R v CP [2016] NSWDC 413

Citation: R v CP [2016] NSWDC 413
Court: District Court of New South Wales
Date: 9 December 2016
Judge: Berman SC DCJ

Background

The offender, a grandfather, was convicted by a jury of three offences against his six-year-old granddaughter: one count of indecent assault and two counts of sexual intercourse without consent. The offences occurred on a single occasion while the complainant was staying at her grandparents' home and her grandmother was out, leaving the offender and the child alone together.

The complainant had a close and loving relationship with her grandfather. Her parents had separated, and she visited and regularly stayed at her grandparents' home. The offending came to light when the child, then aged six, disclosed what had happened to her mother.

The primary evidence at trial was an electronically recorded police interview with the complainant. The court found the interview particularly compelling, noting two features that corroborated the child's account: her description of the offender's penis as "soft," which matched his known erectile dysfunction, and her awareness that if his wife found out, he would go to gaol.

Legal Issues

What was the appropriate sentence for each of the three offences, having regard to their objective seriousness?
Whether the standard non-parole period applied, and if not, why it should be departed from.
Whether the breach of trust and the location of the offending (the offender's home) were properly treated as aggravating factors.
What weight should be given to general deterrence in sentencing for child sexual assault offences?
Whether special circumstances existed to justify a variation in the ratio of non-parole period to head sentence.

Decision

Berman SC DCJ assessed each count individually before imposing an aggregate sentence. The indecent assault (count 1, licking the complainant's buttocks and anal area) was described as a most serious example of that offence, carrying a maximum of ten years. The act of cunnilingus (count 2) was treated as a serious form of sexual intercourse, and the penile penetration (count 3) was regarded as the most serious of the three, though the court accepted that penetration was limited in extent, no injury was observed, and the offender's erectile dysfunction was relevant to the nature of the physical act.

The court declined to impose the standard non-parole periods of eight years (count 1) and fifteen years (counts 2 and 3), setting out its reasons in the remarks on sentence. The breach of trust was acknowledged as a feature of enormous gravity, but the court noted it could not be treated as a separate aggravating factor for counts 2 and 3 because being "under the authority of the offender" was already an element of those offences. However, the fact that the offending occurred in the offender's own home was treated as an aggravating factor, consistent with the Court of Criminal Appeal's decision in Johnson v R [2016] NSWCCA 286, handed down the same day.

General deterrence was identified as the paramount sentencing consideration. The court observed that child sexual assault is typically committed in secret, that offenders often use their position of trust to silence victims, and that the consequences for victims are frequently lifelong. The court expressly stated that sentences in this area may be considered harsh by some, but that courts must endeavour to protect children from those who would exploit them.

The court found special circumstances, citing the combined effect of the offender's age and the fact that this was his first time in custody. This justified a departure from the usual ratio between the non-parole period and the head sentence.

Orders Made

Count 1 (indecent assault): head sentence of 5 years, non-parole period of 3 years (notional, forming part of aggregate).
Count 2 (sexual intercourse without consent, cunnilingus): head sentence of 9 years, non-parole period of 5 years (notional, forming part of aggregate).
Count 3 (sexual intercourse without consent, penile penetration): head sentence of 9 years, non-parole period of 5 years (notional, forming part of aggregate).
Aggregate sentence imposed: head sentence of 11 years, with a non-parole period of 7 years and 6 months, commencing 29 October 2016.
Non-parole period to expire 28 April 2024, at which date the offender becomes eligible for release to parole.

Key Takeaways

General deterrence is the paramount consideration in sentencing for child sexual assault, particularly where the offender held a position of trust over the victim and the offending was conducted in secret.
Where being "under the authority of the offender" forms an element of a charged offence, the breach of trust inherent in that relationship cannot be separately treated as an aggravating factor for sentencing purposes on that count.
The District Court confirmed, applying Johnson v R [2016] NSWCCA 286 (decided the same day), that committing the offences in the offender's own home was a proper aggravating factor, particularly where that home functioned as a secondary home for the child victim.
Special circumstances may be found where an offender is both elderly and a first-time custodial detainee, justifying a longer parole period relative to the head sentence.
The absence of physical violence does not reduce the objective seriousness of child sexual assault where the offender's position of trust made overt coercion unnecessary.

Legislation and Cases Referenced

Cases:
- Johnson v R [2016] NSWCCA 286

Legislation:
- No specific legislation was cited in the provided text. The offences were prosecuted under provisions of the Crimes Act 1900 (NSW) relating to indecent assault and sexual intercourse without consent, including provisions addressing complainants under the age of ten and complainants under the authority of an offender.