Citation: R v KSC (No 4) [2008] NSWDC 325
Court: District Court of New South Wales
Date: 28 November 2008
Judge(s): Goldring DCJ
Background
The offender, a former police officer who had been in charge of a single-officer police station, was convicted by jury of one count of sexual intercourse without consent with a child aged approximately ten or eleven years. The offence occurred between early 1983 and April 1985. The complainant was a family connection of the offender's wife and had stayed overnight at the offender's police station residence on at least one occasion.
The offender was also convicted, following an earlier guilty plea, of common assault on a separate complainant. The sentencing hearing proceeded on 28 November 2008, by which time the offender had already been in custody since 16 June 2008.
The offender had no prior criminal history at the time of the sexual assault offence. He had developed post-traumatic stress disorder and depression, attributed in part to traumatic incidents he had witnessed as a police officer. The sentencing exercise was complicated by the offences having occurred approximately 25 years before the hearing.
Legal Issues
- What sentence is appropriate for a historical child sexual assault offence committed by a person in a position of authority, having regard to sentencing practices at the time of the offence?
- Whether the offender's mental illness (PTSD and depression) reduced his moral culpability and the weight to be given to general deterrence.
- Whether the offender's status as a former police officer convicted of child sexual offences would result in harsher conditions of custody, warranting a finding of special circumstances.
- What weight, if any, should be given to the significant lapse of time between the offence and sentencing?
- How the two sentences (sexual assault and common assault) should be structured, including the degree of accumulation.
Decision
The court found that the sexual assault was a serious offence despite its historical nature. The offender had used his position as a police officer, combined with the trust placed in him by the complainant's family, in circumstances that caused lasting harm to the complainant. The court accepted the complainant's victim impact statement, which described enduring psychological effects, including a fear of police that persisted to the time of sentencing.
On the question of harsh custody conditions, the court was satisfied, on the balance of probabilities, that the offender would serve his entire term in conditions harsher than those experienced by most prisoners, given his dual status as a former police officer and a convicted child sex offender. The court distinguished the Court of Criminal Appeal's guidance in Durocher-Yvon and Mostyn, noting those cases did not concern offenders who held both of those characteristics simultaneously. This finding supported a conclusion that special circumstances existed, justifying a longer ratio of additional (parole) term to non-parole period.
The court accepted that the offender was suffering from a mental disorder at the time of the common assault, which reduced the weight given to general deterrence for that offence and resulted in a shorter sentence than would otherwise have been imposed. However, the court was not satisfied that the offender's mental illness had materially caused or contributed to the child sexual assault occurring in the early 1980s.
Consistent with the Court of Criminal Appeal's decision in MJR, the court applied sentencing practices from the time of the offences. No directly comparable sentences were identified: the cases provided were largely pleas of guilty involving multiple offences. The court noted the inherent difficulty of this exercise given the passage of time and the absence of analogous authority.
Orders Made
- Sexual intercourse without consent (child under 16): Non-parole period of three years, commencing 16 June 2008 and expiring 15 June 2011; total term of five years, expiring 15 June 2013.
- Common assault: Non-parole period of nine months, commencing 16 January 2011 and expiring 15 October 2011; total term of eighteen months, expiring 15 July 2012.
- The two sentences were partly accumulated.
Key Takeaways
- A former police officer convicted of child sexual assault can be found to face materially harsher conditions of custody than ordinary prisoners, warranting a finding of special circumstances even where appellate authority suggests restrictive conditions need not persist for an entire sentence.
- The District Court distinguished Durocher-Yvon and Mostyn on the basis that those decisions addressed persons who did not combine the characteristics of being both a former police officer and a convicted child sex offender.
- Where an offender's mental illness is established at the time of an assault offence, that illness can reduce the emphasis placed on general deterrence in sentencing, though it does not absolve the offender of responsibility.
- Under the principle affirmed in MJR, a sentencing court must apply sentencing practices current at the time of the offence, not at the time of sentencing, a task the court described as extremely difficult when the offence is approximately 25 years old.
- The historical nature of an offence does not diminish its seriousness; the court treated the lapse of time as a complicating factor in the sentencing exercise rather than as a mitigating circumstance reducing the gravity of the conduct.
Legislation and Cases Referenced
Cases:
- R v Durocher-Yvon (2003) 58 NSWLR 581
- R v Mostyn (2004) 145 A Crim R 304
- R v MJR [2002] NSWCCA 129
Legislation:
No specific legislation was cited in the text provided. The offence of sexual intercourse without consent with a person under the age of sixteen years carries a standard non-parole period of ten years, as noted by the court.