Citation: R v Taupe (No 2) [2013] NSWDC 330
Court: District Court of New South Wales
Date: 5 April 2013
Judge(s): Cogswell SC DCJ
Background
The offender was found guilty after a judge-alone trial of three counts of aggravated sexual intercourse against a child under section 66C of the Crimes Act 1900 (NSW). The victim was his stepdaughter, a person over whom he could exercise authority. The offences involved digital penetration and occurred on separate occasions between December 2000 and May 2004, when the victim was aged between 12 and 15 years.
The first two offences fell under section 66C(2), which carried a maximum of 10 years imprisonment at the relevant time. The third offence, committed in 2004 when the victim was 15, fell under section 66C(4), which carried a maximum of 12 years. The offender had been acquitted of a larger number of charges at trial; sentencing proceeded solely on the three counts of conviction.
The sentencing hearing involved submissions from Crown and defence counsel, character references from people who were aware of the convictions, and a psychological report from a treating psychologist who had been seeing the offender regularly for approximately three years.
Legal Issues
- How serious were these offences within the range of aggravated sexual assault offences of this type, and what were the relevant aggravating and mitigating factors?
- What weight should be given to the offender's good character in the context of child sexual assault offending?
- What weight should be given to the treating psychologist's report, including findings about depression, prospects of rehabilitation, and likelihood of reoffending?
- Whether special circumstances existed justifying a departure from the standard non-parole period ratio under the Crimes (Sentencing Procedure) Act 1999 (NSW).
Decision
His Honour found the offences to be in the lower range of seriousness for this category of offending. Digital penetration was acknowledged to be a less serious form of penetration than penile penetration, though in no way excusable. Each offence was brief, spontaneous, and opportunistic; there were no threats, no attempt to isolate the victim, and no additional aggravating features under section 21A of the Crimes (Sentencing Procedure) Act 1999. The victim's age was relevant, particularly that she was closer to the younger end of the applicable age range for the first two offences.
The offender's good character was given reduced weight. Applying the principle confirmed in Dousha v R [2008] NSWCCA 263, good character carries less significance in cases involving a course of repeat sexual offending against young children. While character references from people who were fully aware of the offences were accepted as genuine, the court noted that the offender had not accepted responsibility for his actions, which limited the weight given to any expression of remorse. His depression diagnosis was also given less weight, as he had acted with knowledge of what he was doing.
Greater weight was given to the report of the treating psychologist, Mr Crockford, whose findings were grounded in approximately three years of clinical contact with the offender. Mr Crockford identified contributing factors from the offender's personal history, concluded that the offender had an excellent attitude to treatment, and expressed the view that reoffending was extremely unlikely. His Honour regarded the length and consistency of the therapeutic relationship as an unusually favourable feature.
Special circumstances were found to exist, justifying a reduction in the non-parole period below the standard ratio. The finding was grounded principally in the treating psychologist's report and the offender's demonstrated progress toward rehabilitation. The court structured the sentences on an aggregate basis, with a total term of 3 years and 6 months and a non-parole period of 1 year and 9 months, approximately half the total term rather than the standard proportion of around 31 to 32 months.
Orders Made
- Three offences sentenced on an aggregate basis.
- Total sentence: 3 years and 6 months imprisonment, commencing 5 April 2013, expiring 4 October 2016.
- Non-parole period: 1 year and 9 months, commencing 5 April 2013, expiring 4 January 2015 (eligibility for parole from 5 January 2015).
Key Takeaways
- Digital penetration, while serious criminal conduct, may be treated as a less grave form of penetration than penile penetration when assessing the objective seriousness of an aggravated sexual assault offence and positioning the offending within the range.
- Good character carries reduced weight in sentencing for child sexual assault, particularly where the offending was repeated against the same victim. The District Court applied the principle from Dousha v R that a course of repeat sexual offending against young children does not attract the same leniency that good character might otherwise justify.
- Where an offender has engaged in sustained, genuine therapeutic treatment prior to sentencing, a treating practitioner's report may be accorded greater weight than a one-off forensic assessment, particularly where the report is grounded in years of clinical observation.
- Remorse without acceptance of responsibility for the offending is given limited weight at sentencing.
- Special circumstances under the Crimes (Sentencing Procedure) Act 1999 can be established where genuine and ongoing rehabilitation efforts are supported by credible clinical evidence, justifying a reduction in the non-parole period below the standard ratio.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 66C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 43, 53A
Cases:
- Benitez v R [2006] NSWCCA 21; 160 A Crim R 166
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Dousha v R [2008] NSWCCA 263
- SDS v R [2009] NSWCCA 159
- R v Wright (1997) 93 A Crim R 48