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District Court 16 September 2022

R v KH

[2022] NSWDC 706

Sexual offences

Citation: R v KH [2022] NSWDC 706
Court: District Court of New South Wales
Date: 16 September 2022
Judge: Grant DCJ

Background

The offender, an 86-year-old man, stood trial on a 17-count indictment involving two child complainants. Five counts related to his step-granddaughter (FF), alleging indecent assaults occurring between January 1981 and January 1983, when she was approximately five or six years old. The remaining counts concerned his granddaughter (AC), alleging the maintenance of an unlawful sexual relationship between December 1994 and December 2001.

The jury returned guilty verdicts on two of the counts involving FF (counts two and four) and on the s 66EA(1) count involving AC (count six). On the counts involving FF, the jury accepted that the offender touched the complainant's legs and thighs, then removed both their clothing and rubbed his penis between her legs and against her vagina.

Sentencing required the court to resolve several distinct legal questions arising from the historical nature of the offences, the offender's advanced age and health, and the structural complexity of the s 66EA charge.

  • Whether an Intensive Correction Order (ICO) was a lawfully available sentencing option for the historical indecent assault offences (counts two and four), given the legislation in force at the time of offending
  • How to determine the facts of offending for sentencing purposes under s 66EA(1), given the inherently opaque nature of a verdict on a "maintaining an unlawful sexual relationship" charge
  • What weight to give mitigating factors including the offender's age (86), deteriorating health, the hardship of imprisonment for an elderly person, delay in prosecution, and the impact of COVID-19 conditions in custody
  • How to construct an appropriate aggregate sentence and non-parole period across the three counts, including the application of special circumstances

Decision

ICO availability for historical offences

Section 67 of the Crimes (Sentencing Procedure) Act 1999 prohibits an ICO for a sentence imposed for a "prescribed sexual offence," defined as an offence under Division 10 or 10A of Part 3 of the Crimes Act 1900. Division 10 of the Crimes Act did not exist until 29 June 2000. The offences in counts two and four were committed between 1981 and 1983, at which time no such divisions existed in the Act. Consistent with the reasoning in DPP (NSW) v Van Gestel [2022] NSWSC 973 and the subsequent Court of Criminal Appeal decision, the Crown conceded that counts two and four were not "prescribed sexual offences" within the meaning of s 67(2). An ICO was therefore a lawfully available sentencing option for those counts.

Sentencing for the s 66EA(1) offence

The offence under s 66EA(1) carries a maximum of life imprisonment and has retrospective operation, meaning it is a prescribed sexual offence for which an ICO is not available. However, s 66EA(8) required the court to take into account the maximum penalties applicable to the underlying acts of indecency at the time each was committed. Drawing on R v RB [2022] NSWCCA 142, the court acknowledged that a verdict of guilty under s 66EA is structurally opaque: it does not entail any unanimous jury finding about specific sexual acts. The sentencing judge was therefore required to determine the facts of offending independently, applying the principles from R v Olbrich, Cheung v The Queen, and R v Isaacs. After that fact-finding exercise, the court was satisfied beyond reasonable doubt that ten of the eleven particulars were established, including specific incidents tied to the complainant's strong and corroborated memory.

Mitigating factors and hardship

The offender's age of 86 and his significant health conditions were treated as substantial mitigating factors. The court accepted that incarceration at his age constitutes a considerably greater hardship than it would for a younger person, and that COVID-19 conditions in custody compounded that hardship. The delay between the offending and the prosecution was also taken into account, though the court noted this was partly explained by the complainants' own delay in coming forward. The court found special circumstances justifying a non-parole period that departs from the statutory one-third ratio.

Construction of the aggregate sentence

Applying the principles from Mill v The Queen, Postiglione v The Queen, Cahaydi v R, and R v Mak, the court imposed indicative terms of nine months (count four) and 22 months (count six) before arriving at an aggregate sentence of 24 months. An eight-month non-parole period was set, reflecting the totality principle and the offender's circumstances. Count two was incorporated within the overall structure without a separate indicative term given the aggregation.

Orders Made

  • Aggregate sentence of 24 months imprisonment, commencing 26 August 2022 and expiring 25 August 2024
  • Non-parole period of 8 months; the offender to be released to parole on 25 April 2023
  • Indicative term for count four: 9 months
  • Indicative term for count six: 22 months

Key Takeaways

  • The District Court confirmed that historical indecent assault offences committed before the introduction of Division 10 into the Crimes Act 1900 (on 29 June 2000) are not "prescribed sexual offences" under s 67(2) of the Crimes (Sentencing Procedure) Act 1999, and an ICO therefore remains a lawfully available sentencing alternative for such offences.
  • Under s 66EA(1) of the Crimes Act, a verdict of guilty on a charge of maintaining an unlawful sexual relationship does not of itself establish any specific sexual act to the standard of unanimous jury satisfaction; the sentencing court must conduct its own fact-finding exercise as to what the offender actually did, applying criminal standard of proof principles.
  • A conviction under s 66EA requires proof that the accused committed multiple unlawful sexual acts with sufficient continuity and habituality to constitute an ongoing relationship, not merely isolated or sporadic conduct (citing R v RB [2022] NSWCCA 142).
  • Section 66EA has retrospective operation and constitutes a prescribed sexual offence, meaning an ICO is not available for that charge even where the underlying conduct pre-dates Division 10; however, s 66EA(8) requires the sentencing court to have regard to the maximum penalties applicable to the underlying acts at the time they occurred.
  • Advanced age, serious health conditions, the greater hardship of imprisonment for elderly offenders, and COVID-19 custody conditions are all recognised sentencing considerations capable of justifying a finding of special circumstances and a reduced non-parole period.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66EA, 76, 61E(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 67

Cases
- AJB v R (2007) 169 A Crim R 32
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- Cahaydi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Cheung v The Queen (2001) 209 CLR 1
- DPP (NSW) v Van Gestel [2022] NSWSC 973
- DPP (NSW) v Van Gestel [2022] NSWCCA 171
- Mill v The Queen (1988) 166 CLR 59
- Postiglione v The Queen (1997) 189 CLR 295
- R v BJW [2000] NSWCCA 60
- R v Isaacs (1997) 41 NSWLR 374
- R v Mak (2006) 167 A Crim R 159
- R v Moon [2000] NSWCCA 534
- R v Olbrich (1999) 199 CLR 270
- R v RB [2022] NSWCCA 142
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