AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 22 November 2019

R v JP

[2019] NSWDC 700

Sexual offences
SENTENCE ACT OF INDECENCY UNDER AUTHORITY LOWER END OF SUBJECTIVE SERIOUSNESS ABUSED POSITION OF TRUST OFFENDER CO OPERATED WITH AUTHORITIES

Citation: R v JP [2019] NSWDC 700
Court: District Court of New South Wales
Date: 22 November 2019
Judge(s): Priestley SC DCJ

Background

The offender, an elderly grandfather and Vietnam War veteran, pleaded guilty to two offences against children in his family. The first was sexual intercourse with a child under 10 (his natural granddaughter, referred to as "Jane"), contrary to section 66A(1) of the Crimes Act 1900. The second was an act of indecency on a person under his authority (his step-granddaughter, referred to as "Sally"), contrary to section 61M(1). Both offences occurred in northern New South Wales between mid-2014 and mid-2015.

The offending took place after the two girls had been removed from their parents' home due to concerns about inappropriate sexual behaviour involving other siblings, and then returned. The offender is the natural grandfather of Jane and the step-grandfather of Sally. Both children called him "grandpa."

The offending was not reported to police by the family, who feared the children would be removed again. It came to light only after the offender's sister made an anonymous report to Crime Stoppers in 2017. The offender was ultimately arrested in March 2019.

  • What is the objective seriousness of each offence on the particular facts?
  • How should the standard non-parole periods apply to these offences?
  • What weight should be given to the offender's subjective circumstances, including his military service, mental health, cooperation with authorities, and guilty plea?
  • Whether special circumstances existed justifying a departure from the statutory ratio between non-parole period and balance of term.
  • What aggregate sentence was appropriate under section 53A of the Crimes (Sentencing Procedure) Act?

Decision

Objective seriousness: The court assessed both offences at the lower end of objective seriousness. The offence against Jane involved a single act of brief duration with no force, no threats, and no grooming. The act against Sally was described as a momentary brush of her breast, which ceased immediately. However, the court emphasised that even at the lower end of the spectrum, offences of this kind against young children remain serious, and the offender abused a position of trust as a grandfather figure to both girls.

Subjective circumstances: The offender's background carried considerable weight. He served in the Royal Australian Navy for nine years, including active service in Vietnam in underwater bomb disposal. He suffered ongoing mental health consequences from that service and was hospitalised as an inpatient in 2015. The court accepted evidence from the offender's son that the offender had wanted to go to police after the family learned of the offending, but was persuaded not to do so for the sake of the children. This was treated as relevant to insight and remorse, though the court noted the delay in disclosure was also explicable as family self-protection.

Plea and cooperation: The offender received a 25 per cent discount on sentence for his early guilty plea. The court found that his cooperation with police, including participating in an interview after arrest, was a genuine mitigating factor. Special circumstances were found to exist, primarily because of the offender's mental health needs and the importance of supervision on release, which justified extending the period on parole beyond the statutory one-third balance.

Sentencing range: The court considered comparable cases, including FD v R and NLR, and concluded that the present offending was markedly less serious than those examples in terms of both the number of offences and their nature. An aggregate sentence of three and a half years was imposed, with a non-parole period of two years and four months.

Orders Made

  • The offender was convicted of both offences on the indictment.
  • An aggregate sentence of three years and six months was imposed, commencing 19 March 2019 and expiring 18 September 2022.
  • A non-parole period of two years and four months was set, commencing 19 March 2019 and expiring 18 July 2021.
  • The earliest eligible date for release was 18 July 2021.

Key Takeaways

  • Even where offences of child sexual assault fall at the lower end of objective seriousness, courts will treat the abuse of a position of familial trust as a significant aggravating feature.
  • A sentencing court may give genuine weight to evidence that an offender wished to cooperate with police earlier but was deterred by family members acting (at least in part) in the interests of child victims.
  • Under the Crimes (Sentencing Procedure) Act, a finding of special circumstances allows the court to depart from the statutory non-parole period ratio; here, the offender's mental health needs and the importance of supervised release supported that finding.
  • Aggregate sentencing under section 53A permits a court to impose a single combined sentence across multiple counts, provided it states reasons where the balance of term exceeds one-third of the aggregate.
  • Comparative sentencing exercises have inherent limits. The District Court observed that the "endless combinations of facts" in sentencing matters make detailed cross-case comparisons largely unproductive beyond establishing a broad range.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66A(1), 61M(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 44(2A), 44(2B), 53A; Division 1A of Part 4 (standard non-parole periods)

Cases:
- FD v R [2013] NSWCCA 139
- NLR [2011] NSWCCA 246