New South Wales District Court CITATION: R v KSC (No 4) [2008] NSWDC 325 HEARING DATE(S): 28 November 2008 EX TEMPORE JUDGMENT DATE : 28 November 2008 JURISDICTION: Criminal JUDGMENT OF: Goldring DCJ DECISION: Sentenced to imprisonment. On sexual intercourse without consent with a person under the age of sixteen years sentenced to a non-parole period of three years commencing 16 June 2008 and expiring 15 June 2011. Total term five years expiring 15 June 2013. On common assault sentenced to non-parole period of nine months commencing 16 January 2011 and expiring 15 October 2011. Total term of eighteen months expiring 15 July 2012. CATCHWORDS: CRIMINAL LAW - Sentencing - Sexual assault on child - Person in authority - former police officer - effect of custody - mental illness - effect of lapse of time R v Durocher-Yvon (2003) 58 NSWLR 581 CASES CITED: R v Mostyn (2004) 145 A Crim R 304 R v MJR [2002] NSWCCA 129 PARTIES: Crown KSC (Offender) FILE NUMBER(S): 2007/11/0861 COUNSEL: E A Wilkins SC (Crown) P Boulten SC (Offender) SOLICITORS: NSW DPP Hardin Lawyers SENTENCE 1 HIS HONOUR: KSC appears before me today for sentence. On 1 August 2008 a jury found him guilty of one charge of sexual intercourse without consent with a person under the age of sixteen years. She was, in fact, about ten or eleven at the time. He also appears, having pleaded guilty on arraignment at an earlier trial, to a charge of common assault on a person called CB, and he is convicted of that offence. 2 The circumstances of the sexual assault offence are as follows. The offence took place between the beginning of 1983 and 6 April 1985. At the time the offender was a serving police officer and was the officer in charge of a one man police station. The complainant's mother was a cousin of the offender's wife. The offender's wife seemed to have fairly close family relationships with members of her family. 3 Shortly before the offence, the complainant's mother and her two daughters had been living at East Campbelltown, while the offender and his family lived at Campbelltown. At that time there was close contact between the two families. However, the complainant's mother and the offender's family both moved out of the Campbelltown area and contact between them became less frequent. 4 The residence at the police station had a large garden and apparently, at the relevant time, there were swings, a trampoline and it was a pleasant place for children to play. 5 I should make some comments here about the reliability of the offender and his wife. I have come to the conclusion, in respect of both proceedings, that neither the offender nor his wife was a witness to be believed on oath. Therefore, where there is a conflict in the evidence between that of the offender or of his wife, and that of another witness, I would generally prefer the other witness. The offender appeared to be prepared to deny the truth or fabricate the truth in order to exonerate himself, and his wife, who is extremely devoted to him, appeared to be very much influenced by both him and her desire to maintain his innocence. 6 The evidence of the complainant's mother was that the offender's wife had invited the two daughters, the complainant and her sister, to stay overnight so that they could get to know their cousins and cement bonds within the extended family. The complainant's mother was adamant that this took place on at least one, and possibly more, occasions. The offender and his wife gave evidence that they could not remember these girls staying overnight and indeed the children, including friends of their own children, rarely stayed overnight, as there was no accommodation for them. I do not accept this evidence and obviously the jury did not do so, particularly in view of the fact that the offender's son gave evidence that there was spare bedding in the house, including a mattress and a folding bed upon which guests frequently slept. 7 On the occasion in question, the complainant's evidence was that she was asleep in the room with her sister. She awoke to find that her pyjamas were around her ankles, the offender was lying on her legs, pinning them down, and licking her vagina. The jury was satisfied beyond reasonable doubt that this offence took place. 8 It did occur many years ago, but that does not diminish its seriousness. The offender was at the time a serving police officer, and the complainant and her sister both remembered him wearing a police uniform and being a figure of considerable authority. On the complainant's evidence, this was a reason why she did not make an early complaint about the offence. The offence now carries a standard non-parole period of ten years imprisonment. At the time, that was, in fact, the maximum penalty for this offence, and there was no standard non-parole period. Nevertheless, the offence has always been regarded as being extremely serious. 9 There is no doubt that the complainant was terrified by the offence, and has retained a deep seated fear of the offender, in particular, and of the police generally, and there have been other permanent effects of which she spoke eloquently in the victim impact statement that she read to the court. One consequence of this, and it is just an example, is that she has never held a driving licence, because of her fear of the police. 10 Because this is a sexual offence against a child, and the offender was formerly a police officer, I am satisfied, on the balance of probabilities, that he will serve his sentence in conditions that are harsher than those that would be imposed on ordinary prisoners. Certainly, the Court of Criminal Appeal, in cases such as Durocher-Yvon (2003) 58 NSWLR 581 and Mostyn (2004) 145 A Crim R 304, has indicated that it is not necessary that persons who commit particular classes of offences will serve the whole of their sentences in restrictive conditions. However, those remarks were made in the context of people who were not both former police officers and convicted child sex offenders. I am satisfied, on the basis of the material relating to the offender's custody to date, and the evidence of his wife, that he will serve the whole of his period in custody in conditions which will carry with them a degree of harshness not imposed upon most prisoners, although I doubt that he will continue to serve his sentence in what has been virtually solitary confinement. There are, for those reasons, special circumstances that affect the sentence. 11 At the time of this offence, the offender was a person of prior good character. There is some evidence that even at that time, he was beginning to suffer some symptoms of mental disorders, which ultimately developed into post traumatic stress disorder, from which he suffered for a while, and depression. This is hardly surprising. Police officers, particularly those in single officer police stations, are exposed to traumatic events. In the medical material before me, there are a number of examples that this offender has told psychologists and psychiatrists about, which involved him seeing extremely distressing matters involving death, disfigurements and other matters, particularly involving children, and it is hardly a surprise that a person exposed to those events would develop some mental problems. 12 However, I am not satisfied that this offence, occurring between 1983 and 1985, was affected by the offender's mental problems. The mental problems from which he continues to suffer have to a large extent resolved with medication and treatment. I am satisfied that he still suffers from anxiety and depression, which may be another reason, but not the principle one, for finding special circumstances. 13 Because this offence took place some 25 or so years ago, I am required to undertake an extremely difficult exercise, which has not become any easier since I first was confronted with this. In the case of MJR [2002] NSWCCA 129, a Court of Criminal Appeal consisting of five judges held that when sentencing for an offence, the court should take into account the sentencing practice at the date of the commission of the offence. I understand, and I think it is agreed between counsel, that at the time of this offence the general practice was to impose a head sentence, or a minimum term, and an additional term … of between one third and one half. 14 I have been provided with a number of indications of the type of sentences that were imposed for sexual offences against children at the time. None of them is directly comparable to this case. All of them, I understand, were pleas of guilty, which is the first ground of distinction. Most of them were multiple offences, and so far as I am aware, on the limited information available to me, none of them involved a sexual assault on a child in circumstances similar to those that I have already described. This is a case where, as I have said, the offender was a person of prior good character, and all those facts are matters which I take into account when I decide the relevant sentence. 15 I should say that the offender has spent in custody a period of about seven weeks after his arrest and some nearly four months since the jury found him guilty of that offence. He was on bail for a significant period between those two terms in custody. 16 The second offence is a charge of common assault. The plea was not entered at the earliest opportunity by any means. Indeed, it was only entered at the beginning of the trial, after the offender had the opportunity to plead if he so wished in the Local Court. Although it was a plea of guilty, there remained a conflict as to what actually happened and it was necessary for evidence on this point to be given at the trial by the offender, by the complainant and other witnesses, and for that reason, the discount for the plea of guilty will be relatively small. 17 The complainant's account of what happened on 20 March 2004 was as follows: "Q. This is the same B that we've been talking about. BH ? A. Yes. Anyway yeah, I could just see K was not in a good mood. I kept going because I really wanted to watch B play soccer and he -yeah, he just told me to 'piss off'. He picked up his ice cream and threw his bowl of ice cream at me. I was standing between his bed and here. He threw the ice cream at me and then he got up from the bed and grabbed me by my throat and pushed me to the door and was yelling. Then D walked up, but he had released his hands at that point. She was saying 'what's going on? What's going on?' I told her what he had done. She was angry and upset, saying 'don't you touch her' or something along those lines. I said 'that's it, I'm leaving. I've had enough'. I was an emotional wreck. I went to my bedroom. He followed me in and was ripping out my drawers, throwing my clothes around and screaming and carrying on. He shoved D who was also standing in the room at the time, carrying on. He shoved D, he shoved her out of the way. She was crying. She got on the phone to her eldest son, M and she was screaming into the phone 'help, help. Your father has choked C. I don't know what to do.' She was upset. I just said 'I'm leaving' and he said 'don't worry, you're kicked out', whatever. He was just throwing my room apart. Then from that M came - came to the house from his house and came to pick me up. Q. Where did he pick you up from? A. He came to the house, but I was - but it was when I went over to my girlfriend's house. Q. To LM's house? A. To LM's house across the road and M came in. I was an emotional wreck. He said 'come on mate, come with me'. We went to M's house. I was distraught." 18 That is from pp 115 to 116 of the transcript. The offender's version was as follows: "Q. What did you do when you went into the bedroom? A. I got a bowl of ice cream and started watching a movie. I lay on my side of the bed and started watching the movie and eating ice cream. Q. What happened later? A. Some time later C came in the bedroom door and knelt up on the bed on my wife's side and started talking to me and she said 'I want to talk to you about B'. Q. What did you say? A. I said 'I don't want to talk about it at the moment.' Q. What happened next? A. She kept on talking about it. Q. What did you do? A. I used a strategy that I had learned. Q. Just tell us what you did? A. I said 'go out'. Q. What happened then? A. She kept on. I said 'go out'. Q. Hmm? A. She then kept on about it and I said 'get out'. I said 'get out' and then she got off the bed, backed off the bed, turned and started walking out. She said to me' you don't have to speak to me like I'm a fucking dog'. Q. What did you do? A. I just looked at her and I watched the movie. Q. What happened next? A. A couple of moments later she disappeared around the hallway, which is down towards the kitchen and then she came back and she walked into the middle of the hallway, opposite the doorway and was standing there sort of taunting me. Q. Then what happened next? A. I finished the ice cream. I wanted to get rid of her. I picked up the bowl and threw it like that at her foot on the floor. Q. What happened then? A. She said 'Aunt, he did it'. Q. What happened then? A. I walked out, picked up the bowl with my left hand, put it in my right hand. I still had the spoon. She started yelling at me 'you won't let me see B' and started waving her arm around. I put my left hand up like that and she kept yelling. I just moved toward her. She kept on doing it. I just pushed her. I didn't want to push her on the breasts or anything, I just pushed her like that and my hand was on her throat. She was against the flat patterned panel in the doorway at the side of the door and then I stopped." 19 That passage is from pp 492 to 493 of the transcript. 20 MC, the son of the offender, gave evidence that he drove some distance from his home to his parents' house to collect C and take her home with him. In fact he collected her from her friend's house across the street. He gave evidence of a telephone call from his mother, which prompted him to take this action. His recollection was that his mother had been agitated and had told him to come and collect C because his father was hurting her. 21 DC also gave evidence. She conceded that she telephoned her son, but denied that she had ever said that her husband had been hurting the complainant. She said that she did not actually witness the incident. 22 It is not in dispute that after this incident, the complainant, who was then eighteen years old and had lived as a daughter of the household since she was nine, left the house and never returned to stay. In the circumstances, I am satisfied, beyond reasonable doubt, that the version of events given by the complainant is correct. I have had the opportunity to observe the offender and his wife give evidence and I have formed certain opinions about that. Even if I had not formed that opinion, it is difficult to believe that if the events had happened as the offender described them, it would have been sufficient to cause the complainant to leave the house permanently or, indeed, that it would have been sufficient to cause MC to drive for fifty to sixty minutes to collect the complainant and take her to his own home. I also formed the view that DC had actually seen some of these events, or a significant part of them, despite her denial. 23 I have formed the view that this was a violent and serious assault. It is an example of an extremely serious type of domestic violence. If the matter had been dealt with in the Local Court, the maximum penalty would have been twelve months imprisonment. The offender chose not to enter his plea in that court and must accept the consequences. Because of the conviction of the sexual assault offence, the offender cannot be regarded as a person of previous good character. Again, I have already mentioned that the offender is a former police officer who has been convicted of a sexual offence against children, and that will affect the conditions in which he has to serve his sentence under strict, more stringent conditions than would otherwise apply. 24 In the case of this offence, which occurred in 2004, there is considerable evidence that at the time, the offender was suffering from quite severe mental problems. By the time of the offence, he had not yet started his new regime of medication, and I am satisfied that he was still suffering the effects not only of depression, which has affected him for some time, but some effects of post traumatic stress. Dr Smith, whose opinion I accept, has diagnosed him as follows: "He has evidence of a chronic adjustment disorder, with depressed and anxious mood. He reveals features often noted in individuals with post traumatic stress disorder" 25 Dr Smith, however, was not prepared to say that he was suffering from that condition at the time that he examined him in May of this year. 26 I also have some evidence in the form of a report from another psychiatrist, Dr Allnutt, which is not in any way inconsistent with the opinion of Dr Smith. 27 There is also evidence from the police records that between 2000 and the time of the offence, the police were concerned about KSC's condition. They had referred him, at one stage, to an anxiety/depression management course in 2003. He certainly reported the incident which gave rise to the charges to the psychologist, Ms Powell, in June 2004, and I am satisfied that at the time of this offence, he was suffering from a mental disorder, with the consequence that although it does not absolve him from responsibility, it does lessen the degree to which general deterrence is an element in the sentence that is to be imposed. 28 Mr Boulten, who appears for KSC, and has done so throughout these proceedings, has suggested that this is a matter which in the Magistrates Court probably would not have attracted a custodial sentence. I am not prepared to accept that submission. This was a serious assault by a man who was in the position of the father of the complainant. He was certainly the uncle of the complainant, and he reacted to her in a violent and frenzied way, even though to some extent that may have been the result of his mental condition. It is still a matter which, in my view, does warrant a significant custodial sentence. 29 The two sentences, in my view, must be partly accumulated. 30 Having had regard to the material that was put before me, by both Mr Boulten and by the Crown Prosecutor, as I have said, I cannot be satisfied that any case to which I have been referred is directly on point. I have been referred to matters compiled by the Public Defenders and, as I have said, most of those relate to matters which cannot be regarded as analogous, and which were the result of pleas of guilty. 31 On the charge of sexual intercourse without consent, you are sentenced to a non-parole period of three years, starting on 16 June 2008 and expiring on 15 June 2011. The total term will be five years, expiring on 15 June 2013. On the charge of assault, the element of mental illness has led me to impose a sentence which is somewhat shorter than I would otherwise have imposed. It will be a sentence of nine months non-parole period, commencing on 16 January 2011. That non-parole period will expire on 15 October 2011. There will be a total term of eighteen months, expiring on 15 July 2012. ********** 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.