R v KS

[2018] ACTSC 220

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

1. 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.

1. 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

1. 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. 

1. 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”.

1. 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.

1. In August 2017, police recommenced an investigation into the matter.  It is not clear what prompted the investigation.

1. 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…