R v MKG

District Court of NSW|2024-04-08

JUDGMENT

On 8 March 2024 the offender was convicted after trial by a jury of the following, that he: 1. Count 1: Between 1 January 1977 and 31 December 1978 at [a town] in the State of New South Wales did assault TG, a female then under the age of 16 years and at the time of that assault committed an act of indecency on TG contrary to s 76 of the Crimes Act, 1900 as it then was, and further 2. Count 2: Between 1 January 1979 and 31 December 1980 at [a town] in the State of New South Wales did assault TG, a female then under the age of 16 years and at the time of that assault committed an act of indecency on TG, contrary to s 76 of the Crimes Act as it then was and further 3. Count 4, which was the alternative to count 3: Between 1 January 1979 and 31 December 1981 at [a town] in the State of New South Wales did assault TG, a female then under the age of 16 years and at the time of that assault committed an act of indecency on TG, contrary to s 76 of the Crimes Act as it then was.
As the offender pleaded not guilty there can be no discount or consideration for any plea of guilty. That is not to say that the penalty is increased because the offender put the Crown to proof, rather there can be no discount or consideration for any plea of guilty.
The maximum penalty applicable at the time of the offending was 6 years imprisonment. No standard non-parole period applied at the time.

Assessment

All of the offending conduct involves a significant breach of trust noting that the offender is the victim's biological father.
So far as count 1 is concerned the victim was 9 or 10 years of age. The offending occurred in the victim's home. The conduct involves the offender forcing the victim to fellate him. Further, after the act of fellatio the offender masturbated to ejaculation in the presence of the victim.
The Crown submits, correctly to my mind, that this is the most serious of the offending. Counsel for the offender submits that a finding that this matter was within the mid-range of seriousness "might be difficult to resist".
In all of the circumstances, noting the offending and the other factors to which I have referred, I am firmly of the opinion that count 1 is above the mid-range of seriousness, noting the charge is one of Indecent Assault.
Count 2 involved the offender holding the victim's hand over his penis and masturbating to ejaculation. The victim would have been 11 or 12 years of age. In all of the circumstances count 2 is less serious than count 1 but more serious than count 3 and on my assessment is a mid-range offence.
Count 3 involved the offender being on top of the victim, who was clothed but rubbing against her until he ejaculated. The victim was 14 and accordingly towards the upper end of the age-range contemplated by the section. The matter is slightly below mid-range.

Criminal History

The offender has no criminal history.
In Ryan v R [2001] HCA 21, McHugh J, who was part of the majority in allowing the appeal, at [35]-[37] said: "Given these circumstances, Gleeson CJ was correct when he said that the appellant was not entitled to significant leniency because of his otherwise good character. However, Nield DCJ gave the appellant no leniency whatsoever for his otherwise good character. He was entitled to some leniency for his otherwise good character. That being so, the Court of Criminal Appeal should have allowed the appeal and re-sentenced the appellant. In re-sentencing the appellant, some weight should be given to the appellant's otherwise good character. [36] In considering a prisoner's good character when sentencing, the court must distinguish two logically distinct stages. First, it must determine whether the prisoner is of otherwise good character. In making this assessment, the sentencing judge must not consider the offences for which the prisoner is being sentenced. Second, if a prisoner is of otherwise good character, the sentencing judge must take that fact into account. However, the weight that must be given to the prisoner's otherwise good character will vary according to all of the circumstances of the case. [37] In this case, once the offences before Nield DCJ and Rummery DCJ are excluded, the appellant was of otherwise good character. He was entitled to some leniency because of that good character."
Kirby J, also part of the majority in Ryan said at [110]: "…To ignore totally evidence relevant to the latter because of a general assessment that the appellant was not, globally speaking, a good man or had committed serious crimes, involves a departure from basic sentencing principle. Even in the case of offences against vulnerable children and young persons over an extended period, as here, a proper evaluation of all matters relevant to the sentencing function required that some weight be given to the evidence of character that stood to the appellant's credit. By dismissing that evidence out of hand, and refusing to give it any weight at all, the sentencing judge erred".
Accordingly, while the offender receives some meaningful consideration for his lack of criminal history the fact that he has nothing recorded on his record does not achieve the same significance as it might in other circumstances.

General deterrence

The strong need for general deterrence when dealing with sexual offending against children is undoubted. It goes back to at least the Crown appeal in the matter of R v Muldoon unrep. NSWCCA 13.12.1990. More recently, see for example the leading judgment of Hulme J in R v Van Ryn [2016] NSWCCA 1 at 179 where his Honour said: "The Crown referred to EG v R [2015] NSWCCA 21 at [42] where Hoeben CJ at CL said: 'General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually abuse children intentionally and repeatedly that their actions will not be tolerated and that they will receive significant punishment.'"
I note the Crown refers to these authorities in the written submissions on sentence.

Subjective Case

No oral evidence was called from or on behalf of the offender, however, there was a volume of written material tended without objection. Exhibits 1 and 2 on sentence are medical reports under the hand of Dr Brendan Croot who is the treating general practitioner of the offender and the offender's wife. Going initially to the offender, the report notes that the offender suffers from type II diabetes currently controlled with oral medication, dietary modification and an exercise program. The report notes that the offender has already been identified as having some peripheral nerve damage due to diabetes. Further, the offender suffers from high blood pressure, osteo arthritis, chronic regional pain syndrome (a neurological condition that causes chronic pain and limited use of his right arm and hand) and short and long-term memory problems.
The report goes on to say that there will be deterioration in the offender's conditions while in custody if he does not continue to treat these conditions with a holistic approach. Further, sudden isolation from his support network including his wife and stepdaughter is likely to exacerbate his mental dysfunction and management of mental conditions. The doctor then goes on to make recommendations about how the offender's conditions can be managed. It would be appropriate for Dr Croot's report to be forwarded to the Department of Corrective Services. I accept that issues relating to the offender's health go to a finding of special circumstances.
Going to the report relating to the offender's wife, AG, it appears she suffers from a number of chronic conditions including vestibular and ocular migraines (persistent), auto immune chronic hepatitis, recurring urinary tract infections and Interstitial Cystitis, degeneration of the vertebrae in the lower back, osteoporosis, drug paradoxical effect, and severe cramps. The report also sets out that the offender also takes his wife for annual screening for breast cancer. Further, the report in respect of the offender sets out the offender is her primary carer and notes that an extended absence by the offender would negatively affect his wife and she may lose her independence prematurely.
As I understood the submissions of Mr McCallum, counsel for the offender, it was not put that even in combination the health issues relating to the offender's wife amount to truly wholly or highly exceptional circumstances - see for e.g. Hopley v R [2008] NSWCCA 105 at [38]-[42] per Johnson J. Nevertheless, these issues also go to a finding of special circumstances.
Exhibit 4 on sentence is an affidavits worn by the offender's wife on 4 April 2024. She confirms the issues relating to her ill health and that the offender has shown great encouragement and compassion and helped her cope emotionally and physically with her increasing frailty.
The offender and his wife moved to Perth in 2004 to join AL, who is AG's daughter. They have become increasingly isolated from other family members who live in the East because of the distances and expense involved in travelling. She does not have people on whom she can call for financial or domestic assistance in her husband's absence.
AG's affidavit goes on to set out that since the offender has gone into custody she has lost his age pension, all his utility concessions as well is the small income he made from picking up and delivering boxes. She and the offender were already experiencing financial hardship with a significant mortgage and the rising cost of living and the situation has become "infinitely worse" with the offender in custody. Her health and financial situation means she is not able to visit her husband while he is in custody in New South Wales.
Mr McCallum also read an affidavit affirmed by AL, the offender's stepdaughter. She considers herself lucky to have had him in her life and he has been a "fantastic father" to her. The offender has been very supportive in a number of ways to her including with her work and personal life. She has found it difficult to cope with the shock of the offender's incarceration and absence from their lives. Further, she has had to assist her mother with the matters with which the offender would previously assist her mother. Understandably, she has very real concerns about her stepfather.
Exhibits 5, 6, and 7 on sentence are all testimonial references from people who have known the offender. Exhibit 5 is from AG's sister who also confirms AG's ill health and refers to the extreme difficulty family members have visiting the offender while in custody.
The authors of the reference that is Exhibit 6 say that they are in "complete shock" on being informed of the offending of which the offender has been convicted. They maintain the offending is out of keeping with the person they know. They regard the offender very highly as a valued friend and neighbour. They also speak of the offender assisting neighbours with gardening and other household chores.
The author of the reference that is Exhibit 7 said that he has become acquainted with the offender through the Lions Club. He expresses shock and disbelief at the offending of which the offender has been convicted. The offender demonstrated himself to be a hard-working and positive member of the Lions Club, volunteering his time to undertake a variety of tasks and assist with organising and volunteering. He also speaks of AG's ill health.
There is no reason to doubt that since the offending against the victim in this matter ceased the offender has not reoffended and has led a blameless life. However, the conduct of which the offender has been convicted are serious examples of the offences. This case starkly demonstrates the insidious nature of sexual offending against children where offenders who appeared to the world at large to be honest and decent people behind closed doors are committing heinous crimes against children.
Nevertheless, the offender has clearly rehabilitated himself. I have no difficulty whatsoever in finding the offender is unlikely to reoffend and that there are good prospects of rehabilitation.
The offender was born on in 1944 and is now 79 years of age. He was 32 to 37 years of age at the time of offending. His father passed away in about 1950 and his mother re-partnered. There are no issues that enliven what have become known in shorthand terms as the "Bugmy factors". The offender was always employed, including as a police officer, greenkeeper and meter-reading and payroll clerk for a County Council.
More recently the offender worked [with the government of another country] until retiring in 2016.
There is no issue with alcohol or substance abuse, nor it seems it is suggested there was any such issue at the time of the offending.
The age and state of health of the offender are matters that go to the offender's subjective case. There is nothing before the court that goes to reduce the offender's moral culpability.

Submissions

MFI 3 on sentence are some JIRS statistics kept in respect of offences contrary to s 76 of the Crimes Act, as it then was. The sample involves 17 cases and indicates in respect of Aggregate/Effective sentences the range varies between 12 months and eight years. The non-parole period is varied between six months and five years. One of the oral submissions made by Mr McCallum was that the sentence imposed in the matter presently under consideration would not exceed the two-year non-parole period. With respect to counsel that submission is optimistic, given the nature of the offending.
At the sentence hearing, and in his written submissions counsel for the offender puts that I would find on balance the offender is remorseful. This submission is based on some of the contents of the pretext call of 5 December 2021, which was in evidence at the trial.
During that call the victim said to the offender acknowledged that in a previous call he had said that what had happened was not okay and he could not justify what had occurred. He also acknowledged that in that previous call he had said words to the effect of that it was okay as there was no penetration. When asked "So does that still make it okay?" The offender replied, "No it doesn't, not at all, and I do apologise, I can't do anything better than apologise, unfortunately that is what has happened, as I said, I do apologise ". A little later the offender said, "Well [TG] I cannot do any more than apologise to you like I have said, I cannot do any more than that say how sorry I am it is happened and I cannot take it back". The victim said to the offender "There is no way you can dismiss it and try and say to me that it was okay because there was no penetration". The offender replied, "Well there wasn't". When asked, "So is that ok?" the offender replied, "No, I said, it's not ok".
Mr McCallum puts at paragraph 31 of these written submissions, "… It is submitted that there remains scope to find that he was attempting to show genuine remorse in those candid communications with the victim prior to being charged." The fact remains that the offender pleaded not guilty and arguments were put in the course of the trial suggesting an innocent explanation for those admissions made by the accused.
I accept that the fact that an offender pleading not guilty and putting the Crown to proof does not of itself disentitle an offender to a finding of remorse. However, in the circumstances of this case, noting in particular the manner in which the pretext call was dealt with at trial with the offender attempting to place some innocent gloss on the contents of that call, I am not prepared to find on balance the offender is remorseful.
Both counsel advance submissions on the issue of delay. Mr McCallum referred to the decision of Kelly v R [2021] NSWCCA 154 on the issue of delay. Price J (Payne JA, Wright J agreeing) observed at [63] the findings made by the sentencing judge at first instance (her Honour Judge Huggett, as her Honour then was) on the issue of delay. Those were: "Her Honour made the following findings concerning delay: (1) Delay permitted the applicant to demonstrate he had not reoffended; (2) There was no evidence suggesting his enjoyment of life had been affected; (3) He had escaped justice for decades and enjoyed a life free from punishment for offending; and (4) Balanced against this, was that the applicant would serve his sentence in his later years."
Those same factors apply in the matter presently under consideration. I note the decision also provides some guidance as to the sentence to be imposed. Further, in the matter presently under consideration not only is the offender serving his sentence in his later years but in circumstances where he is particularly geographically isolated from family and friends.
The Crown refers in written submissions to the decisions of Carr v R [2020] NSWCCA 214 and R v Cattell [2020] NSWCCA 297. Price J in giving the judgment of the Court in Cattell at [131] set out what was said by Street CJ in R v Todd [1982] 2 NSWLR 517 at 519-520 namely: "Street CJ in Todd at 519-20: '… [I]t would be wrong, in my opinion, to disregard the practical situation that the appellant had already served a substantial period of imprisonment in Queensland for offences so closely related in time and character to the Sydney offences. … [W]here there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.'"
Price J in Cattell went on to say at [140]: "…It is well settled that the Todd principle does not apply to a state of uncertainty experienced by an offender who remains silent and hopes that his offending remains undetected".
With unfeigned respect to her Honour Judge Huggett (as her Honour then was) the observations her Honour made (at first instance in Kelly) apply equally to the matter presently under consideration. The observation of Price J as set out in the paragraph immediately above also apply to this matter.
I accept that given the offender's age taken with the issues relating to his health that custody will be more onerous for the offender.
I am of the opinion that there should be a particularly generous finding of special circumstances in this matter, the reasons for which include the age of the offender, this is his first time in custody, the fact that the offender is serving this sentence in his twilight years, the offender's state of health, and the offender's wife's state of health and his isolation from her.
In making the finding of special circumstances that I propose I note and have had regard to the comments by RS Hulme J in R v Boney [2008] NSWCCA 313 at [48] to the effect that reducing the ratio to 50:50 is something that "is sufficiently unusual as to inspire examination".

General remarks

In passing sentence I will need to have regard to and give proper effect to ss. 3A and 5(1) of the Crimes (Sentencing Procedure) Act 1999. Section 3A sets out the purposes of punishment, namely: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.
Section 5(1) of the Act provides: A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.
Given the offending, which involves a gross breach of trust, the multiplicity of the offending and the other factors to which I have referred clearly there must be a sentence of imprisonment imposed in this matter. I note that Mr McCallum does not make any contrary submission.
This is an appropriate matter for an aggregate sentence. If separate sentences were imposed the following sentences would be imposed: Count 1: a total sentence of 4 years imprisonment; Count 2: a total sentence of 3 years imprisonment; and Count 4: a total sentence of 2 years 6 months imprisonment.
If separate sentences were imposed it would be necessary for there to be some meaningful partial accumulation of the sentences to recognise the different offending and the period of time over which the offending occurred. Of course, the principle of totality also has work to do in this matter.
The parties agree that the sentence should commence on 7 March 2024.

Orders

In respect of the three counts of Indecent Assault in respect of which the jury returned verdicts of guilty the offender is convicted.
The offender is sentenced to an aggregate sentence of 6 years with a non-parole period of 3 years.
The non-parole period will date from 7 March 2024 and expire on 6 March 2027. Thereafter there will be a balance of term on parole of 3 years to date from 7 March 2027 and which will expire on 6 March 2030.
The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.

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. Decision last updated: 20 May 2024

At a glance

Court

Decision date

Source

Judgment (10 paragraphs)

Parties

Cases Cited (8)