R v KX
[2017] ACTSC 199
•1 August 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v KX |
Citation: | [2017] ACTSC 199 |
Hearing Date: | 1 August 2017 |
DecisionDate: | 1 August 2017 |
Before: | Elkaim J |
Decision: | See paragraph [10] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Breach of Good Behaviour Order. |
Legislation Parties: | Crimes (Sentence Administration) Act 2005 (ACT) s 110 The Queen (Crown) KX (Offender) |
Representation: | Counsel Ms S Gul (Crown) Ms L Taylor (Offender) |
| Solicitors Office of the ACT Director of Public Prosecutions (Crown) ACT Legal Aid (Accused) | |
File Number: | SCC 50 of 2001 |
ELKAIM J:
The lamentable history of this matter goes back to 2001. On 3 August 2001, Higgins J (as he then was) sentenced the offender in respect of two counts of sexual intercourse with a person under 10 years of age and one count of an act of indecency with a person under 10 years of age. A head sentence of two years imprisonment was imposed, with an order that the offender was to be released after six months upon entering into a Recognisance to be of a good behaviour for a period of five years.
There then followed a number of appearances relating to breaches of the orders that had been made by Higgins J. On 15 October 2004, Higgins CJ (as he had become) varied the conditions of the recognisance. On 6 February 2009, Higgins CJ re-sentenced the offender to immediate release upon entering into a further recognisance to be of good behaviour for five years, during which time he was to be supervised by ACT Corrective Services.
Once again, the offender returned to court for breaches of his recognisance. On 2 December 2011, Higgins CJ re-imposed a previous sentence, suspended on the offender entering into a Good Behaviour Order for five years on condition that he accept the supervision of ACT Corrective Services and participate in an adult sexual offenders program.
On 16 September 2016, the offender was convicted of a stalking offence. Magistrate Fryar imposed a Good Behaviour Order for a period of two years. The offender was committed to the Supreme Court to be dealt with for the breach of the good behaviour order obligations that had been imposed by Higgins CJ on 2 December 2011.
The following comments made by Higgins CJ on 6 February 2009 are equally applicable today:
The breach which has been conceded in this case……. portrays conduct that may not have been as egregious as the conduct for which I previously sentenced [KX], nevertheless, it was conduct of a similar nature. It seems to indicate that ongoing supervision is indeed required.
It may be said that the stalking offence is not of a similar nature to the offences committed against children. On the other hand, the stalking offence does have similarities. I think it worthwhile to quote this paragraph from the presentence report dated 15 December 2016:
It is noted that [KX] has not been convicted of any further sexual offending since 2005; however, it is further noted that he has breached his orders a number of times. This has included contact with children, when directed not to do so. In addition to the most recent stalking offence, [KX] has a history of similar behaviours that have been recorded throughout his periods of supervision. In 2005, the offender was questioned by police in relation to his alleged stalking behaviour towards a woman. [KX] admitted that he continued to pursue contact with this woman despite her requesting that he cease all contact with her. The offender was given an official caution by the police at that time. When ACT Corrective Services attempted to discuss this matter with [KX], in order to consider any possible patterns of behaviour, the offender appeared to become agitated and somewhat aggressive in his tone. He has demonstrated little insight and indicated that he was no longer willing to discuss the matter with this Service. The 2016 report authored by Dr Doug Boer states there may be parallels between the offender’s sexual offences against children in the past and the recent stalking offence, as the offence with the victim of the young adult male also had elements of sexual intent and victimisation.
Ms Taylor, who appears on behalf of the offender, has suggested a course of re-sentencing which I think is appropriate. The Crown did not express any opposition to this course. There is, however, a difference in submissions as to whether or not there should be supervision during the term of a Good Behaviour Order.
I think the Crown’s position is appropriate and that there should be supervision. However, I intend to limit it to twelve months to reflect the following factors:
(a)The offender has been and continues to be under treatment from a forensic psychiatrist, addressing his sexual deviancy.
(b)A longer period of supervision will impair the offender’s capacity to visit his mother in Tasmania. I note he has a close relationship with her and is her financial guardian.
(c)As described by Dr Buckman, the offender has many significant health problems which require very frequent supervision and attention.
The original sentence will be reimposed to reflect the seriousness of the offences in 2000. In imposing the Good Behaviour Order with immediate effect, I have taken into account that the offender has not been convicted of sexual offending since 2005 and he was almost at the end of the five year Good Behaviour Order imposed in 2011. I also take into account his continued treatment with appropriate specialists. Finally, I take into account the minor nature of the stalking offence.
I make the following orders, pursuant to s 110 of the Crimes (Sentence Administration) Act 2005 (ACT):
(a)The Good Behaviour Order imposed by Higgins CJ on 2 December 2011 is cancelled.
(b)The offender is re-sentenced for the offences for which he was sentenced by Higgins J on 3 August 2001, as follows:
(i)In respect of count one (CC 64/2001), act of indecency under 10 years, six months imprisonment.
(ii)In respect of count two (CC 65/2001), sexual intercourse under 10 years, eighteen months imprisonment.
(iii)In respect of count three (CC 66/2001), sexual intercourse under 10 years, two years imprisonment.
(c)The periods of imprisonment are to be served concurrently.
(d)The sentence is to be suspended upon the offender entering into a Good Behaviour Order for a period of two years on condition that he accept the supervision of the Director of Corrective Services for a period of twelve months or such shorter period as the Director chooses.
| I certify that the preceding ten [10] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: 1 August 2017 |
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