R v MacDonald (No 2)

Catchwords: CRIME — Historic child sex offences — Assault and act of indecency of a girl
CRIME — Appeal and review — Appeal District Court to Supreme Court — Matter remitted to District Court for resentence
RESENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Multiple offences — Totality — Not impose a crushing sentence
SENTENCING — Subjective considerations on sentence — Chronic health issues — Advanced age — Mobility issues — Vulnerable in custody

Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW)

Cases Cited: MacDonald v R [2024] NSWCCA 240
R v MacDonald [2024] [2024] NSWDC 136

Category: Sentence

Parties: Kenneth MacDonald (the offender)
Public Prosecutions (NSW) (Crown)

Representation: Counsel:
R Steward (for the offender)
N Keay (for the Crown)
Solicitors:
Kells Your Lawyers (for the offender)
Public Prosecutions (NSW) (Crown)

File Number(s): 2022/113474

Publication restriction: Statutory non-publication applies in relation to the names of the complainants.

JUDGMENT – ex tempore revised

Matter for resentence

1. In 2023 Kenneth MacDonald was convicted by a jury and sentenced by me for a number of serious offences against two young girls. The offences dated back to the 1980s: In 2024 I sentenced MacDonald to an aggregate sentence of 9 years with a non-parole period of 5 years 6 months: R v MacDonald [2024] NSWDC 136. The sentence commenced on 4 December 2023. The sentence I indicated for Count 11 was 2 years

2. As is his right, MacDonald appealed against his conviction. The Court of Criminal Appeal by majority dismissed the appeals with one important exception, they allowed the conviction appeal in respect of Count 11: MacDonald v R [2024] NSWCCA 240.

3. A close examination by those who appeared for MacDonald on appeal, but not at trial, revealed that the transcript and the complainant’s evidence did not specifically state that digital penetration had occurred during the incident, the subject of Count 11.

4. In her Court of Criminal Appeal judgment Adamson J noted at [221] to [223], (with Ierace J’s concurrence at [261]) that:

“As is apparent from the narrative of the evidence, MA's description of the conduct in respect of counts 4 and 11 was relatively similar: that the applicant had put his hand down her pants. However, in respect of count 4, MA clarified that there was digital penetration, describing "[h]e put his hands down my pants and fingers were inserted into my vagina" when asked in her examination-in-chief "what did he do to you?". However, no such clarifying evidence was given in respect of count 11. While there was general evidence given by MA about the frequency with which the applicant digitally penetrated her (almost every time she went to his place), her evidence did not specify that she was penetrated with respect to count 11. It can be surmised that, had MA been asked about whether this occurred, she would have confirmed, as she did with count 4, that he had digitally penetrated her. It may have been no more than an oversight by the prosecutor that MA was not asked to clarify what she meant by his putting his hand down her pants in respect of this count. However, the result is that there is a deficiency in the evidence in respect of count 11 such that it was not, in my view, open to the jury to convict the applicant of the charge of sexual intercourse without consent. The statutory alternative of s 61E(1), indecent assault, was available and, on MA's evidence, the applicant would have inevitably been convicted of the alternative count.

The applicant and the Crown agreed that, if this Court accepted the applicant's submission that the evidence did not prove digital penetration beyond reasonable doubt, it would be open to this Court to substitute a verdict of indecent assault pursuant to s 7(2) of the Criminal Appeal Act. It was common ground that it would be appropriate, in the event that the verdict for count 11 were set aside and substituted by a lesser offence contrary to s 61E(1), to remit the matter to the trial judge for re-sentence.

I accept the applicant's submission that the conviction of count 11, contrary to s 61D(1), could not be supported by the evidence and am satisfied that the course proposed by the parties ought be taken in relation to that count.”

5. The Court then granted leave to appeal in respect to Ground 1, dismissed the appeal with respect to Ground 3, insofar as it related to Count 11. They quashed the conviction on Count 11 and substituted a verdict of guilty to the offence of indecent assault contrary to s 61E(1) Crimes Act 1900 (NSW). They did so pursuant to their powers in the Crimes (Appeal and Review) Act 2001 (NSW), s 7(2). The Court then made the following order: “Remit the matter to the District Court for re-sentence.”

6. The matter, which must be the sentence that was the subject of the appeal, was then listed in this Court for re-sentence. It was listed today for further evidence and submissions. It is accordingly, open to me to revisit all aspects of that earlier sentence and impose a fresh sentence taking into account the substitute verdict on Count 11.

Fresh evidence

7. I have received the benefit of oral and written submissions from Ms Keay Deputy Senior Crown Prosecutor, who appeared at trial and today and Mr Steward, who did not appear at trial but appeared before the Court of Criminal Appeal.

8. There is fresh evidence before me consisting of some extracts from Justice Health reports. They indicate that the leg ulcer condition that MacDonald entered custody with still continues and appears to be chronic. They are associated with a vascular disease problem that he had, and continues to have, and may well have for the rest of his life. I took it into account when I sentenced him on the last occasion when I considered his ill health and advanced age; 83.

9. I was asked to revisit the original sentence on two bases. The first was the need to reflect in the aggregate sentence, and its non-parole period, a revised sentence to be indicated for Count 11. The second was that there is now evidence that what was theoretical in February 2024 is now verified by the Justice Health report.

10. It is important to note, so far as MacDonald’s health is concerned, that, in my original sentence I was attempting, as best I could, to predict what would occur. And what I thought would occur has occurred; his condition has not gotten better. He needs a walking frame. As an old man with mobility issues and a chronic disease, his time in custody will be experienced more harshly than a fit, young man. I note that he has been, and will be, receiving constant Justice Health assistance.

Determination

11. I must of course reconsider the appropriate sentence to be indicated for the substitute offence for Count 11. There must be some reduction in that indicated penalty to properly reflect the fact that the act did not involve penetration of the child.

12. The extent of the evidence is that the complainant told the jury that he came to the bed she was on, she could smell alcohol and cigarettes, he then knelt down and put his hands in her pants. He also said, “I’m going to have sex with you soon”. When she heard this, she was “absolutely petrified”: Trial Tcpt, 28 November 2023, pp 102-103.

13. Giving proper weight to the maximum penalty now applicable, and the case made for the offender, and other matters discussed in my earlier judgment, which I was not asked to revisit, and I will not repeat, I indicate a sentence for Count 11 of 9 months’ imprisonment.

14. I will also take into account the additional evidence as to his mobility condition. But both matters can only result in a very modest adjustment to the overall sentence, which I note included ten other matters, some of which were very serious. I originally sought, so far as I was able, by applying the principle of totality, not to impose a crushing sentence, I will again seek to impose a sentence that is just and appropriate to the overall criminality of the offender, taking into account he is more vulnerable in custody than a person who does not have his conditions or advanced age.

Orders

15. In relation to Count 11, I indicate a sentence of 9 months’ imprisonment. For each other offence, I indicate the same sentences as indicated in my earlier judgment.

16. There will be a fresh aggregate term imposed. That aggregate term is 8 years and 9 months. The non-parole period will be 5 years and 3 months. It will commence on 4 December 2023, making MacDonald eligible for release to parole on 3 March 2029. The balance of the sentence of 3 years and 6 months will commence on 4 March 2029 and the total sentence will expire on 3 September 2032.

17. The overall reduction in the total sentence is 3 months. There is similar a proportional calculation of non-parole period of the sentence, equivalent to the original sentence. For abundant clarity, I note I have adjusted the dates to MacDonald’s advantage, because of his ill health.

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