Regina v Richard Ivan Noel Kite

[2008] NSWDC 7

CITATION:	Regina v Richard Ivan Noel Kite [2008] NSWDC 7
HEARING DATE(S):	6 December 2007; 1 February 2008
JUDGMENT DATE:	1 February 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Knox SC DCJ
DECISION:	On the first count, that the offender did have sexual intercourse with person under the age of ten years: The offender is sentenced to a non-parole period of 5 years imprisonment to date from 6 December 2007 and to expire on 5 December 2012. The balance of the term is 3 years and 4 months to expire on 5 April 2016. On the second count, that the offender did have sexual intercourse with person under the age of ten years: The offender is sentenced to a non-parole period of 5 years imprisonment to date from 6 June 2008 and to expire on 5 June 2013. The balance of the term is 3 years and 4 months to expire on 5 October 2016. There is a partial accumulation of 6 months imprisonment. The total effect of the sentence would be a non-parole period of five years and six months imprisonment, the balance of the term being three years four months imprisonment. Recommendation that the terms of his parole should include that of the offender comply with all directions and treatment as may be recommended by the Probation and Parole Service including psychiatric treatment, as well as the usual terms and conditions of parole; further that the report of Mr Taylor accompany these remarks.
CATCHWORDS:	sexual intercourse with person under the age of ten years - impact on victim - intoxication - diagnosis of paedophilia - extra-curial punishment - degree of planning - low to mid-range of criminality - standard non-parole period - special circumstances - hardship in custody - likelihood of deportation
LEGISLATION CITED:	Crimes Act 1900 Law Enforecement (Powers and Responsibilities) Act 2002 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v KNL [2005] NSWCCA 260 R v Daetz: R v Wilson [2003] NSWCCA 216 MLP v R [2006] NSWCCA 271 R v Girard, Andrew John, R v Girard Tessa Maree [2004] NSWCCA 170 R v Youkhana [2004] NSWCCA 412 R v Rhule (unrep, 25/7/95, NSWCCA) R v Burchell (1987) 34 ACrimR 148 T v R (1990) 47 A Crim R 29 MLP v Regina [2006] NSWCCA 271 R v KNL 2005 NSWCCA 260 Shannon v Regina [2006] NSWCCA 39 Regina v JTAC [2005] NSWCCA 345 R v SMP [2005] NSWCCA 116 R v Gordon (1994) 71 A Crim R 459 R v Fletcher-Jones (1994) 75 A Crim R 381 R v Sotheren [2001] NSWCCA 425 R v Wright (unrep, 28/2/1997, NSWCCA) R v Davis [1999] NSWCCA R v BJW (2000) 112 A Crim R 1 R v Fisher (1989) 40 A Crim R 442 R v AJP (2004) 150 A Crim R 575 R v AD [2005] NSWCCA 208 R v Thomson and Houlton (2000) 49 NSWLR 383; 115 A Crim R 104; [2000] NSWCCA 309 Siganto v The Queen (1998) 194 CLR 656 R v Way (2004) 60 NSWLR 168 R v Totten [2003] NSWCCA 207 R v Durocher-Yvon [2003] NSWCCA 299 R v Mostyn (2004) 145 A Crim R 304 R v Pham [2005] NSWCCA 94 R v Jap NSWCCA (20 July 1998) R v Latumetan and Murwanto [2003] NSWCCA 70 Shrestha v R (1991) 173 CLR 48 R v Weldon [2002] NSWCCA 475; (2002) 136 A Crim R 55 Veen v The Queen (No 2) (1988) 164 CLR 465 Hoare v The Queen (1989) 167 CLR 348 Wilkins (1988) 38 A Crim R 445 Pearce v The Queen (1998) 194 CLR 610 R v Dunn [2004] NSWCCA 41; (2004) 144 A Crim R 180 KSF NSWCCA (unrep 10 September 1992) Boyd NSWCCA (unrep 25.7.1995) Brooker NSWCCA (unrep 21.2.1996) AJP [2004] 150 ACrimR 575 Davies NSWCCA (unrep 10.11.2005) MLP NSWCCA (unrep 6.9.2006)
PARTIES:	Regina Richard Ivan Noel Kite
FILE NUMBER(S):	07/11/0536
SOLICITORS:	Crown: Ms Owens Defence: Mr Dickens

- 1 -

1 The offender, Richard Ivan Noel Kite, has pleaded guilty to two counts of sexual intercourse with person under the age of ten years contrary to section 66A of the Crimes Act 1900.

2 The offence occurred between 10:00pm 31 December 2006 and 5:00am on 1 January 2007 at Port Macquarie, in the State of New South Wales.

3 The maximum penalty for this offence is 25 years imprisonment. There is a standard non-parole period of 15 years imprisonment for this offence.

Facts

4 The agreed facts were tendered and marked exhibit S2.
The facts were as follows:
5 The victim, NG, was born on 11 May 2000 and was 6 years old at the relevant time.

6 On 31 December 2006 the offender, Richard Kite, was at 7 Mill Hill, Port Macquarie for a family New Years Eve celebration. The house belonged to Peter Jackson who is the father of the offender’s then defacto partner, Katherine Jackson. Also present at the party that evening were Pam McA – the victim’s grandmother and partner of Peter Jackson; Darren McA – the victim’s father; Krystal Boyd – the defacto of Darren McA; Suzanne Mc A – the victim’s aunty; and Kerry Scott – Suzanne McA’s defacto.

7 A number of children were also present, including the victim, Darren McA’s son, Suzanne’s three children and her niece and the offender’s 4 year old step-daughter and 4 month old son.

8 The offender had not met the victim previously. She arrived at the house at about 6pm that night.

9 In the early part of the evening, the offender and the children were playing in the backyard swimming pool. The victim was wearing only her underwear and the offender was wrestling and playing in the pool with her.

10 Throughout the course of the night, most adults were drinking and occupied the front lounge room of the house. Towards the rear of the house, a number of children, including the victim, were sleeping and playing around at various times on lounges in the sunroom.

11 Between 10pm and midnight, all adults within the house were seated in the front lounge room, playing card games. Prior to midnight the card game came to a halt. The adults commenced playing pool in the garage until well after midnight. The offender left the pool game on numerous occasions and went into the sun room where some of the children were sleeping on lounges.

12 On one occasion the offender stated that he was going to refill his drink. He was gone for a period of over five minutes – despite the fact that he still had a full glass. On a number of occasions, Kerry Scott, who had become suspicious of the offender, followed him into the room and found him leaning over the back of a couch that the victim and the offender’s step-daughter were lying on.

13 On one of these occasions, the offender was leaning over the couch where the girls were lying. Scott noticed that both children had their tops pulled up at least halfway along their stomachs, exposing their navels. The offender was touching and tickling his step daughter on the stomach, whilst they were asleep. When the offender noticed Scott, he stated ‘they are so cute and innocent whilst they’re lying there, so peaceful sleeping’. Scott asked the offender to return to their pool game.

14 Sometime after midnight, the offender went back into the sunroom where the victim was sleeping on the couch. Other children were asleep on the other couch in the room. The offender sat on one end of the couch, moved the victim’s legs as he sat beside her and pulled her skirt up to her waist.

15 The offender proceeded to perform cunnilingus on the victim by pushing her legs apart with one hand, pulling her underpants to one side, placing his tongue on her vagina, licking her and then inserting his tongue inside the victim’s vagina. This went on for what the victim describes as a ‘long time’ (count one).

16 The offender then inserted his finger into the victim’s vagina and, in her terms, ‘pushed really hard down’. The offender inserted his finger ‘deep down….. the whole way down’ to a depth demonstrated by the victim to be between 3-4 centimetres. The offender pushed ‘more than once…. Maybe nine times’. The victim believed that the offender was trying to spread his spit further around her vagina (count two). The offender eventually ceased and left the room.

17 Upon returning home the following day, the victim disclosed that the offender had ‘licked my fanny’ to her mother after being asked about her night. The police were subsequently contacted. Shortly after the incident Detectives from Port Macquarie Child Protection Team interviewed the victim who made full and clear disclosures regarding the assaults.

18 The victim was taken for a Sexual Assault Investigation Kit (SAIK) at Port Macquarie Base Hospital where some abrasions to her vagina, consistent with the assaults, were noted.

19 By prior arrangement at 4pm on 20 February 2007 the offender attended Chatswood Police Station. The offender was arrested, cautioned and taken to the Custody Officer where he was informed of his rights under Part 9 of the Law Enforecement (Powers and Responsibilities) Act 2002 (LEPRA).

20 The offender was offered the opportunity of an interview but declined upon legal advice. He agreed to provide a voluntary DNA sample. He was then charged.

Victim Impact Statement

21 The Crown also tendered a victim impact statement marked exhibit S5.

22 A hand-written page from the victim (aged 6) was attached.

23 The victim impact stated:

“I don’t like the man. I don’t like talking about it. It makes my tummy hurt and it feels icky. It takes a long time to feel better. I feel worried that the man will come back and do it again. This makes me feel upset and scared. I worry that I will see him again. From N”.

Reports attached to a victim impact statement

24 Also attached was a statement from the counsellor, Allison White, dated 12 October 2007 (marked exhibit S6). The report outlined the impact of the assault on the victim.

25 The offender through his solicitor, Mr Dickens, did not object to the tender of these documents. Mr Dickens also did not seek to cross-examine the psychologist.

26 The author, Ms White, spoke with the victim’s mother, Ms G, who reported a range of noticeable behavioural and emotional changes in her daughter immediately after the sexual assault.

27 Ms G stated that prior to the assaults, the victim was a very independent, confident, highly social and outgoing child. She was very welcoming of any social interaction and enjoyed any social activity particularly going to friends places to play and for sleepovers.

28 Ms G reported that immediately after the assaults, this all changed. Her daughter became very needy and withdrawn. She would not leave her mother’s side or accept social invitations, even invitations from friends with whom she was very familiar. She insisted on her mother walking her to the school door.

29 Ms G reported that immediately after the sexual assault, the victim withdrew her involvement and connection with staff and residents of the nursing home where her great grandmother resided. Prior to the assaults, she had been part of the team there and assisted with activities and chores. There was an incident at the nursing home where the victim grabbed her mother’s arm and pointed out that a staff member looked ‘just like him’ (meaning, the offender). She apparently knew that it was not him but indicated that it looked just like him and that it scared her. From that day on, the victim would refuse to go to the nursing home unless she had a friend she could play out in the garden with.

30 The victim indicated that it takes her a long time to not ‘feel yucky in the tummy’ when she thinks about Mr Kite or talks about the offences. She has said she does not want to see Mr Kite ever again.

31 Ms G also reported that another immediate impact of the sexual assault was the dramatic change in the way the victim interacted with men. She has become more aggressive towards males and has even verbally threatened to physically harm male friends. Ms G stated that the victim did not behave in this way before the offences.

32 Ms G also reported that, prior to the offences, the victim would go on weekly outings with a male family friend to get ice cream, but that she refused to go without her mother since the offence.

33 The victim has since relocated from Port Macquarie to Goulburn, where they have access to much-needed positive family support. However, the move meant that the victim has had to go to a new school, establish new relationships with teachers, make new friends, re-establish her home, routine and lifestyle as a direct result of the offences.

34 As a result of the move the victim’s school performance and her ability to concentrate declined.

35 Other behavioural changes as identified by her mother include angry outbursts (particularly when discussion the sexual assault, the court hearings, or Mr Kite), reduction in academic achievements and disconnection from previously connected paternal extended family members.

36 Ms White has indicated that it is difficult to predict what the exact long term effects will be for the victim, and that she will need further counselling and support in the future.

37 In summary, a major impact has been changes in the victim’s social confidence and her sense of personal safety within both her immediate and wider community.

Pre-sentence report

38 A pre-sentence report of Jillian Dawe dated 27 September 2007 was tendered by the Crown (exhibit S7).

Family history

39 That report refers to the offender’s family history. Mr Kite was born and raised in New Zealand and he described an unsettled and unhappy childhood. His mother was married on four occasions and with the exception of the last marriage, all partners were violent and abusive either towards the offender or his mother. When Mr Kite was a baby he was placed in foster care until the age of two when he was returned to his mother, who was an alcoholic until he was approximately three years of age when she became a member of the Bahai faith.

40 Mr Kite states that her religious views and beliefs were strongly imposed on the family and as he aged he did not accept this faith and rebelled against her and his numerous step-fathers. Mr Kite indicated that the discipline in the family was strict, but that he has a more positive relationship with his mother in recent years. He notes that there was never really a connection with his biological father.

41 In 2000 Mr Kite travelled to Australia and for approximately four years was in a relationship with his most recent partner. She had a baby from a previous relationship and Mr Kite was actively involved in parenting the daughter who is now six years of age.

42 The couple have a son who is one year old. Mr Kite stated that the relationship with his previous partner is now over and he struggles to maintain contact with his son as he is not permitted to see him when the six year old step-daughter is home.

43 Mr Kite’s ex-partner informed the Probation and Parole Service that, even though the offender drank to excess on occasions, his alcohol intake did not impact negatively on their relationship. She stated she was ‘shocked’ by his involvement in the offences before the Court and she added that there had never been any indication of inappropriate behaviour towards the children in their family life. She added that whilst she would allow Mr Kite to maintain contact with her daughter, the father of the daughter will no longer permit him to see her.

44 Mr Kite’s ex partner also indicated that the relationship had been positive and the couple had been considering having another child. She said there were issues with the offender’s regular viewing of pornography but that the images were of adults, not children. She spoke of her sadness about the breakdown of the family unit and the negative impact that reduced contact may have upon her son.

45 Mr Kite stated that at the time of the sentencing proceedings he resided with a long term friend who was aware of his offending behaviour and who offered him considerable support.

46 The report also referred to Mr Kite’s education and employment. He was educated to a year 11 standard. He had been employed in three retail positions each of approximately seven years.

Factors relating to the offending

47 Mr Kite was open and candid with the Probation and Parole Service in discussing his feelings of guilt for the thoughts and visual images that he experiences. He disclosed an awareness and acceptance of responsibility for his actions and a willingness to accept professional assistance to help him understand his behaviour. Mr Kite spoke of the limitations that he places on his lifestlye to ensure that he does not act inappropriately on the thoughts he experiences. He displayed considerable insight and control over his behaviour for a number of years that was lost on the evening of the offences. He sought professional assistance following this offence but he did not believe that this assistance clarified his thoughts.

Drug and alcohol issues

48 Mr Kite described a social use of alcohol which was excessive on occasions. He has not consumed alcohol since three days after the offence. Since he has resumed faith in the Bahai religion, Mr Kite felt confident that he would no longer consume drugs or alcohol.

Attitude to the offences

49 The report states that Mr Kite agreed with the facts tendered. He estimated that on the night of the offences he had consumed over a bottle of spirits coupled with beer. He tended to minimise the impact of his drinking as he did not wish to try and excuse his behaviour. He stated that whilst there are times in the evening that he does not recall, he did remember most of the details of his offending behaviour.

50 Mr Kite spoke of his attempts throughout the evening to place controls on his thoughts. He stated that he left the swimming pool earlier in the day as he did not want to remain in an environment of close physical contact with the victim and later in the evening he ceased playing in the house with the children.

51 Mr Kite informed the Probation and Parole Service that he believed he lost control after consuming such a large amount of alcohol. He expressed feelings of guilt and shame about his behaviour and he stated that, in the days immediately following the offences, he felt disbelief and bewilderment as he was unaware of the details of his behaviour.

52 The report indicates that the offender is unsuitable for a community service order and is ineligible for periodic detention.

53 The offender has been assessed as suitable for a high level of intervention by the probation and parole service.

Psychological report

54 The offender tendered a psychological report of W. John Taylor dated 30 November 2007 (exhibit S8).

55 Mr Taylor’s report states that, with regard to his emotional health in the past, Mr Kite feels that he was significantly affected by the abuse and neglect he suffered when he was young. He said that he was eneuretic until his late teenager years. During the years which he was wetting the bed both he and his mattress were taken into the backyard and hosed down.

56 He had been verbally and physically abused by his step-father. When discussing this he became very emotional and said “I have obviously got intimacy issues”. He is not aware of having become depressed or anxious when he was a child and said that he has not received any treatment.

Rehabilitation

57 The offender reported that he attended Alcoholics Anonymous for most of 2007. He has ceased going to A.A. because “I don’t believe I am an addicted drinker – I have behaviour issues with alcohol”.

Sexual development

58 Mr Kite said that he never had fantasied of sexual activity with children. He had fantasised about girls between about the ages of 15 and 18 years and his fantasies involved girls who were scantily clad rather than being naked. He said “it’s very image related – something that is naked is more threatening”.

59 He said that he has always felt sexually inadequate and stated that “I’ve never felt sexually competent – one of the major issues with my partner was that she was very sexually demanding”.

Criminal offences

60 Mr Kite told the psychiatrist that he doesn’t know when he had formed the intention to commit the offences. He said “I spent a lot of time in that room – I was probably contemplating on various occasions – I don’t know”. He said that “when she arrived that night I was aware of the potential situation”. He said that the victim “was climbing all over me in the pool wearing just her underpants soaking wet – that’s when my awareness of the physical form became apparent”. When he was playing cards he became aware that the victim was “sitting with her skirt bunched up around her waist – that was another stimulus – my focus was drawn there’. He can’t recall what he was thinking that led up to the offences occurring but that he probably was thinking about the victim.

61 He stated that he now regrets his offending behaviour. With regard to this he said “I hate to think how this has affected her – I hate to think I have caused anybody to have to go through this”.

Recidivism

62 He reported that he had voluntarily undertaken psychiatric treatment. However, the psychiatrist whom he consulted retired after 5 or 6 sessions with him. He stated that he needs to have extensive psychological/psychiatric treatment to overcome his sexual psychopathology. He does not appear to have pursued this extensively, if at all. He enquired about the CUBIT program in jail and stated that he wants to complete the program.

Diagnosis

63 The diagnosis by Mr Taylor of Mr Kite was one of paedophilia. This is of the non-exclusive type as Mr Kite’s primary sexual fantasies are for girls between the ages of 15 and 18 years whereas in the exclusive type there is a preference for only prepubescent children. His preference is for girls rather than for boys.

64 Mr Taylor also expressed the opinion that the offender has a passive-avoidant personality adjustment and suffers from moderate depression.

Potential for recidivism

65 The results of actuarial and clinical measures indicate that Mr Kite has a low to moderate risk of recidivism.

66 His score of +11 on the SIR–R1 indicates a low risk of general recidivism. This score is within the 1st of 5 categories for this measure and among offenders whose score is within this category more than 80% do not commit an indictable offence within 3 years.

Opinion

67 Mr Kite presented to Mr Taylor as being a person of about average intellectual ability. This is consistent with the history he gave regarding his level of educational achievement. He appears to have achieved some stability in his adult life in that he is currently in the position of being an assistant manager and has had his present employment for the last 7 years.

68 He is assessed as having a low to moderate risk of general recidivism. His risk of sexual recidivism is considered to be low-moderate. These opinions are based on actuarial analyses and clinical judgment. His greatest risk factors concern his sexual psychopathology involving voyeurism and paedophilia. He has normally been able to control his sexual urges and limit them to voyeurism. When heavily intoxicated with alcohol his controls were very significantly weakened resulting in paedophilic activity. He has some insight regarding his inappropriate sexual adjustment and behaviour and stated that he voluntarily attempted to undertake treatment for this.

Religious involvement/support

69 Mr Kite indicated that following his involvement in the offences before the Court he sought understanding and support from the Bahai faith. He felt that his return to the faith after such a long absence is the positive aspect that has resulted from his offending behaviour. He stated that he is involved in a Bahai study group weekly and he is endeavouring to fully understand the religion. It seemed that this spiritual connection provides support and guidance for Mr Kite.

70 A bundle of letters to, and from, the Bahai Warringah Assembly were also tendered on behalf of the offender. Those indicated that all relevant court documents have been forwarded to the Assembly, and that Mr Kite has participated in refresher courses in the Bahai faith. The Bahai Assembly have sanctioned the offender and removed Mr Kite’s voting and administrative rights, which were published in the community gazette.

71 However, I do not regard this consequence as of great significance in this case. The offender, while brought up in the Baha’i faith by his mother, had not had much to do with that faith nor its various assemblies for, it would seem, a period of about 20 years. His association with the faith, it seems, has recommenced after the incident. Since that time the letters make it clear that he has been either excommunicated or withdrawn from by the assembly and that that will continue for a period of three years after the cessation of his imprisonment.

72 The discipline that he has received from the faith for the offences can only be described as minimal as far as the wider community is concerned. Those consequences consist of a disentitlement to attend community meetings, to vote at elections and to participate in a Baha’i wedding - which is not likely to be a relevant consideration for some time. In any case, these rights cannot be regarded as having been lost as a result of the offending behaviour as he did not hold them prior to the offences.

Extra curial punishment

73 The offender submits that the fact that he has been required to move out of the family home, has been able to have only limited contact with his son and has been disciplined by the Baha’i faith should be taken into account as a mitigating factor. The Crown asserts that these factors are not of the kind that could be described as ‘extra curial punishment’ and that would result in any special leniency.

74 As was noted in R v KNL [2005] NSWCCA 260 by Latham J (at 49), the cases that have thus far considered the notion of extra curial punishment have been ‘restricted to physical and/or financial penalties sustained by offenders, or loss of employment in which the offender was engaged or qualified to be engaged, arising out of the commission of the offence. (See generally R v Daetz: R v Wilson [2003] NSWCCA 216)’. The remark by Kirby J in MLP v R [2006] NSWCCA 271 at 48 (referred to the in the offender’s submission at paragraph 21) that the applicant in that case ‘will now not see his children’ does not include any reference to extra curial punishment resulting in any particular leniency and appears to be a more general consideration of the applicant’s subjective circumstances. Such an approach is consistent with that taken by the Criminal Court of Appeal to the effect of imprisonment on an offender’s children in R v Girard, Andrew John, R v Girard Tessa Maree [2004] NSWCCA 170.

75 The Crown submits that the principle applied in R v Girard should be followed in this case when considering the fact that the offender had limited contact (every second weekend) with his son prior to going into custody and that he has moved out of the family home. That is, these factors are relevant as part of the general mix of subjective matters but they should not be taken into account as a ‘specific and particular matter resulting in a substantial reduction or elimination of a sentence of imprisonment’ (per Hodgson JA, R v Girard at 21).

76 In those circumstances there seems to be little weight that I can attribute to that connection in terms of rehabilitation. Further, the impact of his excommunication/ withdrawal from the Assembly seems to be of little relevance in terms of any extra-curial punishment.

Evidence by the offender

77 The offender gave evidence on 6 December 2007. He stated that he was then the Assistant Manager of a hardware store in Brookvale. He acknowledged the agreed facts and their accuracy as well as the matters contained in Mr Taylor’s report and the pre-sentence report.

78 He said that he had started drinking early on the day of the incident. Initially he had started on drinking beer and had probably had a bottle of bourbon by the end of the evening. He said he didn’t recollect very much and was “pretty hammered”.

79 He has since stopped drinking, his last drink being on 2 January 2007.

80 He had read the victim impact statement and the report of the counsellor. He did not disagree with the matters set out in those documents. He reiterated his sorrow and desire that if he could he would “like to take it back”.

81 Mr Kite also indicated his preparedness to attend the CUBIT (sex offenders) course.

82 He said that, following the incident, his relationship with his then partner and her six year old daughter had been severed. He has a son aged 14 months and he sees him on a fortnightly basis and on other rare occasions.

83 In cross-examination he said that he had become aware, particularly in the preceding twelve months, of his attraction to younger girls. Prior to that time his association was on visual matters. He had not let himself see children in that way, nor let himself become close to children. On one occasion he had been in a relationship where his then partner had an 11 year old daughter. He had taken steps to ensure that he was not in regular contact with her.

84 He admitted in relation to the offence that he did go to the room where the children were on a number of occasions but said that it was a main thoroughfare area. He also agreed that he made up stories to go and see the children.

85 Mr Kite said that he had seen a psychiatrist some time after the offences to get help. He said that although he did present as an intelligent individual that he regarded himself as “an emotional cripple”.

86 The psychiatrist he has seen, Dr John Perrika, had retired. He had not sought any referral to any other psychiatrists, apparently because it had been a drain on his resources.

87 He said that he had not seen himself as being a paedophile earlier and thought he had control over himself in that regard.

88 He also indicated that he had had difficulties in relationships and had had at least three de facto relationships in the past. He said that his present employers will give him a job on his release from gaol.

Other evidence

89 Mr Alan Perkins also gave evidence on the sentence proceedings on 6 December 2007. Mr Perkins was the chairman of the Warringah Bahai Community. He said that he had been directed by the community not to provide a reference for Mr Kite but did so in a personal capacity.

90 Mr Perkins had had contact with Mr Kite during the year 2007. He said that his judgment was that Mr Kite was extremely ashamed and contrite about what he had done. It was a matter that the Assembly found difficult to cope with. The community also had real difficulties with Mr Kite’s consumption of drugs and alcohol which were prohibited under the Assembly rules and conventions. He confirmed the sanctions imposed on Mr Kite by the community in terms of exclusion.

91 In cross-examination he confirmed that, prior to the offence, Mr Kite had not practised in the Bahai faith.

92 Mr Graham Bowker also gave evidence on the sentence proceedings on 6 December 2007. Mr Bowker was a school teacher who had known the offender for five years. He had read the agreed facts and the victim impact statement. He had been living with Mr Kite as a flatmate during 2007 following Mr Kite’s separation from his partner.

93 He was aware that, prior to the offence, alcohol had played a big part in Mr Kite’s life and that now, from his observation, Mr Kite had completely abstained from the consumption of alcohol.

Submissions

94 The solicitor for the offender, Mr Dickens, filed written submissions (Exhibit S10 & S12). The essence of his oral submissions were that this was not a case of planning or premeditation nor a case where the offender had groomed his victim nor where there had been a breach of trust. While it was accepted that there was a breach of trust given that the offender was an adult figure in a family setting, there was no other breach of trust involved.

95 Mr Dickens submitted that the material tendered by the Crown in relation to the victim did not set out material which would go beyond that which would normally be suffered by any person involved with an offence of this nature – see R v Youkhana [2004] NSWCCA 412 per Hidden J.

Section 21A factors
Aggravating factors

96 Some of the aggravating factors relevant to a case of child sexual assault such as this as referred to in s 21A(2) of the Crimes Sentencing Procedure Act are:

- S 21A(2)(g) the injury, emotional harm, loss or damage caused by the offence is substantial.

Here, although the Victim Impact Statement and the report makes clear the impact has been significant, it is not substantial in the legal sense in which that term is used;

- S 21A(2)(k) the offender abuses a position of trust or authority in relation to the victim.

The circumstances here do not in my view come within the classification of a breach of trust in a strict sense. However, it needs to be noted that the offender was an adult and an invited guest in a home where the other parents and guardians were entitled to expect a degree of safety for their children. They were all concerned parents. None of them could have expected their children or any of them would have been subject to the kind of depraved and frightening conduct which took place.

- S 21A(2)(l) the victim is vulnerable, for example, because the victim is very young or very old or has a disability:. That is a matter which is already taken into account as an element of the offence; and

- S 21A(2)(m) the offence involves multiple victims or a series of criminal acts. That is a matter which I propose to take into account in relation to the question of accumulation of the sentences imposed for the separate offences.

Mitigating factors
Good character

97 The offender’s prior good character is of less significance in child sex cases than other types of offences: R v Rhule (unrep, 25/7/95, NSWCCA).

98 The offender has prior convictions in Australia and in New Zealand although not for crimes of a sexual nature and not involving periods of imprisonment.

99 The Crown submits that in this case, the Court should not find that the offender was a person of prior good character. He has prior criminal convictions, albeit limited to traffic offences and two possess drug offences (New Zealand) resulting in monetary fines. He has also given evidence about his prior sexual fantasies for young girls and, most recently, children. This history indicates that a strong message needs to be sent to the offender that, if he yields to his sexual impulses, he will meet severe punishment - R v Burchell (1987) 34 ACrimR 148.

100 Despite the relatively limited nature of the offender’s prior convictions – and the date of them – I do not think that the authorities permit these factors to warrant extending any significant degree of leniency to the offender in this regard.

Remorse/contrition

101 The prisoner’s remorse is evident from the evidence he gave on 6 December 2007, as well as inherent in the plea of guilty.

Subjective features

102 The offender has had an alcohol problem for some years. He has also had the difficult family background referred to in the evidence and the associated emotional difficulties.

Age of the child

103 The victim in this matter was aged only 6 at the time of the offences. The age of the child is an important factor in assessing the degree of criminality. The younger the victim the more serious the criminality: T v R (1990) 47 A Crim R 29. I regard this factor as being particularly important.

Objective seriousness

104 A number of authorities have made clear that taking these factors into account in the context of child sexual assault offences does not contravene the rule against ‘double counting’ in s21A(2); see for example MLP v Regina [2006] NSWCCA 271; R v KNL 2005 NSWCCA 260; Shannon v Regina [2006] NSWCCA 39; Regina v JTAC [2005] NSWCCA 345; R v SMP [2005] NSWCCA 116.

Consent

105 There was an absence of consent. From a legal point of view, the issue of consent does not arise in the circumstances in any event. However, I note that the complainant was asleep at the time that the offender commenced sexual intercourse with her. Given this fact, and the tender age of the complainant, the only rational inference is that the offender knew that the complainant either did not give or would not be capable of giving consent.

Planning

106 The offender had not met the complainant before the evening on which the offences were committed. However, I think there is strength in the Crown submissions to the effect that:

a. It is clear from the evidence before the Court that the offender became attracted to the complainant at the beginning of the evening, before he became well intoxicated.

b. The offender gave evidence during cross-examination that he was aware that consuming alcohol would reduce his capacity to control himself and that he proceeded to drink anyway.

c. Prior to committing the offences, the offender made a number of visits to the room where the complainant was sleeping with other children. On one of these occasions, the offender fabricated an excuse as to why he had to leave the pool-room where the other adults were drinking and talking.

d. One of the other adults at the party considered the offender’s conduct suspicious and decided to check on him. Upon doing so, the offender was found in the room with the complainant and the complainant’s top was pulled up above her navel. The offender was asked to return to the adults by Mr Scott.

e. The psychological report by Mr Taylor states that the offender said that he is unaware of when he formed the intention to commit the offences, that he spent a lot of time in the room, and that he probably contemplated it on various occasions (page 6).

107 The Crown submits that the above facts demonstrate a degree of pre-thought and planning to the offences. I agree with this submission. In my view the offences were not wholly opportunistic.

Intoxication

108 Related to the question of planning is that of the offender’s state of intoxication.

109 Intoxication is relevant in determining the degree of deliberation involved in the commission of the offence. In some cases it may mitigate the crime because it caused the offender to act out of character: R v Gordon (1994) 71 A Crim R 459 at 467. In other cases it may aggravate the offence because of the recklessness with which the offender became intoxicated. The voluntary ingestion of alcohol or drugs by an offender, who knows he has a problem with alcohol/drugs and has a history of committing offences while intoxicated may be an aggravating factor: R v Fletcher-Jones (1994) 75 A Crim R 381; R v Sotheren [2001] NSWCCA 425. In many cases intoxication will be neither an aggravating nor mitigating circumstance: R v Gordon at 467-468; R v Wright (unrep, 28/2/1997, NSWCCA, at pp 6-7).

110 The written submissions filed on behalf of the offender imply that the offender’s state of intoxication at the time of the offence should be taken into account as a mitigating factor (para 8). The Crown submits that such an approach is not warranted in this case.

111 The offender gave evidence that he had been attracted to pre-pubescent girls in about the last 12 months prior to committing the offences. He became attracted to the complainant shortly after she arrived at the house and prior to the offender becoming well intoxicated. The offender was also well aware that he was less able to control himself when intoxicated. He proceeded to drink regardless. The facts referred to above under ‘Planning’ demonstrate a level of thought and deliberation in carrying out the offences.

112 This is therefore not a case where it can be said that there was no deliberation involved due to the offender’s state of intoxication or that the offender acted out of character because he was intoxicated. The offender was to some extent reckless in continuing to drink when he was fully aware of the risks of losing self-control and acting upon his desires. I do not think that any leniency can be extended to the offender on this account.

Finding as to range of criminality
Nature of offence

113 On the question of whether there is hierarchy of seriousness for acts that come within the purview of s 66A, in R v Davis [1999] NSWCCA 15 Wood CJ at CL said at [66] that “penile-vaginal penetration of a child is significantly more serious than many of the other forms of conduct encompassed within s 66A.” In AJP Simpson J concluded at [24]:

“It is not possible to create some kind of hierarchy of the seriousness of the various kinds of sexual intercourse contemplated by s 66A (and defined in s 61H). It is the facts and circumstances of each case, including the nature of the intercourse, that enables the proper evaluation of objective seriousness. While penile-vaginal penetration might be taken to be more serious than enforced fellatio, that does not mean that enforced fellatio necessarily falls somewhere below the mid point of objective seriousness. There are many instances of conduct that come within the definition of sexual intercourse that would be significantly less serious than enforced fellatio. Had his Honour considered the nature of the sexual intercourse as relevant, he must, in my view, have come to the view that enforced fellatio falls somewhere in the middle, or towards the upper end, of that scale.”

114 In this matter, the offender performed cunnilingus on the victim, followed by digital penetration.

115 Further, the agreed facts make graphic reference to the fact that on the second count the penetration was deep (‘right into the bottom of the complainant’s vagina’ and ‘deep down…..the whole way down’) and apparently for what was perceived as being for a substantial period of time. That would be a frightening and disorientating experience for any child, let alone one of these tender years.

116 Assessing the criminality of the offences is a difficult exercise especially given the age of the victim, the alien and frightening nature of what occurred to a little girl and the impact on her as well as the circumstances in which the events occurred. Balanced against those matters are the facts that what occurred was an isolated incident with relatively little premeditation, over a relatively short period of time (unlike many of the abuse of trust/grooming cases which occur in this area) and with no suggestion that there were threats nor coercion nor force - other than that involved in the actual digital penetration with the genitalia of a young girl).

117 Having taken into account all the matters set out above, I find that the offences fall into the low to mid-range of criminality.

Law: Sentencing on child sexual assault matters

118 The abhorrence with which the community regards the sexual molestation of young children and the emphasis attached to general deterrence in sentencing offenders is reflected in the judgment in R v BJW (2000) 112 A Crim R 1, where Sheller JA stated at [20]:

“The maximum penalties the legislature has set for [child sexual assault] offences reflect community abhorrence of and concern about adult sexual abuse of children. General deterrence is of great importance in sentencing such offenders and especially so when the offender is in a position of trust to the victim. See the remarks of Kirby ACJ in R v Skinner (1994) 72 A Crim R 151 at 154.”

119 The case of R v Fisher (1989) 40 A Crim R 442 at 445 is also frequently cited:

“This court has said time and time again that sexual assaults upon young children, especially by those who stand in a position of trust to them, must be severely punished, and that those who engage in this evil conduct must go to gaol for a long period of time, not only to punish them, but also in an endeavour to deter others who might have similar inclinations.
… heavy custodial sentences are essential if the courts are to play their proper role in protecting young people from sexual attacks by adults …”

120 In R v AJP (2004) 150 A Crim R 575, the court provided specific guidance on the question of what factors are relevant to the assessment of objective seriousness for the offence of sexual intercourse with a child under ten under s 66A of the Crimes Act 1900. The offence has a standard non-parole period of 15 years. The court held that the sentencing judge erred by excluding from the assessment of objective seriousness both the precise nature of the sexual intercourse and the fact that the offence was an isolated incident. Simpson J said at [27] that the fact that the offence was an isolated incident may of itself warrant departure from the standard non-parole period. Simpson J said at [25] that other appropriate areas of inquiry for establishing the objective seriousness of an offence under s 66A are:

o how the offences took place;

o over what period of time;

o with what degree of force or coercion;

o the use of threats or pressure before or after the offence to ensure the victim’s compliance with the demands made, and subsequent silence; and

o any immediately apparent effect on the victim.

Standard non-parole period

121 Despite the fact that the standard non-parole period is not strictly applicable in this case as there was a plea of guilty, and my findings as to the kind of criminality involved, the standard non-parole period is still applicable as a benchmark. The effect of the standard non-parole period will generally be to increase the level of sentencing for offences to which it applies: R v AJP (2004) 150 A Crim R 575. Howie J said in R v AD [2005] NSWCCA 208 at [43], when dealing with a severity appeal for a s 61J offence:

“the judge in the present matter was obliged to have regard to the standard non-parole period of 10 years even though it was not applicable to the applicant’s case. In R v AJP [2004] NSWCCA 434 it was made clear that the effect of the standard non-parole period will generally be to increase the level of sentencing for offences to which it applies. If the provisions prescribe a standard non-parole period of 10 years as against a maximum penalty of 20 years, as is the case with an offence under s 61J, it follows that the head sentence must exceed half the maximum penalty for the offence notwithstanding that the offence is one of only mid-range seriousness.”

Other factors impacting on whether the standard non-parole period should not be applied: Plea of guilty and sparing the complainant of the need to give evidence

122 The offender pleaded guilty in the Local Court and is entitled to a discount for the utilitarian value of the plea. A plea of guilty may also be a reason in itself to depart from the standard non-parole period. The maximum discount that can be applied for the utilitarian value is 25%.

123 The offender has made oral submissions that a further discount should be applied because the complainant has been spared the need to give evidence. The Criminal Court of Appeal in R v Thomson and Houlton (2000) 49 NSWLR 383; 115 A Crim R 104; [2000] NSWCCA 309, stated (p.412, para.121) that this aspect of the guilty plea, like remorse, overlaps to a substantial extent with other aspects of a particular case that are relevant to the sentencing task. Whether further leniency is required because of this aspect will depend upon the particular circumstances of the offence and the offender, including other evidence relating to contrition; R v Thomson, p.412, paras.119 &122. The High Court in Siganto v The Queen (1998) 194 CLR 656, also considered these benefits to be relevant to the aspect of remorse (at para.22). This is unlike the discount for the utilitarian aspect of the plea, which is given regardless of the other subjective features or the motivation of the offender: R v Thomson ( p. 412, para.122).

124 The Crown accepts that the guilty plea in this case was of benefit in avoiding the need to call the complainant to at least be available for cross-examination (given that her recorded interview would most likely have been used for her evidence in chief). However, the Crown submits that given the above comments in R v Thomson, it is not appropriate to nominate a distinct discount for this aspect of the guilty plea in addition to that for the utilitarian value. The value of this aspect of the plea should be weighed in light of other evidence concerning the offender’s contrition.

125 I agree with this submission. The offender pleaded guilty at the first available opportunity on 3 July 2007. I take that into account in relation to the prisoner’s remorse. I take into account the utilitarian value of that plea, its consequential saving of the resources of the justice and law enforcement systems, and the fact that to some extent it is indicative of a degree of contrition.

126 I identify the discount applicable both for the utilitarian value of the plea and for the remorse expressed as being 25%.

General deterrence

127 General deterrence is of prime importance in making the community aware of the attitude of the courts to child sexual offences: R v Burchell (1987) 34 A Crim R 148 per Hunt J at 150-151.

Specific deterrence

128 There is also a need to impose sentences which make it clear to the offender that if he should yield to his sexual impulses toward children that he will meet a severe punishment: R v Burchell (1987) 34 A Crim R 148 per Hunt J at 150.

Special circumstances

129 Mr Dickens on behalf of the offender urges that I find special circumstances for the following reasons:

o age of the offender;

o the fact that this will be his first time in custody;

o that he has good prospects of rehabilitation.

130 Mr Taylor’s report states that the offender has a ‘low to moderate risk of general recidivism’ (page 11). This opinion is partly based on asserted facts that ‘Mr Kite said that he never had fantasies of sexual activity with children. He had fantasised about girls between the age of 15 and 18 years and his fantasies involved girls who were scantily clad rather than being naked’ (page 5) and ‘Mr Kite’s preference is for females and of the non-exclusive type in that most of his sexual fantasies involve past pubescent females between the ages of 15 and 18 years’ (page 11).

131 The Crown submits that the weight that should be given to this opinion needs to be considered in light of the fact that, during his evidence, the offender stated that he had had sexual fantasies about pre-pubescent children in the last 12 months prior to his offending.

132 On the evidence before me I have little confidence in the offender’s prospects of rehabilitation. I do not regard his connection with the Bahai faith to be particularly strong nor that that community will be available for his support in the near future. Nor do I see him as having the capacity to maintain enduring relationships which might be a source of support for him in the event that events such as this re-occur.

133 It does seem to me important that he is subject to a long period of supervision against the background of professional help and treatment for those convicted of such offences.

134 However, I agree that his age and the fact that this will be his first time in custody warrant a relatively minor alteration of the statutory ratio. Accordingly, I will make a variation to the statutory ratio of which the non-parole period bears to the head sentence to be one of 2/3.

Hardship of custody for child sex offender

135 The courts have generally accepted the proposition that imprisonment is more onerous for offenders convicted of child sexual assault since they serve their sentence on protection. In the past this has involved a reduction in the sentence. More recently, the courts no longer assume that a prisoner serving his sentence on protection will find prison life more onerous than other prisoners in the general prison population. In R v Way (2004) 60 NSWLR 168 at [176]–[177] the court said:

“The fact of protection has been taken into account as a special circumstance in the case of such offenders, subject to the court being satisfied that the sentence will in fact be served in conditions which are more onerous — a circumstance that is no longer necessarily the case for all such offenders, in the light of the current arrangements which exist for their alternative accommodation and special management, which were considered in R v Totten [2003] NSWCCA 207, R v Durocher-Yvon NSWCCA 299, and R v Mostyn [(2004) 145 A Crim R 304].

136 In R v Mostyn, Howie J sounded a note of caution, with which I would respectfully agree, in relation to the manner in which the fact of protection should be taken into account, as follows:

‘The present is another instance where a sentencing judge has presumably taken into account in favour of the offender the fact that he will serve his sentence under the harsh conditions and deprivations of protective custody, but that has not proved to be the case. It is an example of the difficulty of a sentencing court taking into account possible executive or administrative action in respect of a prisoner’s custody when predicting how a sentence will be served. …
As was recognised in Totten , the court is placed in a difficult position. On the one hand, the sentencer should take into account the conditions of the prisoner’s custody where it appears that they will be unduly onerous because of some matter particular to that prisoner. This requires that, at the time of sentence, the court make some prediction about the nature of the custody that will be endured by the prisoner. On the other hand, the courts should now be aware that assumptions or predictions, which have been made in the past about the nature of an offender’s custody because, for example, the offender has given assistance to the authorities, no longer hold good. But the vagaries of prison life are such that it could never be confidently assumed or predicted that a prisoner will serve the whole of his sentence in any particular type of custodial arrangement.’”

137 Here, there is no evidence which would establish that the offender will suffer particular or unusual hardship which should be taken into account on sentence.

Likelihood of deportation

138 The fact that the offender may be deported to New Zealand at the end of any sentence is not a matter which should be taken into account against him to lessen the non-parole period of imprisonment -

[2005] NSWCCA 94 per Wood CJ at CL, said:

It is established principle that the fact of deportation is irrelevant as a sentencing consideration, it being a matter exclusively for the Executive Government: R v Jap NSWCCA 20 July 1998 and R v Latumetan and Murwanto [2003] NSWCCA 70. Moreover the High Court has held that a foreign national should receive the benefit of being eligible for release on parole: Shrestha v R (1991) 173 CLR 48 at 71 per Deane, Dawson and Toohey JJ.

The fact that the Respondent would be or might be deported to Vietnam, was accordingly an immaterial factor in structuring a sentence in this case and error would be demonstrated if it could be established that it became a factor in determining any aspect of the sentence including the selection of an appropriate commencement date. (pars 13–14)

139 I do not have any evidence before me upon which I can base a conclusion as to whether or not the offender’s deportation would eventuate at some time in the future.

Accumulation/Concurrence

140 In R v Weldon [2002] NSWCCA 475; (2002) 136 A Crim R 55 Ipp JA stated at [46]–[48]:

“A paramount principle of the law of sentencing is that the aggregate sentence should fairly and justly reflect the total criminality of the offender’s conduct: Veen v The Queen (No 2) (1988) 164 CLR 465. This principle applies in all cases, including where punishment is imposed for multiple offences. The sentence must be proportionate to the gravity of the offence, having regard to all the circumstances of the case: Hoare v The Queen (1989) 167 CLR 348.
The question whether sentences are to be imposed concurrently or cumulatively must always be answered by reference primarily to these criteria.
It is not infrequent that, where the offences arise out of one criminal enterprise, concurrent sentences will be imposed — but this is not an inflexible rule: Wilkins (1988) 38 A Crim R 445 (per Lee CJ at CL and Carruthers J, Allen J dissenting). The practice should not be followed where wholly concurrent sentences would fail to take account of differences in conduct, the subject of punishment on each count: Pearce v The Queen (1998) 194 CLR 610 at 624 (see also 621 to 622).” (emphasis added)

141 Merely that the offences occurred in the course of a single extended episode does not justify the conclusion that the sentences are to be wholly concurrent: R v Dunn [2004] NSWCCA 41; (2004) 144 A Crim R 180 at [50].

142 Here there was one victim, the events took place on the one occasion at the one venue and essentially in the one episode. However, the acts involved under the separate counts involved different acts of criminality and clearly different kinds of sexual acts – clearly described differently by the victim. In those circumstances I am of the view that these sentences should be partially accumulated by six months to represent the different criminality involved with the acts relevant to each count.

JIRS statistics

143 I have considered the relevant statistics produced by the Judicial Commission for offences under this section narrowed to the fields of pleas of guilty, offender with no priors. Those statistics indicate a range of sentences for a group of 23 cases: Sentences vary from 30 months to 16 years; Non-parole periods varying from 12 months to 12 years.

Authorities.

144 I have reviewed the authorities in this area for these kinds of offences. It must be remembered that the parliament has established the standard non-parole period for this offence with the obvious intention that a clear message be given that the sentences previously imposed were too low.

145 I have reviewed the following authorities including: KSF NSWCCA (unrep 10 September 1992); Boyd NSWCCA (unrep 25.7.1995); Brooker NSWCCA (unrep 21.2.1996); AJP [2004] 150 ACrimR 575; Davies NSWCCA (unrep 10.11.2005); MLP NSWCCA (unrep 6.9.2006) and the differing facts and circumstances, findings as to criminality and personal circumstances of those offenders.

146 Having considered those matters, the range of sentence I am considering falls within the range suggested as being a proper exercise of my sentencing discretion.

Sentencing options

147 The offender is ineligible for a periodic detention order and unsuitable for a community service order.

148 I am of the view that the only available sentence is one of full-time imprisonment.

Commencement of sentence

149 The offender was remanded in custody for these offences when the matter came before me on 6 December 2007. The sentence will be backdated accordingly.

Sentence

On the first count, that the offender did have sexual intercourse with person under the age of ten years:

The offender is sentenced to a non-parole period of 5 years imprisonment to date from 6 December 2007 and to expire on 5 December 2012. The balance of the term is 3 years and 4 months to expire on 5 April 2016.

On the second count, that the offender did have sexual intercourse with person under the age of ten years:

The offender is sentenced to a non-parole period of 5 years imprisonment to date from 6 June 2008 and to expire on 5 June 2013. The balance of the term is 3 years and 4 months to expire on 5 October 2016.

There is a partial accumulation of 6 months imprisonment.

The total effect of the sentence would be a non-parole period of five years and six months imprisonment, the balance of the term being three years four months imprisonment.

The offender is sentenced to a term of more than 3 years imprisonment. It will be my recommendation that the terms of his parole should include that of the offender complying with all directions and treatment as may be recommended by the Probation and Parole Service including psychiatric treatment, as well as the usual terms and conditions of parole; further that the report of Mr Taylor accompany these remarks.

**********