R v MK; R v LM - [2017] NSWDC 465

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v MK; R v LM [2017] NSWDC 465
Hearing dates: 17 August 2017 and 3 November 2017
Decision date: 13 December 2017
Jurisdiction: Criminal
Before: Colefax SC DCJ
Decision:
Offender MK: Sentenced to an aggregate sentence of 25 years imprisonment with a non parole period of 18 years 9 months. Offender LM: sentenced to an aggregate sentence of 17 years imprisonment with a non parole period of 12 years 9 months.

Catchwords: CRIMINAL LAW - possessing child abuse material - aggravated indecent assault - aggravated sexual intercourse with a person over 10 years of age but under 14 years of age - using a child under 14 years of age for pornographic purposes - possess child abuse material.
Legislation Cited: Crimes Act 1900 (NSW): ss91H(2), 61M(1), 66C(2), and 91G(1)(a).
Category: Sentence
Parties: Regina (Crown)
MK (Offender)
LM (Offender)
Representation: Mr Triscari (ODPP)
Ms Avenell (Offender MK)
Mr Pararajasingham (Offender LM)

File Number(s): 2015/329639; 2015/337736
Publication restriction: Non publication order made of the names of the offenders, the victim and information which might directly or indirectly identify them, including the town in which the offences were committed.

Judgment

To the extent necessary, I confirm the non-publication order which I have preciously made of the names of the victim, the offenders, and the town in which the offences were committed – or of any other matter which might directly or indirectly identify the victim, including any photograph or drawing of the offenders.
MJK appears for sentence in relation to the following 87 offences.
First, one offence of producing, disseminating or possessing child abuse material. This involves a contravention of s 91 H (2) of the Crimes Act. The maximum penalty for this offence is 10 years imprisonment. There is no standard non-parole period. This offence, in appropriate circumstances, can be dealt with summarily. The circumstances of the present offending are not appropriate in this regard. (This is sequence 169 which was formally sequence 38)
Secondly, three offences of aggravated indecent assault. These involve contraventions of s 61 M (1) of the Crimes Act. The maximum penalty for this offence is 7 years imprisonment. There is a standard non-parole period of 5 years imprisonment. This offence, in appropriate circumstances, can be dealt with summarily. The circumstances of the present offending are not appropriate in this regard. (These are sequences 39, 42 and 165)
Thirdly, 45 offences of aggravated sexual intercourse with a person over the age of 10 years but under the age of 14 years. These involve contraventions of s 66 C (2) of the Crimes Act. The maximum penalty for this offence is 20 years imprisonment. There is no standard non-parole period. (These are sequences 40, 44, 45, 51, 53, 55, 56, 58, 59, 75, 79, 81, 85, 86, 90, 93, 98, 99, 103, 105, 109, 114, 115, 117, 121, 123, 125, 127, 130, 132, 134, 135, 137, 140, 142, 144, 148, 149, 151, 153, 155, 157, 158, 162, and 168)
Fourthly, 37 offences of using a child under 14 years of age for pornographic purposes. These involve contraventions of s 91 G (1) (a) of the Crimes Act. The maximum penalty for this offence is 14 years imprisonment. There is no standard non-parole period. (These are sequences 41, 43, 46, 47, 52, 54, 57, 60, 66, 73, 76, 80, 82, 87, 92, 100, 104, 106, 110, 116, 118, 122, 124, 126, 128, 131, 133, 136, 141, 143, 145, 150, 154, 156, 159, 163 and 170 – which was 152)
Fifthly, one offence of possess child abuse material. This also involves a contravention of s 91 H (2) – the maximum penalty for which I have already referred to. (This is sequence 164)
In addition to those principal offences, MJK has asked me to take into account, in relation to four of those offences, 40 matters on four Form 1's which I have certified.
Those 40 matters are: five matters of aggravated indecent assault; 10 matters of aggravated sexual intercourse with a person over 10 years of age but under 14 years of age; and 25 matters of using a child under 14 years of age for pornographic purposes.
Those 40 matters are to be taken into account in the following way.
The first Form 1 is to be taken into account for one of the offences of aggravated sexual intercourse (sequence 59). The matters to be taken into account on this Form 1 are five matters of using a child under 14 for pornographic purposes (sequences 48, 50, 61, 63, and 64); one matter of aggravated indecent assault (being sequence 49); and one matter of aggravated sexual assault (being sequence 62).
The second Form 1 is to be taken into account for another offence of aggravated sexual intercourse (sequence 85). The matters to be taken into account on this Form 1 are three matters of aggravated indecent assault (sequences 67, 166, and 167); and eight matters of using a child under 14 for pornographic purposes (sequences 68, 70, 72, 74, 77, 78, 83, and 84).
The third Form 1 is to be taken into account for another offence of aggravated sexual intercourse (sequence 99). The matters to be taken into account on this Form 1 are five matters of aggravated sexual intercourse (being sequences 88, 94, 96, 101, and 107); and six matters of using a child under 14 years for pornographic purposes (sequences 89, 95, 97, 102, 108, and 111).
The fourth Form 1 is to be taken into account for another offence of aggravated sexual intercourse (sequence 134). The matters to be taken into account on this Form 1 are four matters of aggravated sexual intercourse (sequences 112, 119, 138, and 160); six matters of using a child under 14 years for pornographic purposes (sequences 113, 120, 129, 139, 147, and 161); and one matter of aggravated indecent assault (sequence 146).
LM appears for sentence in relation to the following 13 offences.
First, 7 offences of using a child under 14 years of age for pornographic purposes. These involve contraventions of s 91 G (1) (a) of the Crimes Act. I have already stated the maximum penalty for this offence. (These are sequences 3, 5, 7, 8, 12, 14 and 17)
Secondly, four offences of aggravated sexual intercourse with a child between 10 and 14 years of age. These involve contraventions of s 66 C (2) of the Crimes Act. I have already stated the maximum penalty for this offence. (These are sequences 2, 6, 11, and 13).
Thirdly, two offences of aggravated indecent assault. These involve contraventions of s 61 M (1) of the Crimes Act. I have already stated the maximum penalty for this offence. (These are sequences 4 and 16).
In addition to those principal offences, LM has asked me to take into account in relation to one of those offences of aggravated sexual intercourse (sequence 011), three matters on a Form 1 which I have certified.
Those three matters are: one matter of aggravated indecent assault (sequence 009); and two matters of using a child under 14 years of age for pornographic purposes (sequences 010 and 015).
There is an agreed statement of facts for each offender. They are extensive and, to an extent, duplicative.
The following findings of fact are drawn, in part, from those documents but mostly from the comprehensive, detailed, and highly useful table incorporated in the Crown’s written submissions. I pause to observe that neither counsel for the offenders have challenged the accuracy of the material contained in that table. The Court cannot overstate its gratitude for the assistance provided by that table. Clearly, many, many hours of work were involved.
Before turning to the details of each offence and each matter on the relevant Form 1 (each and all of which, as the Crown has correctly submitted, constituted individually and cumulatively a most heinous breach of trust and abandonment of responsibility to the child victim by each of these offenders), a brief overview might be appropriate.
In 2005, LM had a 10 year old daughter. They lived together in a house in a rural town in NSW.
LM also had a boyfriend, MJK. He did not live permanently at LM’s house but he spent a lot of time there. He had his own house in the same town.
From 2005, LM and MJK had a sexual relationship with each other and a developing sexual relationship with LM’s daughter (to whom I shall refer as “the victim”). It often involved all three either participating or being present together - and much of it was recorded on video. Each of the three participants took turns in operating the camera.
This depraved criminal behaviour continued regularly until November 2010 when the victim turned 16 years of age. At that time, she left her mother’s house and went to live with MJK. The sexual relationship between MJK and victim continued in that house. The sexual relationship between MJK and LM continued for a time – but without the direct involvement of the victim.
In late December 2014, when the victim was 20 years old, she gave birth to her own daughter. The father was MJK. By this stage the victim had lost total contact with her mother.
When the victim’s child was almost 1 year old, MJK said to the victim - speaking of their daughter - “I can’t wait until she is at school and brings her friends around”. This caused the victim to go to the police and that led to the arrest of these offenders on 9 November 2015.
I shall now set out with more particularity the offending conduct.
The first offending conduct occurred on 1 October 2005. It involved the victim and MJK.
On this occasion, the victim (she was 10 years old) got into bed with the offender and her mother. MJK touched the victim on the vagina after LM left the bed.
This is sequence 39. The offence is slightly below the middle of the range of objective seriousness for an offence of its kind.
On 29 October 2015, MJK, in the presence of LM, penetrated the victim’s genitalia with his fingers. The offenders then performed oral sex on each other in front of the victim. They made the victim film their sexual activity together and this involved close-ups of the genitals of the adults. The whole sexual act went on for over an hour. The victim was not a willing participant – how could she be? She indicated repeatedly that she did not want to participate and was accused of “chickening out” and not “sticking to the deal”. The victim therefore was made part of a “three-some” with her mother and her lover. The victim was not freely and voluntarily consenting to the sexual intercourse. She made it clear to the offenders that she was not consenting and they persisted anyway.
This is sequence 40 for MJK and sequence 2 for LM. In terms of its objective seriousness, it is well into the upper range and approaches a most grave example of this type of offence.
It is the recording of sequence 40 and sequence 2, which is sequence 41 for MJK and sequence 3 for LM.
On 30 October 2005, MJK, in the presence of LM, sucked the toes of the victim and kissed her and smacked her bottom. These acts were for the sexual gratification of the offenders.
Furthermore, each of the offenders performed sexual acts with each other in front of the victim. Additionally, the victim was remonstrated by her mother for not masturbating herself for the camera. The incident lasted for 30 minutes.
This is sequence 42 for MJK and sequence 4 for LM. In terms of its objective seriousness, it is a most grave example of this type of offence.
It is the recording of those events which is sequence 43 MJK and sequence 5 for LM.
At some point between 29 October 2005 and 25 July 2006, when the victim was 10 or 11 years old, an incident was initiated when LM put cream and fruit on the victim’s vagina. MJK then performed cunnilingus on the victim.
This is sequence 44 for MJK and sequence 6 for LM. In terms of its objective seriousness, it is into the upper range (and unless otherwise indicated, all subsequent principal offences to which I shall refer are in this category - for the reasons I shall give later).
Also in the period 29 October 2005 to 25 July 2006, MJK penetrated the victim’s vagina with a cotton ear cleaner. The act was degrading and I’m satisfied beyond reasonable doubt that it (as with all that had gone on before by both offenders) was designed to introduce and groom the victim for more serious vaginal penetration. The incident was photographed.
This is sequence 45 for MJK.
It is that recording of sequences 45 which constitutes sequence 46 for MJK.
At some point between 1 May 2006 and 22 May 2006, when the victim was 11 years of age, both the offenders were involved in the recording of the victim masturbating herself. The incident lasted for about 2 and half minutes and included close-ups of the victim’s vagina. During the incident, the victim asked to stop but she was told she couldn’t.
This is sequence 47 for MJK and sequence 7 for LM.
Also in the period to which I have just referred, there was an incident in which both offenders were with the victim. MJK and the victim were naked, and MJK was “playing a game” with the victim. The “game” clearly demonstrated - again - that both the offenders were associating the victim with sexualised activity through children’s play and is further evidence of grooming. LM recorded this incident by video.
This is sequence 48 for MJK and sequence 8 for LM.
On 23 July 2006, MJK slapped the victim’s buttocks as he filmed a close-up of her vagina. The victim’s vagina and anus were exposed and MJK referred to the victim’s vagina as a “chew toy”. All of this was done in the presence of LM. The recording was approximately 2 and a half minutes.
This is sequence 49 for MJK and sequence 9 for LM.
It is the recording of this incident which is sequence 50 for MJK and sequence 10 for LM.
Also on 23 July 2006, MJK used his fingers to penetrate the victim’s vagina and then record her urinating. The camera was zoomed in on her vagina as she urinated.
This is sequence 51 for MJK.
It is the recording of this incident which is sequence 52 for MJK.
Further on 23 July 2006, an incident occurred involving the victim and both offenders. MJK was blindfolded. LM took hold of MJK’s penis and put it in the victim’s vagina. The victim climbed off and masturbated MJK for a short time before LM again took hold of MJK’s penis and penetrated the victim’s genitalia with it. LM then gave the camera to the victim and had her record LM fellating MJK. LM then took the camera back from the victim and again inserted MJK’s penis into the victim’s genitalia. MJK did not wear a condom when he had penile-vaginal intercourse with the victim on this, or any other subsequent, occasion. Given the risk of pregnancy (and sexually transmitted diseases) which this involved – and particularly bearing in mind the age of the child – this is a significantly aggravating feature of this and all other later offences of penile-vaginal intercourse.
This is sequence 53 for MJK and sequence 11 for LM. It is a most grave example of this offence.
As part of the incident to which I have just referred, MJK performed oral sex on the victim. Furthermore, after finishing penile-vaginal intercourse with the victim, MJK digitally penetrated her genitalia after performing oral sex on her for a brief period. LM continued to record the incident.
This is sequence 55 for MJK and sequence 13 for LM. It is a most grave example of this offence.
It is the recording of these extended incidents (which was for about 17 minutes) which is sequence 54 for MJK and sequence 12 for LM.
Further offences were committed between the periods 7 August 2006 to 8 September 2006.
One offence involved MJK penetrating the victim’s mouth with his penis. The incident was recorded and went on for about a minute. The victim was 11 years old. When the victim stopped, MJK said she was “mean” and tried to get her to continue the act.
This is sequence 56 for MJK.
It is the recording of this offence which is sequence 57 for MJK.
Further offences in this period involved MJK and the victim in penile-vaginal sexual intercourse and then penile-anal intercourse. Between those two acts, there was also digital penetration. The events lasted about 7 minutes.
These are sequences 58 and 59 for MJK. Each offence is a most grave example of this offence.
It is the recording of sequences 58 and 59 which is sequence 60 for MJK.
Also in this period, each offender recorded the victim and “invited” her to orally stimulate MJK’s penis by kissing it. During this incident the victim was naked. The incident extended over 5 minutes.
This is sequence 61 for MJK and sequence 14 for LM.
Finally in this particular period, MJK involved the victim in a “game” of digital-vaginal penetration.
This is sequence 62 for MJK.
It is the recording of this incident which is sequence 63 for MJK.
There were two offences in the period 1 October 2006 to 25 October 2006.
In one incident, the victim was with both of the offenders. The victim was topless. The victim danced in front of a camera exposing her breasts. This incident was recorded for well over a minute.
This is sequence 64 for MJK and sequence 15 for LM.
In another incident, MJK kissed and smacked the buttocks of the victim and then licked her anus. This was recorded by LM, who noted during the recording (of about 5 minutes) that the victim had had a shower that morning.
This is sequence 165 for MJK and sequence 16 for LM. It is a most grave example of this type of offence.
It is the recording of this incident to which I have just referred which is sequence 66 for MJK and sequence 17 for LM. (There are no further sequences directly involving LM – but, of course, without her earlier abandonment of all moral responsibility to her daughter, the following criminal activity by MJK could not have occurred. By this stage, the child has been very substantially, if not completely, sexualized and made her easy prey for what was to come. And the only rational inference in the circumstances is that, at least in general terms, LM was aware of, and acquiesced in, MJK’s continuing criminality. LM, however, has not been charged with any offence (such as conspiracy, or being an accessory) in relation to the offences I shall now refer to. She is not, therefore, technically criminally responsible for them – but her moral culpability for them is high.
The next cluster of offending occurred in the period 20 January 2007 to 21 February 2007 when the victim was 12 years of age.
One incident involved MJK touching the victim’s vagina and allowing her to sit on his erect penis. The incident was recorded.
This is sequence 67.
It is the recording of sequence 67 which is sequence 68.
A second incident in this period involved MJK fondling the bare breasts of the victim.
This is sequence 166.
It is the recording of sequence 166 which is sequence 70.
A third incident in this period involved MJK rubbing the vagina and buttocks of the victim.
This is sequence 167.
It is the recording of sequence 167 which is sequence 72.
A fourth incident in this period involved MJK inciting the victim to emit wind from her anus at him, or in his direction. The incident was recorded and the recording showed the victim’s anus and vagina. The offence was clearly degrading. The recording was for about 30 seconds.
This is sequence 73.
The final incident in this period involved a 5 second video with the victim straddling a bicycle in a sexual pose.
This is sequence 74.
The next criminal act occurred on 3 February 2007.
This incident involved the digital penetration of the victim by MJK over an extended period of time, approximately 5 minutes. In addition to digitally penetrating the victim, MJK tried to perform oral sex on her but she resisted. MJK recorded the incident. In addition to digitally penetrating her and attempting to perform oral sex upon her, MJK further indecently assaulted the victim by pushing his penis against her vagina. It is appropriate to note that the victim had pet mice. MJK quite wickedly used those pets as aids to his offending behaviour. He recorded those mice running on the victim’s vagina. Moreover, the victim was playing with those mice as MJK digitally penetrated her.

This is sequence 75.
It is that recording of sequence 75 which is sequence 76.
The next cluster of offending conduct by MJK occurred between 19 February 2007 and 20 March 2007. The victim was still aged 12.
One of these incidents involved MJK filming the victim urinating, during which he focused the camera on her genitalia.
This is sequence 77.
In addition, he recorded the victim moving her hips up and down whilst her genitalia and anus were exposed. During this, the victim was holding her pet mice.
This is sequence 78.
Furthermore, the offender inserted two pens into the victim’s vagina. She was partially naked, wearing only some of her school uniform at the time. This act was also recorded. During the recording, MJK operated the camera so as to zoom into the victim’s anus and genitalia. The victim made it clear that she did not want the pens thrust into her vagina. Nevertheless, MJK thrust the pens in and out of the victim’s vagina and asked her if he could insert his penis.
This is sequence 79.
It is the recording of this incident which is sequence 80.
The next offending conduct occurred in the period between 1 April 2007 and 29 April 2007.
In this period, MJK recorded himself performing cunnilingus on the victim while she was naked. The victim was 12 years of age. MJK told her that he could “eat” her all day and asked her if she was “horny”. During this act of intercourse (which lasted about 6 minutes), MJK momentarily penetrated her vagina with his finger and then recommenced cunnilingus. The Crown elected only to proceed on the oral sexual intercourse as the conduct constituting the offence.
This is sequence 81.
It is the recording of sequence 81 which is sequence 82.
On 23 July 2007, MJK recorded the victim while she was bent over putting her socks on. The focus of the recording was the victim’s bottom. The recording lasted 25 seconds.
This is sequence 83.
At some point between 1 July 2007 and 21 August 2007, MJK recorded the victim dancing whilst she was exposing her genitals and breasts. The recording lasted about 30 seconds.
This is sequence 84.
On 28 July 2007, five criminal acts occurred.
MJK made a seven minute recording during which he penetrated the victim’s anus and vagina with his finger. MJK then had penile-vaginal intercourse with the victim for about seven minutes, during which on two occasions he tried to penetrate her anus with his penis.
During these incidents, MJK called the victim a “tease” and asked her if he could ejaculate in her anus. He sucked her breasts and kissed her on the mouth.
The penile-vaginal intercourse is sequence 85.
The digital-anal penetration is sequence 86. The attempted acts of penile- anal penetrations were not the subject of any charges.
It is the recording of sequences 85 and 86 which is sequence 87.
Later that day, MJK again engaged in penile-vaginal intercourse with the victim while she was using a computer.
This is sequence 88.
It is the recording of the sequence 88 that is sequence 89.
Three acts of criminality occurred on 4 August 2007.
On this date, MJK had penile-vaginal sexual intercourse with the victim during which he slapped her buttocks and inserted his finger into her anus.
The penile-vaginal intercourse is sequence 90.
The digital-anal intercourse is sequence 168.
It is the recording of sequences 90 and 168 which constitutes sequence 92.
Numerous acts of criminality occurred on 19 August 2007.
On that date, MJK required the victim to hold the camera while he performed cunnilingus on her.
At one point the recording stopped. When it recommenced, it recorded the victim masturbating herself. The incident lasted about 5 minutes.
The act of cunnilingus is sequence 93.
The act of self digital-vaginal penetration by the victim is sequence 94.
It is the recording of sequences 93 and 94 which is sequence 95.
Also on that day, MJK briefly engaged in penile-vaginal intercourse with the victim.
This is sequence 96.
It is the recording of sequence 96 which is sequence 97.
Also on that date, MJK recorded himself having further penile-vaginal sexual intercourse and penile-anal intercourse with the victim – whom it will be recalled was only 12 years of age. The video recordings lasted for about 3 and a half minutes.
It is the penile-vaginal intercourse which is sequence 98.
It is the penile-anal intercourse which is sequence 99. It is a grave example of this offence.
It is the recording of sequences 98 and 99 which is sequence 100.
Further on this day, MJK recorded the victim as he had her open her vagina and he penetrated it. The recording lasted 25 seconds. This is sequence 101.
It is the recording of sequence 101 which is sequence 102.
Finally on this date, MJK recorded the victim performing fellatio upon him. He requested that she continue to perform that act despite her complaint that she was “done”. MJK made the victim gag several times during this incident – and he laughed when she did. The recording lasted about one minute.
This is sequence 103. It is a grave example of this offence.
It is the recording of sequence 103 which is sequence 104.
On 22 August 2007, MJK recorded the victim performing fellatio on him. He laughed as she gagged on his penis. The recording lasted 41 seconds.
This is sequence 105.
It is the recording of sequence 105 which is sequence 106.
On 5 September 2007, there were a further criminal acts.
MJK briefly engaged in penile-vaginal intercourse with the victim. The recording lasted 31 seconds.
This is sequence 107.
It is the recording of sequence 107 which is sequence 108.
Later that day, MJK recorded himself having further penile-vaginal intercourse with the victim. The recording lasted 38 seconds.
This is sequence 109.
It is the recording of sequence 109 which is sequence 110.
On 7 September 2007, MJK recorded the victim, who was only wearing underpants, jumping up and down so that her breasts would bounce. He told the victim he wanted to see how big “those things” were.
This is sequence 111.
There were more criminal acts on 17 September 2007.
MJK had penile-vaginal intercourse with the victim. When she pulled away from him, he described her as “cruel”. The recording lasted one minute.
This is sequence 112.
It is the recording of sequence 112 which is sequence 113.
Later that day, MJK engaged in further penile-vaginal and digital – anal intercourse with the victim. In addition to recording those acts, the offender used degrading language to the victim.
It is the penile-vaginal intercourse which is sequence 114.
It is the digital-anal penetration which is sequence 115.
It is the recording of sequences 114 and 115 which is sequence 116.
On 21 September 2007, MJK asked the victim if she were “horny” and if he could “fuck this” and he then digitally penetrated her vagina. The recording lasted just over a minute.
This is sequence 117.
It is the recording of sequence 117 which is sequence 118.
On 13 October 2007, a further series of criminal acts were performed on the victim.
MJK performed penile-vaginal intercourse with the victim while she was using a computer.
This is sequence 119.
It is the recording of sequence 119 which is sequence 120.
MJK continued recording his activities with the victim. Specifically, he recorded himself performing digital-vaginal penetration on her for an extended period.
Before that penetration, MJK asked the victim if he could suck her breasts. She told him that she did not want him to, but he did so anyway.
MJK told the victim that he wanted “to fuck her” and – disturbingly – the victim used the same words. This, amongst other things, indicates that MJK had been successful in grooming the victim so that she came to view being used as a sexual object as normal behaviour. The recording went on for about 4 and a half minutes.
This is sequence 121.
It is the recording of sequence 121 which is sequence 122.
Also on 13 October 2007, MJK recorded the victim while she was naked from the waist down. He slapped and squeezed her buttocks. He then recorded himself performing penile-vaginal intercourse with her. The recording lasted 90 seconds.
This is sequence 123.
It is the recording of sequence 123 which is sequence 124.
In the period 1 October 2007 to 24 October 2007, a series of further criminal conduct was inflicted upon the victim by MJK.
On one occasion during this period, MJK recorded himself performing cunnilingus on the victim as he discussed the appearance of her genitalia. The recording was just over 3 minutes.
This is sequence 125.
It is the recording of sequence 125 which is sequence 126.
Also in this period, MJK recorded himself penetrating the victim’s mouth with his penis. He continued to record as the victim digitally penetrated her own vagina. The clip lasted about 3 and a half minutes.
This is sequence 127.
It is the recording of sequence 127 which is sequence 128.
Finally in this period, MJK recorded the victim’s exposed buttocks.
This is sequence 129.
On 21 October 2007, MJK recorded himself performing penile-vaginal intercourse with the victim. MJK had difficulty penetrating her vagina. He then told her he thought that was because she had not been having sex with him. Disturbingly MJK referred to the victim’s vagina as “that”. The recording lasted 2 and a half minutes.
This is sequence 130.
It is the recording of sequence 130 which is sequence 131.
Also on 21 October 2007, MJK recorded the victim digitally penetrating her vagina in a particularly degrading way, by which I mean the inserting of 9 of her fingers. MJK also digitally penetrated the victim’s vagina as well as slapping her on the buttocks while she penetrated herself.
This is sequence 132. It is a most grave example of this type of offence.
It is the recording of sequence 132 which is sequence 133.
On 26 October 2007, a further cluster of criminal conduct was inflicted upon the victim.
On this date, MJK recorded himself having penile-vaginal intercourse with the victim. When the offender’s penis slipped out of the victim’s vagina, he put his finger into her anus (this act is not the subject of any charge) before recommencing penile-vaginal intercourse.
During that intercourse, MJK indicated that he wanted to ejaculate inside the victim. She said that she did not want him to do so. The recording lasted 5 minutes.
The penile-vaginal intercourse is sequence 134.
The digital-anal penetration is sequence 135.
It is the recording of sequences 134 and 135 which is sequence 136.
Also on 26 October 2007, MJK recorded himself receiving oral sex from the victim, after which he had penile-vaginal intercourse with her.
These are respectively sequences 137 and 138.
It is the recording of sequences 137 and 138 which is sequence 139.
Also on 26 October 2007, MJK recorded himself as he forcefully penetrated the victim, causing her to shriek. The recording last just over two minutes.
This is sequence 140. It is a most grave example of this type of offence.
It is the recording of sequence 140 which is sequence 141.
On the next day on 27 October 2007, MJK recording himself penetrating the victim’s mouth. The recording lasted 46 seconds.
This is sequence 142.
It is the recording of sequence 142 which is sequence 143.
On 16 November 2007, MJK recorded himself having penile-vaginal intercourse with the victim whilst on a lounge. By this stage the victim was 13 years of age. The clip lasted 2 and a half minutes.
This is sequence 144.
It is the recording of sequence 144 which is sequence 145.
Also on 16 November 2007, the victim (who was naked) recorded MJK while he was on the toilet, during which he sucked her breast. MJK was effectively naked. The agreed facts do not expressly state what MJK was doing on the toilet. They simply state “He was reading a magazine as he used the toilet.” Notwithstanding the absence of any further description, I am satisfied that the only rational inference in the circumstances is that MKJ was in the process of defecating during this incident and that the victim knew that.
This is sequence 146.
On the same date, MJK recorded the victim dancing naked. Her breasts and vagina were exposed. The recording lasted 4 and a half minutes.
This is sequence 147.
Between 26 October 2007 and 27 November 2007 (when the victim was either 12 or 13 years old), MJK had penile-vaginal intercourse with the victim. During this intercourse he stopped and licked her vagina before continuing that intercourse. The clipped lasted 4 and a half minutes.
It is the penile-vaginal intercourse which is sequence 148.
The act of cunnilingus is sequence 149.
It is the recording of sequences 148 and 149 which is sequence 150.
On 25 January 2008, when the victim was 13, MJK had penile-vaginal intercourse with her. During this, he slapped her on the buttocks and filmed a close-up of her vagina. After withdrawing his penis from her, MJK performed digital-vaginal penetration on her. This last act is not the subject of any change.
The penile-vaginal intercourse is sequence 151.
It is the recording of sequence 151 which is now sequence 170.
Further, on 25 January 2008, MJK performed cunnilingus on the victim. He also penetrated her vagina with his fingers. This 2nd act of sexual intercourse is not the subject of any change. The recording lasted just over 5 minutes.
This is sequence 153.
It is the recording of sequence 153 which is sequence 154.
On 28 January 2008, MJK recorded the victim skipping while she was naked. He then asked her to perform oral sex on him, which she did for a few seconds before she moved away. The recording lasted one and half minutes.
This is sequence 155.
It is the recording of sequence 155 which is sequence 156.
On 30 January 2008, a further cluster of criminal acts was inflicted upon the victim.
MJK had penile-vaginal intercourse with her. Whilst he was doing this, he inserted his finger into her anus. MJK asked the victim to fellate him but she refused to do so. The recording lasted just over 3 minutes.
The act of penile-vaginal intercourse is sequence 157.
The act of digital-anal penetration is sequence 158.
It is the recording of sequences 157 and 158 which is sequence 159.
Also on that day, MJK performed and recorded digital-vaginal intercourse with the victim. The recording lasted just over a minute.
This is sequence 160.
It is the recording of sequence 160 which is sequence 161.
Also on that day, MJK incited the victim to perform oral sex on him. She did so briefly. During the recording which MJK made, the victim’s vagina, anus and breasts were also recorded. The recording lasted one and a half minutes.
This act of fellatio is sequence 162.
It is the recording of sequence 162 which is sequence 163.
I shall now depart from the useful table which has in part formed the basis of my description of the facts underpinning the offending conduct of both offenders to date.
It will be recalled that, at the beginning of these remarks, I indicated that the sexual conduct of the type captured by the table continued until the victim turned 16 years of age in mid-November 2010.
It is appropriate to note that up to that date, MJK often showed the victim child abuse material. When the victim was on her own and found videos of sexual acts involving her and MJK, she deleted them. Consequently, it follows that those offences to which I have already referred cannot constitute the totality of the criminal acts of MJK.
As I also indicated at the beginning of these remarks, the victim stopped living with her mother and moved into MJK’s residence when she turned 16. Notwithstanding the fact that the victim moved into MJK’s home, for a time he continued having a sexual relationship with LM.
In early 2014, the victim became pregnant by MJK and their child was born in late December 2014. By this time, the victim had completely lost contact with her mother.
On an occasion about 1 year after the birth of their daughter, MJK said to the victim words to the effect of “I can’t wait until she is at school and brings her friends around”.
As a result of this deeply disturbing remark (which I shall return to in the context of assessing MJK’s prospects of rehabilitation), the victim called the police to complain about the criminal conduct of her mother and MJK.
The police went to certain premises in the country town where they lived. The victim was deeply distressed as she recounted to the police the nature of the offending conduct. The victim and the police then went to the premises which she shared with MJK. When they arrived at that address, the victim crouched in the rear of the police car in an attempt to hide herself from him. She was shaking and cowering.
The police then conducted a search of the property for child abuse material. They examined a laptop and a number of portable hard drives. On those devices they discovered videos and still images of the victim on two DVD’s. Those videos and still images were child abuse material. They were of the victim from the ages of 10 to 13 years.
Of those selected images viewed by the police, the following images of the victim were located within various folders:

Over 200 CETS Category 1 images (i.e. nudity and erotic posing). These included images of the victim’s vagina and breasts and were from various occasions, including whilst the victim was bushwalking with MJK;

A number of CETS Category 2 images (i.e. solo masturbation). These included images of the victim manipulating, and inserting fingers into, her vagina;

Over 30 CETS Category 3 images (i.e. non-penetrative sexual activity between children and adults). These included images of MJK spreading the victim’s vagina with his fingers for the camera and MJK performing cunnilingus on the victim; and

Over 20 CETS Category 4 images (i.e. penetrative sexual activity between children and adults). These included images of digital and penile penetration and images of MJKs penis in the victim’s mouth.

This is now sequence 169. In terms of its objective seriousness, it is above a mid-range offence.
The police also found child abuse material not involving the victim – it did involve, of course, other nameless victims.
In this context, the police seized a number of exhibits that contained child abuse material including computers, hard drives and DVDs.
The police randomly selected 5 DVDs for review.
The first DVD contained:

66 videos and 15 still images, all of which were child abuse material; and

A video entitled “Collection of small” and subtitled “Jenny.avi”. This video depicted a female child aged about 11 years performing fellatio on a dog. This falls into CETS Category 5 (sadism / bestiality).

The second DVD contained:

70 videos and over 500 still images, all of which were child abuse material;

One of the folders viewed by police was entitled “Young pussy videos”. This folder contained 44 videos which had titles such as “Baby shivid – assfucked-full”; “Charlene Tongefuk my toddlers girls cunny”; “baby rape shocking” and “Macey 5 yo GETS THE WORKS”. Police viewed that last mentioned video. It depicted an adult male having penetrative intercourse with a 5 year old girl. This included penile-vaginal intercourse, penile-anal intercourse, and penile-oral intercourse. This falls within CETS Category 4 (penetrative sexual activity between children and adults); and

videos which were duplicates of videos and images of the primary victim.

The third DVD contained 43 videos and 1700 images, all of which were child abuse material. The police viewed a number of images. They depicted young boys and girls and adults engaged in non-penetrative sexual activity. This is CETS Category 3.
The fourth DVD contained 61 videos and 521 images, all of which contained child abuse material. The police opened a file entitled “BD babes” It contained 109 still images of young girls engaging in sexual activity, both solo and with other young girls. This is CETS Category 2.

The fifth DVD contained 49 videos and many still images, all of which contained child abuse material. The police viewed a file called “Ls-Racheal sets” which contained 786 images. The images viewed by police depicted girls from the age of 6 to 15 naked and exposing their genitals. This is CETS Category 1.
The files viewed by the police represented only a small portion of the child abuse material in MJK’s possession. In total, he had possession of in excess of 10,000 images and 1000 videos, ranging across all CETS categories.
It is the possession of this child abuse material not involving the primary victim which is sequence 164.
In terms of its objective seriousness for an offence of its kind, it is a mid-range offence.
As I indicated at the beginning of these remarks, I have made express findings as to the objective seriousness of each principal offence (it is not necessary nor appropriate for such findings to be made concerning the matters on the various Form 1's).
It would be totally unrealistic, in assessing the objective seriousness of any one offence in circumstances of these cases (other than sequence 164), to look at it in isolation.
Each offence was part of a pattern of behaviour which was either premeditated or opportunistic (mostly, in my view, the former) and involved (individually and cumulatively) the grooming and depraved sexualisation of a vulnerable child over a prolonged period of time. Each offence (and the totality of the offending) involved a deeply disturbing and most heinous breach of trust and utter abandonment of responsibility to that child.
While some of the offences, if they had occurred in isolation, might have attracted a lesser description, taken as a whole, each offence (apart from sequence 39) is into the upper end of the range of objective seriousness – and some are the most grave examples of the particular offence.
These statements apply to both offenders. Specifically, although in relation to most of the offences directly involving both the offenders, it was MJK who actually performed most of the despicable acts, it was the child’s own mother who actively and eagerly facilitated them and who was mostly present when they occurred. Each offender is guilty of a high degree of moral culpability and criminality in relation to each offence they committed.
There is no victim impact statement from the primary victim. However, it is clear, from the limited information provided regarding the events of 9 November 2015, that the victim has been profoundly traumatised by the offenders’ cumulative criminal abuse of her. Even without any expert evidence, I have no difficulty in concluding beyond reasonable doubt that this young woman is, and will be, profoundly and irretrievably traumatised for her entire life - however long or short that may be. For their own perverse and sordid sexual gratification, these two offenders have effectively destroyed the quality of that victim’s life.
I shall now turn to the subjective circumstances of each offender.
Neither offender gave sworn evidence in the sentence hearing.
MJK’s subjective circumstances are advanced manly through a Pre - Sentence Report, an accompanying psychologist’s report, and a report of Dr Furst, psychiatrist.
It may be accepted (without MJK giving sworn evidence as to the truthfulness of histories he provided to the authorities of those reports) that MJK had an unsatisfactory childhood. His parents’ marriage seems to have failed when he was quiet young and he did not develop a satisfactory relationship with either of his parents.
It may also be accepted that, at an early age, he had some sexual experiences. In this regard, it would seem that, when he was about 6 or 7 years old, he had a few “sexual encounters” with a female relative who was about 10 years old; and that from about 9 years of age he had access to pornography. This may have given rise to early sexual curiosity and to some degree of sexualisation in his upbringing.
But there is no evidence (and I am not persuaded on the balance of probabilities) of any causal connection between those matters and his offending behaviour.
The offender did not have an easy time at school and he left school before completing year 10.
Since leaving school, the offender has been consistently in employment in unskilled jobs such as working at Petrol Stations, delivering newspapers, or on a milk run.
As an adult, MJK had a number of apparently appropriate sexual relations with adult women. As a result of two of those relationships, he has four adult sons.
MJK has no prior criminal history.
However, according to MJK, about 1 year before the offending conduct with which I am concerned, he began viewing child pornography. To the author of the Pre-Sentence Report, MJK said that he “accidentally” opened a link to a child pornography site. I am not persuaded as to the truth of that assertion. In any event, from at least that time, he has had a continuous and continuing sexual interest in children.
Contrary to the submission made on behalf of MJK, this offender’s sexual interest in children goes beyond the primary victim. This is clearly demonstrated by: the possess child pornography offence which does not directly relate to that victim; the discussions (noted in the Pre-Sentence Report) he had with the primary victim about when their own daughter would become sexually active; and the discussion he had with the primary victim as to when their daughter might be able to bring her school friends home.
Each of the documents through which MJK’s subjective circumstances were advanced, records the offender’s total lack of insight in to his offending and his deluded attempts to transfer responsibility to the primary victim. In this context I have not overlooked Exhibits 3 and 6. I do not, however, give them any weight. Insofar as the 1st document (including its attachment) is concerned, I note that: there was no objection to the tender of the Pre-Sentence Report; the author of that report was not required for cross examination; and the offender gave no evidence as to the truth of the contents of Exhibit 3. To similar effect, I note that the offender did not give evidence as to the truth of the contents of Exhibit 6.
One of the consequences of his failure to have insight is that the purported expressions of a willingness to engage in sex offender programs is driven, not so much by insight or a real desire to deal with his offending conduct, but rather to obtain early release from custody.
There are no direct expressions of remorse. There are however, inconsistent and contradictory expressions of acknowledgment of wrong doing. To the extent that some of those unsworn expressions may appear to be remorseful, I treat them with considerable scepticism.
In the circumstances, his prospects of rehabilitation must be regarded as poor. And in any event, in the circumstances of his case, rehabilitation takes less prominence than the other purposes of sentencing, especially punishment.
Clearly, considerations of general and specific deterrence are fully engaged.
The offender pleaded guilty at the first available opportunity and I propose to give him a discount of 25% in relation to each of the indicative sentences I shall shortly pronounce. It follows from this, that I intend imposing an aggregate sentence.
MJK has been in custody continuously since his arrest on 9 November 2015 solely referable to these matters and his sentence will be back dated to that date.
It has been submitted on behalf of the offender that I should make a finding of special circumstances. I decline to do so, notwithstanding that this will be this offender’s first time in custody. No other possible basis has been established by the evidence.
LM’s, subjective circumstances were advanced principally through the Pre - Sentence Report (and its attached psychological assessment), the expert report of Dr Ashkan, psychologist and the two expert reports of Dr Eagle, psychiatrist.
Four preliminary observations should be made.
First, in relation to matters relied on in mitigation of sentence, the onus of proof is on the offender and on the balance of probabilities. (This of course also applies to MJK).
Secondly, as LM did not give sworn evidence, the truth or otherwise of the history she gave to the authors of the various reports could not be tested.
Thirdly, in the Pre-Sentence Report it is recorded that the offender had no recollection of engaging in the offending behaviour. This is inherently unlikely. There is no expert opinion to support it. And it is to be contrasted with Dr Eagles’ first report where, at page 12, she wrote:
“The offending conduct or behaviour appeared to occur in the context of the inappropriate prioritisation by [LM] of her sexual relationship with [MJK] above all else including the needs of her daughter and despite the harm caused to her daughter. Her mental illness or condition did not, in my view, impair her ability to determine right from wrong or appreciate the nature of her conduct. However, her emotional vulnerabilities resulted in an apparent overwhelming need to fulfil her own emotional needs and likely impaired her ability to properly consider the consequences of her actions”. [Emphasis added]
Fourthly, and relatedly in his report, Dr Ashkan wrote at page 11:
“The full extent of her emotional disturbance at this time is unclear because she is exaggerating her emotional/psychiatric difficulties, and further assessment is needed to inform appropriate treatment.
Clearly, any untested assertion by LM must be viewed with caution.
LM is 44 years of age.
She was born in Holland. At the time of her birth, her mother was 15 years old and her father was 27 years old. According to LM, because of her mother’s age, her father was imprisoned for a period following that birth.
LM’s parents subsequently married and there were other children born to that relationship.
LM’s parents separated in 1985.
LM completed her primary school education in Holland. She attended High School in Australia to year 11. She later completed her secondary education at TAFE.
Thereafter, LM completed a diploma in Community Welfare as well as certification in Childcare studies, Business administration and Hospitality. She also obtained a degree in Social Science and Social Welfare.
LM obtained employment as a Children’s activity/vocational Care Officer and Program Coordinator. As well she obtained voluntary roles in Art School Programs and Inner Youth Refuge.
These educational achievements and work experience only serve to underscore – if that is possible – the heinous nature of this offender’s abandonment of all moral responsibility to her own child for her own depraved sexual urges.
LM had three significant personal relationships as an adult.
The first such relationship was with her first husband. This relationship existed between 1991 and 2001. According to the offender, her husband was very controlling and the relationship was not a happy one. Furthermore, according to the offender, she was sexually assaulted by her father -in –law – there is even a suggestion in part of the material that that sexual assault was at the “behest” of her own husband.
A few years after the relationship with her first husband ended, LM commenced her relationship with MJK in 2005. This relationship substantially ended in 2011 when the primary victim left LM’s home to go and live with MJK. However, as I have already indicated, a casual sexual relationship between LM and MJK continued for a time.
During the primary victim’s pregnancy to MJK, LM moved to Western Australia – she did so because she felt the victim had “betrayed her” as the victim knew how much LM wanted to marry MJK and to have children by him.
The third relationship began after the offender moved to Western Australia. She met her current husband in 2012 and they married in 2015. But even after she moved to Western Australia and met the man she subsequently married, LM was still in contact with MJK – she would send him photographs of her breasts and he, in return, would provide photographs of the victim (the nature of those photographs was not revealed in the material).
LM has been diagnosed by Dr Eagle as having a major depressive disorder, bipolar disorder, borderline personality disorder and dependent personality traits. The diagnosis of borderline personality disorder is not agreed with by Dr Ashkan. It was, however, a diagnosis made by a psychiatrist (Dr Robertson) who was treating LM for depression from late 2005 – i.e. during her relationship with MJK.
There is, however, no evidence of any causal relationship between these disorders and the offender’s gross criminal conduct. As Dr Eagle herself has noted, these conditions might have “somewhat impaired” her judgment by placing her sexual relationship with MJK “above all else”, but those mental conditions did not impair her ability to determine right from wrong or appreciate the nature of her conduct.
Accordingly, LM’s moral as well as criminal culpability remains extremely high.
There is no direct expression of remorse by LM. I look with considerable scepticism on the qualified and second hand expressions of remorse to the authors of the documents to which I have referred – not least because of my earlier expressed doubts about the reliability of LM.
By having regard to a lack of genuine remorse, a lack of insight, her dubious lack of recollection of the offending behaviour, and the contents of the reports of Dr Eagle and Dr Ashkan, I regard LM’s prospects of rehabilitation as being, at best, guarded - notwithstanding that she has no prior criminal offences.
And as with MJK, considerations of both general and specific deterrence are fully engaged.
LM entered pleas of guilty at the first available opportunity and she will receive a 25% discount for the utilitarian value of the pleas.
The start date of the term of imprisonment which I shall shortly impose will be back dated to the date of her arrest - which is the same date of that of MJK.
As with MJK and for the same reasons, I decline to make a finding of special circumstances.
I shall impose an aggregate sentence on both MJK and LM.
The indicative sentences for MJK are as follow.
In relation to sequence 169, the indicative sentence is 5 years minus 25%, namely 3 years 9 months.
In relation to sequence 39, the indicative sentence is 3 years 6 months minus 25%, namely 2 years 7 months. The indicative non-parole period is 1 year 11 months.
In relation to sequences 42 and 165, the indicative sentence in each case is 6 years minus 25%, namely 4 years 6 months. The indicative non-parole period is 3 years 4 months.
In relation to sequence 59 (and taking into account the matters on the relevant Form 1), the indicative sentence is 20 years minus 25%, namely 15 years.
In relation to sequence 85 (and taking into account the matters on the relevant Form 1), the indicative sentence is 16 years minus 25%, namely 12 years.
In relation to sequence 99 (and taking into account the matters on the relevant Form 1), the indicative sentence is 20 years minus 25%, namely 15 years.
In relation to sequence 134 (and taking into account the matters on the relevant Form 1), the indicative sentence is 16 years minus 25%, namely 12 years.
In relation to sequences 40, 53, 55, 58, 132 and 140, the indicative sentence in each case is 16 years minus 25%, namely 12 years.
In relation to sequences 44, 45, 51, 56, 75, 79, 81, 86, 90, 93, 98, 103, 105, 109, 114, 115, 117, 121, 123, 125, 127, 130, 135, 137, 142, 144, 148, 149, 151, 153, 155, 157, 158, 162, and 168, the indicative sentence in each case is 12 years minus 25%, namely 9 years.
In relation to sequences 41, 43, 46, 47, 52, 54, 57, 60, 66, 73, 76, 80, 82, 87, 92, 100, 104, 106, 110, 116, 118, 122, 124, 126, 128, 131, 133, 136, 141, 143, 145, 150, 154, 156, 159, 163 and 170 the indicative sentence in each case is 8 years minus 25%, namely, 6 years.
In relation to sequence 164, the indicative sentence is 4 years minus 25%, namely 3 years.
The indicative sentences for LM are as follows.
In relation to sequence 11 (and taking into account the matters on the Form 1), the indicative sentence is 16 years minus 25%, namely 12 years.
In relation to sequences 2 and 13, the indicative sentence in each case is 12 years minus 25%, namely 8 years.
In relation to sequence 4, the indicative sentence is 6 years minus 25%, namely 4 years 6 months.
In relation to sequences 3, 5, 7, 8, 12, 14 and 17, the indicative sentence in each case is 8 years minus 25%, namely 6 years.
In relation to sequence 6, the indicative sentence is 12 years minus 25%, namely 9 years.
In relation to sequence 16, the indicative sentence is 6 years minus 25%, namely 4 years 6 months. The indicative non-parole period is 3 years 4 months.
MJK, of one offence of producing, disseminating or possessing child abuse material, three offences of aggravated indecent assault, 45 offences of aggravated sexual intercourse with a person over the age of 10 years but under the age of 14 years, 37 offences of using a child under 14 years of age for pornographic purposes, and one offence of possess child abuse material - I sentence you to an aggregate sentence of 25 years imprisonment.
I fix a non-parole period of 18 years 9 months to date from 9 November 2015 and which will expire on 8 August 2034.
I fix a balance of 6 years 3 months to date from 9 August 2034 and which will expire 8 November 2040.
LM, of seven offences of using a child under 14 years of age for pornographic purposes, four offences of aggravated sexual intercourse with a child between 10 and 14 years of age, and two offences of aggravated indecent assault – I sentence you to an aggregate sentence of 17 years imprisonment.
I fix a non-parole period of 12 years 9 months to date from 9 November 2015 and which will expire on 8 August 2028.
I fix a balance of 4 years 3 months to date from 9 August 2028 and which will expire on 8 November 2032.

Amendments

16 April 2019 - [78] "It" added to the beginning of the paragraph

Decision last updated: 16 April 2019

Medium Neutral Citation:	R v MK; R v LM [2017] NSWDC 465
Hearing dates:	17 August 2017 and 3 November 2017
Decision date:	13 December 2017
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Offender MK: Sentenced to an aggregate sentence of 25 years imprisonment with a non parole period of 18 years 9 months. Offender LM: sentenced to an aggregate sentence of 17 years imprisonment with a non parole period of 12 years 9 months.
Catchwords:	CRIMINAL LAW - possessing child abuse material - aggravated indecent assault - aggravated sexual intercourse with a person over 10 years of age but under 14 years of age - using a child under 14 years of age for pornographic purposes - possess child abuse material.
Legislation Cited:	Crimes Act 1900 (NSW): ss91H(2), 61M(1), 66C(2), and 91G(1)(a).
Category:	Sentence
Parties:	Regina (Crown) MK (Offender) LM (Offender)
Representation:	Mr Triscari (ODPP) Ms Avenell (Offender MK) Mr Pararajasingham (Offender LM)
File Number(s):	2015/329639; 2015/337736
Publication restriction:	Non publication order made of the names of the offenders, the victim and information which might directly or indirectly identify them, including the town in which the offences were committed.