STATE OF TASMANIA v KDR 2 NOVEMBER 2022
COMMENTS ON PASSING SENTENCE JAGO J
KDR, you have pleaded guilty to three counts of persistent sexual abuse of a child, one count of an indecent act with a child or young person, one count of indecent assault and two counts of aggravated sexual assault. The first count of persistent sexual abuse of a child was committed against your eldest daughter, whom I shall refer to as “L”; the second count was committed against your second daughter, whom I shall refer to as “M” and the third count was committed against your youngest daughter, whom I shall refer to as “MR”. The indecent act with a young child was committed against your wife’s younger brother. He shall be referred to as “W”. The indecent assault was committed against your wife’s younger sister, whom I shall refer to as “T”. The two counts of aggravated sexual assault were committed against the daughter of a family friend. I shall refer to her as “K”.
Your offending was committed against six different child complainants, it involves at least 21 separate incidents of sexual abuse and spans approximately a 12 year time frame. For some of this period, you were sexually abusing more than one child at the same time. The offending came to police attention in April 2022 after M disclosed what you had been doing to her to a friend.
The first victim of your sexual abuse was W. In 2010, when he was aged approximately ten years and you were approximately 27 years, he stayed at your home. Your wife was his elder sister. He slept overnight on a couch in the lounge room. He woke in the early hours of the morning to find you rubbing your hand over the top of his pyjama bottoms in the area of his penis. You were breathing heavily and had placed your hand underneath the blanket which was covering him in order to touch this area. You rubbed his penis for about five minutes. W felt scared. He was unable to do or say anything. Eventually, he moved and you desisted. W did not disclose this incident to anyone because he felt ashamed and embarrassed. He first disclosed the matter to police in May 2022.
The next victim of your sexual abuse was T. In April/May 2011, when she was aged eight or nine and you were 28, she stayed at your residence. Your wife is her elder sister. She went to bed on a mattress in the lounge room. During the night, she was awoken by you lying down next to her. You kissed her on the cheek and ran your hands across her stomach, over the top of her clothing. You ran your hand around her underwear line. T was squirming and attempting to get away from you. She told you to stop. You did not do so. T tried to push you away but was unsuccessful. You put your hands into her underpants and touched her on the vagina, reaching near to her clitoris. As you were doing this, she was telling you no and asking you to stop. You replied “It’s okay…it’s okay”. The next morning you cuddled her and told her that you were sorry and that you had been drunk. You told her to keep quiet and not tell anyone about what had happened. In April 2022, T told a sister what you had done to her.
The third victim of your sexual abuse was K. She was the daughter of a family friend. Sometime in the latter part of 2012 or 2013, when she was approximately six or seven and you were approximately 30, she stayed overnight at your residence. You were there with other friends, consuming alcohol. K went to bed. During the night, you entered her bedroom. You put your hands under the bedclothes and under her clothing. You touched her on the skin in the area of her vagina. You then used a finger to penetrate her vagina. K was scared and confused about what was happening. You left momentarily, telling K you would return. Fifteen to twenty minutes later, you did return and repeated your actions, again penetrating K’s vagina with your finger. These two acts represent the two counts of aggravated sexual assaults.
After you left the room, K got out of the bed and hid underneath it, reflective, in my view, of the level of fear and confusion she must have been experiencing. You returned to her room for a third time that night. When you saw her under the bed, you asked her what she was doing. She did not answer you and you left.
You sexually abused your eldest daughter L, from the time she was four until the time she was ten. The crime of persistent sexual abuse of a child is committed when it is proved that an unlawful sexual act was committed against a child on at least three occasions during the indictment period. In respect to L, four specified occasions are relied upon by the State, but those occasions occurred in the context of ongoing and persistent abuse that occurred over the whole six year period. The abuse consisted of you regularly touching her underneath her clothing to the area of her vagina, and penetrating her vagina with your finger. L described such acts as occurring approximately twice each week, although there were some weeks in which it did not occur.
The acts occurred primarily in the lounge room of the house, and in L’s bedroom. They would often occur in circumstances where you would go to her bedroom to give her a kiss and a cuddle goodnight and take the opportunity of parental affection to sexually abuse her. You would also abuse her when your wife was in the shower or sleeping. L remembers there being occasions when her mother was showering and you would sexually abuse her until the shower turned off, and then stop.
The specific occasions relied upon by the State in respect to L are as follows:
• Occasion 1 When L was aged four, you put your hand down her pants when she was sitting in the lounge room and moved your fingers on her genitalia. You stopped when your wife entered the room.
• Occasion 2 At a time subsequent to the first occasion, you and a friend were in the house consuming alcohol. L was in her pyjamas. You asked her to get dressed into clothes. She refused to do so. You picked L up and carried her into the bedroom, laid her on the bed, undressed her and licked her vagina. L sat up and tried to make you stop. You pushed her back down and licked her to the vagina again. You continued doing this until your wife returned.
• Occasion 3 You took L to her brother’s bedroom, you laid her on the bed and penetrated her vagina with your penis. She was under ten years of age when you did this.
• Occasion 4 When L was approximately ten, you and L were in the bedroom together. Your wife was in the shower. You touched L to her vagina whilst your wife was in the shower. When your wife came to check on L, you pretended to have been dressing her. When you left the room, L hid under the bed.
Following this last occasion, your wife confronted you about your behaviour towards L. You admitted that you had been touching her, but denied that you had penetrated her in any way. No report was made to police at the time, but you ceased sexually abusing L.
Following the abuse, L became withdrawn, spending more and more time in her room to avoid contact with you. She also became concerned that you might abuse her sisters in the same way that you had abused her. When she was in grade six, she disclosed your offending to two friends. She told her friends she was experiencing flashbacks and did not feel safe at home.
Your offending, as it relates to your second daughter M, commenced in 2021, when she was approximately ten and continued for a period of 15 months. The abuse consisted of you regularly touching her underneath her clothing to the area of her vagina, and penetrating her vagina with your finger. The State relies upon nine specified occasions in respect to M, but again, those occasions occurred in the context of ongoing and persistent abuse during the 15 month period. M described that the abuse would occur on multiple occasions per week, every three days or so, particularly throughout 2021. She said the occasions became less frequent in 2022. The offending occurred in the family home, mainly in the lounge room.
The particular occasions relied upon by the State in respect to M are as follows:
• Occasion 1 You and M were present in the lounge room. Other children were also present. You were all watching TV. M was sitting on a stool, leaning over you. You placed your hand into her pants, touched her on the vagina and penetrated her with your finger.
• Occasion 2 M gave you a cuddle. You took advantage of this and put your hand onto her breast and then moved your hand into her underpants, again touching her on the genitalia and penetrating her. This was typical of the sort of abuse you perpetrated upon M.
• Occasion 3 M was sitting on the couch with you. You touched her to the area of her vagina, over her clothing before putting your hand inside her underpants and using your fingers to touch her and then penetrate her vagina. You moved your hand “up and down and around”, whilst touching her. You stopped when your wife entered the room.
• Occasion 4 This also occurred in the living room. You were seated on a couch. M was on a stool next to the couch. You placed your hand into the back of M’s underwear and reached her genitalia from behind. You penetrated her with your finger, moving your fingers around. You then pulled your hand out from her underpants and touched one of her breasts under her clothing. You then replaced your hand into the front of her underpants and touched her vagina with your fingers, again penetrating it. M’s mother was in the room when this happened, but was distracted on her phone.
• Occasion 5 M met you in the hallway coming out of her bedroom. She gave you a hug. Again, you took the opportunity to place your hand into her underpants and touched her vagina area. You penetrated her with your finger. As you were touching her, you whispered into her ear “Let me get mine out”. You then put your hand into your pants and attempted to remove your penis from your pants. M pushed you away and left.
• Occasion 6 You and your youngest daughter were sitting on the couch together. You told M to also sit on the couch and to raise her legs in a manner similar to your youngest daughter, she had her legs raised with a tablet device resting on her lap. M sat on the couch and did as you said. You touched her underneath her clothing with your fingers and penetrated her vagina. M describes feeling your fingers move around back and forth in her vagina.
• Occasion 7 You were holding a kitten. M leant down to pat the kitten. You touched her to the breast using your thumb across her nipple over her clothing.
• Occasion 8 Again, you and M were in the living area of the house. You touched M to the area of her genitalia, over her clothing. You then put your hand inside her underpants and used your fingers to penetrate her genitalia. She described your fingers moving around and it feeling “really weird”. This continued on for several minutes.
• Occasion 9 You touched M to her breast over her clothing.
Because M was so young when much of the sexual abuse occurred, she did not understand what was occurring. She would offer you affection in the form of a hug and you would use the opportunity to sexually abuse her. She described to police her lack of understanding and spoke in terms of “letting” you touch her. It was undoubtedly a scary and confusing situation for her. M was the first of your daughters to disclose the offending to her mother. On 22 April 2022, she approached her mother and told her what you had been doing. For reasons I shall explain shortly, she did not report the matter to police. M also disclosed the sexual abuse to a friend. The friend told his mother about it and the matter was reported to police.
MR is your youngest daughter. Your sexual abuse of her was perpetrated throughout 2021 and 2022, when she was aged nine and ten. It went on for about 16 months. Again, the sexual abuse primarily involved you touching her to the vagina and penetrating her vagina.
The State rely upon six specified occasions in respect to MR, but again those occasions occurred in the context of ongoing and persistent abuse throughout the 16 month period. MR described that on any given day, you would touch her up to three to four times in a day. She described the abuse as occurring “nearly every day”. MR said the only times the abuse would not occur was in circumstances where other people were present. The sexual abuse occurred mainly in the lounge room and in the bedrooms of the family home. They would mainly occur when you were on night shift and therefore home throughout the day. MR recalled occasions when you would physically carry her from her bedroom to the lounge room in order to sexually assault her.
The specified occasions relied upon by the State are as follows:
• Occasion 1 On an occasion when MR’s mother was at work and you and she were in the lounge room, you put your hand into her underpants and touched her genitalia, penetrating her with your fingers. MR described not understanding what was occurring and “letting” you do it.
• Occasion 2 This also occurred in the lounge room when you were playing Fortnite. You touched MR on the leg on the outside of her clothing and then progressed to touching her on the inside of her leg before moving your hand to the area of her genitalia, over her clothing. MR pushed your hand away. You said to her “Baby, it’s alright”. You then put your hand into her underwear and started touching her to the area of her vagina. You touched her on the vagina and penetrated her vagina on more than one occasion during this incident. When another child came into the room, you stopped but upon that child leaving, you would resume touching her in the same manner.
• Occasion 3 MR was in your bedroom shutting some curtains. You had asked her to do so. She was sitting on the bed waiting for your help to close a part of the curtain that was broken. You sat on the bed with her, put your hand into her underwear and touched her to the area of the vagina. You penetrated her vagina with your fingers.
• Occasion 4 On this occasion, you picked MR up for a cuddle and asked her if she wanted to go to the bedroom. She said no. You nevertheless took her to the bedroom, laid her on the bed and removed her underpants. You touched her to the vagina and then penetrated her vagina with your fingers.
• Occasion 5 You asked MR to lie next to you on the couch. She did so. You placed your hand onto her chest and touched her to the breasts and then touched her to the area of the vagina, over her clothing. MR pushed your hand away. You tried to touch her underneath her clothing but she persisted with pushing your hand away.
• Occasion 6 This occasion occurred on the day M spoke to her mother about what you had been doing. You touched MR to the vagina and penetrated her vagina with your fingers.
You often told MR to keep the conduct a secret and not tell anyone about it. MR wanted to tell her mother about what was occurring, but was afraid to do so as she believed it would break up the marriage and if that occurred, she and her sisters would not be able to see you again. Such feelings are indicative of the stress, trauma and confusion this type of abuse creates for children.
M disclosed your abusive behaviours to her mother on 22 April 2022. Your wife confronted you and told you that she knew what you had done to your daughters. She asked you to leave. You refused to do so, telling her “My name is on the lease”. In a subsequent conversation on the same day, you told your wife that you knew what you had done was wrong and that you did not know why you had done it. You denied having sexual intercourse with the girls, which was, of course, not true given your act of penile rape committed against L.
Your wife did not make any report to police following the disclosure as she was concerned she did not have the financial means to move out of the home, and you had refused to do so. I have no doubt that L, M and MR felt let down, disappointed and confused by their mother’s response, but of course, she felt cornered because of your refusal to leave the family home. Again, in my view, this is reflective of the very significant harm that offending such as yours causes for the whole family unit.
After the matter had been reported by M’s friend to Tasmania Police, they attended your residence. L, M and MR were taken to the police station simultaneously and made separate video statements, outlining the sexual abuse you had perpetrated upon them. Later that same evening, you were arrested. You participated in a record of interview. You made significant admissions to the sexual abuse of each of your daughters. Whilst you did not admit to all of the specified occasions relied upon by the State, in general terms, you admitted the sustained and persistent sexual abuse of each of your daughters by touching them to the vagina and penetrating their vagina on occasions with your fingers. You also made admissions to touching M and MR on the breasts.
You told police that you had “no reason for it”. You admitted your daughters would say “no, you can’t do that”. You said sometimes that you would stop, but sometimes you would keep going. You said the first time it occurred was with your eldest daughter, L. You said it was “as if something had taken control” of you. You admitted that you would touch L frequently. You said you often did it when your wife was having a shower. You told police you stopped touching L when your wife raised it with you after she had seen you leaning over L in the bedroom.
You admitted touching both M and MR. You admitted you were touching each of the girls multiple times per week. You said “it didn’t feel like” you had penetrated their vaginas with your finger. Of course, you now accept that you had. You told police you did not want to hurt your daughters physically. You said that at the time you were touching them, you would think about the mental harm that you were causing them and that you knew it was going to play a “big role in their mental health further on down the track”.
You told police that when you were touching your daughters, you were aroused and that after you had touched them, you would go to the toilet and masturbate yourself. You agreed with police that your wife had confronted you about your behaviour when you were touching L. You said it stopped for a while but then you recommenced with your younger two daughters. You agreed that your wife had confronted you on 22 April 2022. You agreed she had told you to leave. You said you told her you were paying the rent so you were not going anywhere. You told police that you believed the girls would have been too scared to come forward. You said that you were disgusted in yourself.
As to your personal circumstances, I note you are now aged 39. You had a difficult upbringing. Your biological father left the family unit prior to your birth. Your mother subsequently re-partnered and your stepfather was violent to you. Your family lived a relatively transient lifestyle and you moved schools frequently. Ultimately, you left school when you were 16 and moved out of home shortly thereafter. During your teenage years, you would often stay with an uncle over the summer holidays. That uncle sexually abused you from the age of ten. This abuse was not disclosed. You say that the abuse troubled you and you would often reflect upon it when you were consuming alcohol. You have been a heavy user of alcohol for the last ten years or so. Eventually, you committed an act of self-harm and went to see a psychologist. You told the psychologist about what had happened to you as a child. I am also told that you were minded to tell the psychologist about what you were doing to your own children, but when you were informed about the psychologist’s obligations as to mandatory reporting, you elected not to do so.
I am told that you now struggle to understand why you sexually abused your children. You fully acknowledge your wrongdoing and are ashamed of yourself. You are remorseful and you have pleaded guilty to these charges. You have no relevant prior convictions, but, of course, good character provides very little mitigation in cases such as this. You are, however, entitled to a substantial reduction in sentence because of your pleas of guilty. It has saved six complainants the ordeal of giving evidence.
The seriousness of child sex offences and the factors relevant to sentence, were explained in detail by the Court of Criminal Appeal in Director of Public Prosecutions v Harrington [2017] TASCCA 4. I have regard to those matters. I also have regard to the aggravating circumstances which I am required to take into account by the Sentencing Act 1997 s 11A. These crimes were obviously committed when the children were under your care and supervision in various ways. Your three daughters lived with you. The other three complainants were staying at your residence and were under your care and supervision when you perpetrated the abuse upon them. All of the complainants were under 13 when the abuse occurred. They were young and they were vulnerable.
The exceptionally serious moral and criminal wrongdoing associated with your behaviour, hardly needs to be stated. You sexually abused your three daughters, your niece, your nephew and a family friend. The abuse of your daughters occurred in the family home where they were entitled to feel safe and protected. The abuse in respect to each of your daughters was persistent and went on for an extended period of time. Your conduct involved the most appalling breach of trust. You bore a responsibility to nurture, care and protect your daughters but instead, you took advantage of your position as their father in order to abuse each of them. You deprived each of daughters of the secure, safe and loving childhood they were entitled to expect and receive. You destroyed the most important bond of a parent/child relationship. You also breached the trust of your wife and placed her in a terrible predicament whereby she was aware of the abuse, but felt unable to act to protect her children because of her financial reliance upon you and your refusal to leave the family home. She has now been left to raise the children without the support of their father, and manage the psychological consequences which will undoubtedly flow from these crimes.
It is well understood that conduct of this nature has profound and deleterious physical and psychological impacts upon victims for many years, and most likely their whole lives. The true effect of your abusive conduct may not emerge for many years yet. I have read and carefully considered the Victim Impact Statements I have received from all complainants. All describe the type of adverse psychological impact, which may be expected from crimes like this. In respect to your daughters in particular, your abuse permeates every aspect of their life. It has changed their life immeasurably. That is not to minimise the impact that your abuse has had upon your niece, nephew and K. Each of them have also experienced terrible adverse consequences because of your abuse. There is no question that your conduct has had a profound negative effect upon all of your victims.
In sentencing crimes of this nature, there is a strong need for general deterrence and denunciation. Crimes of this nature cause terrible harm and are often difficult to detect. The decision to disclose such abuse within a family context is an incredibly difficult and stressful experience. The feelings of isolation, betrayal and confusion must be most difficult for young people to comprehend.
For crimes of persistent sexual abuse of a young person, a defendant should ordinarily suffer the same penalty as if the offences were charged separately but moderated, of course, to allow for proportionality and totality. I intend to impose a global sentence in respect to all matters. In my view, that best reflects the fact that some of the sentencing aims – for example, punishment and deterrence – are common to all crimes, but equally recognises the criminality attached to your behaviour in respect of each complainant and the separate harm you have caused to each of them.
Having regard to s 11, ss 3 of the Sentencing Act, it will also be necessary for me to identify the sentences which I would have imposed for each offence had separate offences been imposed. In my view, this section refers to a sentence for each offence, without regard to the principles of totality. The totality principle must, of course, affect the length of the combined sentence irrespective of whether they are imposed separately or globally.
As noted, I take into account and give weight to your pleas of guilty and o-operation with the police. I accept your pleas of guilty were entered at an early stage and you are entitled to significant credit for those pleas of guilty because you have saved each complainant the distress and humiliation associated with giving evidence in a criminal trial and re-living the trauma of their abuse. Your pleas of guilty also, of course, have saved the cost and inconvenience of what most likely would have been a relatively lengthy trial. But for your pleas of guilty, the sentence I intend to impose would have been considerably longer – in the realm of four years longer.
KDR, the objective seriousness of your criminal conduct, your moral culpability for it and the overriding sentencing objectives of general deterrence, vindication of the victims and community denunciation, means the only possible sentence is a significant term of imprisonment. The courts condemnation of your behaviour and commitment to the protection of children must also, in my view, be reflected in the sentence imposed.
I make the following orders. You are convicted of all matters to which you have entered pleas of guilty. I will impose one sentence. You are sentenced to imprisonment for a period of 13 years, commencing on the 27 April 2022. I order that you not be eligible for parole until you have served seven years and six months of that period of imprisonment which is the minimum period I consider justice demands you serve in prison.
In accordance with s 11(3) of the Sentencing Act, I identify the sentence which I would have imposed for each crime had I had sentenced them separately:
Count 1 Indictment A term of imprisonment of seven years
Count 2 Indictment A term of imprisonment of five years
Count 3 Indictment A term of imprisonment of five years
Count 1 Complaint 51384/2022 A term of imprisonment of nine months
Count 2 Complaint 51384/2022 A term of imprisonment of 12 months
Counts 3 and 4 Complaint 51384/2022 A term of imprisonment of two years
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 the circumstances of this case, I am not so satisfied and accordingly must make an order. I order that your name be placed on the Register pursuant to that Act and that you comply with the reporting obligations under the Act for a period of 18 years, which will commence on the date of your release from prison.