culpability can be reduced. But, the crimes themselves indicate, as I have said, a callous disregard for his daughter and cannot, and should not, be blamed either on his background or on his schizophrenia.

26. There is no evidence that he was floridly psychotic at the time.  To the contrary, it appears, from the history before me, that he had fallen back onto the habits of using and abusing illicit drugs and perhaps alcohol as well.  The genesis for that alcohol and drug taking is in the background that I have described and is set out in full in Dr Furst's report: exhibit 1, tab 1.

27. The need to denounce his crime may thus be reduced. Because of his schizophrenia and his background he is less a vehicle for general deterrence, than those whose lives were not so blighted: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194. However, he was aware of the wrongness of his acts. He well knew what he was doing, and that what he was doing was terribly wrong. Although a custodial sentence will weigh more heavily on him than the notionally mentally well prisoner, these mitigating factors can go only so far.

28. There is evidence, too, that throughout his life, he has responded to stressors by self‑harm.  It may be that he has did, when he thought deeply about what he had done to his daughter, had recourse to self‑harm because of a deep sense of shame.  It is very hard, when I examine the medical reports, to say anything more on those matters; but his vulnerability, while in custody, to self‑harm is noted and is taken into account.

Submissions

29. I thank Ms Hughes, Solicitor Advocate from the Director of Public Prosecutions; and Ms Graham, Counsel for the offender for their comprehensive written submissions.  I hope this judgment does justice to them.  I do not intend to explicitly refer to each of the matters raised, but I have sought to consider and address them, in coming to my determinations as to the appropriate sentence.

30. Ms Hughes appropriately stresses the need for heavily retributive and deterrent sentences, commensurate with the objective seriousness of each offence and the gross breach of trust involved.  She notes, in her submission, that there is no clear and direct causal link between the crimes and King's mental illness.

31. Ms Hughes questioned whether his background approached the level of disadvantage discussed by the High Court in Bugmy v The Queen.  She urged care, when I came to consider self‑harm episodes, and said that they were not and could not be shown to be directly relevant to remorse for these offences.

32. Ms Graham, on the offender's behalf, properly recognised the seriousness of each crime and noted that King has lived with cognitive, and other, impairments all his life; and they must have been operating at the time of the offending. She submitted his early admissions could be regarded as assistance to authorities, requiring consideration of the matters set out in s 23 Crimes (Sentencing Procedure) Act 1999.  She put particular emphasis on his acceptance of responsibility and expressions of remorse in the recorded call.  She asked for some understanding for the lateness of the guilty pleas, given the impact on him of his mental illness.

33. She submitted that there were solid grounds for a finding of special circumstances and a long period of parole.  She, also, noted the Crimes (High Risk Offenders) Act 2006, would apply; a matter, she said, that I could take into account in the sentencing exercise. While I give those submissions appropriate weight and have accepted, as I have indicated, some of them; I cannot accept the submission regarding s 23 of the Crimes (Sentencing Procedure) Act 1999, or the submission relating to the Crimes (High Risk Offenders) Act 2006. 

34. There was no assistance within the terms of s 23. Admissions on arrest do not fall into that category. The long delay, from when those admissions were made, and the listing of the matter for trial, did not significantly facilitate the course of justice. Until the guilty pleas were indicated in the week prior to trial, there was nothing before me to indicate anything that would moderate the sentence on this ground. There was no indication that any particular admissions were to be made at trial. There was no way that any admissions could be appropriately evaluated; nor was I to know whether any objection was to be taken to, what might be regarded as, admissions.

35. I turn to the Crimes (High Risk Offenders) Act 2006.  I cannot, as a matter of law, discount the sentence because I have to caution the offender that the Crimes (High Risk Offenders) Act 2006, applies to him.

36. I must advise you, Mr King, of the existence of that Act; what it means is that you could be subject to executive action after your non‑parole period expires and after the sentence expires.  That executive action could, if in the interest of the community an appropriate order is made, mean that you could be detained or subject to conditions after you have served your sentence. It is not a matter that I can take into account in mitigation.

37. When the offender is being considered for release, much will depend upon his behaviour in custody.  Much will depend upon him continuing with medication and engaging in a treatment plan.  He will have, and hopefully benefit from, sex offender programmes while in custody.  A risk analysis by Dr Furst has proper regard to the fact that, despite his long and extensive criminal record, these are the only sexual crimes on it.

38. Dr Furst notes a lack of obvious paedophilic interests or arousals.  Dr Furst concludes that, so far as sexual offending is concerned, reoffending is unlikely.  On the other hand, King has, throughout his life, been effectively institutionalised, although I have highlighted a period of three years when he stayed out of custody and out of trouble.  His risk of reoffending, generally, may diminish as he ages but it is still there.

39. On release, he will need supported accommodation services for those with a chronic mental illness.  He will need considerable other support in the community.  He will need to learn how to live a life in the community.  He will not be released to parole; unless the State Parole Authority, guided by the Serious Offender's Review Board, believes it is in the interest of the safety of the community, that he be released: s 135 Crimes (Administration of Sentences) Act 1999.  That will require King to do what he can, while in custody, to prove to the community that he can safely be released into it.  It will also require that the people entrusted with that task ensure that he has all available services on release; not in just his interests, but in the interests of the community. 

40. I have referred to his long criminal record.  He gains no leniency because of it.

Accumulation and concurrence

41. A judge is afforded some flexibility when determining the structure of two or more sentences.  I am required, because an aggregate sentence will be imposed, to indicate an appropriate sentence and non‑parole period for each offence.  I am required to structure the overall sentence, such that it is just and appropriate to the totality of the offending behaviour: Mill v The Queen.

42. There will be some concurrence here.  Sentences are not made concurrent, or partially concurrent, just because of the similarity of the conduct, or even if there is a course of conduct against one victim.  Public confidence in the administration of justice requires sentencing Courts avoid any suggestion of a discount for multiple offending.  Here, however, the offender's liability for each offence, and many of the matters that must be synthesised, do overlap and call for some concurrence between the sentence.

43. It was recognised in R v MAK [2006] NSWCCA 381, citing R v Clinch (1994) A Crim R 301; that "The severity of a sentence is not simply the product of some linear relationship. A sentence's severity increases at a greater rate than the actual length of the sentence". To put it another way, a sentence of five years is more than five times as severe as a sentence of one year.

44. I also have to have regard to the comprehensive summaries and cases that were put before me and marked for identification in these proceedings.  The consistent application of principle requires careful consideration be given to other decisions of this, and of course, Appellate Courts; but sentencing remains a discretionary judgment.  In each case, the mix of factors that must be weighed in determining the appropriate sentence, will never be precisely the same; nor will any offender be precisely the same as another.

45. When I have formulated the sentences, I have taken care to ensure that the benefits for the pleas of guilty were not eroded by the process of accumulation. 

46. I have considered the question of special circumstances.  Given the length of the aggregate sentence that must be imposed and the general provisions about the time offenders can be supervised on parole, I have formed the view that a period on parole of three years is required.  There is a slight difference to the ratio that would occur when no finding of special circumstances is made.  The difference is because of rounding.  I have carefully considered, but rejected, the submission that a longer period on parole is required; there is no finding of special circumstances.

Synthesis

47. I have taken into account the many mitigating factors.  I have taken into account King's background. Mitigating factors must be given appropriate weight but they must not be allowed to lead the imposition of a penalty which is disproportionate to the gravity of the crimes for sentence.

48. Sentencing Courts have an obligation to vindicate the dignity of victims of sexual assaults and sexual intercourse offences.  Sentencing Courts have an obligation to express the community's disapproval of offending of this nature.  Sentencing Courts must also do what they can to protect the vulnerable against repetition of the offending. 

49. In relation to the three matters for sentence, you are convicted, Mr King.

Orders

50. In relation to count 3, the anal intercourse matter, I regard this as the most serious of the offences.  Had it not been for your plea of guilty, there would have been a sentence of ten years.  I indicate a sentence of nine years, non‑parole period of six years.

51. In relation to count 2, the indecent assault, had it not been for your plea of guilty, there would have been a sentence of five years, a 10% reduction, I indicate a sentence of four years six months, non‑parole three years.

52. In relation to count 4 had it not been for your plea of guilty, there would have been a sentence of nine years, a reduction of 25% for the early indicated plea, I indicate a sentence of six years nine months, non‑parole period four years, six months.

53. There will be an aggregate sentence in this matter.  The total term of the sentence is ten years and four months.  There will be a non‑parole period of seven years and four months, commencing on 4 August 2017, the date you went to custody; and expiring on 3 December 2024.

54. The balance of the sentence of three years is to commence on the expiration of the non‑parole period on 4 December, expire on 3 December 2027. You will be eligible for consideration for release to parole at the expiration of the non‑parole period, that is on 3 December 2024, but s 25 CC of the Crimes (High Risk Offenders) Act 2006 requires me to caution you that there could be administrative action, should there be any perceived risk to the community resulting from your release, either at the period when the parole period expires or at the expiry of your total sentence.

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Decision last updated: 06 August 2019