R v Kovac [2006] VSCA 229

2 The appellant was convicted of 6 representative counts and 3 discrete counts of indecent assault on a male under 16. Three young boys were the victims of these offences. The appellant was sentenced to a total effective sentence of nine years and six months, with a minimum term of five years and six months before being eligible for parole. The present matter is an appeal against the severity of the sentence imposed.

3 The offences occurred during various periods between December 1963 and November 1980. The appellant was 31 in 1963, and 48 in 1980. He is now 74 years old. Two of the boys, MB and JL, were students at schools where the appellant taught physical education. The youngest victim, PR, was introduced to the appellant by a "street kid" who was allegedly paid to provide sexual services to men in the offender's home.

4 The offences covered by counts one to three occurred between 1963 and 1964. In 1963, the appellant was a physical education teacher at a Melbourne school and MB was his student. When MB was 11 or 12 years old, he attended a summer camp at Wilson's Promontory, at which the appellant was a supervisor. Counts one and two are representative counts covering acts of fondling and fellatio of MB, which occurred while the appellant was playing hide and seek and other "games" with the victim at the camp.

5 Count three is a discrete count which covers acts which occurred following

some of the acts of fondling and fellatio covered by count two. The appellant placed his erect penis between MB's upper thighs, underneath his scrotum and began masturbating by moving up and down. This continued until the appellant moved away and ejaculated on the ground.

6 Count four was another discrete count involving MB. During the school holidays in May or September of 1964, or possibly in the summer holidays of 1964/1965, the appellant telephoned MB at home, and asked him to go bowling. MB accepted, and the appellant took him to a bowling alley in the area. After bowling, the appellant drove MB to a semi-rural area along the Hume Highway in Craigieburn, where he pulled the car over to the side of the road. The appellant told MB to pull down his pants and fellated MB until he ejaculated.

7 The sentences of imprisonment imposed for these counts were as follows:

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count one (which was a representative count) - two years;

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count two (also a representative count) - three years and six months;

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count three (a discrete count) - 18 months; and

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count four (also a discrete count) - 18 months.

Counts involving the victim JL

8 Counts five and six were representative counts relating to offences committed in 1968 when JL was 12 and 13 years old. JL was a student at a school where the appellant was a physical education teacher. He became a favourite of the appellant and was given various privileges. The appellant began to offer JL lifts home from school. The first time that the appellant drove JL home from school, he showed JL pornographic pictures and magazines. He did the same thing on a number of other occasions.

9 The offences involved acts of fondling and fellatio performed by the appellant on JL. In addition to the occasions covered by counts five and six there were at least another four occasions on which this type of sexual contact occurred between the appellant and JL, whilst the appellant was driving JL home.

10 Count seven was a discrete count covering an offence committed while JL was at a camp where the appellant was one of the supervising adults. There was a small celebration on the last night of the camp. The appellant, who was the only adult present, supplied alcohol to JL and other boys. The appellant encouraged JL to drink from a bottle of spirits and JL became drunk. At the appellant's request, JL sat next to him. The appellant pulled JL on top of him, pulled down his pants, and positioned himself so that his penis was between JL's buttocks. The appellant then moved him up and down until ejaculation.

11 The sentences imposed for these counts were as follows:

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count five (a representative count) - 12 months;

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count six (also a representative count) - 18 months; and

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count seven (a discrete count) - 12 months.

Counts involving the victim PR

12 Counts eight and nine are both representative counts covering acts of fondling and fellatio upon PR, which occurred during the period between 1978 and 1980, when PR was between nine and 10 years old. PR lived at a boarding house in St Kilda with his mother, who was an alcoholic, and his younger brother. His family was in a difficult financial situation. PR was friends with a young boy known as CM. CM told PR that he was being paid money in return for sexual services provided to men at the appellant's home.

13 One day PR was taken to the appellant's home by CM. The appellant played a video depicting homosexual pornography, before approaching PR, hugging him, and kissing him on the lips. PR moved away, and told the appellant that he did not like to be kissed. The appellant then rubbed PR's genital area and tried to fellate him. After PR refused the appellant gave him $5, and told him to come back again. Count eight covered these acts.

14 CM and PR came to the appellant's house on another occasion because they needed money. When they arrived, the appellant told them to go to a bedroom at the back of the house. In the bedroom there was another man sitting on the bed, who commenced kissing and undressing CM, before performing oral sex on him.

15 PR got undressed and lay down on the bed next to CM. Count nine relates to acts of fondling and fellatio by the appellant to PR on that occasion. The appellant paid PR $20 for this encounter.

16 On another occasion, PR went to the appellant's home with another friend, TL. On this occasion the appellant paid PR 10 valium pills for allowing himself to be fondled and fellated.

17 The sentences of imprisonment imposed for these two representative counts were as follows;

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count eight - two years; and

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count nine - three years six months.

18 Her Honour said that some degree of cumulation was warranted given the representative nature of the counts[1] and ordered that

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six months of the sentences imposed in relation to counts three, four and seven respectively

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12 months of the sentences imposed for count six

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18 months of the sentences imposed count eight

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two years of the sentence imposed for count nine,

be cumulative upon the sentence of three years and six months imposed in respect of count two and upon each other, amounting to a total effective sentence of nine years and six months.

19 The appellant relied on six grounds of appeal, one of which was that the learned sentencing judge erred by failing to correctly apply the first limb of the principle in R v Smith[2] which requires the court to consider whether imprisonment would be significantly more burdensome to the appellant that a person in normal health.

20 The Crown conceded that this ground was made out. We must therefore re-sentence the appellant.

21 Mr Carter said that, in exercising its re-sentencing discretion, the court should give considerable weight to the following mitigating factors;

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the appellant's age and ill health, which made it appropriate to impose a more lenient sentence on him than would otherwise be the case;

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the fact that imprisonment would be a greater burden on the appellant because of his ill-health;

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the delay of approximately 27 years between the date when the last of these offences was committed, and his conviction for those offences;

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the appellant's guilty plea; and

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the nature of the indecent acts committed.

I discuss these submissions below.

The appellant's age and ill health

22 Mr Carter submitted that there was a reasonable basis for mercy in imposing a more lenient sentence on the appellant than would otherwise apply, because of his age and ill-health. The appellant is now 74 years old. The medical conditions from which the appellant is suffering were summarised in paras [135]-[136] of learned sentencing judge's reasons as follows:

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gradual onset of oste-arthritis affecting the knees and spine;

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left retinal occlusion leading to an almost total loss of vision in the appellant's left eye;

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oesophageal reflux;

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enlarged prostate gland which causes some difficulties with continence;

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significant hearing loss of high frequency sound, affecting capacity to hear normal speech; and

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depression.

23 The mitigating effects of the appellant's age and ill health must be weighed against the seriousness of the offences, their long-term psychological impact on each of the victims, the offender's gross breach of trust in engaging in sexual acts with young boys in his care and the principles of general and specific deterrence.

24 In R v Smith[3] King, C.J. explained that

"ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health." (emphasis added)

25 In R v Van Boxtel[4] Callaway, J.A., with whom Ormiston and Charles, J.J.A. agreed, said that the first limb of R v Smith

"contemplates not that imprisonment will make the offender's ill health a greater burden but that the offender's ill-health will make imprisonment a greater burden. The additional burden of imprisonment is then taken into account as a mitigating factor.... The weight to be given to such mitigating factors is another matter altogether. In some cases, they are of great consequence; in other cases, they make no difference when all the relevant circumstances are taken into account."[5]

26 Counsel for the appellant submitted that the court should regard the burden of imprisonment on the offender as a significant mitigating factor. The psychiatric report provided by Dr Sullivan said that

"Should he [the offender] receive a custodial disposition, I would regard him as at increased risk of self-harm and would ask that this be alerted on reception. He would benefit from on-going support, counselling and possibly psychiatric review as indicated. His physical health needs will also require monitoring. There exists facility within the prison system to provide a comprehensive range of medical and psychiatric treatments and thus although incarceration would certainly be distressing for Mr Kovac, I believe his care needs could be met."

27 Because the offender will be able to receive appropriate medical treatment for his health conditions in jail I would give relatively minor weight to this mitigating factor.

28 Some account must be taken of the 27 year delay between the commission of these offences and prosecution of the offender. This delay was not due to undue delay by the prosecuting authorities, but arises because of the nature of the offending against young boys. It has been recognised that the delay that is common in sentencing sexual offenders "does not give an automatic right for a reduction or discount in sentence".[6] It seems to me that this must be because delay in such cases cuts both ways. Although it may seem harsh to punish an offender for offences committed many years ago, the long delay has also affected the three victims of these offences, who have had to wait for many years for the offender's wrongdoing to be recognised and punished. It is common for child victims of sexual offences to have difficulty in telling others about the offences which have been committed against them.[7] Often offenders tell victims to keep the offences a secret, as occurred with JL. While delay is therefore a mitigating factor it should not be given undue weight.

29 The offending conduct involved fondling, simulated intercourse and fellation of the three victims. Six of the counts were representative ones. Counts one to seven were committed against young boys who were students of the offender and involved serious breaches of trust. The victim JL was plied with alcohol before the offence occurred. Her Honour described the conduct of the offender as "predatory and manipulative." She found that the offender

"employed a pattern of predatory behaviour which was primarily opportunistic and variously entailed a degree of enticement, ingratiating behaviour and befriending the complainants prior to the sexual acts."

30 The victim of counts eight and nine was only nine or 10 when the offences were committed and was living in deprived circumstances. The offender exploited the victim's poverty by paying him cash and gave him valium tablets in return for sex. The offender showed two of the victims pornographic pictures and videos. The offences against the victim PR took place in the presence of another child and an adult male. I accept the submission made by counsel for the Crown that these features aggravated the severity of the appellant's offending behaviour.

31 It was submitted that the offender should have received a significant sentencing discount because of his guilty plea.

32 The offender initially denied the offences. Although he eventually pleaded guilty, this did not occur until after the committal hearing and three days of pre-trial submissions and rulings. Although the appellant must derive some benefit from his guilty plea I am able to take account of the lateness of the plea and the fact that the complainants were subjected to the distress of a committal hearing. This is an example of the situation discussed by Nettle, J.A. in R v DW[8]

"It is one thing to plead guilty at the door of the court when it looks like the game may be up. The law takes the view that that is worth a discount. But it is quite another to plead guilty immediately and thereby save the victims and the community any further burden. That is likely to attract a much larger discount and a good deal more respect."

33 Mr Carter also submitted that the offender's remorse should be regarded as a significant mitigating factor. In doing so he relied upon the character reference provided by Mr Knopf, a fellow parishioner of the offender at his church. Mr Knopf said that the appellant had "expressed in my presence what I believe is genuine contrition for the harm that he has caused the victims of his offending."

34 A somewhat different view was expressed in Dr Sullivan's psychiatric report, which said that the offender fulfils diagnostic criteria for homosexual paedophilia, as described in DSM-IV-TR.

"This reflects a primary sexual attraction to peri-pubertal boys, although there is evidence that when younger he had relationships with women and has had relationships with adult males. Mr Kovac's attitudes indicate an ambivalence to regarding this as wrong, with prominent statements about situations in which sexual interactions with minors may be more accepted (gay bars in Thailand) and a focus on himself as victim of blackmail by alleged victims."

35 Dr Sullivan's report suggests that the offender is "ambivalent" rather than remorseful about his offending behaviour. I attach greater significance to his expert opinion about the offender's state of mind than to Mr Knopf's view that the offender is genuinely remorseful.

36 The Crown conceded that the learned sentencing judge erred by failing to apply the principle in R v Van Boxtel[9]. Despite this error, in my opinion the sentences for individual counts, total effective sentence and the non parole period imposed by the learned sentencing judge were appropriate.

37 I have discussed the mitigating factors which were put to this court by counsel for the appellant, including the offender's state of health and age, the burden which imprisonment will impose upon him, the delay between the time when the offences occurred and the time when he was charged and the fact that he pleaded guilty after the committal hearing.

38 I have taken account of the fact that the offender has not been convicted of offences against young people since his 1970 convictions for five counts of gross indecency and eight counts of indecent assault. He was, however, convicted for possession of child pornography in 1997. To state the obvious, child pornography is produced by sexually exploiting children who are the subject of it. It is also relevant that the offences covered by counts eight and nine occurred well after the appellant was convicted of sexual offences for which he was sentenced to a term of imprisonment in 1970[10].

39 I have referred above to the factors which aggravated the seriousness of his offending behaviour. The victims of the offences were aged 11-12, 12-13 and 10-11 respectively and the offences against them occurred over a significant period. The appellant exploited the trust of two young people in his care and abused a young boy whose social situation made him very vulnerable. Victim impact statements tendered on behalf of the three complainants show that they have all experienced serious and long-lasting psychological trauma as a result of the appellant's acts.

40 As Vincent, J.A. has commented

"It is well to bear in mind that the rehabilitation of the victim of sexual abuse may often be more difficult to achieve than that of the perpetrator. Frequently the damage will be profound and a long time will pass before it can be addressed at all. In the meantime, childhood will be destroyed, self esteem damaged, educational and career opportunities lost and the capacity to form and maintain relationships seriously impaired.

...

If the system cannot be seen to have recognised the significance of what has occurred and to have responded appropriately, then its operations will discourage victims from coming forward and indirectly contribute to the concealment of offences. In my view, this cannot be permitted to occur."[11]

41 Dr Sullivan's report shows that the offender continues to try to excuse his behaviour and to minimise its damaging effect.

42 Notwithstanding the concession made by the Crown that the sentencing Judge erred, I would not impose a different sentence. Accordingly I would allow the appeal, and re-sentence the offender in the same terms as her Honour.

[1] R v GJN [2005] VSCA 183.

[2] (1987) 44 S.A.S.R. 587.

[3] Ibid at 589.

[4] [2005] VSCA 175; (2005) 11 V.R. 258.

[5] Ibid at 268.

[6] R v Nikodjevic [2004] VSCA 222.

[7] M v The Queen [1994] HCA 63; (1994) 181 C.L.R. 487 at 515, per Gaudron J.

[8] [2006] VSCA 196 at 19.

[9] [2005] VSCA 175; (2005) 11 V.R. 258.

[10] In 1970, appellant was convicted of, amongst other things, eight counts of indecent assault.

[11] DPP v Toomey [2006] VSCA 90 at [22] - [24].