The Queen v Kenneth Edward Hill
[2015] ACTSC 289
•25 September 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | The Queen v Kenneth Edward Hill |
Citation: | [2015] ACTSC 289 |
Hearing Date(s): | 27 August 2015 |
DecisionDate: | 25 September 2015 |
Before: | Robinson AJ |
Decision: | See [36]. |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence – particular offences – offences against the person – engage in sexual intercourse without consent – assault occasioning actual bodily harm |
Legislation Cited: | Crimes Act 1900 (ACT) ss 24, 50, 54, 61(2) Crimes Act 1900 (NSW) s 61H(1) |
Cases Cited: | Ibbs v The Queen (1987) 163 CLR 447 Pearce v The Queen (1998) 194 CLR 610 R v Hibberd (2009) 194 A Crim R 1 |
Parties: | The Queen (Crown) Kenneth Edward Hill (Offender) |
Representation: | Counsel Mr M Fernandez (Crown) Ms S Saikal (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number(s): | SCC 286 of 2014 |
ROBINSON AJ:
The offender, Kenneth Hill, stands for sentence in relation to the following offences:
(a)That on 13 August 2014 he engaged in sexual intercourse with Ms HA without consent, being reckless as to consent, in contravention of s 54 of the Crimes Act 1900 (ACT).
(b)That on 13 August 2014 he assaulted Ms HA and thereby occasioned to her actual bodily harm, in contravention of s 24 of the Crimes Act 1900 (ACT).
He pleaded guilty on arraignment to these two counts. The maximum penalties for these two offences are 12 years and five years imprisonment respectively.
Pleas of guilty
It is common ground that the offender pleaded guilty at the first reasonable opportunity to the counts, as currently framed, and that he should receive a discount of approximately 25% on his sentence for those pleas.
The Offences
At approximately 7.22pm on 13 August 2014 the offender initiated contact with Ms HA by text message. Ms HA worked as an escort at that time. In his initial text messages the offender enquired as to the price of her services and her location.
During the course of these communications the offender’s text messages to Ms HA became obscene, detailing in explicit terms the sexual acts he wished to engage in with her. This made Ms HA uncomfortable, causing her to cease responding to the offender’s text messages and mark his telephone number on her phone as one not to be answered.
At approximately 8.40pm on 13 August 2014 the offender telephoned Ms HA. The offender had manipulated his mobile phone so that his telephone number was not visible to the recipient of the call. Accordingly, Ms HA was not aware that she was speaking to the person she had exchanged text messages with earlier in the evening. During this telephone conversation, Ms HA provided the accused with the address of her unit complex and told him to telephone her again when he arrived.
The offender telephoned Ms HA again at approximately 9.10pm, advising that he had arrived at her unit complex. Ms HA then provided him with her unit number. The offender was granted entry to the unit complex by Ms HA’s companion, Ms Z, through an intercom system. Ms HA asked Ms Z to provide sexual services to the offender.
Upon entering Ms HA’s apartment the offender went to a bedroom with Ms Z. The offender protested to Ms Z that she was not the person he had seen in a newspaper advertisement. Ms Z communicated this to Ms HA who came to the bedroom to speak to the offender.
The offender and Ms HA then had a conversation concerning the cost of the services to be provided, leading Ms HA to state “You’ve forgotten money? You can call me later. Bring me money later and call me again.” Ms HA and the offender then walked from the bedroom to the front door of the apartment.
Ms HA opened the door for the offender to enable him to leave the apartment, at which point he struck her in the face, causing her nose to bleed. The offender then forcefully pushed Ms HA, causing her to fall and strike the kitchen table, before coming to rest on the floor. The offender then placed himself on top of Ms HA and used his hand to reach around between her legs, he moved her clothing to the side and inserted a finger into her vagina. The offender then moved his finger in an out of Ms HA’s vagina while saying “Fuck you, fuck you, fuck you”.
Ms Z then struck the offender in the head. The offender stood up and ran from the unit and the apartment complex, covering his head with clothing as he did so in an attempt to conceal his identity.
At the time of these offences the offender was on conditional liberty due to a bail undertaking in relation to the offence of committing an act of indecency on a person under 16-year-old referred to at [34] below.
The offender’s counsel submitted to me, on instructions from the bar table, that at the time of the offending he was under the influence of a drug, possibly methylamphetamine, having accepted from an acquaintance what he later concluded was a spiked drink. I will deal with this topic below.
Seriousness of the Offences
The definition of sexual intercourse under the Crimes Act 1900 (ACT) s 50 includes penetration of the genitalia, anus or any part of another person, penetration by any object, the introduction of any part of the penis of a person into the mouth of another, fellatio and cunnilingus. There is an analogous definition in many other jurisdictions, see, for example, the definition in NSW at s 61H(1) of the Crimes Act 1900.
There is assistance to be derived from Ibbs v The Queen (1987) 163 CLR 447 and R v Hibberd (2009) 194 A Crim R 1 (where a number of other cases are collected and discussed) in evaluating the offender’s conduct. I consider the offender’s conduct in accordance with the approach taken in Hibberd at [57] per Price J with whom Tobias JA and James J agreed:
Relevant considerations in determining where on the scale of seriousness an offence contrary to s61I of the Crimes Act lies include “the degree of violence, the physical hurt inflicted, the form of forced intercourse and the circumstances of humiliation”. See R v Gebrail (unreported, Court of Criminal Appeal, NSW, Nos 60277 and 60289 of 1994, 18 November 1994) at 10-11 per Mahoney JA. To those matters I would add the duration of the offence. Non-consensual sexual intercourse by digital penetration has generally been considered to be less serious than an offence of penile penetration: see, for example, R v Da Silva (unreported, Court of Criminal Appeal, NSW, No 60389 of 1995, 30 November 1995) at 3 per Grove J, but each case will depend on its own facts. There is no canon of law which mandates a finding that digital penetration must be considered less serious than other non-consensual acts of sexual intercourse. Whilst the form of forced intercourse is an important factor it is not to be regarded as the sole consideration.
I find that the offence is a serious one, committed with gratuitous violence and apparently in response to the not unsurprising requirement, that the offender have money to pay for services he requested. The assault was brought to an end only by the intervention of Ms Z hitting the offender.
Impact of Offences
Ms HA provided a victim impact statement which was tendered by the Crown Prosecutor. In that statement, Ms HA wrote of the blood from her face and her panic on the night, her fearfulness now when working late at night and her consequent need to curtail her business hours. This has led to a reduction in her income. She additionally spoke of her increased anxiety when in public or when travelling, and of the significant amounts of money she has had to spend on increasing security measures at her premises following the offending. The impact statement also recorded the fact that HA declined to go out in public when her face was swollen and bruised.
I accept that the offending has had a significant impact on Ms HA’s emotional functioning and on her capacity to conduct her business.
Subjective Matters
The offender was raised by his mother and step father in a strict household. His step-father used physical violence to discipline him and he told the author of his Pre-Sentence Report that this contributed to his decision to leave the family home at age 16. He left school after completing year 10.
The offender has six siblings. When he was 23 his younger brother died in a car accident. This appears to have been a particularly traumatic experience for him; he told Dr Stephen Allnutt, who prepared a report for the purposes of the proceedings, that his brother’s death caused him significant emotional distress, leading to an increase in his consumption of alcohol and cannabis.
It appears, notwithstanding the period of instability attributable to the death of his brother, that for the majority of his adult life, the offender has lived a relatively normal, stable lifestyle. He has enjoyed periods of employment as a baker and meat processor, and, until shortly before the commission of these offences, he was involved in a long-term relationship with the mother of his child.
The offender sustained a head injury requiring hospitalisation in 2009 when he was assaulted by a group of men. He sustained a fractured skull in this incident and experienced a degree of memory loss thereafter. He has not undergone a formal neuropsychological investigation to determine whether this injury has had any ongoing effects on his cognitive functioning.
The offender’s counsel tendered a psychiatric report prepared by Dr Stephen Allnutt. Dr Allnutt’s opinion was that the offender’s reported symptoms are consistent, in his view, with an adjustment disorder with a depressed mood and associated panic attacks. He ruled out a psychotic disorder. He also said:
Having been convicted for indecent assault against a pre-pubescent victim raises a diagnosis of paedophilic disorder but would not definitively conclude that diagnosis at this stage based on the information provided.
I did not have any neuropsychological assessment and he did not manifest overt cognitive problems when I saw him, but I would recommend you pursue a neuropsychological assessment to clarify that.
Neither of these last two matters were taken further. I was told from the bar table, and I accept, that funds were not available for neuropsychological testing.
Dr Allnutt also commented on the functioning of the offender at the time of the offences. He said:
He describes depressive symptoms (adjustment disorder with a depressed mood) at the material time the offending occurred but it is not clear whether these were secondary or are aggravated by substances. It would be reasonable to consider that he continued to manifest depressive symptoms to some degree.
He describes that he had reduced his substance use by the time of the offending and was attending AA groups, but on the day of the offending he attended Ainslie Village to get cannabis, and was given orange juice which he alleges was “spiked” with some form of substance, possibly methamphetamines (ice). He described thereafter experiencing feeling erratic and agitated with hot flushes, racing thoughts and “stupid thoughts”, and being upset that somebody had drugged him. His recollection for events thereafter is unavailable. His next clear recollection is being back at Minosa House the next day with sore muscles, vomiting, diarrhoea and headaches, requiring a few days to recover.
This raises concern that at the material time of the offence your client was experiencing an intoxicated mental state from some form of substance, possibly methamphetamines. I have no objective evidence to substantiate this (he did describe experiencing symptoms consistent with this, but I am unable to confirm that this was the case at the material time). Had this been the case, methamphetamines would have had the effect of disinhibiting him and probably increasing his sex drive. Had this not been the case, it is possible that his use of cannabis and alcohol could have contributed to disinhibiting him (I did not have objective testing for this either).
I do not believe, however, that his mental state was such that it reduced his capacity to know the nature and quality of his actions, or caused him to be in an autonomic mental state so that he would have an automatism. It is unlikely that his depressive symptoms would have materially contributed to the offending. Having regard to the facts, your client maintained capacity for adequate judgement (for example, he appeared to maintain capacity to have her provide entry to him and to be able to locate the details of the victim).
Dr Allnutt then made four recommendations-
I recommend that you obtain neuropsychological assessment for your client, given that he has previously had a head injury and has engaged in a relatively serious offence.
Your client should see a psychiatrist for a trial of antidepressant medication.
He would benefit from consultation with a psychologist.
Your client requires a sex offender rehabilitation program.
On the material before me, these recommendations are soundly based and hopefully can be taken up by the offender.
The offender did not give evidence and I am unable to make any clear finding as to what influences were upon him at the time of the offences. In particular, I was given no explanation as to why he struck Ms HA, who is apparently very slight. The evidence does, however, make out better than competent intellectual functioning both prior to the offences in the use of telephony, gaining entry to the premises and rejecting the services of Ms Z in favour of Ms HA and, after the offences were committed, in covering his head with his clothing to hide his identity.
Consistently with Dr Allnutt’s opinion, I find it unlikely that depressive symptoms contributed to the offending on this night.
The offender’s relationship with his former partner ended in early 2014. His counsel submitted to me, on instructions from the bar table, that the breakdown of this relationship had a significant effect on his emotional wellbeing and caused him to once again increase his use of cannabis and alcohol. He told Dr Allnutt that during this period he became depressed and that at one point he was consuming “50 grams a day of cannabis and drinking three litres of wine a day.”
I record that it does seem that the offender had made some efforts to address his drug and alcohol issues prior to the commission of these offences. His counsel submitted to me that he had made contact with Alcoholics Anonymous some weeks prior to being taken into custody. There is corroboration of this in what the offender told Dr Allnutt, to whom he also suggested that he had been able to significantly reduce his alcohol and cannabis intake immediately prior to being taken into custody.
Since being remanded in custody the offender has taken further steps to address his dependence on drugs and alcohol, through participation in the Smart Recovery Program.
The offender’s counsel submitted to me that he recognised the impact of his offending and had displayed some empathy for his victim. There is some corroboration for this proposition in the Updated Pre-Sentence Report. However, I record that the author of that report expresses the view that the offender is accepting only limited responsibility for his actions, appearing to reduce his culpability on the basis of his claim that his drink was spiked.
I do not propose to act on the premise that the offender’s drink was spiked in the absence of direct evidence of that event from him.
Criminal History
The offender had only minor matters on his history until he reached the age of about 30. He was then convicted of an assault occurring on 23 August 2010. This was dealt with by way of a Good Behaviour Order. On 30 April 2014 he committed an offence under s61(2) of the Crimes Act. He was found guilty of this after a hearing in the Magistrates Court. The complainant was a young pre pubescent girl walking home from school. The Sentencing Magistrate described it as “predatory behaviour”. He said “The defendant was clearly watching and waiting for an opportunity to do what he did.” The offender had grabbed the girl with one hand and had his other hand on her vagina outside her leggings. The sentence imposed upon the offender was 18 months imprisonment to commence on 21 August 2014. The offender was to be released after serving 12 months, the balance to be suspended upon entry into a good behaviour bond. The offender was not released on 20 August 2015 and his custody since that date could be said to be attributable to the current offences before the Court.
Pearce v The Queen
I propose to order that the sentences be served concurrently. As a practical matter, it is one transaction involving overlapping violence. I also take into account that the offender has been in custody, albeit for another offence, since 21 August 2014. I have reviewed the aggregate sentence and find it reflects the criminality involved.
Disposition
I am satisfied that no penalty other than imprisonment is appropriate.
(a)In relation to the offence of engaging in sexual intercourse with Ms HA without her consent on 13 August 2014, in contravention of s 54 of the Crimes Act 1900 (ACT), the offender is convicted. I sentence him to imprisonment for a term of 3 years, reduced from 4 years on account of his plea of guilty. This sentence will commence on 20 August 2015.
(b)In relation to the offence of assaulting Ms HA and thereby occasioning to her actual bodily harm on 13 August 2014, in contravention of s 24 of the Crimes Act 1900 (ACT), the offender is convicted. I sentence him to imprisonment for a term of 9 months, reduced from 12 months on account of his plea of guilty. This sentence will commence on 20 August 2015.
I order that the offender be eligible for parole on 19 August 2017. That is the earliest date on which the offender may be released.
| I certify that the preceding 37 numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Robinson. Associate: Date: |
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