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District Court 20 February 2019

R v JOKHAN

[2019] NSWDC 127

Sexual offences
CRIMINAL LAW SENTENCED AFTER TRIAL AGGRAVATED INDECENT ASSAULT LOW OBJECTIVE CRIMINALITY CHILD UNDER 16 AGED 13 OR 14

Citation: R v JOKHAN [2019] NSWDC 127
Court: District Court of NSW
Date: 20 February 2019
Judge: Tupman DCJ

Background

The offender, a 63-year-old man, was convicted by a jury of one count of aggravated indecent assault of a child under 16. The offending occurred between December 2016 and February 2017 in the Queanbeyan area. The offender was the boyfriend of the complainant's mother and had known the complainant for several years.

The offence involved the offender briefly touching the complainant, then aged 13 or nearly 14, on her thigh and breast over her clothing during a daytime driving lesson. The jury acquitted the offender on two more serious counts in the same indictment. The complainant's evidence on those counts was undermined by contrary evidence, which the court noted made the overall verdict difficult to understand, though the conviction on count 3 stood.

The offender had no relevant criminal history, was of good character, and had been the full-time carer of his wife since around 2015, following her diagnosis with early-onset frontotemporal dementia.

  • Whether the objective seriousness of the offending was sufficient to cross the threshold for full-time imprisonment under section 5 of the Crimes (Sentencing Procedure) Act 1999
  • Whether the offender's good character could be taken into account as a mitigating factor, given the nature of the offence
  • What sentence was appropriate in all the circumstances, including the offender's age, personal circumstances, and the low objective criminality of the offending

Decision

Tupman DCJ assessed the objective seriousness of the offending as very low. The touching was momentary, occurred over clothing, took place in a semi-public setting during a daytime driving lesson, and involved no element of grooming or persistence. The court placed the offence at the bottom of the range for offences capable of being charged under the relevant provision, noting it could have been dealt with in the Local Court.

The court acknowledged that the offence remained a serious one in legal terms. The maximum penalty is 10 years' imprisonment with a standard non-parole period of 8 years, reflecting the legislature's recognition of the gravity of child sexual assault. The complainant's victim impact statement was accepted, and her reported fear and sense of unsafety were taken into account.

On good character, the court applied section 21A(5)(a) of the Crimes (Sentencing Procedure) Act 1999. Because there was no evidence that the offender's good character had been used to facilitate the offending, the court was not precluded from treating good character as a mitigating factor. The offender's community involvement, work history, and role as a full-time carer for his wife with dementia all weighed in his favour.

Taking all factors together, including the Crown's own submission that full-time custody was not warranted, the court found this to be an exceptional case in which the section 5 threshold was not crossed. A Community Corrections Order was imposed as the appropriate outcome.

Orders Made

  • The offender convicted on count 3 of the indictment
  • Community Corrections Order imposed for a term of 2 years, commencing 20 February 2019
  • Standard conditions applied under section 88 of the Crimes (Sentencing Procedure) Act 1999
  • Additional condition under section 89 requiring supervision by Community Corrections for as long as deemed necessary, with supervision terminable at Community Corrections' discretion
  • The offender required to report to Community Corrections, Queanbeyan, no later than 1 March 2019

Key Takeaways

  • The District Court confirmed that aggravated indecent assault of a child can, in exceptional circumstances, fall below the section 5 threshold for full-time imprisonment, particularly where objective criminality is at the lowest end of the range.
  • A conviction does not automatically preclude a non-custodial sentence, even for a serious offence carrying a 10-year maximum, where all relevant mitigating factors are present.
  • Under section 21A(5)(a) of the Crimes (Sentencing Procedure) Act 1999, good character remains available as a mitigating factor unless there is evidence it was used to enable the offending.
  • Personal circumstances, including the offender's age, absence of prior criminal history, community standing, and role as a full-time carer for a spouse with dementia, were treated as relevant to the sentencing outcome.
  • The abolition of suspended sentences following the 2018 amendments to the Crimes (Sentencing Procedure) Act 1999 was noted as a relevant sentencing constraint, though it did not alter the outcome given the section 5 threshold was not crossed.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), sections 5, 21A(5)(a), 88, 89

Cases:
No cases were cited in the judgment.