R v MacDonald

[2024] NSWDC 136

District Court of NSW|2024-02-23

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At a glance

Source facts

Court

District Court of NSW

Decision date

2024-02-23

Catchwords

MSK v R [2006] NSWCCA 381 Markarian v The Queen [2005] HCA 25
(2005) 228 CLR 357 Mill v The Queen [1988] HCA 70
(1988) 166 CLR 59 Munda v Western Australia [2013] HCA 38
171 A Crim R 267 R v Henry [1999] NSWCCA 111

Source

Original judgment source is linked above.

Catchwords

MSK v R [2006] NSWCCA 381 Markarian v The Queen [2005] HCA 25(2005) 228 CLR 357 Mill v The Queen [1988] HCA 70(1988) 166 CLR 59 Munda v Western Australia [2013] HCA 38171 A Crim R 267 R v Henry [1999] NSWCCA 111(1999) 46 NSWLR 346(1999) 106 A Crim R 149 R v Herring (1956) 73 WN (NSW) 203 R v Holder

Judgment (21 paragraphs)

[1]

R [2008] NSWCCA 91 Young (a pseudonym) v R [2022] NSWCCA 111 Texts Cited: A Goodwin, "Child Sexual Assault, The Court Response II" (1989) New South Wales Bureau of Crime Statistics and Research, 1 K Freeman, "Have New South Wales Criminal Courts become more Lenient in the Past 20 Years?" March (2015) 101 Bureau Brief, NSW Bureau of Crime Statistics and Research Issues Paper Commonwealth of Australia, Royal Commission into Institutional Responses to Child Sexual Abuse Final Report (2017) I Potas, Sentencing Violent Offenders in New South Wales (1980, The Law Book Company) Category: Sentence Parties: Kenneth MacDonald (the offender) Public Prosecutions (NSW) (Crown) Representation: Counsel: B Clark (for the offender) N Keay (for the Crown)

[2]

[3]

Facts after trial

In 2020, Heather made allegations to police that when she was a child during the 1980s, she was touched sexually by her neighbour Kenneth MacDonald. She told police that another girl, Dawn, had also been interfered with. Police approached Dawn. She too made complaints about what MacDonald had done to her during the relevant period. In 2021, after a police investigation, MacDonald was arrested.
MacDonald was born in 1949. He is now aged 73. Although other acts were alleged, twelve were able to be isolated and particularised. Counts 1, 2, 3, 9 and 12 related to Heather who was born in 1975. Counts 4, 5, 6, 7, 8, 10 and 11 related to Dawn who was born in 1972. Each offence was said to have occurred in a suburb of Wollongong between 1980 and 1989.
In November and December 2023, MacDonald came for trial at the Wollongong District Court before a jury of twelve. Three specific offences were alleged. 1. Assault and Act of Indecency of a Girl: Crimes Act 1900 (NSW), s 76 (now repealed), Counts 1, 2 and 3. For the purpose of Counts 1, 2 and 3 a 'Girl' is defined as, a female person aged under 14. 2. Assault and Act of Indecency: Crimes Act 1900, s 61E(1) (now repealed), Counts 4, 5 and 12. 3. Sexual Intercourse without Consent Knowing the Person did not Consent: Crimes Act 1900, s 61D(1) (now repealed), Counts 6, 7, 8, 9, 10 and 11.
It was not in dispute that MacDonald and each complainant were present at the location alleged during the time period set out in the indictment. The complainants were the children of his friends and neighbours. The group of friends would regularly meet at their respective houses for barbeques, card nights and other get-togethers. Their children had free range at those homes, some of which had backyard swimming pools. Sometimes the children slept at the MacDonald's house until taken home by their parents.
On 6 December 2023, after a six-day trial, the jury acquitted MacDonald of Count 9 but convicted him of the remaining 11 counts. MacDonald must have the benefit of that acquittal. He is to be sentenced today for the matters for which he was found guilty. The trial was conducted efficiently, a number of facts were agreed allowing the jury to focus on the critical issues being - whether the events occurred at all.
MacDonald did not give evidence, but he had made comprehensive denials of the allegations in both a police interview and two conversations recorded pursuant to a listening device warrant. He relied upon those denials at trial.
His facilitation of the course of justice and cooperation in the conduct of the trial will be taken into account when I synthesise all relevant features: Crimes (Sentencing Procedure) Act 1999 (NSW), s 22A.
He is not to be punished for going to trial or for his continued denial of his offending. That is his right. He does not however, get any of the benefits in reduction of sentence often given to those who make an earlier acceptance of responsibility, or plead guilty, or show genuine remorse.

[8]

Summary of the s 61D(1) sexual intercourse without consent allegations

Dawn said that MacDonald would be in his garage regularly after work. To her it felt like he was there every day. She said: "Especially as I got older because I used to walk past his house going to high school. It felt like he'd call me into [his] garage every day.": Trial transcript, p 113.
She was not sure, but that is what it felt like to her. She said, "I'd panic every time I saw his car there as I rounded the corner to walk home.": Trial transcript, p 113. She told the jury it felt like oral sex occurred every day although she could not be sure. She said she never consented or agreed to such actions, but he had held her head. She noted he never ejaculated: Trial transcript p, 114.
Count 4: Between 13 October 1982 and 12 October 1985 was the first occasion she recalled. She said she walked in through the garage: "And as he's turned around his penis was out of his shorts. And he's called me over. And then I don't know what he actually said to me, but next minute I … had my head on his penis, or my mouth on his penis with him holding my head. And that was … the first time. I … don't know how long it was for. I was in total shock.": Trial transcript, p 113.
Count 7: Between 13 October 1982 and 12 October 1986 she described another act of intercourse where he had told her to "suck it like a straw."
Count 8: Between 13 October 1982 and 12 October 1986 during another act of oral intercourse in the garage she bit his penis. She told the jury: "He held my head so hard … that the penis was at the back of my throat. I gagged and then accidentally bit him. And … his response [was] 'never use your teeth'.": Trial transcript, p 114.
Count 10: Between 13 October 1983 and 12 October 1986 on having oral sex in the garage the act was interrupted when Mrs MacDonald came into the garage, and he pushed Dawn away. She said, "He turned his back." And as Mrs MacDonald came over, she recalls her school bag was in the garage, "And I picked it up - looked at [Mrs MacDonald] and just kept walking." She did not talk or respond to Mrs MacDonald at all: Trial transcript, p 114.
Count 11: The final count in relation to Dawn is a s 61D(1) matter. Between 13 October 1984 and 12 October 1986, she recalls being in a bed at the MacDonalds' house with Heather and another child. She told the jury he came to the bed she was on. She could smell alcohol and cigarettes. He knelt down with his hands in her pants - there was then digital penetration. He also said, "I'm going to have sex with you soon." When she heard that she was "absolutely petrified.": Trial transcript, pp 102-103.

[9]

Objective seriousness

Making an assessment of the seriousness or gravity of each offence is a critical component of the sentencing process. There are no prescribed set of descriptors that must accompany such assessments. I trust the matters critical to my assessment will be readily apparent from these sentencing remarks and the summaries that I have given.
As is obvious from those short summaries, I am sentencing for what objectively were serious offences; some were more serious than others, primarily because of the degree of penetration and the extent of any touching.
Context is important. It needs to be stated from the outset there was at the relevant time, and is now, an absolute prohibition on any sexual activity with a child. That is strictly enforced. The laws are there to protect children from the physical and psychological harm taken to be caused by premature sexual activity. It follows that every act that involves sexual interference with a child is serious and is treated seriously by the courts. The guidance offered by the maximum penalties at the time made that clear.
What I have to focus on is the actual character of the incident. Each of which involved an assault upon a child. The degree of physical contact is also of considerable significance. All the facts and circumstances have to be considered. I look at: 1. What was done; 2. The character of those acts; 3. The nature and degree, where there was penetration of the child's genitalia, so as far as digital penetration is concerned; 4. The nature and degree of any oral intercourse; 5. The time over which the acts occurred; 6. The age difference between the perpetrator and the child; and 7. The relationship of the child to the perpetrator.
Context is important because these acts were not isolated.
There was an absence of aggravating features sometimes found with such matters. But absence of an aggravating feature is not a mitigating feature.
There were features common to each of the offences: 1. The vulnerability of the child; 2. The age difference between the child and MacDonald; 3. The trust that their family had placed in MacDonald; 4. MacDonald's abuse of his friendship with them; and 5. His abuse of that trust that they held in him.
He was, for all intents and purposes, treated as a person who would respect and could be trusted with each child. He failed in those responsibilities.
Count 1 involved him using a young girl for his own sexual gratification. There was skin on skin contact with his genitals although the offence occurred over a short period it would have been a disturbing incident exposing the child to something that no child should have been exposed to.
Counts 2 and 3 showed his complete disregard for the child and his use of the child for his own prurient purposes. The touching was all over the body including near the genital area, but it was over the clothes and did not involve skin on skin contact. Again, the Court does not ignore the fact that he was an adult and the complainant, a child.
Count 12 was opportunistic, offensive, and showed a complete disregard for the child - touching her with his grubby hands on the breast, again showing his complete disregard for the child. Another serious example of its type.
Each of the acts of indecency, even at the time and certainly now, Counts 2 and 3 and 12, would justify a custodial sentence. It is possible that if they were isolated incidents that the s 5 threshold would not have been crossed but they were not isolated incidents.
Counts 2, 3 and 12 would now have been charged under a different section. But then, and now, digital penetration of a child ordinarily called for a custodial penalty so as to reflect the seriousness of what was done to the child.
Counts 4, 5 and 11 each involve the digital penetration of a child who was in the home of MacDonald in a place where their parents had placed them for safety while they enjoyed the hospitality of the home of friends. Some occurred while the child was in bed or at the pool. In each case his actions were short in compass, but each involved the digital penetration of a child. They may have been opportunistic but there was a degree of persistence.
Again, it takes little imagination (reinforced by the Victim Impact Statements) to appreciate the invasive nature of what occurred by the exposure of the child to premature penetration of her genitalia by an adult. Each was a serious example of their type.
Counts 6, 7, 8 and 10 each involved forced oral intercourse with a non-consenting child. The acts were opportunistic, in one sense, but persistently engaged in. MacDonald abused the child for his own sexual gratification. He abused the child in a public way. He treated the child in a humiliating way. He exercised control over her and his dominion over her was complete. Each was a serious example of its type. There is little to distinguish one offence from the other.

[10]

Past penalties and past offending

At the relevant time s 76 Crimes Act 1900 carried a maximum penalty of 6 years imprisonment. Section s 61E(1) Crimes Act 1900 had a maximum penalty of 4 years imprisonment. That penalty was increased during the relevant period. For s 61D(1) Crimes Act 1900 the maximum penalty was 10 years.
Section 80AF Crimes Act applies to the 61E(1) matter, as the maximum was increased during the relevant period. Section 80AF restricts the maximum penalty I can consider to 4 years imprisonment, and I have proceeded on that basis.
For reasons I will outline, but as a matter of sentencing principle, courts have to have regard to maximum penalties and careful attention is required to them. That is not just because Parliament legislated for them. Here they provide one important yardstick against which to measure an appropriate penalty: R v Cattell [2019] NSWCCA 297; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357.
I do not sentence according to what I might be able to glean about sentencing patterns and practices at the time of sentencing. Section 21A Crimes (Sentencing Procedure) Act 1999 (NSW), as it then was, and today's sentencing practices have been informed by many things including a Royal Commission into Institutional Responses to Child Abuse: Commonwealth of Australia, Royal Commission into Institutional Responses to Child Sexual Abuse Final Report (2017).
The relevant provisions in s 21A (and now s 21B) require a degree of nuance. Since the 1980s, today's sentencing practices have been informed by the significant increases in maximum penalties for crimes against children. They have been influenced by the fixing of standard non-parole periods that now apply: K Freeman, "Have New South Wales Criminal Courts become more lenient in the past 20 years?" March (2015) 101 Bureau Brief NSW Bureau of Crime Statistics and Research Issue Paper, pp. 10-11.
The terms "sentencing practices and patterns" are not defined in the Crimes (Sentencing Procedure) Act, but that legislation overrides the common law principle that the court must apply the sentencing patterns and practices that existed at the time of the offence: R v MJR (2002) 54 NSWLR 368.
The overall effect of the new legislation is that beside from the statutory guideposts or yardsticks of the maximum penalty, those matters that might in the past have led to a lesser sentence in historic cases cannot be taken into account. However, a court may consider the fact that a historic offence encompassed a wider range of more serious contact than would constitute the equivalent in current offences: O'Sullivan v R [2019] NSWCCA 261 at [36]- [46].
In R v Cattell [2019] NSWCCA 297 at [123] Justice Price said where the provision applied a court should: 1. Take into account the sentencing pattern existing at the time of sentence where such a pattern is able to be discerned; 2. Determine the facts that are now available to the court; 3. Have regard to the maximum penalty applying at the time; 4. I identify where the offence fell on the range.
I do not believe I am required to strictly comply with point (4): Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162 at [88]; Paterson v R [2021] NSWCCA 273 at [32]-[33]; KM v R [2023] NSWCCA 10 at [52]; Decision restricted [2022] NSWCCA 246; R v R E [2023] NSWCCA 184 at [35].
For the reasons I outlined earlier, I take into account relevant, aggravating and mitigating factors, including the statutory provisions in s 21A(2). I will eventually fix a non-parole period and balance of the term, after considering s 44 Crimes (Sentencing Procedure) Act 1999.
I note that the maximum penalties that applied at the time were graduated and dependant on the level of physical contact and the ages of the complainant. Studies from the relevant time noted that the likelihood of the defendant being given a custodial sentence rather than a non-custodial sentence varied with the maximum penalty. Offenders were more likely to be sentenced to custodial sentences than bonds depending on the age of the child: A Goodwin, "Child Sexual Assault: The Court Response II" (1989) New South Wales Bureau of Crime Statistics and Research, 1, 65-75 and 96
In case some people think that sentencing courts were lenient at the relevant time it, is important to note that custodial sentences were imposed: I Potas, Sentencing Violent Offenders in New South Wales (1980, The Law Book Company) and R v Mitcheson (District Court (NSW), 16 May 1975 unrep) for example, involved one instance of a s 76 Crimes Act offence, bearing some similarity to one of the matters here. A custodial sentence was imposed. The Court of Criminal Appeal rejected an assertion that a child victim had suffered no obvious ill effects, stating, "this was a serious offence: It was a bad offence:" R v Mitcheson. Those views have not changed.

[12]

Victim impact

I received Victim Impact Statements. One of which was read to the Court by Dawn. Heather's statement was read to the Court by the Crown Prosecutor. They were moving.
They will be taken into account. I have to take care because I have to sentence consistent with the jury verdict, not the personal opinion of a complainant. I have to take into account the provisions of s 28 and 29 Crimes (Sentencing Procedure) Act. There were, with respect, matters in pars 6 and 15 of Dawn's statement, which while quite proper, I cannot take into account when I come to sentence because of those provisions.
In her moving account, Dawn told the Court and the offender of the impact of the offending on her. In her account, she asked a question that I am sure every right-thinking member of the community would ask, "How could someone so evil do this to an innocent little girl?" She spoke of her shame and guilt.
She should not feel shame or guilt. She was an innocent child. She bore no responsibility for his actions. She was a victim of the offender. She spoke of; how powerless she felt at the time, how it impacted on her at the time, how she could never forget a man's fingers in her vagina, how she could never forget the things he said and did to her in the garage during the instances of oral sex. She spoke of the shame that she felt when she exposed her secret to family and friends. She spoke of her disgust and her embarrassment.
She spoke of how it felt and how she would freeze as she lay there when his fingers were in her waiting for it to stop. How she hated what he did. She can still remember his breath, his cigarettes. She now feels "uneasy around older men", she has received and continues to go to counselling. She spoke of her nightmares. She said her "husband is a great comfort" to her but that her sexual relationship has been interfered with by what occurred, as have her "eating habits" and "body image". Her relationship with her parents has changed since her disclosure. She speaks of the impact that the disclosure had on the relationship that her mother and others in the family had, with the family of MacDonald.
She told me of her anger; at his denials, his defending the matter in court and denials made in the recordings that were played to the Court. She said, "it kills [her] that [he] has shown no guilt, and [made] no admission[s]". She said the "pain and [the] shame never goes away". She concluded by saying: "My hope moving forward is I will not freeze and be powerless … ever again. What you have done is a life sentence for me, … you have no power over me now and I'm not to blame. You are the paedophile and I hope that justice prevails."
Heather noted that, since the offences, she has lacked "self-confidence and struggled to talk about [her] life". She has lost trust in herself. She spoke of the offender stealing her "pure innocence" and how what he did to her has "haunted" her all her life. She wrote of confusion and blame. She acknowledges it is not her fault. She says her drug use and subsequent addiction helped ease the damage, but it did not heal the problem "because [MacDonald] was the problem." She concluded, "I will live forever with the damage of what [MacDonald] has done."
The Victim Impact Statements attest to the personal harm suffered by each woman as a direct result of the offences. I have no difficulty in accepting what was set out in them. Those statements served a very practical purpose of drawing to the offenders, the courts and the community's attention the personal harm and general harm to the families caused by his crimes.

[13]

Subjective case

I have a Sentence Assessment Report, Exhibit D, and references, Exhibit 1.
The references must be taken into account. The fact that people speak to his good character does not excuse his crimes. Their references are put forward there to inform the Court about the man for sentence. Each sentencing exercise involves proper consideration not just of the crimes, but of the person to be sentenced. Courts try, so far as is practical, to engage in individualised justice.
His referees who have known him most of his life speak of an honest, down to earth character who they trust. They say that their knowledge of his offending is out of character with the Ken MacDonald they know. I accept that, but given the evidence of the trial, most of the people who were part of his close friendship circle at the time also felt the same thing. But he was not honest with them, he was not trustworthy, and for the period of this offending, he was not a person who deserved their trust.
His children still support their father. He also has, as the material before me indicates, support from prosocial members of the community. That is one important factor that has to be taken into account when I consider his risk of reoffending, as ultimately, he must be reintegrated into the community. Despite the wishes of Dawn, these are not matters that require a life sentence.
MacDonald has expressed no remorse or any acceptance of responsibility. He told the author of the Sentence Assessment Report that he did not care about the impact of the offending. He is entitled to his view. He cannot be punished for maintaining his innocence, that is his right, but he gets no advantages that often follow an early guilty plea or expressions of remorse.
The evidence at trial indicated that the offences were committed when he was intoxicated and a heavy drinker. It needs to be stated that if a person commits offences of any sort, but particularly offences of this nature while intoxicated, the fact of that intoxication is not relevant in mitigation of sentence. At best it helps me have some understanding of why an otherwise law-abiding person did what he did and continued to do so and why he was not exercising sound judgment: R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149 at [273]. But I repeat, his intoxication does not mitigate.

[15]

Delay

Just because there has been a significant delay does not necessarily mean that the sentence must be reduced. Offenders do not necessarily benefit just because there was a delay in revelation of their offending: R v Hornhardt [2017] NSWCCA 186; R v Cattell.
Every exercise of sentencing is individual. There is no fixed principle about whether, and to what extent, leniency arising from delay should be granted. Here, the very nature of the offending and the relationship between the complainants and the offender, and the offender and their families, made them reluctant to come forward and make a complaint.
Studies before the Royal Commission show it is not uncommon for victims of child sexual assault to not to disclose for many years. If one freezes at the time, if one feels guilty about an experience, it is only a small step for an immature mind to draw the conclusion that one has been themselves bad and somehow it was their (the child's) fault that this occurred. Hiding from consequent shame can be a potent deterrent to disclosure. Those general principles (which I often apply) were reinforced by the statements that I read today.
MacDonald has not, until these crimes came to light and until the verdicts of the jury, suffered the opprobrium from the community his crimes deserve. He did not lose his liberty in the 1980s, as he surely would have: Magnussen v R [2013] NSWCCA 50 at [62]. The delay does however mean he has lost the opportunity to have the matter dealt with when sentencing patterns and principles were different: Young (a pseudonym) v R [2022] NSWCCA 111; Crimes (Sentencing Procedure) Act 1999, s 25AA.
Additionally, he is now serving his sentence as a much older man. He did not offend before these acts occurred and the offending ceased in 1989. He has not committed any crimes since. The Sentencing Assessment Report puts him at a low risk of reoffending.
Sentencing for offences committed decades ago calls for a considerable measure of understanding and flexibility: R v Todd [1982] 2 NSWLR 517 at [519]; Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at [14].
The delay in bringing this matter before the Court was to the offender's advantage. It has provided him the opportunity to demonstrate that this offending, very serious though it was, appeared to relate to an aberrant period when viewed against the course of his life. He has demonstrated his capacity for rehabilitation by not, so far as the Court is aware, reoffending: AJB v R (2007) 169 A Crim R 32; Wright v R [2008] NSWCCA 91.
Offenders are entitled to have evaluated in their favour, any factor deriving from their conduct which reflects to their advantage: R v Gannon (District Court (NSW), 19 August 1984, unrep). But nothing can, and nothing will, excuse what was done.

[19]

Synthesis

Mr Clark asked that I not impose a "crushing" sentence. A sentence should not destroy all hope for a life on release. If that occurs there is no incentive to rehabilitate or engage in programs. At the same time what is "crushing" is very subjective and it may depend upon the perspectives of MacDonald, his victims or the community: Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301; MAK v R; MSK v R [2006] NSWCCA 381.
I have to synthesise all relevant factors. It is important to note particularly to the victims of these crimes that the sentence imposed is only one indicator of the seriousness of which a court views the crimes committed. The Court has to take into account all relevant considerations, which is why I have sought to carefully address matters put before me and the relevant principles.
What that means is there can be no direct correlation between the harm done and the sentence that must be served. That sentence must have portion of it spent in the community. No child victim of sexual assault or indecent assault should ever equate or measure her injury with the punishment actually inflicted.
This sentencing exercise is one of many of examples where the interplay of the considerations relevant are complex. The applicable principles point in different direction: Engert v The Queen (1995) 84 A Crim R 67.
The objective seriousness of what was done on each occasion was high, although there are differences, obviously given the nature and context of the offences. This conclusion they are applies whether assessed according to principles that apply today, or the 1980s.
The sentencing patterns I apply reflect, as I said, the new appreciation of the harm caused by such offences, but I cannot take into account the new penalty regimes. That new appreciation should apply not just to judges but to all in the community, including those such as MacDonald who offended against children decades ago.
I take into account the matters in mitigation, to the extent that I can. Were I to impose a sentence that the current maximums require a greater sentence would have been imposed but I cannot do so, for the reasons I have outlined. That said, the sentences by their severity, should operate to express the community's repugnance and disapproval of offending of this type and must signal to others who think that they could behave as MacDonald did to these young girls, that the community will not accept it, and if they do so they will be punished severely: R v Herring (1956) 73 WN (NSW) 203 at [205].
The sentence must reflect my assessment of the seriousness of the gravity of what was done and attempts, so far as is possible by any sentence of imprisonment, to vindicate the dignity of the complainants and recognise the harm that was done to each of them and the harm such crimes cause the community and the families of all those connected to the case: Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600 at [52]-[58]; Weininger v The Queen (2003) 212 CLR 629 at [24].

R v MacDonald

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (21 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (30)

Cited By (2)