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District Court 6 July 2017

R v King

[2017] NSWDC 297

Sexual offences
CRIMINAL LAW SENTENCE FOLLOWING TRIAL GROOMING INDECENT ASSAULT FORESEEABLE HARM IMBALANCE OF POWER RELATIONSHIP

Citation: R v King [2017] NSWDC 297
Court: District Court of New South Wales
Date: 6 July 2017
Judge(s): Berman SC DCJ

Background

The offender was a Christian Brother who had taught mathematics and science at a Catholic boys' school in Sydney. The sentencing proceedings followed a jury trial in which he was convicted of offences involving two complainants, referred to in the judgment as A and C, arising from conduct that occurred in 1975 or 1976 (in A's case) and 1987 (in C's case).

The offences involving A occurred after the offender singled him out for special attention, arranged for him to share a tent on a school camp, and later led him into a preparation room attached to a science laboratory. There, the offender committed three separate acts of indecent assault, including fondling A's genitals, placing A's hand on his own exposed penis, and forcing A's face toward his penis. The offending stopped only when A became visibly distraught and called out for his mother.

The offence involving C arose from the offender's apparent attempt to groom him. In 1987, the offender drove C home under the pretence of discussing his behaviour, but used the occasion to ask inappropriate questions and show him an advertisement for a sexual device from a pornographic magazine. C, suspicious of the offender's intentions, had covertly recorded the conversation on his father's dictaphone. That recording was ultimately transcribed, and a copy of the transcript was later found in the offender's own personnel file at the school.

  • What sentences were appropriate for the offences of indecent assault (three counts involving A) and grooming (one count involving C), applying sentencing principles and ranges applicable at the time the offences were committed?
  • Whether a custodial sentence was required in the circumstances.
  • Whether special circumstances existed to justify an adjustment to the ratio of non-parole period to head sentence.

Decision

His Honour opened with a candid observation about the constraint he faced. Contemporary understanding of the harm caused by child sexual offending has driven significant increases in sentences for such crimes in recent years. However, the law required him to sentence the offender according to the principles and ranges applicable at the time of the offending, which he described as producing a result he found distasteful and which he considered to be based on sentencing principles now understood to be wrong. He noted the possibility that the Royal Commission into Institutional Responses to Child Sexual Abuse might recommend a change to this approach, but stated he was bound to apply the existing law.

On the offences involving A, his Honour found the conduct to be a deliberate and calculated course of offending. The offender had groomed A by singling him out, using the prestige of his position to gain A's trust, and exploiting A's vulnerability. The three separate acts of assault each independently increased the harm to A, and the judgment noted that A continued to carry serious psychological consequences. His Honour observed that A had exhibited a level of distress while giving evidence that was rarely seen even in a court that regularly heard similar testimony. The offender's continued denials were noted as an aggravating feature.

The offence involving C was treated as less grave in the objective sense, involving no physical contact. His Honour found that the offender had been grooming C with a view to future assault, and that C's resourcefulness in secretly recording the conversation had not only protected himself but also contributed to the offender being removed from the school entirely. No significant harm to C was established on the evidence.

His Honour found that custodial sentences were required even applying the older sentencing ranges, given the objective gravity of the conduct, the need for general deterrence, and the importance of protecting vulnerable children from those in positions of authority over them. Special circumstances were found based on the fact that this was the offender's first time in custody and the likelihood that he would need to serve his sentence in protection.

Orders Made

  • Count 1 (indecent assault on A, first act): indicative sentence of 18 months' imprisonment
  • Count 2 (indecent assault on A, second act): indicative sentence of 18 months' imprisonment
  • Count 3 (indecent assault on A, third act): indicative sentence of 2 years' imprisonment
  • Count 8 (grooming offence involving C): indicative sentence of 6 months' imprisonment
  • Aggregate sentence imposed: non-parole period of 18 months, with a head sentence of 2 years and 6 months, commencing 12 May 2017, with release to parole on 11 November 2018

Key Takeaways

  • The District Court applied the principle that, when sentencing for historical sexual offences, the court must apply the sentencing ranges and principles in force at the time of the offending, even where those ranges are now understood to reflect an inadequate appreciation of harm to victims. His Honour stated explicitly that the sentences imposed were considerably more lenient than they would have been under contemporary principles.

  • Where a course of conduct involves multiple discrete acts of sexual assault, partial accumulation of sentences is appropriate. The judgment confirmed that an offender should not receive the impression that committing further offences beyond the first carries no additional penalty.

  • Grooming conduct, even where it involves no physical touching, constitutes criminal offending in its own right and warranted a custodial indicative sentence. The absence of physical contact was treated as relevant to the objective gravity of that count rather than as a basis to avoid imprisonment.

  • Continuing denials in the face of compelling evidence, including a transcript found in the offender's own personnel file, were treated as relevant to the sentencing exercise. His Honour described the offender as someone who had apparently lived his life unconcerned that the offending might one day be brought to account.

  • Special circumstances justifying a departure from the standard non-parole ratio can arise where an offender is likely to require protection custody and where custodial experience is entirely novel to them.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61E(2A) (grooming offence, maximum penalty 4 years' imprisonment)
- Crimes Act 1900 (NSW), indecent assault on a male provisions applicable at the time of the 1975/76 offending (maximum penalty 5 years' imprisonment)

Cases: No specific cases were cited in the portions of the judgment provided.