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Local Court 19 August 2013

Director of Public Prosecutions (NSW) v KPB

[2013] NSWLC 12

Sexual offencesDomestic & family violence
CRIMINAL LAW "GROOMING" BEHAVIOUR BY OFFENDER BREACH OF TRUST CUSTODIAL PENALTIES PARTIAL CUMULATION LIKELIHOOD OF RE

Citation: Director of Public Prosecutions (NSW) v KPB [2013] NSWLC 12
Court: Local Court of New South Wales
Date: 19 August 2013
Judge: Magistrate P.S. Dare SC

Background

The offender, a 56-year-old farm hand, had worked for a rural family near Ariah Park for approximately nine years. He was in a position of trust and was regularly welcomed into the family home. The complainant, referred to as AB, was 13 years old at the time of the offending.

Over a period from approximately June to November 2009, the offender engaged in a pattern of escalating physical contact with AB. What began as hugs progressed to kissing and then to indecent touching of her buttocks and genitalia, on multiple occasions in locations on the property out of sight of her parents. The offender also passed AB romantic notes, one of which was found by her mother containing a reference to having put his hand down the complainant's pants.

Following discovery of approximately 16 notes, an Apprehended Personal Violence Order (APVO) was granted. The offender subsequently breached that order by attending AB's workplace during her school work experience placement. He was arrested in September 2010 and charged with four counts of indecent assault on a person under 16 (contrary to section 61M(2) of the Crimes Act 1900) and one count of contravening an APVO.

  • What were the appropriate sentences for four counts of indecent assault on a child under 16, having regard to the objective seriousness of each offence?
  • How should the court treat the offender's good character as a mitigating factor where that character was instrumental in gaining access to the victim?
  • How should grooming behaviour affect the sentencing assessment?
  • Whether the Victim Impact Statement required formal proof of harm, and whether "substantial harm" had been established.
  • What discount applied for the guilty pleas, and how should sentences be structured (concurrently or cumulatively) within the Local Court's jurisdictional limits?
  • Whether special circumstances existed to justify reducing the statutory ratio between non-parole periods and head sentences.

Decision

The court found that all four indecent assault offences warranted custodial sentences, with partial cumulation to reflect the fact that each offence was a distinct event occurring on separate occasions over several months. The Local Court noted it was limited to imposing a maximum of 2 years per offence but could cumulate sentences up to a total of 5 years. Consistent with established authority, the court assessed objective seriousness by reference to the full 10-year maximum penalty available on indictment, not the Local Court's jurisdictional ceiling.

The court treated grooming as a significant aggravating feature. The escalating pattern of physical contact, the use of romantic notes, and the deliberate concealment of interactions from the parents all pointed to calculated conduct rather than impulsive wrongdoing. The breach of trust inherent in the offender's longstanding relationship with the family was treated as a serious additional aggravating factor.

On the question of good character, the court found this to be of limited mitigating weight. Drawing on established appellate authority, the court reasoned that the offender's good standing in the community and trusted position within the family were the very means by which he gained access to the complainant. Good character that facilitates offending carries substantially reduced mitigating value.

The court accepted the Victim Impact Statement without requiring formal proof of each harm described, and was satisfied that substantial harm had been established. A 20% discount was applied across the indecent assault counts to reflect the guilty pleas. The court also found special circumstances existed to justify a reduced non-parole proportion, given the offender's age, his status as a first-time custodial offender, and the partial cumulation of sentences. For the APVO breach, the court imposed a two-year good behaviour bond under section 9 of the Crimes (Sentencing Procedure) Act 1999.

Orders Made

  • Non-publication order: An order prohibiting publication of information tending to identify any party, witness, or person associated with the proceedings, applying in New South Wales until further order.
  • Sequence 1 (indecent assault, June to July 2009): Convicted and sentenced to imprisonment for 9 months, with a non-parole period of 6 months commencing 19 August 2013 and expiring 18 February 2014; balance of term of 3 months expiring 18 May 2014.
  • Sequences 2 and 4 (indecent assault, August to September 2009 and September to October 2009): Convicted and sentenced to imprisonment for 14 months, with a non-parole period of 9 months commencing 19 October 2013 and expiring 18 July 2014; balance of term of 5 months expiring 18 December 2014.
  • Sequence 3 (indecent assault, October to November 2009): Convicted and sentenced to imprisonment for 19 months, with a non-parole period of 12 months commencing 19 December 2013 and expiring 18 December 2014; balance of term of 7 months expiring 18 July 2015.
  • Special circumstances: Found; statutory non-parole proportion reduced on account of the offender's age, first time in custody, and partial cumulation of sentences.
  • Parole conditions: Release to parole at the end of the non-parole period, subject to supervision by the Probation and Parole Service and completion of any recommended program or treatment.
  • Sequence 5 (APVO breach): Convicted and ordered to enter into a good behaviour bond under section 9 of the Crimes (Sentencing Procedure) Act 1999 for 2 years from 19 August 2013.

Note: A subsequent appeal against sentence by the offender was dismissed by the District Court on 27 September 2013.

Key Takeaways

  • Grooming behaviour, including the use of notes of a romantic nature and the deliberate concealment of physical contact from parents, was treated as a significant aggravating factor warranting custodial sentences even in the Local Court jurisdiction.
  • Good character carries substantially reduced mitigating weight where the offender's standing and trusted position were instrumental in facilitating access to the victim. This reflects established NSW Court of Criminal Appeal authority.
  • A Victim Impact Statement does not require formal proof of the harm described. The court was satisfied that substantial harm had been established on the material before it.
  • Partial cumulation of sentences was appropriate where multiple offences occurred as discrete events on separate occasions, even where they arose from a continuous course of conduct with the same complainant.
  • Special circumstances justifying a departure from the standard non-parole proportion may be established by a combination of factors, including the offender's age, first-time imprisonment, and the structural effect of partial cumulation on the overall sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61M(2)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9
- Criminal Procedure Act 1986 (NSW)
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7 and 8

Cases:
- Aguirre v R [2010] NSWCCA 115
- BT v R [2010] NSWCCA 267
- Cahyadi v R (2007) 168 A Crim R 41
- Corby v R [2010] NSWCCA 146
- DBW v R [2007] NSWCCA 236
- Enrique v R [2012] NSWCCA 60
- GAT v R [2007] NSWCCA 208
- Houssenloge v R [2010] NSWCCA 9
- Kenny v R [2010] NSWCCA 6
- Mendes v R [2012] NSWCCA 103
- Nguyen v R [2007] NSWCCA 14
- Porter v R [2008] NSWCCA 145
- R v AEL [2005] NSWCCA 148
- R v Allpass (1993) 72 A Crim R 561
- R