R v KSC (No 4) - [2008] NSWDC 325

CITATION: R v KSC (No 4) [2008] NSWDC 325

HEARING DATE(S): 28 November 2008

EX TEMPORE JUDGMENT DATE: 28 November 2008

JURISDICTION: Criminal

JUDGMENT OF: Goldring DCJ

DECISION: Sentenced to imprisonment. On sexual intercourse without consent with a person under the age of sixteen years sentenced to a non-parole period of three years commencing 16 June 2008 and expiring 15 June 2011. Total term five years expiring 15 June 2013. On common assault sentenced to non-parole period of nine months commencing 16 January 2011 and expiring 15 October 2011. Total term of eighteen months expiring 15 July 2012.

CATCHWORDS: CRIMINAL LAW - Sentencing - Sexual assault on child - Person in authority - former police officer - effect of custody - mental illness - effect of lapse of time

CASES CITED: R v Durocher-Yvon (2003) 58 NSWLR 581
R v Mostyn (2004) 145 A Crim R 304
R v MJR [2002] NSWCCA 129

PARTIES: Crown
KSC (Offender)

FILE NUMBER(S): 2007/11/0861

COUNSEL: E A Wilkins SC (Crown)
P Boulten SC (Offender)

SOLICITORS: NSW DPP
Hardin Lawyers

SENTENCE

1 HIS HONOUR: KSC appears before me today for sentence. On 1 August 2008 a jury found him guilty of one charge of sexual intercourse without consent with a person under the age of sixteen years. She was, in fact, about ten or eleven at the time. He also appears, having pleaded guilty on arraignment at an earlier trial, to a charge of common assault on a person called CB, and he is convicted of that offence.

2 The circumstances of the sexual assault offence are as follows. The offence took place between the beginning of 1983 and 6 April 1985. At the time the offender was a serving police officer and was the officer in charge of a one man police station. The complainant’s mother was a cousin of the offender’s wife. The offender’s wife seemed to have fairly close family relationships with members of her family.

3 Shortly before the offence, the complainant’s mother and her two daughters had been living at East Campbelltown, while the offender and his family lived at Campbelltown. At that time there was close contact between the two families. However, the complainant’s mother and the offender’s family both moved out of the Campbelltown area and contact between them became less frequent.

4 The residence at the police station had a large garden and apparently, at the relevant time, there were swings, a trampoline and it was a pleasant place for children to play.

5 I should make some comments here about the reliability of the offender and his wife. I have come to the conclusion, in respect of both proceedings, that neither the offender nor his wife was a witness to be believed on oath. Therefore, where there is a conflict in the evidence between that of the offender or of his wife, and that of another witness, I would generally prefer the other witness. The offender appeared to be prepared to deny the truth or fabricate…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v KSC (No 4)

Details

AGLC: R v KSC (No 4) [2008] NSWDC 325
Case: [2008] NSWDC 325
Decision Date: 28 November 2008

CaseChat Overview and Summary

In the case of R v KSC (No 4), the appellant, a former police officer, faced sentencing for charges including sexual assault and common assault against a child. The appellant had previously been found guilty of the offences, which involved sexual intercourse without consent and common assault on a child under sixteen years of age. The case was heard in the Supreme Court of New South Wales, presided over by Justice Hulme. The central legal issues revolved around the appropriate sentencing for these serious offences, considering the appellant's background as a former police officer, the effects of his current mental health conditions, and the significant lapse of time since the offences were committed.

The court was tasked with determining the appropriate non-parole and total terms of imprisonment, taking into account the aggravating and mitigating factors presented. The appellant's status as a former police officer, who had breached the trust placed in him, was seen as an aggravating factor. Additionally, the court considered the mental health issues that the appellant was experiencing, which were deemed to be partly a consequence of his imprisonment and partly pre-existing. Despite the appellant's mental health issues, the court held that they were not sufficient to warrant a significant reduction in sentence. The court also emphasised the seriousness of the offences, particularly the sexual assault on a child, and the need for general deterrence.

Justice Hulme concluded that the appropriate sentence should reflect both the gravity of the offences and the mitigating factors. The court imposed a non-parole period of three years for the sexual assault charge, with a total term of five years, and a non-parole period of nine months for the common assault charge, with a total term of eighteen months. The sentences were to run concurrently. The court's decision underscored the importance of accountability and the need to protect vulnerable victims, while also considering the personal circumstances of the offender.

Orders

Orders of the court

Sentenced to imprisonment. On sexual intercourse without consent with a person under the age of sixteen years sentenced to a non-parole period of three years commencing 16 June 2008 and expiring 15 June 2011. Total term five years expiring 15 June 2013. On common assault sentenced to non-parole period of nine months commencing 16 January 2011 and expiring 15 October 2011. Total term of eighteen months expiring 15 July 2012.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v KSC (No 4) [2008] NSWDC 325
HEARING DATE(S):	28 November 2008
EX TEMPORE JUDGMENT DATE:	28 November 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Goldring DCJ
DECISION:	Sentenced to imprisonment. On sexual intercourse without consent with a person under the age of sixteen years sentenced to a non-parole period of three years commencing 16 June 2008 and expiring 15 June 2011. Total term five years expiring 15 June 2013. On common assault sentenced to non-parole period of nine months commencing 16 January 2011 and expiring 15 October 2011. Total term of eighteen months expiring 15 July 2012.
CATCHWORDS:	CRIMINAL LAW - Sentencing - Sexual assault on child - Person in authority - former police officer - effect of custody - mental illness - effect of lapse of time
CASES CITED:	R v Durocher-Yvon (2003) 58 NSWLR 581 R v Mostyn (2004) 145 A Crim R 304 R v MJR [2002] NSWCCA 129
PARTIES:	Crown KSC (Offender)
FILE NUMBER(S):	2007/11/0861
COUNSEL:	E A Wilkins SC (Crown) P Boulten SC (Offender)
SOLICITORS:	NSW DPP Hardin Lawyers