R v TK [2020] NSWDC 35 | Case summary

ARREST AND INTERVIEW

The offender was arrested at about 8.40pm on 29 December 2018 and conveyed to Griffith Police Station.
The offender participated in a record of interview. Under caution and on tape the offender stated that he could not talk about it and had nothing to say. He said he planned on talking about it later because "it's pretty hard for me to tell." He stated, "Maybe one time I'll say it." He later said that part of his plan was to "call her tomorrow. That's what I've talking with my uncle about. I open to him (sic) ... I have to say sorry to my daughter." He further stated that "I think everything what they said it's all right" but then refused to talk further about the matter.
The offender was later charged and remanded in custody. He has been in custody since his arrest on 29 December 2018 until today, and solely in relation to this matter.
The offending commenced while on holiday in Bali but thereafter took place in the family home for the entire period of the offending, which was approximately 11 months. The offending took place in the home on approximately 90 discrete occasions. On an unspecified number of those occasions there was more than one act of sexual misconduct by the offender towards the victim. The sexual offending included acts of making the victim suck his penis or fellatio, performing cunnilingus on her, biting her breast or breasts, digital and penile penetration of the victim's vagina, placing his penis on the victim's vagina over her clothes.
The facts do not indicate whether, on any occasion of penile vaginal intercourse, he ejaculated during intercourse or whether, on any occasion, he wore a condom.
In respect of the offending committed on 26 December 2018, having engaged in penile/vaginal intercourse, he withdrew his penis and ejaculated into his hand.
The offender used, on occasions, threats, violence and coercion in order to maintain his sexual relationship with the victim, threatening to smack her with a stick or otherwise smacking her and, on one occasion, as recalled by the victim, in fact smacking her with a stick when she indicated she did not wish to participate in sexual activity with him.
The use of a weapon is, of course, an aggravating feature pursuant to s 21(2), as is the threatened use of violence. At least the coercion and/or violence were of a limited nature.
A further relevant aggravating feature is of course that with the exception of the incident in Bali, all of the offending occurred in the family home where the victim was entitled to feel safe but of course could not, in the circumstance of the repeated sexual assaults. Although the offender was also a resident of the home, that remains an aggravating circumstance under s 21A(2)(eb) of the Sentencing Procedure Act.
Those are the statutory aggravating features in this matter. The offence itself, including the matters that I have referred to, the victim being 12 at the commencement but for the greater part of the time of period 13 years of age - she was some three years under 16.
I am of the view that there is a significant difference between a child of 12 and 13 years of age and a child of 16 years, with respect to maturity and psycho-sexual development.
The offending only came to an end because he was caught by Ms RA while in the process of committing a sexual offence against the victim.
It has been submitted by the prosecution that the offending falls above the mid-range of objective seriousness, and by Mr Fokkes on behalf of the offender that it falls below mid-range of objective seriousness. Putting aside for a moment the statutory aggravating features, I find that the offending falls at the upper end of the mid-range of objective seriousness, although I note that it is not required in relation to an offence that does not have a statutory non-parole period to refer to a scale of objective seriousness. I have referred to a scale, as have both the parties.
The offending was certainly significant and over a substantial period. It was not a one-off opportunistic offence. It was a course of continuing offending conduct in circumstances where the victim ought to have felt safety in her own home and, in particular, safety from her biological parent. There was a significant breach of trust in a father imposing an incestuous sexual relationship on his child. Such offences must be regarded as serious.
As to the impact on the victim, no Victim Impact Statement has been placed before the Court. However, it has long been recognised that offending of this nature has serious consequences for victims. In Chamseddine v R [2017] NSWCCA 176, Walton J said at [50], (Hoeben CJ at CL and Hulme J agreeing): "It is well recognised that sexual offences against children are objectively serious and cause significant harm to the victims. In R v Gavel [2014] NSWCCA 56; (2014) 239 ACrimR 469 the court stated at [110]: 'This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond at [49] referred to the 'long term and serious harm, both physical and psychological, which premature sexual activity can do'. The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157.'"
I note that there have been many other cases that recognise the harm to children caused by sexual offending against them. That harm in particular arises when they become sexually mature enough to understand what has happened to them in the past, and it is in my view entirely likely that there will be a significant impact on the victim in the future, and an impact of a continuing nature which will have serious adverse effects for her, and I say that even in the absence of a Victim Impact Statement, as it is well recognised.
I note that in respect to the acts involving cunnilingus, fellatio or vaginal penetration by digit or penis that, if charged as separate offences, maximum penalties of imprisonment for 20 years would have been available and maximum penalties of 10 years' imprisonment for the acts involving the accused biting the victim's breast or placing his penis on the victim's vagina over her clothes. It is a requirement of s 66EA that such maximums available for individual acts be taken into account on sentence.
However, I note in relation to this matter that, with the exception of the incident in Bali, there are really only two identified dates of offending, being 26 and 28 December 2018. Otherwise, the evidence before the court is of a generalised nature, as referred to in paras 7 to 12 of the agreed facts.
I note that the offender gave evidence on sentence and accepted, in cross-examination, that if he had not been detected in the process of committing an offence against the victim by Ms RA, he would have continued to offend against the victim.
As to subjective matters, the court has before it the offender's criminal history in New South Wales, which indicates that he has never been convicted of an offence and also a document titled 'Police Clearance Certificate', dated 15 July 2019, from the Kiribati Police Service, which indicates that he has never been convicted of an offence in Kiribati. I accept that he is a person with no previous criminal history.
However, this offending occurred over an approximately 11 month period, on a regular basis, and from the time that he commenced this offending he could no longer be regarded as a person of good character because of the offending he engaged in.
In those circumstances, while his good character prior to the commencement of this offending is of relevance in relation to sentencing, it is not a factor that provides for significant mitigation on sentence. It is simply a factor that must be taken into account. It does not constitute an aggravating factor under the statutory aggravating factors as his prior good character before the commencement of this series of offences was not a contributing factor to his being able to commit the offences.
In ABS [2005] NSWCCA 255, the Court of Criminal Appeal was considering an appeal against sentence for a number of child sexual offences. Budden J (Brownie AJA and Latham J agreeing) said, at [25]: "... the repeated nature of the offences had to be taken into account. Moreover, this factor deprived the respondent of any claim for leniency which may have been available to him had his offending only involved an isolated incident."
In R v Van Ryn [2016] NSWCCA 1, a case in relation to the previous version of s 66EA, RA Hulme J (with Leeming JA and Johnson JA agreeing) said at [268]: "I bear in mind, however, that good character is of less significance in cases such as this, involving repeated sexual offending against children over a lengthy period of time."
Van Ryn was, of course, a case involving more than one child. But the statement by his Honour is apposite whether there be one or more children.
As to subjective matters, before the Court is the offender's criminal history, which I have already referred to; Sentence Assessment Reports under the hands of Community Corrections officers Mathew Austin, dated 9 October 2019 and Kendall Judge, dated 17 March 2020; a psychological report under the hand of Luke Brabant, psychologist with LSC Psychology, dated 16 December 2019 and the offender's evidence on sentence. Subjective matters are drawn from that material.
The offender was born on a small island in Kiribati and is the third youngest of nine children to his parent's union. His family suffered significant financial difficulties throughout his early life. His evidence indicated that they lived in a one room coconut and pandanus palm hut. They frequently struggled for food and were, in general, impoverished, his parents being unable to obtain employment due to their lack of education. Despite that fact, he described his parents as very good and indicated to the psychologist that he had a good connection with each of his siblings.
There was no real domestic violence between his parents or to the children beyond the ordinary chastisement that a child playing up might expect. There was only one occasion when he was approximately 10 years of age that he observed his father, while intoxicated, to be violent towards his mother.
At the age of 14 years he moved to the capital city of Kiribati, being Tarawa, having gained placement at a government school, having apparently done well in primary school. He then resided not with his parents and family but with a paternal uncle and aunt and their four children for five years, at which time his basic needs were better met than previously, although he missed his family.
Although his uncle consumed alcohol, the offender was only once physically assaulted by his uncle when the uncle was intoxicated and the offender was 15 years of age.
He denied having any behavioural issues at school and reported engaging well, with the exception of English classes. However, he did not pass his Year 12 equivalent, as by that time he had commenced truanting to spend time with members of a youth group to consume kava and engage in volunteer activities such as constructing sea walls. He returned to complete his Year 12 equivalent at the age of 22. He subsequently completed a one year program at a maritime school before obtaining employment as a deckhand on a container ship in 2008. He maintained that employment until he moved to Australia in 2011.
He had difficulty on coming to Australia because of his poor English and the restrictions on his visa. However, in 2014, he moved to Griffith and started work at a chicken farm and maintained fulltime employment there until his arrest in December 2018.
As to his medical history, he has had no significant or relevant difficulties and is not in receipt of any medication.
As to substance use and gambling history, he informed the psychologist that he used alcohol roughly three times a week while residing in Australia, on average consuming six beers on each occasion, drinking alone to curb loneliness and boredom. I note that he states to the psychologist, "Mr K reported that all instances of his offending occurred whilst intoxicated and he stated that disinhibiting effect of alcohol made it more difficult for him to control his sexual urges."
I find it difficult to accept that the consumption on average of six beers on two or three times a week caused such a significant level of consumption as to making the offender classifiable as "intoxicated" or made it more difficult for him to control his sexual urges.
He informed the psychologist that his offending was triggered by verbal and physical affection from the victim, which he interpreted as sexual advances. He has in giving evidence on sentence made very similar statements, such as - it may not be his precise words - "I know what she wants. Sometimes I lose my control." When asked what it was about her conduct that allowed him to form the opinion that she wanted sex, as I understood his answer which was difficult to discern, it was to the effect that he "knew what she wanted because she came to him moving around".
It appears to me that the offender interpreted any sign of affection from his daughter, in the entirely ordinary circumstances of a daughter relating to a parent, as being a desire for some sexual contact. In my view, while I concede that I am not a psychologist or a psychiatrist, it appears to me it was the offender projecting his own desires onto his daughter.
I note that he has indicated that he was introduced by a friend to pornography and had an interest in accessing pornography relating to incest, although he claimed not to be interested in pre-pubescent females.
It was said in his evidence and referred to in the psychological report that he was the subject of sexual assaults by the priest who was associated with the volunteer group. I note in the psychological report the following: "He stated that he resided with his priest's parents from the age of 19 until he moved to Australia in 2011. According to Mr K, he was the victim of frequent and enduring sexual abuse by this priest. The age at which this commenced is unclear as Mr K provided inconsistent information between interviews (i.e. 11 years old versus 18 years old), which I note also differs from the age listed in your letter of instruction (i.e., 13 years old). He reported that the abuse occurred roughly twice a week and including the priest masturbating Mr K and performing oral intercourse on him. Mr K expressed mixed feelings towards this experience ...He attempted to avoid the priest when the priest was intoxicated ... however he stated that when being abused it 'felt really good' and he 'liked it'."
Mr Brabant opined that; "These early experiences of sexual abuse and Mr K's mixed feelings towards them have possibly had an impact on his attitude towards child sexual abuse (e.g. viewing children as being able to consent to and enjoy sex) that had endured through his adult years." [Emphasis added.]
I have some difficulty with that statement by the psychologist because it would appear from all the material before me, despite the fact that the offender referred to himself on sentence as being 17 years of age at the time the priest commenced his offending against him, on the material before the Court he appears to have been approximately 19 years of age, that is, he was not a child. Even at 17 years of age, he must have had a reasonable appreciation that any sexual conduct by the priest to him was entirely inappropriate, although I accept that his sexual relationship with the priest, even if occurring at an older age, must have given him a warped view of appropriate sexual relations.
The offender has denied using any illicit substances or abusing any prescription medications. He had for a comparatively short period a problem with gambling, but ceased problem gambling in 2013, well before the commission of this offence.
He has had two intimate relationships in his life, one with the mother of his daughter and the second with his current partner, being the step-mother of the victim.
The Sentence Assessment Report of 9 October 2019 in relation to "Attitudes" contains the following: "Mr K stated that he was responsible for his offending behaviour, however, he appeared to apportion blame to the victim, and cited her supposed initiation of, and willing involvement in, the sexual acts. In reference to the victim, Mr K stated that "I believe she wanted the sex that happened." He claimed that "most of the time I told her to go away, but sometimes I saw it as an opportunity". Mr K could not rationalise his behaviour."
As to violence and aggression, he claimed to not be an aggressive man but the author of the report noted that the agreed facts referred to a regular element of aggression, threats and acts of violence to obtain compliance.
As to his insight into the Impact of the offending, the report states: "Mr K demonstrated minimal insight into the impact of his offending upon the victim. Despite his statement that he "ruined her life", Mr K asserted that the victim was a willing participant who initiated the physical contact."
He was assessed in the report as being a T3/medium S2 risk of re-offending. He was assessed by Mr Brabant, psychologist, as presenting a statistically low risk of sexual re-offending. That was despite the fact that in his consultation the offender had described a history of sexual preoccupation, characterised by frequent sexual activity (including sexual contact with his wife, masturbation, and viewing pornography) and difficulty controlling his sexual urges.
In his evidence on sentence, there were a number of occasions when he referred to committing the offences because he could not control himself. I accept that the offender has, in fact, very limited insight into his offending and, in particular, the impact that it will no doubt have on the victim, despite the fact that he has made statements of acknowledgement to the psychologist and in his evidence on sentence such as "I blame myself", "I'm the one", "I feel sorry for my behaviour", "ruined her life", "make her mental or something", as well as acknowledging the breach of trust with his wife. Strangely enough, in the psychological report, he is not referred to as referring to his breach of trust in respect of his daughter.
As I have previously said, he acknowledged that if he had not been discovered by his wife he would have continued to commit further offences. He claimed, in effect, to be grateful for having been caught because he was unable to control himself and that being caught was, in some way, "God's punishment" for what he had been doing.
From the material before me, considering the early plea, although it was in the face of an obviously strong Crown case, and despite his limited understanding of the significance of his offending, I am, however, prepared to accept that he is remorseful, that is, genuinely remorseful, in relation to his conduct and does at least have some concern for the impact of his abuse on the victim.
In my view, the assessment of the risk of re-offending contained in the Sentence Assessment Report is, in the circumstances, more likely to be accurate than that contained in Mr Brabant's psychological report which, on the composite score, placed him as below the average risk level.
A statistical analysis of risk levels which in each case in this matter appears to have been without significant consideration of his personal matters are not particularly helpful. In my view, considering the period of time over which the offending occurred and the nature of it, particularly it being in respect of his own daughter, at the ages of 12 to 13, the prospect of the offender being rehabilitated must be regarded as guarded, taking into account the material in relation to his interest in pornography, particularly that relating to incest.
Rehabilitation, in my view, is unlikely to be effected until such time as the offender is fully capable of understanding the significance of his conduct and its inevitable impact on his daughter. He was 33 years of age at the time of the offending and turned 34 shortly before the offending ceased. He is now 35 years of age.
A relevant factor in determining the prospect of re-offending and/or rehabilitation is, of course, the length of any sentence that might be imposed in respect of this offending. It is clear that the s 5 threshold is well passed and no submission to the contrary has been made on behalf of the offender. Indeed, it has been recognised in the submissions on his behalf that there is no alternative on sentence other than a term of imprisonment. A relevant matter to take into account is the maximum sentence provided by the legislation for offences of this type, which is now life imprisonment, having been increased from the previous maximum of 25 years. That increase is an acknowledgement of the seriousness with which the community has come to regard such offences, and the legislature's acknowledgement of that by increasing the maximum.
I am unaware of the detail that was taken from the complainant which would have forced her to re-live the incidents because, as I have said, with the exception of Bali and 26 and 28 December 2018, the facts are entirely generalised. It is likely if she had been able to recall a significant number of specific incidents that they would have been detailed in the facts. I take it that the facts are generalised as indicating that in her mind there was, in effect, one continuing blurred sequence of sexual offending, where it was extremely difficult for her, considering the number of times on which it occurred, to actually retrieve from memory the individual details of particular occasions.
The offender has, however, in accepting the agreed facts in the manner that they are, in my view assisted the prosecution, not in the sense that it requires a specific discount for that assistance but because it has relieved the complainant, if my assumption is correct, of having to provide a detailed recollection of his ongoing conduct and I will take that into account in particular as to also being relevant to genuine remorse and contrition and also the prospects of rehabilitation and re-offending.
Inevitably, a significant sentence must be imposed to reflect both general deterrence and, in this case, specific deterrence, which in relation to offending of this nature are both very important factors to be taken into account.
The information before the Court in relation to the offender's status in Australia is unclear but it would appear that on whatever visa he originally came to Australia on in 2011, he has well outstayed it and is likely, in my view, to be deported for that reason alone as well as the current view taken by the Federal Government in relation to persons who are not Australian citizens committing offences in Australia, that it is in those circumstances highly likely that he will be deported when released on parole. That, however, is not a matter that I can take into account on sentence. I must treat him as I would a citizen of Australia.
I note that while his English as demonstrated on sentence is not outstanding, he is, at least when able to understand questions, able to respond reasonably.
I note that he no longer has any ongoing contact with Ms RA or with his daughter and it would be most unlikely, in my view, considering that he has now been in gaol for more than one year and has had no visits from Ms RA, that he is going to have any significant level of support in the Australian community while in custody.
Individuals who commit offences such as this are almost inevitably treated harshly within the prison system. His evidence was that he has been assaulted on one occasion by being punched in the eye when he refused to allow someone to see his brief, which would have allowed them to determine what he was in custody for, and he has been placed in limited association.
His reaction or attitude to being placed in limited association was that in limited association "all the people are friendly" ... "it is best place for me, better than barnyard." It is possible, as with many offenders of this nature, that he may be placed in protection, that is at a higher level than limited association and I am aware of the restrictions at least in time out of cell available to persons in protection or limited association, which makes incarceration more harsh than being a member of the general prison population. However, it does have the advantage that it removes the individual from those who are most likely to hold the nature of their offending against them, which frequently results in physical violence against the prisoner.
I have taken into account of course what I have said as to the objective seriousness of the offence, including the further aggravating features, and of course those matters that I have referred to in relation to the offender's personal circumstances and history.
I further note that while in custody since 29 December 2018, the New South Wales Department of Corrective Services Conviction, Sentence and Appeals Report indicates that he has not breached any prison regulation.
I have also taken into account the purposes of sentencing as provided by s 3A of the Crimes (Sentencing Procedure) Act 1999. As previously referred to, the s 5 threshold is well exceeded and a significant period of imprisonment must be imposed.
Mr K, would you please stand?
You are convicted in relation to the offence contrary to s 66EA(1) of the Crimes Act 1900 of adult maintain unlawful relationship with child. You are sentenced to a term of imprisonment which would, but for your early plea of guilty, have a starting point of 24 years. A discount of 25 per cent reduces the sentence to 18 years.
The non-parole period is a period of 13 years and six months, commencing on 29 December 2018. You will be first eligible for parole on 28 June 2032.
The balance of term is four years and six months. The total sentence will expire on 28 December 2036.
Expressed more simply, that is a sentence of 18 years with a 13 years and six months non-parole period and a balance of term of four years and six months.
I have not found special circumstances as the period of parole is 18 months longer than the period of supervision on parole of 3 years as provided by the legislation.
Whether or not you are released on 28 June 2032 on parole will be a matter for the Parole authorities. It is essential that while in prison you make sure that you do not engage in conduct which is likely to make the prison authorities averse to releasing you, and you should take advantage of any courses that can be provided to assist you in relation to sexual offending. Now, is there anything of significance that I have omitted? FOKKES: No, your Honour. DIXON: One minor matter I noticed is the date of the Sentencing Assessment Report that your Honour has seems to be different to the date that I have. But the portions that you have read are identical to the copy that I have. HIS HONOUR: Let me just check. I think what's happened, Mr Crown, is that there was an original report which was provided to me dated 9 October 2019 and when the matter was before me on 30 October 2019 that became part of Exhibit 1. DIXON: Thank you, your Honour. That's the copy that I have. HIS HONOUR: On 30 October 2019 I ordered an updated report and I have attached that report to Exhibit 1 but the passages that I quoted are in fact the same in each of the reports. DIXON: Yes, precisely. I was reading along despite there being different reports, so I don't consider that it has any bearing on the matter, given that your Honour has relied on the original. I might simply just-- HIS HONOUR: There was some additional material in the second report but it was really in relation to Mr Kakiaman's plans should he remain in Australia and matters of that nature. DIXON: Like I said, little bearing on the matter but I just thought I would raise it. HIS HONOUR: Yes. I will attach both reports to Exhibit 1. DIXON: Thank you, your Honour. HIS HONOUR: Is there anything, Mr Fokkes? FOKKES: No, your Honour, nothing at all. HIS HONOUR: I was going to make reference to the lack of relevant statistics and cases and I may, when the reasons become available, add something in to that effect.

R v TK

At a glance

Court

Decision date

Before

Source

Judgment (9 paragraphs)

Parties

Cases Cited (8)