R v KS
[2018] ACTSC 220
•8 August 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v KS |
Citation: | [2018] ACTSC 220 |
Hearing Date: | 8 August 2018 |
DecisionDate: | 8 August 2018 |
Before: | Mossop J |
Decision: | See [24] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – historical sex offence – indecent assault of person under 16 years – victim later confirmed as offender’s biological daughter – isolated incident – serious example of offence – requirement for denunciation and punishment – sentenced to full-time imprisonment, suspended after three months |
Legislation Cited: | Crimes Act 1900 (ACT), s 76 |
Cases Cited: | CX v The Queen [2017] ACTCA 37 R v Tresize [2018] ACTSC 135 |
Parties: | The Queen (Crown) KS (Accused) |
Representation: | Counsel J Campbell (Crown) A McDougall (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Jeff Horsey Solicitors (Accused) | |
File Number: | SCC 134 of 2018 |
MOSSOP J:
Introduction
KS has pleaded guilty to a charge of indecently assaulting a female under the age of 16 years. The offence occurred between 8 January 1982 and 20 June 1983. The victim was his daughter. She was between six and eight years old. At the time of the offence he was between 33 and 34 years old. At the time of the offence he did not know that she was his daughter. He placed his erect penis in her mouth and moved her head up and down on his penis.
The maximum penalty for the offence under s 76 of the Crimes Act 1900 (ACT) (as at the date of the offence) was five years imprisonment.
Facts
The offender and the victim’s mother were in a relationship from about 1973 until 1984. They lived in separate houses. The relationship was described as an on-again, off-again relationship, and was somewhat unorthodox in that the offender during the relevant period remained married to another woman.
The victim had disclosed to the offender prior to the offending conduct that she had been sexually abused by another relative referred to as “Uncle Bob”.
On a day in 1982 or 1983, the victim walked into the offender’s bedroom where he was lying naked on the bed. He placed his erect penis into the victim’s mouth and using both hands on her head, moved her mouth up and down his penis. The victim told the offender that it was a “yucky taste” and the offender told her to go to the ensuite of the bedroom to spit it out. The victim told her mother about the incident at the time. In 1992, the victim disclosed to police that she had been sexually assaulted by her father, but said that she did not wish any investigation to proceed in relation to the matter.
In August 2017, police recommenced an investigation into the matter. It is not clear what prompted the investigation.
In November 2017, the victim participated in a pretext telephone call which was recorded. In that conversation no admissions were made, but subsequently an arrangement was made to meet the offender at the Murrumbateman pub. The offender drove from where he lived in Queensland to meet her there. During that conversation she wore a listening device and the offender made admissions in relation to the acts involved, although he indicated that if the victim told his other children about it he would deny it. He did, however, indicate that he was “deeply, deeply sorry” for what occurred.
Victim impact statement
A victim impact statement was read in Court and tendered. Having regard to the content of the statement, the victim demonstrated considerable fortitude in reading it in Court. It indicates that as a child who had been abused, she had sought help and protection from the offender who she thought to be strong and was a person from whom she longed for love and attention. The victim impact statement indicates that the effect of the conduct has been significant, complex and long-term. As is common with many victims of sexual assault, it is clear that the conduct of the offender had long-term and complicated effects on the victim’s sense of self-worth, her capacity to trust and maintain relationships, and manifested itself in self-harming behaviours. It has continued to affect her capacity to trust people, particularly in relation to the care of her son. It has continued to have an impact upon her intimate relationships.
The statement is consistent with the offending conduct being a gross breach of trust occurring on a child who was vulnerable and who had sought help from the offender in relation to the abuse that had been perpetrated by “Uncle Bob”.
Objective seriousness
10. So far as the act is concerned, it is a more serious example of an indecent assault. The agreed facts are not sufficient to establish that the offender ejaculated in the victim’s mouth. There is no evidence of any premeditation. It was a single isolated incident. The act involved the abuse of a relationship approaching that of parent and child, even though, as I have indicated earlier, it did not neatly fit into that description. I assess the objective seriousness of the offence as being at the upper end of the range of objective seriousness for the offence.
Subjective circumstances
11. The personal circumstances of the offender are disclosed by the pre-sentence report and a letter from the offender’s wife.
12. The offender is 69 years old. He is a retired civil engineer. He has been retired for seven years and has a hobby farm. He lives with his wife (not the mother of the victim), 67km away from Childers in Queensland. He presently has a heart condition, high blood pressure, macular degeneration and peripheral neuropathy. These conditions are managed with medication.
13. He had two children with his current wife. He had a daughter from his first marriage, as well as being the father of the victim, whose mother he had a lengthy relationship with but was not married to. It was only in 2016 that it was confirmed that the victim was his daughter, although he had earlier suspected that that was the case because of the lengthy relationship with the victim’s mother.
14. The pre-sentence report author indicates that he exhibited shame and guilt during the interview. He said that he was drinking heavily and living a very egocentric lifestyle at the time of the offence.
15. In 2006, when the victim was suffering from breast cancer, he anonymously donated $35,000 towards the cost of her treatment.
16. Notwithstanding the admission of his conduct, his current wife will continue to support him.
Criminal history
17. The offender has a negligible criminal history, the most recent of which is in 1984 and largely relate to matters which would be dealt with by traffic infringement notice. There is an offence of stealing from 1968 for which he received a suspended sentence. Having regard to the age of these offences, I consider them to be not relevant to the current offence and treat the offender as being a person of good character.
Plea of guilty
18. The offender was charged on 21 February 2018 and pleaded guilty on 23 May 2018 prior to committal. Whilst not the earliest possible plea, I treat it as an early one which clearly has significant utilitarian value. It is also consistent with his acceptance of responsibility for the offence and his remorse. I will reduce the custodial sentence that I would otherwise have imposed by 25 per cent and also take the plea of guilty into account in determining how that custodial sentence should be served.
Time in custody
19. The offender has not spent any time in custody in relation to the offence.
Consideration
20. The offence was a serious one. It involved a gross exploitation of the relationship between a person who was substantially in a parental relationship with the victim. There is no evidence that it was premeditated. It was an isolated incident. The offence took place approximately 35 years ago. The offender is otherwise of good character. He made some attempt anonymously to assist the victim by his donation to her medical treatment, which is reflective of his guilt over the years for his conduct. He is now of somewhat advanced years and in less than perfect health. The victim continues to suffer complicated and long‑term consequences of the sexual assault. Punishment, denunciation and general deterrence are the most significant sentencing considerations. Specific deterrence is not a significant consideration in the current circumstances.
21. I have had regard to the sentencing practice of the Court in relation to historical offences of this kind. A number of the relevant decisions were summarised in my decision in R v Tresize [2018] ACTSC 135 at [24]-[28] and I will not repeat what I said there. In CX v The Queen [2017] ACTCA 37, sentences of two years imprisonment for historical offences against s 76 of the Crimes Act involving digital penetration, were upheld by the Court of Appeal. The offender had admitted guilt to one of those charges and was found guilty in relation to the other. The offender in that case was a 75 year old retiree with no prior criminal record.
22. In my view, only a custodial sentence will appropriately reflect the gravity of the offending conduct. In the circumstances, the appropriate sentence is one of 16 months imprisonment, reduced to 12 months imprisonment on account of the plea of guilty. The submissions on behalf of the offender, which were persuasively made by Mr McDougall, were that the sentence of imprisonment should be wholly suspended. In that regard, he emphasised the absence of a specific deterrence as a significant sentencing factor, the fact that it was a single isolated event, the lack of any relevant criminal history, the significant lapse of time between offending and sentence, the remorse reflected in the early plea, the making of an apology and the evidence of guilt reflected in the making of the donation, his age and the low likelihood, given his circumstances, of any further offending. Ms Campbell, who appeared for the Crown, submitted that a wholly suspended sentence would, in the circumstances, inadequately reflect the requirements of denunciation and punishment for the offence.
23. Notwithstanding the submissions made by Mr McDougall, I consider that the matter cannot be disposed of without requiring the offender to serve a period in full-time custody. I am not satisfied that a sentence would adequately reflect the requirements for denunciation of and punishment for the conduct if it was wholly suspended. Nor would such a sentence adequately recognise the harm done to the victim. It was a serious example of this offence and was perpetrated upon a child in circumstances where it involved a gross abuse of the relationship between the two. However, having regard to the powerful and unusual factors pointed to on behalf of the offender in mitigation of sentence, I consider that only a modest period of the sentence should be required to be served by way of full-time detention prior to the suspension of the sentence. I will require three months of the sentence to be served by full-time detention prior to its suspension. I will impose a relatively short good behaviour order with only the core conditions. It does not appear to me that, in the circumstances, there would be any benefit from incorporating supervision into the good behaviour order or dealing with the matter by way of a non-parole period rather than suspension.
Orders
The offender is sentenced to imprisonment for a period of 12 months from 8 August 2018 until 7 August 2019 which is to be suspended after having served three months from 8 August 2018 until 7 November 2018 upon entry into a good behaviour order for a period of 12 months with only the core conditions.
| I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 27 August 2018 |
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