R v Kisun (No 5)
[2018] ACTSC 311
•2 November 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Kisun (No 5) |
Citation: | [2018] ACTSC 311 |
Hearing Date: | 2 November 2018 |
DecisionDate: | 2 November 2018 |
Before: | Mossop J |
Decision: | See [34] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – acts of indecency – acts against children – historical offences – offences while teacher at Marist College – second trial following hung jury – additional offences charged – tendency evidence relating to uncharged offences in New Zealand – age of offender and period between trials considered – fully suspended sentence imposed |
Legislation Cited: | Crimes Act 1900 (ACT), s 81 Crimes (Sentence Administration) Act 2005 (ACT) Law Reform Sexual Behaviour Ordinance 1976 (ACT) |
Cases Cited: | R v Tresize [2018] ACTSC 135 |
Parties: | The Queen (Crown) David Kisun (Offender) |
Representation: | Counsel T Hickey (Crown) G Casement (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Stary Norton Halphen (Offender) | |
File Number: | SCC 98 of 2016 |
MOSSOP J:
Introduction
The offender, David Kisun, was found guilty by a jury of four charges against two complainants. He was found not guilty of one charge against a third complainant. Each offence involved a contravention of s 81 of the Crimes Act 1900 (ACT) as it was in 1981 and 1982. It provided: “Whosoever commits an indecent assault upon a male person of whatever age, with or without the consent of such person, shall be liable for imprisonment for five years”. The Law Reform Sexual Behaviour Ordinance 1976 (ACT) had modified the operation of that provision so that it had a limited operation by excluding certain consensual acts in private but making it clear that a person under 16 could not give an effective consent. Each of the complainants was under 16.
Facts
Both complainants were students at Marist College in Canberra.
The evidence given by the two victims, brothers CC and EC, was clearly accepted by the jury. The events giving rise to count 1 on the indictment occurred in 1981 when CC was in a classroom. He was in Year 5. The offender was his class teacher. The offender loosened CC’s tie, put his hand down the front of his shirt and felt his breast area. This took about a minute.
The events giving rise to count 2 involved an occasion in 1981 when the class had changed for physical education. This took place in the classroom. After the class had changed and the other students left, CC was told to sit on the teacher’s desk. The offender put his hands on CC’s thighs and worked his way up to his genitals. The offender’s hands were under his shorts touching his genitals. This went on for a couple of minutes. When finished, CC was told to go and join the other students.
Count 3 related to his younger brother, EC, who was in the offender’s Year 4 class in 1982. He was sitting in the back row of the class. The offender came round behind him and put his hands underneath his shirt and over his chest and stomach. This went on for three to five minutes. EC said he felt very awkward and uncomfortable.
Count 4 occurred on another occasion after class, either at recess or lunch. The offender told him to sit on the edge of the teacher’s desk. The offender was in his chair quite close to him. He put his hand on EC’s leg and worked his way up under his shorts and rubbed around the base of his penis and scrotum. The incident took five to 10 minutes and EC was feeling uncomfortable and wanted to get out of the classroom.
Victim impact statements
Both CC and EC prepared victim impact statements which were tendered at the sentencing hearing. The statement of EC was also read to the Court. It is clear, as is common with sexual offending against children, that the effects upon the victims have been long-lasting and complex and have had effects upon the victims over the whole of their lives.
CC was clearly reluctant to be characterised as a “victim” for fear that it would define him in his own mind, in the minds of his children and in the minds of his friends. He continues to identify as a Catholic, although his relationship with the church has clearly been damaged by reason of the abuse that he suffered whilst at Marist College. He described what the offender did as “a horrible breach of trust that is impacting his victims, to larger or smaller degrees, and will for the rest of our lives”.
His brother, EC, appears to have been more significantly affected by the abuse. The victim impact statement records that the offending conduct took away his ability to trust and that this had lifetime effect upon his relationships with other people and with authority. He describes suffering from crippling anxiety and nightmares. He continues to have difficulty with his self-worth and self-esteem. It is not possible to say that all of these consequences flow from the offending conduct, although the effects on the capacity to trust other people and perceptions of self-worth and self-esteem are entirely consistent with the long-term and complicated effects of sexual misconduct against children.
Objective seriousness
The offences clearly involved the exploitation of a position of power and authority over the victims. The position of authority as a teacher was enhanced by the fact that discipline at the school was strict. The offender had been placed in a position of trust by both the school and the parents of the children. That was a position of trust in which he purported to promote Christian values. He exploited his position of authority and trust for the purposes of his own sexual gratification.
Having regard to the broad range of offending conduct that may be covered by this offence at the time of the offences, the offending is at the lower end of the range of objective seriousness. Counts 1 and 3 are clearly less serious. Counts 2 and 4 are more serious because they involve fondling of the victims’ genitalia. I would assess the objective seriousness of counts 1 and 3 as being in the low end of the range of objective seriousness and counts 2 and 4 as being just below the mid range of objective seriousness for this offence.
Subjective circumstances
The offender is 72 years old. He remains married but is separated from his wife. He takes blood pressure medication, suffers from age-related spondylosis and diabetes. He suffers from anxiety and depression. These latter conditions are caused or contributed to by the proceedings against him.
Following his employment at Marist College in Canberra, he moved to Queensland and operated a small business there for a period. He returned south and from 1990 until 2012 he was employed in Catholic schools in the Diocese of Parramatta. He retired in about 2014.
His conviction has been associated with some media coverage, which, I infer, gives rise to a degree of public opprobrium.
He has sold the family home in order to fund legal representation in relation to these charges. He lives with his daughter who has supported him during the court proceedings and otherwise assists him. He remains on good terms with his wife and another daughter. He therefore has a significant degree of family support.
He tendered a character reference from a friend who has known him for 39 years, since he met him in the late 1970s. That friend said that he had a lot of interactions with the offender in the early 1980s. He attests to his hard work and trustworthiness. He records particular incidents where the offender assisted him and attests to his generosity and compassion.
He also tendered a number of other references from persons who have known him between 14 and 30 years and who, along with their children, have had interactions with him and all of whom are very positive about his character.
I also take into account the evidence of the three character witnesses called at the trial who gave evidence about his dedication to duty whilst at the school and in particular his role in managing the canteen at the school. Clearly, having regard to the jury’s verdict, it cannot be accepted that he was of good character during this period. However, this evidence does indicate that apart from this offending conduct he was a person otherwise of good character. That is not an uncommon situation for offending of this nature.
Another three references were tendered. One from his nephew, one from a former student and one from a library assistant who knew the offender during the relevant period. In relation to these and some of the earlier references, I must take into account that they were prepared or made in 2016 at a time where the allegations had not been established and at least two of the references indicate that the author did not accept the truth of the complaints—a position which is inconsistent with the verdict of the jury.
The offender does not have a criminal history in Australia or New Zealand.
However, the tendency evidence relied upon in this case, in my view, establishes beyond reasonable doubt that the offender was involved in sexual misconduct relating to students when he was teaching at a Marist school in New Zealand between 1967 and 1970. The misconduct was more serious than that demonstrated in relation to the victims of the offences in these proceedings. The evidence of both men, who gave evidence by video link from New Zealand, was, in my view, compelling. Notwithstanding some of the understandable inconsistencies in their evidence and the obvious forensic disadvantages faced by the offender in addressing this evidence which was lead for tendency purposes, I am satisfied beyond reasonable doubt that this conduct occurred. The offender is not to be punished for that conduct in these proceedings. However, it does demonstrate that the offences of which he was found guilty in these proceedings were not one off or isolated incidents.
Notwithstanding this finding, I accept that now, having regard to the passage of time since the offending conduct, his age and personal circumstances, he is very unlikely to reoffend.
The offender made no admissions in relation to the offending conduct. He pleaded not guilty and was found guilty after a trial before a jury. He is not entitled to any discount on account of a plea of guilty.
I do note that there were two trials. The first, on more limited charges, lead relevantly to a hung jury. During the second trial, evidence going beyond evidence that was statutorily required to be played by video was by consent played by video at the second trial. This spared a number of witnesses of the requirement to give evidence for a second time in circumstances where they might have been compelled to do so. I take this into account in considering the appropriate sentence.
The offender has not spent any time in custody.
Consideration
There has been a very substantial period that has elapsed between the offending conduct and the offender being charged. During that period the offender worked as a teacher for approximately 30 years at other Catholic schools.
There is no evidence of any further offending conduct in the period since the offences either of a sexual or any other nature.
I take into account that the offender is now an older man of 72 years and that a period of full-time detention will have a greater impact upon him than upon a person who is younger or in better medical condition.
I take into account the fact that he was initially charged in 2015 and that the trial that has occurred was the second of two trials, the first involving a charge upon which he was acquitted and a further charge upon which the jury could not reach a verdict. Following the first trial additional charges were laid. I take into account the period since 2015 during which he has been subject to the stress and uncertainty of the criminal process.
I have had regard to the sentencing practice of the court in relation to historical sexual offences against children and, in particular, those cases described in R v Tresize [2018] ACTSC 135 as well as that decision itself.
The principle sentencing considerations of relevance are punishment, general deterrence, accountability, denunciation and recognition of the harm done to the victims. In my view, having regard to the gross abuse of trust and his position of authority involved in this offending, only a sentence of imprisonment is appropriate.
So far as counts 2 and 4 are concerned, these are clearly the more serious offences involving the fondling of the victims’ genitals. The appropriate sentence in relation to these offences is imprisonment for a period of 12 months. Counts 1 and 3 are clearly less serious although once again involving the exploitation of the vulnerability of students in his care. The appropriate sentence is imprisonment for a period of four months. The sentences in relation to offences directed to each victim will be concurrent as to two months, but as between the victims the sentences will be cumulative. This gives a total sentence of 28 months imprisonment.
Having regard to the length of time since the offending conduct and the offender’s good character in that period, I consider it appropriate to fully suspend the sentence of imprisonment subject to the offender entering into a good behaviour order for a period of three years and six months.
Orders
The orders of the Court are:
(i)On count 1 (XO2017/31236), the offender is convicted and sentenced to imprisonment for a period of four months.
(ii)On count 2 (XO2017/31237), the offender is convicted and sentenced to imprisonment for a period of 12 months concurrent as to two months with a sentence on count 1 but otherwise cumulative.
(iii)On count 3 (CC2016/70), the offender is convicted and sentenced to imprisonment for a period of four months cumulative upon the sentence on count 2.
(iv)On count 4 (CC2016/71), offender is convicted and sentenced to a period of imprisonment of 12 months concurrent as to two months with a sentence on count 3 but otherwise cumulative.
(v)Each of the sentences is wholly suspended upon entry into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of three years and six months.
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 11 April 2019 |
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