R v King [2013] ACTSC 279

Supreme Court of the ACT|2013-11-07|Before: Refshauge J

[2013] ACTSC 279 (7 November 2013)

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentencing - Commission of an act of indecency without the person's consent - Engaging in sexual intercourse without consent

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Purpose of non-parole period - No mathematical proportion between the head sentence and the non-parole period imposed - There should not be too great a disparity between sentence and non-parole period

Crimes Act 1900 (ACT), ss 92, 92D, 92J

J A Simpson and E S C Weiner, Oxford English Dictionary (Oxford University Press, 2nd ed, 1989)

Bugmy v The Queen [2013] HCA 37; (2013) 87 ALJR 1022

Chaplin v The Queen [2010] VSCA 145; (2010) 55 MVR 591

Coggan v The Queen [2013] ACTCA 49

Kennedy v The Queen [2010] NSWCCA 260

Mill v The Queen [1988] HCA 70; (1998) 166 CLR 59

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120

Power v The Queen [1974] HCA 26; (1974) 131 CLR 623

R v Bazley (1993) 65 A Crim R 154

R v Fernando (1992) 76 A Crim R 58

R v Hunter (1984) 36 SASR 101

R v King (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 29 June 2012).

R v King [2013] ACTCA 29

1. Ian Harold King be convicted of engaging in sexual intercourse with TP without consent.

2. Ian Harold King be sentenced to imprisonment for two years and ten months, to commence on 2 July 2025.

3. Ian Harold King be convicted of engaging in sexual intercourse with JE without consent.

4. Ian Harold King be sentenced to imprisonment for two years and ten months, to commence on 2 September 2026.

5. Ian Harold King be convicted of committing an act of indecency on MW without his consent.

6. Ian Harold King be sentenced to imprisonment for one year and four months, to commence on 2 October 2028.

7. Ian Harold King be convicted of committing an act of indecency on PD without his consent.

8. Ian Harold King be sentenced to eight months' imprisonment to commence on 2 September 2029.

9. Ian Harold King be convicted of committing an act of indecency on AR.

10. Ian Harold King be sentenced to six months' imprisonment to commence on 2 January 2030.

11. A non-parole period on the total of the sentences imposed by the Court of Appeal, and now in this order, be set to commence on 3 July 2008 and end on 2 November 2020.

1. Standing for sentence today is Ian Harold King, who has pleaded to two counts of sexual intercourse with another person without their consent and who knew that the other person was not consenting or was reckless as to whether that other person consented or not and to three counts of committing an act of indecency upon or in the presence of a person without the consent of that person and knowing that that person did not consent, or who was reckless about whether they consented or not.

2. At the time the offences were committed, sexual intercourse without consent was an offence against s 92D of the Crimes Act 1900 (NSW in its application to the ACT) and attracted a maximum penalty of twelve years' imprisonment. Committing an act of indecency without consent was, at the time, an offence against s 92J of the Crimes Act, and the legislature provided a maximum penalty of five years' imprisonment.

3. This is a complex sentencing exercise, not merely because there are multiple offences, which is always a complex exercise, but because Mr King has already been sentenced to a very lengthy term of imprisonment for similar offences to which he pleaded guilty and for which he was sentenced on 29 June 2012. I sentenced Mr King on that occasion.

4. While it would be possible to have considered how those offences would sit with the other offences and deal with them as if they had been the subject of sentencing at the same time, and while the factual circumstances, considered by the High Court in Mill v The Queen [1988] HCA 70; (1998) 166 CLR 59, were different, it seems to me, that the principles espoused in that case are applicable. Thus, the court said (at 66-7):

In our opinion, the proper approach which his Honour should have taken was to ask what would be likely to have been the effective head sentence imposed if the applicant had committed all three offences of armed robbery in one jurisdiction and had been sentenced at the one time. It is most unlikely that the applicant would have been sentenced to eight years on the first count, eight years with six years of it concurrent on the second count, and eight years cumulative on the third count, making an aggregate head sentence of eighteen years. Yet that, it seems to us, is the practical effect of the sentence imposed by his Honour. On the other hand, the notional exercise which we have just described tends towards a conclusion that a sentencing court dealing with all three offences at the same time would have dealt with the third offence in a similar manner to that adopted when dealing with the second, namely, by imposing a sentence of eight years with five or six years of it concurrent with the earlier sentences. The aggregate head sentence in that event would have been either twelve or thirteen years.

5. While the complexity with which the court was there concerned, namely, that the offences there had been committed in different States, is different from the situation here, the principle, it seems to me, to be applicable, even where the offences were committed in the same jurisdiction and which are relevantly related to the subject of sentencing at different times.

6. I did not understand that any submission was made by the Crown or by Mr K Archer, who appeared for Mr King, to the contrary to that proposition. A complication arises, however, because the sentences I imposed were subject to a successful appeal against sentence by the Crown, such that the sentences ultimately imposed were not mine, and so it will be somewhat more difficult to consider how to apply these principles to a sentence that I did not impose.

7. The offences all arose out of contact that Mr King had with the victims, for such they have become by virtue of Mr King's pleas of guilty to each offence, when he was a coach for a Canberra district cricket club. Mr King had been a prominent first class cricketer from about 1988-9 and became club coach involved in training junior players which led him to meeting the victims and providing coaching to them, some of it on a private basis at his home.

8. In relation to the first offence, it involved a victim, TP, when Mr King helped with cricket training, including some private cricket training. He also purchased him some cricket kit. Discussions, however, turned sexual when Mr King told TP that "a batter should put as many grips around the handle of their cricket bat until it was the same girth as their own penis, so that it would be more comfortable to hold in your hands". He suggested TP should masturbate in the shower and showed him pornographic videos. On one occasion, he told TP to remove his pants and underwear and inspected his penis, grasping it and moving it from side to side.

9. In about 1990, when TP was sixteen or seventeen years old, Mr King took TP to a sex shop and bought a blow-up doll. They then drove back to his home. The two watched pornographic movies there and then Mr King suggested TP use the doll in the bedroom. TP was unable to sustain an erection and Mr King entered the bedroom and told TP that he could fix his problems. Mr King then put TP's penis in his mouth and sucked it. TP's penis became erect and he ultimately ejaculated in Mr King's mouth, which he spat into the sink. TP did not consent to Mr King performing fellatio on him. Fellatio is, of course, sexual intercourse under s 92 of the Crimes Act (as it then was). This was the first count of sexual intercourse without consent.

10. The second victim was JE, who was also a cricketer with a Territory under 17 training squad coached by Mr King. They came to know each other quite well. Mr King took an interest in JE's cricketing, which no one else had done. Later, Mr King offered JE private training sessions, which were conducted at Mr King's home. The sessions were conducted between September 1993 and January 1994, when JE was sixteen years old. During one such session, JE had had a shower and was lying on Mr King's bed and Mr King gave him a massage. Mr King then performed fellatio on JE, who ejaculated into his mouth. JE did not consent to Mr King performing fellatio on him. This was the second offence of sexual intercourse without consent. It appears that Mr King performed fellatio on JE on a number of occasions.

11. The third victim was MW, who had played for the local cricket club since he was ten. He met Mr King when he went with him, another player and his father to a cricket game. They had some contact later. When MW was unsuccessful in making the under 17 Canberra team, Mr King offered to provide him with personal training. Between 1 December 1997 and 31 March 1998, when MW was sixteen, he went to Mr King's home for private coaching. This included Mr King asking him to take off his clothes while he pointed out certain muscles, which he said needed strengthening, and brushed his hand across MW's scrotum. That led to a suspension of contact.

12. Between 31 March and 1 May 1998, however, Mr King contacted MW and suggested they catch up. MW did come over to Mr King's home and Mr King told him to stand in front of the mirror while he referred to a muscular chart. He then told him to take his clothes off, which MW did. He gave MW a massage, and in the course of it, he began pulling his penis until he ejaculated. MW did not consent to this masturbation. This was the first offence of committing an act of indecency without consent. They then watched a pornographic video together.

13. In the 1997-8 cricket season, the fourth complainant, PD, met Mr King while PD was playing in the under 17 Canberra representative team. PD approached Mr King and asked him to provide private coaching, to which Mr King agreed. Mr King then provided the coaching at his house and he told PD that he should masturbate in the shower. Between 26 December 1997 and 31 January 1998, when PD was seventeen or eighteen, PD was at Mr King's house when Mr King pulled PD's pants and underwear down and placed his thumb and forefinger around his penis and squeezed for a couple of seconds. PD quickly pulled his pants up forcing Mr King to let go of his penis. PD did not consent to this act. This was the second offence of committing an act of indecency without consent.

14. The third act of indecency committed by Mr King with which he was charged was committed against AR, who also had started playing cricket for a Canberra club at an early age. He, too, was a member of the under 17 cricket ACT representative team in 1997-8 cricket season for which Mr King was the coach. Mr King had, during a trip with the team to Hobart, given AR and other players some pornographic magazines. On one occasion between 1 January and 1 July 1998, when AR was seventeen, he went to Mr King's house where Mr King began to talk about the size of other cricketer's penises and asked AR whether he masturbated and how long since he had ejaculated. He told AR that players came to his house and masturbated on a beanbag, but AR refused an offer to do so. Mr King then had AR stand in front of a mirror and told him to take his clothes off. Mr King then began talking about his body shape and what he should do. Mr King then placed his right hand just above AR's penis. AR then got dressed and left. AR declined further training. AR did not consent to Mr King committing this act of indecency. This was the third offence of committing an act of indecency without consent.

15. Mr King is now seventy-one years old, having been born in 1943. He had a deprived childhood, including experiencing sexual abuse himself, and this clearly affected him. Tom Sutton, a clinical psychologist, considered that this formed his personality and he describes him as:

[A]n isolated, introverted man who has poor interpersonal capacities and distorted thinking processes ... [with] neurotic components to his personality.

16. He does know right from wrong, but he has elements of arrested psychosexual development, egocentricity, schizoid and schizotypal social isolation patterns.

17. He suffered major development damage. I have set out Mr King's subjective circumstances in some detail in my sentencing remarks: R v King (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 29 June 2012). This was not challenged in the Court of Appeal which summarised them in R v King [2013] ACTCA 29. I do not need to repeat what I said nor what the Court of Appeal said, but I take those matters fully into account.

18. The offences were serious offences. The maximum penalties are, however, significantly less than those for the offences for which I sentenced, and the Court of Appeal re-sentenced, Mr King, because the victims there were under the age of sixteen years.

19. In relation to the offence of sexual intercourse without consent, with which Mr King was earlier charged, the maximum penalty where the victim is under the age of sixteen years was, at the time, fourteen years' imprisonment: s 92D(1) of the Crimes Act.

20. In relation to the offence of committing an act of indecency without consent with which Mr King was also earlier charged, the maximum penalty where the victim is under the age of sixteen years was, at the time, ten years' imprisonment: s 92J(1) of the Crimes Act.

21. Nevertheless, the offences, especially the current offences of sexual intercourse without consent, are also serious, even when committed on a person over the age of sixteen years, as the maximum penalty (as set out above (at [2]) attests. See Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at 133; [31], where the court pointed out that "[t]he maximum penalty of a statutory offence serves as an indication for the relative seriousness of the offence". The courts must play their part in punishing such conduct, which will also denounce it, thus reinforcing norms of acceptable behaviour in the community and deterring others from committing the same offences.

22. There is nothing redeeming or mitigating in these offences. There was a strong element of grooming in the approach Mr King took to the victims, as well as a breach of trust. I was and am satisfied, as was the Court of Appeal, that the behaviour was for the satisfaction of a sexual need of Mr King, all of which matters are relevant to the objective seriousness of the offence.

23. Clearly, the decision of the Court of Appeal is highly relevant to the sentencing in which I am engaged, and indeed, may relevantly bind me. There are, however, a number of relevant differences which I must also take into account.

24. In the first place, all of the victims in these proceedings are over the age of sixteen years, thereby reducing the maximum penalties for which Mr King was subject.

25. In the second place, the High Court has, since the decision of the Court of Appeal, delivered its decision Bugmy v The Queen [2013] HCA 37; (2013) 87 ALJR 1022 in which it confirmed that the deprived background of an Aboriginal offender mitigates the sentence that would otherwise be appropriate for the offence in the same way as the deprived background of a non-Aboriginal offender may mitigate a sentence, as outlined in R v Fernando (1992) 76 A Crim R 58 as properly understood. See Kennedy v The Queen [2010] NSWCCA 260). The Court, however, also decided that the effects of a deprived background do not diminish over time, and must be given full weight in the determination of the appropriate sentence in every case. Such a background may compromise the person's capacity to mature and learn from experience.

26. Mr Sutton's reports are, in this regard, precisely on point.

27. The High Court continued (at 1032; [43]) that these factors remain "relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending". I might add that it seems to me that the principle applies even though there has been a substantial period of good behaviour and non-offending.

28. Mr Archer submitted that, while the sentence I must impose will inevitably increase the head sentence to be imposed, I should not increase the non-parole period. He submitted that the additional offences did not require further immediate full-time custody to meet the objectives of a non-parole period and that any addition to that period would be crushing, given that Mr King would be nearly 77 when eligible for parole.

29. A crushing sentence, it has been said, is one that destroys any expectation of reasonable life after release: R v Yates [1985] VicRp 3; (1984) 13 A Crim R 319 at 326. In some cases, of course, that may be inevitable having regard to the crime committed, as in R v Bazley (1993) 65 A Crim R 154 at 158-9.

30. Ms M Jones, Crown prosecutor, submitted that a further period of immediate full-time custody was necessary. She submitted that this was necessary to vindicate the victims of these offences and that the prospects of rehabilitation for Mr King were uncertain.

31. The purpose of the non-parole period has been stated in clear terms, many times. It is the minimum period that a judge determines justice requires that an offender must serve, having regard to all the circumstances of the offence: Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 at 627. This period is punitive, and justice requires that the offender serves that period in custody: Muldrock v The Queen at 140; [57]. Nevertheless, the setting of a non-parole period has important purposes, as Deane, Dawson and Toohey JJ said in R v Shrestha [1991] HCA 26; (1991) 173 CLR 48 at 67. Considerations of mitigation and rehabilitation will, in an appropriate case, make it unnecessary, or even undesirable, that the whole of the sentence should actually be served in custody. Unless it is found that a convicted person should never be considered for release, a sentence must include a non-parole period.

32. One of the purposes is to give a prisoner an encouragement to be better behaved in prison: R v Shrestha at 69. If there is no realistic or actual hope of early release, there is no encouragement for reform or participation in any kind of rehabilitation in prison. To this extent, the non-parole period plays an important role in benefitting the community. As French CJ said in Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 at 537; [32], "[r]ehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection as is clearly in the public interest".

33. The age of Mr King is clearly a relevant factor to be taken into account in determining the appropriate sentence. King CJ said in R v Hunter (1984) 36 SASR 101 at 103, of not dissimilar circumstances as this, that "a sentencing judge cannot overlook the fact that each year of the sentence represents a substantial proportion of the period of life which is left to [a prisoner]".

34. In the same case, Jacobs J pointed out (at 106) that it would be "clearly ... inappropriate" to impose a sentence that would be "tantamount to a sentence of life imprisonment".

35. It is also important to recognise that, while the non-parole period is punitive, parole does not end punishment. As Jacobs J went on to say "[p]arole is often and necessarily subject to stringent conditions, and supervision, with the ever present risk of return to prison if the conditions are breached". Nevertheless, deterrence is relevant, not merely to the fixing of the head sentence, but also to the fixing of the non-parole period: R v Lane (1995) 80 A Crim R 208 at 211-2.

36. Of course, in setting the non-parole period, a sentencer is not determining when an offender will be ready for, or have completed, rehabilitation. As the Victorian Court of Criminal Appeal pointed out in R v Chan (1994) 76 A Crim R 252 at 255, the setting of a non-parole period does not determine when an offender will be released on parole. That is the decision of the Sentence Administration Board, having regard to all the then known circumstances.

37. The Court did point out, however, that, as a general rule, there should not be too great a disparity between sentence and non-parole period. There is, however, no necessary mathematical proportion that must be found between a head sentence and the non-parole period. Indeed, legislatures in Australia have had different approaches. For example, in Tasmania, the Corrections Act 1997 (Tas), s 68(1) specifies that a non-parole period shall be half the period of the operative sentence. In other jurisdictions, periods of non-parole between 50% and 67% are the usual range. The non-parole period, however, is not set by a proportion; that would be inconsistent with what the High Court has consistently said. Thus, I did not set the non-parole period by reference to a ratio of the head sentence, but by reference to the period that I considered justice required that Mr King serve before he is eligible to be considered for release on parole.

38. It does seem to me, however, that the additional criminality to which Mr King has pleaded guilty, requires some reflection in the non-parole period. It will, however, be much less than would otherwise be appropriate for the head sentences that I must impose because of Mr King's age, the application of the principle of totality, and the circumstances under which Mr King will spend a lengthy period in full time custody, as well as the other matters, including the principles enunciated in Bugmy v The Queen. It is also relevant that he has already suffered from extra curial punishment in that he has lost the use of an eye, a very significant consequence.

39. I take into account Mr King's plea of guilty. It was not made at the earliest date, but it was made some significant time before the trial. It justifies a reasonable discount for the pleas. See Coggan v The Queen [2013] ACTCA 49 at [14]- [21].

40. The objective seriousness of the offences is, of course, a critical factor, and I have described that above.

41. In assessing that in this case, I have regard to the approach of the Court of Appeal in R v King.

42. I have regard to Mr King's subjective circumstances, in particular the deprived circumstances in which he was brought up and his age. I also take into account the contribution he has made to the community, and prior to these offences, his good character. I take into account the extra curial punishment he has suffered, as made clear in R v Daetz [2003] NSWCCA 216; (2003) 139 A Crim R 398 at 410-1; [62], and as followed by the Victorian Court of Appeal in Chaplin v The Queen [2010] VSCA 145; (2010) 55 MVR 591 at 593-4; [13].

43. I note, too, that the severity of a sentence increases at a greater rate than any increase in the sentence as pointed out by Malcolm CJ in R v Clinch (1994) 72 A Crim R 301 at 306, an approach followed by R v Hopkins [2008] NTSC 15; (2008) 22 NTLR 125 at 130; [16] and Lu v The Queen [2008] NSWCCA 261; (2008) 190 A Crim R 109 at 122; [59].

44. I take into account the prescribed maximum penalties which are somewhat less than those for the offences for which Mr King was earlier sentenced. In the circumstances, no other penalty than imprisonment is appropriate.

45. I note that the Court of Appeal apparently approved my approach to totality. I repeat, relevantly, what I there said.

46. I have carefully considered the length of each of the sentences I propose to impose. I have also considered whether the sentences should be partly or wholly concurrent. I have then reviewed the length of the term of imprisonment arrived at and ensured that the principle of totality is respected and that the total sentence is adequate to reflect the criminality of the offences committed, but not more than that, and that the total sentence is not crushing and leaves open the realistic prospect of reform and hope for Mr King when he returns to the community.

47. Where necessary, to achieve this, I have adjusted the cumulation or the concurrency of the individual sentences including reducing the cumulation that would otherwise be likely to be imposed to ensure that totality principle is respected.

48. I have also taken into account the approach to cumulation (as defined in J A Simpson and E S C Weiner, Oxford English Dictionary (Oxford University Press, 2nd ed, 1989) and concurrency disclosed by the sentences imposed by the Court of Appeal, though with a little less leniency than it granted, having regard to all the circumstances.

1. I convict you of engaging in sexual intercourse without consent with TP.

2. I sentence you to imprisonment for two years and ten months, to commence on 2 July 2025, to take into account totality. Had you not pleaded guilty, I would have sentenced you to three years and four months' imprisonment.

3. I convict you of engaging in sexual intercourse without consent with JE.

4. I sentence you to imprisonment for two years and ten months, to commence on 2 September 2026, that is, to be cumulative as to fourteen months on the sentence for engaging in sexual intercourse with TP. Had you not pleaded guilty, I would have sentenced you to imprisonment for three years and four months.

5. I convict you of committing an act of indecency on MW without his consent.

6. I sentence you to imprisonment for one year and four months, to commence on 2 October 2028, that is, cumulative as to seven months with sentence for engaging in sexual intercourse with JE. Had you not pleaded guilty, I would have sentenced you to nineteen months' imprisonment.

7. I convict you of committing an act of indecency on PD without his consent.

8. I sentence you to eight months' imprisonment to commence on 2 September 2029, that is, to be cumulative as to three months on the sentence for committing an act of indecency on MW. Had you not pleaded guilty, I would have sentenced you to nine months' imprisonment.

9. I convict you of committing an act of indecency on AR.

10. I sentence you to six months' imprisonment to commence on 2 January 2030, that is, to be cumulative as to two months on the sentence for committing an act of indecency on PD. Had you not pleaded guilty I would have sentenced you to seven months' imprisonment.

11. These sentences cancel the non-parole period set by the Court of Appeal.

12. Accordingly, I set a non-parole period on the total of the sentences imposed by the Court of Appeal, and now by me, to commence on 3 July 2008 and end on 2 November 2020, as this seems to me the period that, having regard to the sentence imposed by the Court of Appeal, totality and all the other relevant factors, justice requires that you serve in custody.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the prosecution: ACT Director of Public Prosecutions

Solicitor for the defendant: Aboriginal Legal Service

Date of hearing: 6 September, 24 October, 7 November 2013

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