R v KN (No 2)

[2019] ACTSC 5

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v KN (No 2)

Citation:

[2019] ACTSC 5

Hearing Date:

27 November 2018, 29 January 2019 and 30 January 2019

DecisionDate:

30 January 2019

Before:

Elkaim J

Decision:

See [36]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse with a young person – maintaining a sexual relationship with a young person

Legislation Cited:

Crimes Act 1900 (ACT) ss 55 and 56

Crimes Legislation Amendment Act 2018 (ACT)

Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10 and 33

Cases Cited:

R v BO (No 2) [2014] ACTSC 371

R v CC [2016] ACTSC 324

R v DU [2018] ACTSC 281

R v Hunt [2016]  ACTSC 52

Parties:

The Queen (Crown)

KN (Offender)

Representation:

Counsel

Ms S Beaumont (Crown)

Mr K Archer (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Kamy Saeedi Law (Offender)

File Number:

SCC 58 of 2018

ELKAIM J:

1. On 26 September 2018, the offender pleaded not guilty before a jury to seven counts in an indictment dated 30 April 2018.

1. On 4 October 2018, the jury found the offender guilty on all but the first count on the indictment.

1. Five of the counts on which the offender was convicted related to him engaging in sexual intercourse with a young person. This is an offence contrary to s 55 of the Crimes Act 1900 (ACT) and carries a maximum penalty of 14 years’ imprisonment.

1. The remaining conviction related to the offence of maintaining a sexual relationship with a young person, contrary to s 56 of the above Act. The maximum penalty is 25 years’ imprisonment.

1. The matter was initially listed for sentence on 27 November 2018. On that date learned counsel for the offender (who was not his counsel at trial) sought an adjournment in order to obtain a psychological assessment of the offender. I allowed the adjournment although no psychological report has resulted. However, at the commencement of the hearing before me yesterday counsel for the offender told me that he had now realised that there was a flaw in the convictions that had been recorded, in particular that the offence under s 56 (Count 2) should not have been the subject of a charge concurrently with the offences under Counts 3, 4, 5 and 6. This was because the offences under the latter counts were the offences that constituted the offence under s 56. In other words there was a duplication which was specifically prohibited by s 56 and in particular subsections (8) and (9). Counsel informed me that there was authority for this proposition in a decision of Burns J in R v DU [2018] ACTSC 281.

1. I note that Count 7 is not relevant to this argument.

1. The distinction between this case and DU is that in DU the point was taken before trial so that the current issue did not arise in DU. The point that was successful before Burns J may well have been successful in this case had it been taken at the appropriate time. It may well have been that counsel who then acted for the offender had not appreciated the significance of s 56, in particular in the form in which it came into effect on 2 March 2018 (pursuant to the Crimes Legislation Amendment Act 2018 (ACT)).

1. After a comprehensive analysis of the background to s 56, Burns J reached this conclusion, at [70]:

The operation of sexual relationship offences was intended to fill a gap in the prosecution of sexual offences, not to replace existing specific offences or to erase generally the principles governing the prosecution of specific offences. In addition, the Explanatory Statement regarding s 56, as well as the Report of the Royal Commission, demonstrate the concern to protect accused persons from double jeopardy with regard to the operation of the model offence and s 56, which is consistent with the traditional approach of the common law. In my opinion, the Crown is not entitled to seek convictions upon both the s 56(1) charge and the other specific charges under s 55A based on the same alleged sexual acts by the applicant; it must choose to proceed either on the charge under s 56(1) or on the specific charges or it may choose to charge the specific offences in the alternative to the s 56(1) offence.

1. I tend to agree with Burns J but note that the matter is better determined on appeal especially in light of the Crown’s assertion that his Honour was not correct. In my view the appropriate way to proceed is to sentence the offender on all counts on which he was found guilty. This respects the decision of the jury in response to the case that was run at trial. In taking this approach however, I think it important to recognise the danger of punishing the offender, in effect, twice for the same offence. As will be seen in due course his punishment for Count 2 will not exceed the sum of his sentences for Counts 3, 4, 5 and 6. It is noted here that the maximum punishment for a s 56 offence (25 years) is well in excess of the maximum punishment for the other counts (14 years) recognising that s 56 contemplates an effective accumulation of sentences for a number of illegal sexual acts.

1. I am satisfied that the jury found, beyond reasonable doubt, the following facts leading to the verdicts of guilty.

1. The offences involved two complainants, both young girls. The first complainant, LL, was aged 10 or 11 years when the offences occurred. The second complainant, SN, was aged between 12 and 14 years at the relevant time. Count 7 was the only charge relating to SN.

1. The background to the offences against LL is that the offender was in a relationship with her mother. From time to time LL and her mother resided at the offender’s home. He enticed LL by playing a, so called, game with her in which she was blindfolded and asked to identify, by taste, a substance that had been placed on a teaspoon and inserted into her mouth. The substance would usually be either chocolate spread, peanut butter or marshmallow fluff. After the game had been played on more than one occasion the teaspoon was dropped and substituted with the offender’s finger.

1. On the next occasion the game was played the offender told the complainant that instead of using his finger he would use an “applicator”. The complainant was told that this was an item which was blue in colour, should not be bitten and should not be searched for. In truth the applicator was the offender’s penis which he inserted into the complainant’s mouth on the pretence that she should taste the substance he had placed on his penis and lick it off.

1. More particularly, Count 3 occurred during the night when the offender woke up LL then commence the game in which his penis was covered in a chocolate spread. Count 4 was another occasion when LL was woken up. She initially did not want to participate but later agreed. Of course she did not at that stage know that the applicator was in fact the offender’s penis.

1. During the incident making up Count 5 the blindfold did not fully cover the complainant’s eyes and she was able to see that the applicator was in fact the offender’s penis. This did not however stop the offender thereafter insisting on playing the game, telling the complainant that the game should remain a secret between them and promising her various rewards for participating.

1. In respect of Count 6 the offender took LL from the lounge room into his bedroom. He put his penis in her mouth and moved it in and out for some time before stopping.

1. I am satisfied that the jury accepted beyond reasonable doubt that the game had been played on many occasions including those occasions making up Counts 3, 4, 5 and 6. I am further satisfied that the jury having reached this conclusion, was satisfied beyond reasonable doubt that Count 2, maintaining a sexual relationship with a young person, was accordingly made out.

1. For purposes of objective seriousness a major factor is the breach of trust involved with both victims.

1. In my view the offences against LL are all objectively serious, taking into account the complainant’s age and the devious subterfuge employed by the offender to bluff the complainant into playing the game.

1. In respect of SN I think the offence is objectively more serious, for two reasons: firstly, the complainant suffers from a disorder called agenesis corpus callosum, which has rendered her mentally, and to some degree, physically disabled. Her deficits were plain during the evidence that she gave. The second reason is that the offender physically assaulted the complainant by grabbing the back of her head and forcing her mouth onto his penis.

1. The jury obviously rejected the denials of the offender given in his record of interview, concerning SN, and his oral evidence. His callousness was highlighted in the record of interview by his denigration of SN’s family, his reference to SN as being “a few sheep short of a paddock” and in particular his attempt at justifying his denial by stating that “she is not even pretty”.

1. The offender was born in Tasmania in 1970. He has worked as a public servant in the Australian Tax Office for some time. He has a criminal record but not for any matters of a similar nature. I accept that most of the offences were committed many years ago and do not impact on the sentences he should receive for the current offences. Besides these offences I accept he has generally lived a life in which he has contributed to his immediate family and society.

1. The offender maintains a good relationship with his parents and also with his two adult children, all of whom have assisted him financially in recent times.

1. The Pre-Sentence Report assesses the offender as having a “moderate to low risk of sexual reoffending”.

1. I have no doubt the two complainants have been affected by the offender’s conduct. 

1. There are Victim Impact Statements from SN and members of her family. The statement from SN is in the form of a drawing depicting a very sad face. In his Victim Impact Statement SN’s father says that his daughter has become very cautious and has trust issues with men. His daughter rarely stays with him and he feels “like I’ve lost me kid”. He continues “I can’t even imagine what she’s lost”.

1. SN’s mother describes the devastating effect of the offender’s actions. She says:

You have no idea how hard I have worked to create a safe and loving environment for my daughter. A world of promises, trust and confidence. You have destroyed everything that I set out to achieve to help SN be the best that she can be.

1. She continues a little later:

You are the reason my damage is within. I can live with the hurt, the crying, the despair, the lack of trust in so-called friends. But can SN? SN has to live with uncertainty, safety, intimacy, confidence and anxiety issues for the rest of her life, and I hope to God that she can.

1. SN’s grandfather, drawing on SN’s love of prehistoric animals stated:

SN has developed the strength and power of a T Rex, the tenacity of an Indoraptor still with the compassion of a velociraptor.

1. The Crimes (Sentencing) Act 2005 (ACT) plays a very important role in the sentencing process. Sections 6 and 7 state the objects and principles of sentencing and s 33 dictates a number of matters to be considered. Section 10 says a person should not be sent to prison except as a last resort. There is no alternative in this case.

1. It is also important that I follow the principles of totality. Although each offence must carry its own sentence, each victim and the public are entitled to expect that the offender will be punished for each offence. An overly crushing sentence must be avoided. Accordingly, the sentences must include varying degrees of concurrency and accumulation, although not necessarily according to any specific formula.

1. In addition, although the counts concerning LL involve a rolling up of offences, Count 2 must be seen as part of the same criminal conduct constituted by the other counts. This it is essentially the point raised in respect of s 56. It is important that I am careful to ensure that the offender is not punished twice for the same offence.

1. I was taken to some comparative statistics which frankly surprised me. They suggest that the bulk of sentences for offences under s 55(2) were between 24 months and 36 months and only 8% were 42 months. There were none longer than 42 months. Statistics have their place but they must be treated with considerable caution. I am of the view that the statistics handed up do not provide me with guidance that should dictate the sentences I impose. The same applies to the cases to which I was referred by the offender (R v BO (No 2) [2014] ACTSC 371, R v CC [2016] ACTSC 324 and R v Hunt [2016] ACTSC 52). All of these cases have some similarities but are sufficiently distinguishable for them not to dictate the course that I should take.

1. I wish to stress that I regard the offences committed by this offender as objectively serious demanding appropriate punishment, which punishment includes a degree of public deterrence.

1. The offender has been in custody since 4 October 2018. This will be starting date for the first of the sentences I will impose.

1. I make the following orders:

(a)In relation to Count 2, maintaining sexual relationship with a young person (XO 2018/31319), the offender is sentenced to 5 years and 6 months’ imprisonment commencing on 4 October 2018 and ending on 3 April 2024.

(b)In relation to Count 3, sexual intercourse with a young person (CC 2017/13226), the offender is sentenced to 4 years’ imprisonment commencing on 4 October 2018 and ending on 3 October 2022.

(c)In relation to Count 4, sexual intercourse with a young person (CC 2017/13227), the offender is sentenced to 4 years’ imprisonment commencing on 4 April 2019 and ending on 3 April 2023.

(d)In relation to Count 5, sexual intercourse with a young person (CC 2017/13228), the offender is sentenced to 4 years’ imprisonment commencing on 4 October 2019 and ending on 3 October 2023.

(e)In relation to Count 6, sexual intercourse with a young person (CC 2017/13229), the offender is sentenced to 4 years’ imprisonment commencing on 4 April 2020 and ending on 3 April 2024.

(f)In relation to Count 7, sexual intercourse with a young person (CC 2017/9987), the offender is sentenced to 5 years’ imprisonment commencing on 4 April 2021 and ending on 3 April 2026.

(g)The total sentence is 7 years and 6 months commencing on 4 October 2018 and ending on 3 April 2026.

(h)I set a non-parole period of 5 years expiring on 3 October 2023.

(i)With the consent of the Crown I give leave to the offender to amend his Notice of Appeal (ACTCA 67 of 2018) to include his argument arising from s 56 of the Crimes Act 1900 (ACT).

I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.

Associate:

Date: