New South Wales District Court CITATION: R v KF [2010] NSWDC 99 HEARING DATE(S): 23 April 2010 JUDGMENT DATE: 23 April 2010 JURISDICTION: District Court Criminal JUDGMENT OF: Berman SC DCJ DECISION: The offender is sentenced to imprisonment for the offence of aggravated sexual intercourse, I set a non-parole period of five years to date from 19 August 2009. It will expire on 18 August 2014 on which date the offender is eligible to be released to parole. I set a head sentence of eight years for that matter. For the offence of aggravated indecent assault I set a non-parole period of three years to commence on 19 August 2007 and a head sentence of four years on that matter. CATCHWORDS: CRIMINAL LAW - Sentence - Aggravated sexual assault of daughter - Sentence partially accumulative on existing sentence for similar offences PARTIES: The Crown KF FILE NUMBER(S): DC 2009/243301 COUNSEL: Mr J Fitzgerald - Offender SOLICITORS: The Director of Public Prosecutions Legal Aid Commission - Offender SENTENCE 1 HIS HONOUR: I make a non-publication order in relation to anything which would identify or tend to identify the complainant in this matter. That includes publication of the offender's name. 2 KF appears for sentence today after having pleaded guilty at an early opportunity to two offences involving the sexual assault of his daughter, one an offence of aggravated sexual intercourse with a person under the age of sixteen for which the maximum penalty is twenty years imprisonment with a standard non-parole period of ten years, and the other an offence of aggravated indecent assault carrying a maximum penalty of seven years with a standard non-parole period of five years. This is another matter where the standard non-parole periods bear little relationship to the maximum penalties as has just been made clear. 3 The standard non-parole periods are, of course, important. They remain as a guidepost to me despite the offender's pleas of guilty. The pleas of guilty have a utilitarian value which will mean that the sentences I am about to impose are 25 per cent less than they would otherwise be. 4 KF comes before the court in somewhat unusual circumstances. He has earlier pleaded guilty to two other offences involving the same complainant, and on one of those, two further offences appeared on a form 1. Judge Hock sentenced him for those matters in August 2008. She made a technical error in relation to one matter which was corrected by the Court of Criminal Appeal but that did not result in any difference or any change to the effective sentence that KF was serving. 5 After her Honour sentenced the offender the complainant became concerned that the offender had not told the truth about the extent of his misconduct towards her. The offender was dealt with by Judge Hock as a man who had to a large extent come clean and revealed what he had done. But that proved not to be the case. The complainant disclosed two further sexual offences committed by the offender and they are the matters for which the offender is to be sentenced today. 6 These events occurred at around the same time as one of the matters to which the offender pleaded guilty before Judge Hock. At that time the offender had the complainant over to stay along with two other houseguests. Those houseguests overheard a conversation highly incriminating of the offender's misconduct. As well as having penile/vaginal intercourse with the complainant, one of the matters Judge Hock sentenced him for, the offender failed to reveal, but is now to be sentenced for, an act of fellatio. The offender slept naked in bed with the complainant and he asked her to suck his penis. He reassured her by saying, "It's the right thing to do." She therefore put the offender's erect penis inside her mouth and sucked on it for a period of time. That is the offence of sexual intercourse with a child under the age of sixteen. 7 At another point that evening the offender touched, kissed and licked the area around the complainant's vagina, she being naked at the time. It is accepted by the crown that these activities fell short of cunnilingus and so the offender was charged with the offence of aggravated indecent assault. 8 The circumstances of this offending and the subjective circumstances of the offender were dealt with by her Honour Judge Hock when she sentenced him two years ago. The offender is the natural father of the complainant, who was about eleven years of age at the time of these offences. 9 In January 2007 after the complainant's mother separated from the offender the complainant began to sleep in a house built for the offender's wife but she would occasionally visit the offender's home and stay the night. As I mentioned before, two houseguests who also stayed the night on 14 February 2007 overheard incriminating conversation and inquiries commenced. The offender at one stage conceded that he had touched the complainant but said that he did that only out of curiosity and it only happened once. Of course, that was understating the extent of the offender's misconduct, something which has continued over the years. Eventually the offender disclosed some matters to the police and it was for those matters that he was sentenced by Judge Hock. 10 He is now fifty-eight years of age and apart from these matters he has only a minor criminal history involving the supply of Indian hemp, goods in custody and receiving. He himself was abused, or at least he told a psychiatrist that he was, sexually between the ages of eight and twelve. When he appeared before Judge Hock she found that he appeared to have some insight into the gravity of his conduct and he expressed the intention to take part in a sex offender's programme whilst in custody. She found that he appeared to be genuinely remorseful and made particular comment of the fact that the offender had disclosed misconduct that the police would not otherwise have found out about. Of course, that finding was made in the light of the material then before her Honour. Had she known about these matters it is quite possible that she would not have been able to make such a finding. 11 Of particular importance is the circumstance that the offender was being treated for some form of psychosis, or at least the diagnosis was that he was manic with psychotic symptoms. The psychiatrist's view was that the offender had an underlying psychotic disorder which together with his alcohol use may have made the offender more likely to commit the offences than he would otherwise have done so. 12 In the circumstances of this case it is important that the offender is further punished for what he has done. I received a victim impact statement which is eloquent of the harm that the offender has caused to his innocent daughter. She will suffer for many years, if not for the rest of her life, because of the offender's abuse of her. That is of course increased by the offences for which the offender is to be sentenced today and it would be highly inappropriate for the offender to receive no extra punishment for what he did. 13 I am fortunate in the sense that I have both Judge Hock's and the Court of Criminal Appeal's views as to the appropriateness of sentences imposed for the offender's earlier misconduct and it is in effect agreed between the parties that sentences or a sentence of that kind for the sexual intercourse matter is appropriate. As Judge Hock did, I make a finding that each of these matters is in the middle of the range of objective gravity but I decline to impose the standard non-parole period because of the offender's pleas of guilty and the mental issues that I referred to earlier. 14 One matter that I specifically drew to Mr Fitzgerald's attention was this. By imposing identical sentences to those imposed by her Honour but ordering that they commence a year later than the latter of those two sentences I am altering the overall ratio between non-parole period and head sentence that previously applied. Mr Fitzgerald made no submissions that that would cause me to vary the ratio between non-parole period and head sentence from that which her honour chose for the individual sentences. 15 The offender is sentenced to imprisonment for the offence of aggravated sexual intercourse. I sentence him to imprisonment. I set a non-parole period of five years to date from 19 August 2009. It will expire on 18 August 2014 on which date the offender is eligible to be released to parole. I set a head sentence of eight years for that matter. 16 For the offence of aggravated indecent assault I set a non-parole period of three years to commence on 19 August 2007 and a head sentence of four years on that matter. ********** 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.