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District Court 1 July 2016

R v CF

[2016] NSWDC 315

Sexual offences
CRIMINAL LAW SENTENCE SEXUAL INTERCOURSE WITHOUT CONSENT

Citation: R v CF [2016] NSWDC 315
Court: District Court of New South Wales
Date: 1 July 2016
Judge: Berman SC DCJ

Background

The offender, a man in his early sixties with no prior criminal history, was convicted by a jury on four counts of sexual offending against the young daughter of his wife's niece. The complainant was 12 years old at the time of the offences, and the offender was described at trial as her grand uncle. The two families were close, with the offender and his wife making regular overnight visits to the complainant's family home.

The offending occurred across two occasions: the first in December 2011, when the offender digitally penetrated the complainant's genitals while the two were briefly alone together in a back room of the family home; the second in August 2012, when he rubbed her genitals over her clothing, touched her breasts under her jumper, and again touched her external genitals, all while his wife sat nearby on the same lounge.

The complainant disclosed the abuse to her cousin through a chat application some time after the events. Her cousin, recognising the seriousness of what she had been told, informed her parents despite having promised confidentiality. Police were notified and conducted a covert recording of a conversation between the offender and the complainant's father, in which the offender made admissions consistent with deliberate sexual touching.

  • What sentence was appropriate for four counts of child sexual assault, comprising one count of sexual intercourse without consent (digital penetration of a child aged 10 to 14, contrary to s 66C(1) of the Crimes Act) and three counts of indecent assault on a child under 16?
  • What weight should be given to the offender's otherwise good character and absence of prior convictions when sentencing for this type of offending?
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio.
  • Whether an aggregate sentence was appropriate, and if so, what its components should be.

Decision

Berman SC DCJ found that the offending represented a serious and calculated breach of trust. The offender's position as a respected and loved family member was precisely what enabled him to gain access to the complainant and commit the offences. His character evidence, while substantial, did not operate in the usual mitigatory way: the trust the family placed in him was the mechanism through which the offending occurred.

The judge found the offender had singled out the complainant due to a specific sexual interest in her, and that his habit of massaging her legs and thighs was consistent with grooming behaviour, or at a minimum with acting on sexual desire. The offender had pleaded not guilty, shown no remorse, and did not accept responsibility, making a positive finding of rehabilitation prospects difficult, though the judge acknowledged this was not impossible in all circumstances.

His Honour determined that full-time custodial sentences were required for each count, noting that nothing less would adequately reflect general deterrence. The court emphasised the courts' established obligation to protect vulnerable children from sexual exploitation by adults in positions of trust.

Special circumstances were found to exist, based on the offender's age, his health, and the fact this was his first time in custody. An aggregate sentence of eight years was imposed, with a non-parole period of five years, commencing 6 May 2016.

Orders Made

  • Aggregate sentence of eight years' imprisonment, commencing 6 May 2016.
  • Non-parole period of five years, expiring 5 May 2021, at which date the offender becomes eligible for release on parole.
  • Indicative individual sentences (had the aggregate not been imposed):
  • Count 1 (sexual intercourse without consent, s 66C(1)): five and a half years.
  • Count 2 (indecent assault): three years with an 18-month non-parole period.
  • Count 3 (indecent assault): two years with a 12-month non-parole period.
  • Count 4 (indecent assault): four years with a two-year non-parole period.

Key Takeaways

  • The District Court confirmed that good character evidence carries diminished mitigatory weight where that very good character was instrumental in enabling the offender's access to the victim and the commission of the offences.
  • General deterrence was identified as a factor of prime importance in sentencing for child sexual assault offences, particularly where the offender occupied a position of familial trust in relation to the victim.
  • Under s 66C(1) of the Crimes Act, sexual intercourse with a child aged between 10 and 14 carries a maximum penalty of 16 years' imprisonment; the court applied the sentencing regime applicable at the time of the offence, noting the absence of a standard non-parole period as it then stood.
  • A finding of special circumstances, reducing the standard non-parole period ratio, was available on the basis of the offender's age, health, and the fact of a first custodial term, even where the offender showed no remorse and had not admitted wrongdoing.
  • Judicial Commission statistics showing that a third of comparable sentences did not involve full-time custody were given very limited weight, as the underlying circumstances of those cases were unknown.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), s 66C(1) (sexual intercourse with child aged 10 to 14, maximum 16 years' imprisonment)
- Crimes Act (NSW) (provisions relating to indecent assault on a child under 16, maximum 10 years' imprisonment with a standard non-parole period of eight years)

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