District Court New South Wales Medium Neutral Citation: R v KH [2022] NSWDC 706 Hearing dates: 16 September 2022 Date of orders: 16 September 2022 Decision date: 16 September 2022 Jurisdiction: Criminal Before: Grant DCJ Decision: Orders at [38], [45] – [48] Catchwords: Sentence indecent assault, is an ICO available for historical offences, meaning of prescribed sexual offence, sentence s 66EA(1), maintaining of an unlawful sexual relationship, retrospective operation, 86 year old offender, delay, hardship in prison, Covid 19, special circumstances Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: AJB v R (2007) 169 A Crim R 32 Bugmy v The Queen [2013] HCA 37, 249 CLR 571 Cahaydi v R [2007] NSWCCA 1; (2007) 168 A.Crim R 41 Cheung v The Queen (2001) 209 CLR 1 DPP (NSW) v Van Gestal [2022] NSWSC 973 DPP (NSW) v Van Gestel [2022] NSWCCA 171 Mill v The Queen (1988) 166 CLR 59 Postiglione v The Queen (1997) 189 CLR 295 R v BJW [2000] NSWCCA 60 R v Isaacs (1997) 41 NSWLR 374 R v Mak (2006) 167 A Crim R 159 R v Moon [2000] NSWCCA 534 R v Olbrich (1999) 199 CLR 270 R v RB [2022] NSWCCA 142 R v Todd (1982) NSWLR 517 519 Wright v R [2008] NSWCCA 91 Category: Sentence Parties: Regina KH (offender) Representation: Counsel: Mr Thorpe (offender) Solicitors: Mr Cronin (offender) Ms Coleman (Solicitor for the Director of Public Prosecutions) File Number(s): 2020/00153084, 2020/00153330 JUDGMENT 1. The accused stood trial on a 17‑count indictment. Five counts involved his step granddaughter, FF, alleging indecent assaults between 3 January 1981 and 3 January 1983. At the completion of the evidence, the jury were directed to bring in verdicts of not guilty to counts one and three. On 26 August 2022, the jury found the accused guilty of counts two and four, and not guilty of count five. By their verdict, they accepted beyond reasonable doubt that FF was an honest and accurate witness in relation to counts two and four, they did not accept beyond reasonable doubt the account she gave in relation to count five, which was referred in the trial as the "sitting on the lap in the ute incident". 2. Count six involved his granddaughter, AC. The count was contrary to 66EA(1) of the Crimes Act, it was said the unlawful sexual relation was between 28 December 1994 and 28 December 2001. The Crown relied upon eleven particulars within the count. At the conclusion of the evidence, the Crown conceded that there was no evidence for particular seven, namely, "The accused putting his hand back inside complainant's underwear and fondling her vagina in the white bed". The jury were instructed to ignore particular seven and not to take into account in their deliberations. 3. Counts seven to 17 were counts of assaults with an act of indecency, pleaded in the alternative to count six (the eleven particulars). On 26 August 2022, the jury found the accused guilty of count six and were not required to deliver verdicts in relation to the alternative counts. FACT FINDING FF COUNTS TWO AND FOUR 1. In relation to counts two and four, the jury must have accepted that the victim went to the offender's bedroom at a rural property to look at the offender's stamp and coin collection with the offender. She was sitting on the bed, and he was touching and smelling her hair. The offender then started touching her with his hands on the knees, the legs, and between the thighs (Transcript 23, lines 3‑8). Count four occurred at the same time. They were laying on the bed and "He started rubbing his penis on me. He started rubbing his penis on my vagina and in between my legs." (Transcript 23, lines 2‑11). There was no evidence as to the state of her clothing at that time, at transcript 34, she was allowed to refresh her memory from paragraphs 20 and 28 of her statement. After refreshing her memory from the statement, she gave evidence that "He pulled his pants down, pulled mine down, I was facing him, and he put his penis in between my legs." (Transcript 34, lines 49‑50). OBJECTIVE SERIOUSNESS 1. The offending involved skin to skin contact between grandfather and step granddaughter, it was a gross breach of trust. The offending occurred in the then home of the victim where she was staying. There was a large gap between her age (five or six years) and the offender's age. In written submissions, Madam Crown submitted that the offending was midrange for both counts, in oral submissions, she submitted that count two was below midrange. Mr Thorpe submits that the conduct establishing each particular count occurred over a relatively short time and did not involve any application of force beyond that necessary to establish the essential ingredients. He submits that the objective seriousness of the offending conduct falls below the mid‑range, I accept that submission. The maximum penalty is six years imprisonment, it is an important guide in the assessment of sentence. IS AN ICO AVAILABLE 1. In written submissions, Madam Crown submitted that the offences were prescribed offences and an ICO was not available. Division 10 of the Crimes Act did not exist until 29 June 2000. Section 77 was repealed and replaced with s 61E(1) on 14 July 1981. The new offence became gender neutral, the maximum penalty remained the same. Offences contrary to s 76 or 61E(1) between 3 January 1981 and 3 January 1983 fell within part three of the Crimes Act, however, the Crimes Act did not include any divisions as at the date of the offences. There was no division 10 of the Crimes Act: DPP (NSW) v Van Gestal [2022] NSWSC 973 at [63]; DPP (NSW) v Van Gestel [2022] NSWCCA 171 at [40]. 2. Section 67 of the Crimes (Sentencing Procedure) Act provides that an ICO must not be made in respect of a sentence of imprisonment for a prescribed sexual offence. A prescribed sexual offence is defined by s 67 as an offence under division 10 or 10A of part three of the Crimes Act 1900. Madam Crown conceded in oral argument that counts two and four were not a "prescribed sexual offence", as defined in s 67(2) of the Crimes Sentencing Procedure Act with the consequence that an ICO was a lawfully available sentencing alternative. COUNT SIX 1. Count six is an offence contrary to s 66EA(1) which carries life imprisonment, it is an important guide in the assessment of sentence. The section was amended to its current form, following a recommendation of the Royal Commission into Institutional Response to Child Abuse. The actus reus is the maintaining of an unlawful sexual relationship. s 66EA is to be interpreted as requiring that in order to return a verdict of guilty on a count laid under the section a jury would have to be satisfied that for some duration within the charge period, the accused committed against the complainant child multiple unlawful sexual acts, as defined in subsection 15. "...it is an element indeed, it is the gravamen of the offence that multiple unlawful sexual acts must have been perpetrated, not merely in isolated circumstances or sporadically, but with such a degree of continuity and habituality as to constitute an ongoing association or connection with respect to sexual activity. This may be characterised as a course of conduct offence...": R v RB [2022] NSWCCA 142 at [62]. 1. The degree of continuity that is necessary to constitute a sexual relationship and to demonstrate that it was being maintained by the accused will necessary be a matter for the jury to evaluate within a wide latitude. "...s 66EA has been drafted in such terms that a verdict of guilty on a charge laid under the section will of itself, always be entirely opaque as to what specifically the convicted offender has done, and what he is to be punished for..." 1. The offence has been created in this form, expressly to enable the prosecution to secure convictions where a complainant's evidence is thought to be insufficiently clear and cogent to support findings beyond reasonable doubt, regarding specific instances of misconduct. It is unsurprising that a section designed to create criminal liability on the basis of uncertain evidence should give rise to verdicts of uncertain import: R v RB (supra) at [64]. The effect of a Crown election to lay a charge under s 66EA is to deny the accused tried by a jury on specific allegations of sexual acts and to have the accused tried by jury on a threshold generalised issue of whether a sexual relationship was maintained then to have specific allegations at what he is to be punished for, litigated for the first time in a post‑conviction hearing by a sentencing judge alone: R v RB at [76]. 2. A trial judge is required to determine the facts of the offender's offending, applying the principles established in R v Olbrich (1999) 199 CLR 270, Cheung v The Queen (2001) 209 CLR 1, and R v Isaacs (1997) 41 NSWLR 374, see also, R v RB at [70]. The sentencing judge, who is required to assess the seriousness of the offending, does not merely face a difficulty of identifying or inferring what sexual acts the jury may have found proved, but must proceed upon the basis that expressly by statute, the verdict does not entail that any finding at all, with respect to any sexual act, has been made unanimously by the jury. 3. The alternative counts of seven to 15 are alleged to have occurred prior to the introduction of division 10 of the Crimes Act, if the offender had been convicted of any of those alternative counts, an ICO would be an available sentencing option. s 66EA has retrospective operation and is a prescribed sexual offence, an ICO is not available. However, by force of subsection eight, the Court is required to take into account the maximum penalty for the acts of assault with an act of indecency at the time each offence was committed. 4. The Crown alleged 11 particulars for the maintenance of an unlawful sexual relationship, however, there was no evidence of particular seven. The Crown submits that there was sufficient evidence at trial, that the Court would be satisfied of each of the particulars listed 1‑6 and 8‑11 on the indictment, occurred beyond reasonable doubt. I'm satisfied beyond reasonable doubt that the Lion King episode (particulars one and two) occurred. 5. I'm so satisfied for the following reasons, 1. the victim had a strong memory that she received the Lion King movie for her birthday which was in December, she was born in December 1989. She said she turned five when she received the video. 2. the receipt of the movie for her birthday was supported by the evidence of her mother, DH. 3. there was evidence from a number of sources, including the victim, that the movie would be played in the lounge room where there was an L‑shaped couch. 4. the offender in his interview on 8 October 2007 said he watched the Lion King maybe one time (question 216/answer), but he was sitting on a chair, not the lounge. The jury would have rejected his account of sitting in a chair and not on the lounge. Apart from the assertion in the interview of a chair in the lounge room, the evidence was to the contrary, there was an L‑shaped lounge and no single chair. 5. CH confirmed that there could have been multiple times the video was played while he, AC, and the offender were in the lounge room (transcript 197). Leave was granted for the prosecutor to cross‑examine the witness. He was taken to a passage in his statement of 2007 where he said AC and he were watching the Lion King in the lounge with their grandfather (transcript 201). He also confirmed that his sister told him about their grandfather touching her in a spot he should not have (transcript 202). 6. when the victim made her first statement on 31 July 2007 to police, she spoke only of one incident, the Lion King episode, she then made a second statement on 8 October 2007 because she wanted to correct dates and she recalled a second episode, which was sitting at the kitchen bench where he touched her chest area after lifting her shirt and put his hands inside her underwear and touched her vagina (transcript 59).The accused was charged with those allegations. The charges were withdrawn in 2019. Subsequently, the victim made a further statement on 10 August 2017 alleging further improper conduct on the part of the offender. 7. she gave evidence that the incident she described in 2007, she had no memory of those in 2007. They were additional things she had remembered (transcript 80, lines 35‑45). Some of them came to her memory later (transcript 81, lines 8‑9). This suggests to me that she had a strong, clear and cogent memory of the Lion King episode. She gave evidence to that effect when she said, "The Lion King is definitely one that I recall from the very beginning", (transcript 81, line 14). 8. the other incidents she described as flashbacks and suppressed memories. She said the flashbacks bought back memories (transcript 82). She also described having partial memories and some from start to finish (transcript 82). She said she was still having flashbacks of the time of the trial (transcript 83). 1. In relation to particulars 1-6 and 8‑11, on the balance of probabilities, I would be satisfied that they occurred. The Crown in oral submissions relied upon the evidence of the victim at transcript 111, line 26, "He touched me inappropriately every day", in proof of the particulars alleged and in proof of maintaining an unlawful sexual relationship. 2. The latter I can understand, the former I have trouble with without specificity, the jury may have been satisfied beyond reasonable doubt of the Lion King episode and inappropriate touching every day in proof of maintaining an unlawful sexual relationship. I have not selected two particulars most favourable to the offender, it would be wrong to do so. It is clear from what follows that the two incidents involved skin to skin contact, a serious breach of grandfather granddaughter relationship. The offending was opportunistic and predatory. 3. In my view, the jury accepted the following conduct. The victim was laying on the couch, the offender was sitting on the lounge also. Her brother was sitting on the carpet in front of her. She was laying on her belly with her head resting on a pillow on his lap. He was holding her left hand and forced it under the pillow into his pants and onto his penis. She pulled her hand away and he kept putting it back, he pushed her face onto the pillow to stop her hands lifting off. She felt a hardness and her hand was wet (particular two, transcript 61‑62). "Before that started, he was tickling my back under my shirt and he was running his hands up and down my back, and then down and over my bottom and onto my vagina, but through my pants. I remember his hand coming around the side of my stomach, but he couldn't reach underneath because I was laying on my belly."(Particular one, transcript 62). 1. The Crown submitted upon proof of all of the particulars alleged that the offending falls slightly above the midrange. I've not been satisfied beyond reasonable doubt as to any of the particulars other than particulars one and two. In my view, the offending falls well below the midrange. I take into account that the maximum penalties for particulars one and two (in the alternative counts seven and eight) are 10 years. VICTIM IMPACT STATEMENT 1. A victim impact statement was tendered on the sentence proceedings by AC. The first part of her statement spoke to her difficulties with severe eczema. There is no medical evidence before me linking the actions of the offender causing severe eczema. I disregard what is written about eczema. The rest of the victim impact statement described a deeply troubled girl who experimented with self‑harm in her teenage years. She had suicidal ideation for years, eating disorder, anxiety, depression and post‑traumatic stress disorder, insomnia, and horrific nightmares. She also received psychological counselling for a long period of time. Her first marriage broke down due to feelings of mistrust and fear of intimacy. She has been hypervigilant in relation to her own children. She finished her statement by saying, "...at unpredicted times, the weight of this trauma along with my mental health struggles, are immeasurable and it cannot be predicted as to how badly my life will be affected in the future or in other ways." 1. The Court is mindful that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives. Sexual abuse of children will inevitably give rise to psychological damage, courts recognise long term and serious harm, both physical and psychological, from sexual abuse. No sentence that I impose can restore the victim to her original position, it is impossible to do so. 2. The victim impact statement speaks to the real and all too common impact such offending has on young people who are abused. A court sentencing an offender must take into account all relevant considerations. The sentence imposed is only one indicator of the seriousness with which the Court views the crime committed, this means a direct correlation between harm done and punishment inflicted is impossible. A victim should never equate or measure the harm done to her with the punishment actually inflicted. Courts recognise long term and serious harm, both physical and psychological, which premature sexual activity can do. I have had regard to the trauma of sexual abuse occasioned to AC in accordance with s 25AA(3) of the Crimes Sentencing Procedure Act. SECTION 25AA 1. I take into account the following, 1. The sentencing practice existing at the time of sentence where such a practice is able to be discerned. In oral argument, the Crown submitted that the only discernible sentencing practice is a general increase in sentences. 2. Determine the facts as now available to the Court. I have set out the facts as I have found them to be on the jury's verdict. 3. Have regard to the maximum penalty and the standard non‑parole period, if any applying at the time of the offence. 4. Identify where the offence falls on the range of objective gravity. 5. Take into account any relevant aggravating and mitigating factors in s 21A(2)(3). 6. Set a non‑parole period in accordance of s 44 as operative at the time of sentence, and fix the balance of the term. 1. The offender has been sentenced in accordance of s 25AA(1). I've had no regard to patterns or practices of sentencing which may have operated the time of the offending. I have taken into account s 65EA(8) which requires the Court to take into account the maximum penalty for unlawful sexual acts themselves, at the time of the offending. SUBJECTIVE CIRCUMSTANCES 1. The offender was born in June 1936, he is 86 years of age. He has no prior convictions. He is entitled to a degree of leniency. I accept Mr Thorpe's submission that there is no suggestion that the offender took advantage of his previous good character to facilitate the commission of the offence: s 21A(5A). 2. He is an aged pensioner, up to verdict he was living in aged care hostel accommodation. He comes from a rural based family, working in numerous unskilled positions. He was involved in a paper shredding business until his retirement. He has a history of arthritis, poor balance and needs the use of a wheelchair. 3. A mental health assessment was conducted which indicated his premorbid intellectual functioning was in the low average range. His current intellectual functioning was assessed within the same range. He is very deaf and suffers major depression. 4. The report of Dr Burn dated 26 October 2021 informs me that the offender entered hospital with multiple liver abscesses, having been previously unwell with that condition in 2017. There was concern that further recurrence could result in delirium which would worsen his cognition. It was noted that his gait instability, recurrent falls and inability to care for himself at home and the liver condition combined in a decision for KH to move from home to residential care in May 2021. 5. The trial earlier this year was vacated when the offender contracted COVID. The risk of catching COVID in the gaol setting is increased due to his age and ill health. His time in custody due to his health issues will be more onerous. Tendered on behalf of the offender were a number of testimonials from family members including CH, his grandson, who gave evidence in the Crown case. It would appear that the offending has created a schism within the family. The offender enjoys the support of his daughter, RE, her husband RE (referred to in error as RE's wife), HH, the wife of CH, CH, and LH, the son of the offender, AC who was the carer of the offender and his partner, MJ. 6. There was also a letter from LD, the niece of the offender. The testimonials speak highly of the offender and the devotion to his now deceased wife who had childhood polio, requiring callipers and walking sticks to walk, and in the latter part of her life, she was wheelchair bound. They unconditionally support him and have difficulty reconciling the jury's verdicts. The ongoing supports speak well for his prospects upon release from gaol. The offender presents with a strong subjective case, principally by reason of his age and health issues. DELAY 1. The offender ceased offending against AC and has not, so far as the Court is aware, committed any crime since 2001. Sentencing for a stale crime long after committing of the offence calls for a measure of understanding and flexibility of approach: R v Todd (1982) NSWLR 517 519; Mill v The Queen (1988) 166 CLR 59 [14]. The substantial delay in bringing a matter before the Court in some cases may operate to the offender's advantage by providing him with the opportunity to demonstrate his capacity for rehabilitation by not offending: AJB v R (2007) 169 A Crim R 32; Wright v R [2008] NSWCCA 91. 2. Offenders are entitled to have evaluated these matters in their favour. Any factors deriving out of their conduct during the period of delay which reflects to their advantage should be taken into account, this includes practical demonstrations of rehabilitation. In R v Moon [2000] NSWCCA 534, Howie J at [81] said: "In a case such as this, where there has been such lengthy delay between offence and sentence and where the offender is rehabilitated, it is the fact of imprisonment rather than the length of sentence, which will be the greatest significance to punish the offender and denounce his conduct. Although general deterrence is important, it can never be allowed to dictate a sentence which is not proportionate to the offence committed or appropriate to punish the particular offender before the Court." 1. By reason of delay, I am satisfied that the offender is unlikely to reoffend and has rehabilitated himself. He has excellent future prospects insofar as rehabilitation is concerned. I am confident that he will not be before a court again. The delay has operated to the offender's advantage by providing him with the opportunity to demonstrate his capacity for rehabilitation by not offending. In this case, there is a practical demonstration of rehabilitation. Delay is but one of many factors I take into account in arriving an appropriate sentence, it does not form a dominant role in the sentencing matrix. HARDSHIP IN PRISON 1. The offender is 86, he has been diagnosed with non‑amnestic mild cognitive impairment, and an adjustment mood disorder, he is prescribed mirtazapine. His functional impairment or secondary to gait instability, leading to frequent falls and restricted mobility. He's previously had hospitalisation for multiple liver abscesses. Dr Burns is concerned about further recurrences. He has severe osteoarthritis in both knees causing deformity, instability and pain. He has pain in both knees on weight bearing. He is independently mobile in a wheelchair. Throughout the trial, he presented in a wheelchair. His hearing was of such poorness that he required the hearing loop to be able to follow the proceedings. His time in custody well be more onerous than an "average prisoner". COVID‑19 1. The impact and restrictions of COVID‑19 and the prison environment are multi‑faceted, both appellate and courts of first instance in New South Wales have recognised a variety of species of hardship that inmates presently suffer in a custodial environment, including, 1. the suspension of social and family visits, 2. restrictions to movement and subsequent isolation of inmates, 3. negative impacts on wellbeing including stress and anxiety, 4. the greater risk of infection and serious harm to inmates of advanced years. 1. Furthermore, courts across the different jurisdictions of the Commonwealth have further recognised additional hardships including, 1. the adverse impact of lockdown measures may weigh more heavily on first time inmates, 2. work opportunities during the pandemic weren't available at all or limited. SPECIAL CIRCUMSTANCES 1. I find special circumstances due to the age and health of the offender. This is his first time in custody. The statutory ratio will be significantly altered. Non‑parole periods are to be seen as a mitigation of punishment in favour of rehabilitation through conditional freedom by parole. Once the sentencing judge has determined the minimum period of custody appropriate to the circumstances of the offence: Bugmy v The Queen [2013] HCA 37, 249 CLR 571. The Crown concedes that the reports tendered by the offender allows the Court to make findings of special circumstances. SENTENCE 1. The sentence must reflect community abhorrence of and concerned 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: R v BJW [2000] NSWCCA 60. 2. In relation to count two, I am not satisfied that the s 5 threshold has been crossed. I place the offender on a three‑year community correction order with conditions that he not commit an offence and he appear before the Court if called upon. 3. In relation to count four, I would have sentenced the offender to a term of imprisonment to be served by way of an intensive correction order after engaging the three‑step process, however due to the sentence I intend to impose in relation to count six, the proposed course is not available. 4. Counts four and six involved discrete acts of criminality with separate victims, each of the sentences should be partially cumulative. The aggregation of the sentences must be adjusted in an appropriate measure of the total criminality involved: Postiglione v The Queen (1997) 189 CLR 295 307‑308 McHugh J; Cahaydi v R [2007] NSWCCA 1; (2007) 168 A.Crim R 41. 5. It is recognised that courts simply do not add one sentence upon the other, it is also recognised that severity of combined sentences should not, unless absolutely necessary, operate to destroy any prospects of rehabilitation and reforms. 6. The severity of sentence is not simply the product of a linear relationship. That is to say severity, may increase at a greater rate than an increase in the length of sentence; R v Mak (2006) 167 A Crim R 159. Public confidence in the administration of justice requires that there be no suggestion there is some sort of discount for multiple offending. Instinctive synthesis is a method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a valued judgment as to what is the appropriate sentence, given all the factors of the case. Individualised justice is an important aspect of sentencing. The sentence and the non‑parole period will reflect all of the matters I have discussed. 7. Count four involved the offender removing the pants of his step grandchild when he was in his bed. He removed his pants and placed his penis between her legs and rubbed his penis against her thighs and vagina. The maximum penalty is six years imprisonment. In my view, the physical actions of the offender for this count, are objectively more serious than his actions in count six where he was tickling her under her shirt and then moving his hands over her vagina or bottom through her pants, he then held her left hand and forced it under the pillow into his pants and onto his penis. She was pulling her hand away, he kept putting it back, she felt a hardness and her hand was wet. 8. Count six has a maximum of life imprisonment which is an important guidepost, and I must be cognisant of subsection 8 where the maximum for indecent assault is 10 years. 9. On count four the indicative term is nine months. 10. On count six, the indicative term is 22 months. 11. I impose an aggregate sentence of 24 months. The commencement date of sentence is 26 August 2022, expiring 25 August 2024. 12. I impose a non‑parole period of eight months, KH is to be released upon parole on 25 April 2023. ********** Amendments 28 March 2023 - Clerical errors rectified in [1], [2], [7] and [43] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 March 2023