STATE OF TASMANIA v K J H 30 AUGUST 2019
COMMENTS ON PASSING SENTENCE BRETT J
Mr H, you have pleaded guilty to one count of sexual intercourse with a young person under the age of 17 years.
The crime was committed by you in 1973. At that time, you were between 34 and 35 years of age and employed as the principal of a primary school. You committed the crime against a pupil who at the time was 9 or 10 years of age and in grade 4 at the school. During the course of a school day, you took him into the school toilet block, pulled his pants down, bent him over a toilet, stood behind him and penetrated his anus with your erect penis. You spat on your hands in order to provide lubricant for penetration, but you were unable to completely penetrate his anus despite several attempts to do so. These attempts took place over a 5 minute period. The complainant recalls what he describes as “incredible pain”. This is not surprising. The several attempts at penetration must have prolonged the physical pain. When you were finished, you made the complainant leave the toilet block first, and then left yourself. This was clearly done to avoid suspicion and detection.
The complainant’s impact statement describes the devastating impact that this act has had upon him. Because I was asked to read it to myself, I will not discuss the details, but your crime has, as would be expected, affected his life in a significant and permanent way. It has taken him over 40 years to summon the courage to report the matter. He was assisted in doing so by the publicity associated with the Royal Commission into Institutional Sexual Abuse of Children. I have no doubt at all that he has displayed enormous courage in coming forward now about this crime, probably at considerable emotional cost.
This act was not committed in isolation but as part of an ongoing course of sexual abuse against the complainant. You are not, of course, to be sentenced for the other conduct but, on the other hand, I do not regard this as an isolated or one-off event. One consequence of the ongoing nature of the abuse is that it is likely to have aggravated and intensified the effect of this crime on the complainant. This was not a situation where he could find protection and support after the commission of a single crime. His ongoing contact with you as the school principal, and your ongoing abuse of him, meant that there was no escape or relief for him from the impact of this crime. Going to school each day must have been a terrifying and horrible experience for him.
You are now 80 years of age. You are married and have 2 adult children. In 1974, you were convicted of the crime of indecent practices between males and a wholly suspended sentence of imprisonment was imposed on you. In 2002, you were sentenced by this Court for a number of crimes of a similar nature to the one I am dealing with. These included having sexual intercourse and maintaining a sexual relationship with young boys, of roughly the same age as the complainant in this case. These crimes were committed in 1967 or 68, 1970 and then between 1998 and 2000. They involved the same type of predatory conduct. In 2004, a further cumulative sentence was imposed on you for some sexual crimes committed between 1991 and 1992. These again were committed against male children aged between 9 and 10. The sentencing judge who imposed the sentence in 2002 noted that you had sought help from a psychiatrist who had diagnosed you as a paedophile and you were undertaking treatment. That diagnosis is confirmed by the psychiatric report from Dr Jordan, which has now been provided to me. In particular, Dr Jordan confirms a diagnosis of paedophilia which he defines as the experience of intense sexual arousal which, in your case, is in relation to prepubescent males. This condition is known as paedophilic disorder. You had this condition notwithstanding marriage to your wife for some 55 years, and having children.
Despite the initial submission of your counsel, which I note has now been withdrawn, I do not accept that this condition reduces your moral culpability for the commission of this crime. The condition certainly explains the motivation for your offending, not just for this crime but for the other crimes for which you have already been sentenced. However, the crime was committed by you in order to gratify your aberrant sexual desire in respect of young males, despite being aware of the damage which your actions would inflict upon them, and despite your clear understanding of your responsibility both to your family and as a school principal. Further, the deliberate and secretive way in which you committed the crime demonstrates a degree of premeditation, and the fact that the crime was committed as part of an ongoing course of conduct are factors which are inconsistent with a reduction in moral culpability because of your condition. There is no evidence that your mental condition affected your capacity to control your sexual urges. Your moral culpability remains at a very high level, and in my view is not reduced by the diagnosed condition. This conclusion would seem to be in accordance with the amended opinion which has been most recently expressed by Dr Jordan.
However, I am satisfied that at least during the earlier period of imprisonment you committed yourself to rehabilitation and undertook treatment which was largely in the form of the administration of medication and psychological counselling. You have continued counselling since then and put in place a strong support network to assist you. Your counsel submits that you have worked very hard and are very committed to rehabilitation. To your credit, there is no suggestion that you have committed any further crimes since serving that sentence. I infer that the treatment has been successful and that you have been able to achieve a measure of rehabilitation. I note also that your rehabilitation and attempt to live a life of good character since your imprisonment is attested by members of your family and others in the community.
You are also entitled to some credit for your plea of guilty. Although you denied the commission of this crime when interviewed by police, and then entered a plea of not guilty when charged with it, you indicated that you would plead guilty at a relatively early time. Accordingly, it was not necessary for the case to be prepared for trial and, of course, it will not be necessary for the complainant to give evidence. It is submitted that you have insight into and are remorseful for the impact of your actions on the complainant. I accept that this is true to a point, but the remorse has come at a very late stage. The fact that this crime was not an isolated act but was committed in the context of an ongoing course of conduct means that the remorse you now feel is of little relevance and of little practical benefit to the complainant. It is not, for example, remorse which was felt and acted on immediately after you had committed the first transgression. It is not suggested that you desisted from your abuse of the complainant because of feelings of remorse. Further, you could have voluntarily confessed to this conduct at any time in the past, including at the time of the earlier sentencing, but it is only now, after the complainant has had the courage to come forward, that you eventually admitted the crime. For these reasons, although I think you do now genuinely feel some contrition, your claim of remorse must be kept in perspective, and does not provide significant mitigation.
There are a number of matters which complicate the sentencing exercise in this case. Firstly, there is the question of totality. This question would certainly have affected the sentence, had you been sentenced for this crime at the same time as the other sentences imposed in 2002. Of course, you could have been sentenced at that time had you volunteered the commission of this offence to police then. Although the sentence which I impose should not reflect that which would have been imposed at that time, it would seem appropriate to give some consideration to the sentence you served then. The sentence which I now impose, taken together with that sentence, should reflect the overall criminality to which both sentences relate. Further, the sentences imposed in 2002 and 2004, clearly had an effect from the point of view of personal deterrence and rehabilitation. I can take into account that those factors do not require the same emphasis in this sentence.
Any mitigating effect that this consideration may have, however, must be balanced against the following factors:
(a) This was a completely separate crime committed against a different person to those who were the victims of your other offending. It is separate criminal conduct and deserves separate punishment.
(b) This crime and those for which you were sentenced in the past do not, when taken together, constitute a series of offences, all committed at about the same time. There is a significant difference in the timing of the commission of this crime and those relevant to the earlier sentences.
Your age and the related question of delay are also matters to be taken into account. Your age is clearly a factor because the time you spend in custody will, as a matter of reality, be a significant part of your remaining life expectancy, and hence has a more punitive effect than it would on a younger person. I also take into the health-related problems that your counsel has put to me today. However, I do not think that the delay itself has any significant mitigating effect, and the effect of serving a sentence at your advanced age is also tempered by the seriousness of the criminal conduct. It is clear that the complainant was not able to bring himself to make a complaint about your conduct until recently, and I conclude that his inability to do so was largely, if not solely due to the impact of your conduct upon him. Further, you have been able to live your life and have not had to face the consequences of this conduct until now. On the other hand, the complainant has had to live with the consequences of your conduct and their impact upon his life in the intervening period, and will continue to do so into the future.
Ultimately, this was a shocking crime. It involved a terrible breach of trust. Your position of trust as the principal teacher of the school which this child attended, gave you the opportunity and the means to commit the crime. This young child was completely vulnerable to your predatory conduct. As I already discussed, I do not accept that your diagnosis as a paedophile provides any excuse for your conduct. The sentence must reflect the community’s denunciation of this conduct, deter others, particularly those in a similar position of trust, from acting in this way, and it must also vindicate the complainant. The only possible sentence is a significant sentence of imprisonment, although, in the circumstances of this case, that sentence will be moderated to take account of the issue of totality, your age and your plea of guilty. As I have already indicated, I reject the submission that home detention would be an appropriate sentencing alternative in respect of this case.
H, you are convicted of this crime and sentenced to imprisonment for a period of three years. The sentence will be backdated and served from 27 February 2019. You will be eligible for parole after your served one half of that sentence.
I am required to make an order under the Community Protection (Offender Reporting) Act 2005, unless I am satisfied that you do not pose a risk of committing a reportable offence in the future. Having regard to your age, and taking into account when this crime was committed, and your demonstrated rehabilitation since serving the sentence in 2004, I think that the risk of reoffending is significantly reduced but I cannot say there is no risk. Accordingly, I must make an order under that Act. I order that your name be placed on the register pursuant to that Act and that you comply with the reporting obligations under that Act for a period of three years, which will commence on the date of your actual release from prison.