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District Court 12 December 2008

R v Kevin Thomas Risby

[2008] NSWDC 300

Sexual offences
CRIMINAL LAW SENTENCE CARNAL KNOWLEDGE OF A STEP DAUGHTER UNDER THE AGE OF 17 INDECENT ASSAULT BREACH OF TRUST

Citation: R v Kevin Thomas Risby [2008] NSWDC 300
Court: District Court of New South Wales
Date: 12 December 2008
Judge(s): Hulme SC DCJ

Background

The offender was the step-father of two complainants, KG and SK, against whom he committed a series of child sexual offences between the beginning of 1980 and the end of 1982. The offences occurred primarily in the family home in Lithgow and on a number of other occasions. The offender's wife worked shifts at a local club, leaving him alone with the children during evenings, and he exploited that access to commit the offending.

The offender was a stern disciplinarian who used corporal violence against all the children, a factor the court accepted as relevant to why neither complainant reported the offending at the time. The offending against KG began during a family holiday and progressed through multiple incidents involving digital penetration, penile intercourse, oral sex, and the taking of photographs. The offending against SK was of a similar character.

A jury convicted the offender on all 15 counts following a trial in August 2008. The sentencing proceedings before Hulme SC DCJ addressed a range of issues arising from the age of the offences, the offender's health, the absence of contemporaneous complaints, and the appropriate sentencing framework to apply to historical offences.

  • Which sentencing practices applied to offences committed in 1980 to 1982, given the significant changes to sentencing law since that period
  • How to treat uncharged acts of sexual misconduct when sentencing for the charged offences
  • What weight, if any, to give to harm suffered by the victims when the victims' ages were already an element of the charged offences
  • How to assess the offender's ill health as a mitigating factor
  • The significance of the lengthy delay between the offending and prosecution
  • How to structure sentences across 15 counts spanning two victims to produce a just overall sentence

Decision

The court was required to sentence according to the practices and maximum penalties that applied at the time the offences were committed in the early 1980s, applying the principle from Power v The Queen and confirmed in subsequent New South Wales authority. The court carefully identified the relevant maximum penalties under the then-current provisions of the Crimes Act 1900 and considered sentencing ranges applying at that time, drawing on published sentencing digests and case law from that era.

On the question of uncharged acts, the court accepted that evidence of uncharged sexual conduct could be taken into account to provide context and to reflect the true criminality of the offending, provided there was no risk of punishing the offender twice for the same conduct. The court treated this material as relevant to the offender's culpability and the need for appropriate denunciation.

The court rejected the proposition that harm to the victims was irrelevant simply because the victims' youth was already an element of the offences. The court found that the actual psychological harm and long-term consequences suffered by the complainants remained relevant matters for the purposes of objective gravity, even where the legislation was directed specifically at the protection of children.

The offender's ill health was given some mitigating weight, but the court did not find it sufficient to warrant a substantial reduction in the sentences. The delay between the offending and the prosecution was acknowledged, though the court noted the delay was not attributable to any fault on the part of the complainants and did not operate strongly in the offender's favour. The court determined an overall effective sentence of 11 years and 6 months, with a non-parole period of 7 years, structured through carefully cascading commencement dates across all 15 counts.

Orders Made

  • Count 1 (Indecent assault upon female under 16): Fixed term of 2 years, commencing 14 August 2008
  • Count 2 (Carnal knowledge of step-daughter under 17): 5 years, non-parole period of 3 years, commencing 14 August 2008; non-parole expires 13 August 2011
  • Count 3 (Carnal knowledge of step-daughter under 17): Fixed term of 3 years, commencing 14 August 2008 until 13 August 2011
  • Count 4 (Indecent assault upon female under 16): Fixed term of 3 years, commencing 14 August 2008 until 13 August 2011
  • Count 5 (Incite female under 16 to commit act of indecency): Fixed term of 3 years, commencing 14 August 2008 until 13 August 2011
  • Count 6 (Incite female under 16 to commit act of indecency): Fixed term of 1 year, commencing 14 August 2011 until 13 August 2012
  • Count 7 (Indecent assault upon female under 16): Fixed term of 3 years, commencing 14 August 2011 until 13 August 2014
  • Count 8 (Carnal knowledge of step-daughter under 17): 5 years, non-parole period of 3 years 9 months, commencing 14 August 2011; total sentence expires 13 August 2016
  • Counts 9 and 10 (Carnal knowledge of step-daughter under 17): 5 years each, non-parole periods of 3 years, commencing 14 August 2012; total sentences expire 13 August 2017
  • Count 11 (Sexual intercourse without consent upon person under 16): 3 years 6 months, non-parole period of 2 years, commencing 14 August 2013; total sentence expires 13 February 2017
  • Count 12 (Carnal knowledge of step-daughter under 17): 5 years, non-parole period of 2 years, commencing 14 August 2013; total sentence expires 13 August 2018
  • Count 13 (Indecent assault upon female under 16): 3 years, non-parole period of 6 months, commencing 14 February 2015; total sentence expires 13 February 2018
  • Count 14 (Indecent assault upon female under 16): 2 years, non-parole period of 6 months, commencing 14 February 2015; total sentence expires 13 February 2017
  • Count 15 (Carnal knowledge of step-daughter under 17): 5 years, non-parole period of 6 months, commencing 14 February 2015; total sentence expires 13 February 2020
  • Total effective sentence: 11 years 6 months; non-parole period of 7 years; eligible for parole 13 August 2015

Key Takeaways

  • For historical sexual offences, sentencing courts apply the maximum penalties and sentencing practices that existed at the time of the offending, not those in force at the date of sentencing.
  • Uncharged acts of sexual misconduct disclosed in the evidence may be taken into account to contextualise the charged conduct and reflect its true criminality, provided there is no double-counting.
  • Actual harm suffered by child victims does not become irrelevant to objective seriousness merely because the victim's age is an element of the offence; the District Court found that long-term psychological consequences remained a legitimate sentencing consideration.
  • Ill health may carry mitigating weight in sentencing, but the court's assessment in this case found it did not substantially reduce the sentences warranted by the gravity and volume of the offending.
  • Where an offender is convicted of a large number of historical sexual offences against multiple victims over an extended period, cascading commencement dates are an available structural tool to ensure that the aggregate sentence reflects total criminality without exceeding what is just and proportionate.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), including ss 61D(1), 73, 76, 76A
- Parole of Prisoners Act 1966 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Regina v MJR (2002) NSWLR 368
- Bradbury v Regina [2008] NSWCCA 93
- AJB v Regina [2007]