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District Court 20 September 2019

R v JP

[2019] NSWDC 750

Sexual offences
CRIME CHILD SEX OFFENCES SEXUAL INTERCOURSE WITH CHILD <10 INTELLECTUAL DISABILITY BREACH OF TRUST OFFENCES OCCURRED IN THE VICTIM’S HOME

Citation: R v JP [2019] NSWDC 750
Court: District Court of New South Wales
Date: 20 September 2019
Judge(s): Priestley SC DCJ

Background

The offender, aged 22 at the time of the offending in August 2017, was a family friend of the victim's parents. He had been permitted to stay overnight at the family home to use their laundry facilities, sleeping on the lounge. The victim was a six-year-old girl.

On two separate mornings during August 2017, the offender committed sexual offences against the child in the lounge room of her home. The offending came to light when the victim's mother discovered her daughter under a blanket with the offender and the victim disclosed what had occurred. The offender was arrested the same day and, during a recorded police interview, made admissions.

The offender pleaded guilty to aggravated indecent assault of a person under 16 years (maximum penalty: 10 years imprisonment) and sexual intercourse with a child under 10 years (maximum penalty: life imprisonment). Two additional counts of indecent assault were dealt with on a Form 1 basis, meaning they were taken into account in sentencing without imposing separate penalties.

  • What was the appropriate sentence for sexual intercourse with a child under 10, and aggravated indecent assault of a child under 16, in circumstances involving breach of trust?
  • Whether fresh blood found on the victim's underwear was caused by the sexual assault, and whether this aggravated the principal offence.
  • What weight should be given to the offender's intellectual disability and mental health in mitigation?
  • Whether special circumstances existed to justify departing from the standard non-parole period ratio.
  • What discount applied for the early plea of guilty?

Decision

The offending and its objective seriousness

The District Court found that the offences were serious. The sexual assault involved digital penetration of a six-year-old child, committed in her own home by a person present only because of the trust her parents had extended to him. The child had said "No" before the penetration occurred. The Court found that the offending was not transient, noting that the offender had moved his finger around, though it could not be satisfied that the assault was of significant duration. The two Form 1 matters, including an open-mouth kiss and the offender placing the child's hand on his penis, were treated as additional context lending weight to personal deterrence and community retribution, consistent with the principles in Attorney General's Application No 1 of 2002.

The blood finding

The Court considered medical evidence from the treating paediatrician, who observed fresh blood on the victim's underwear but no visible injury to the external genitalia on examination. The Court made a finding that the blood was likely caused by the assault, treating this as an aggravating factor going to the seriousness of the principal offence.

Mental health and intellectual disability

Expert psychiatric evidence from Dr Furst was considered, though the Court expressed concerns about aspects of it. The Court accepted that the offender has an intellectual disability and mental health issues, finding these relevant to mitigation. The disability was found to make custody more burdensome than it would otherwise be, though the Court noted the community still required strong protection given the nature of the offending.

Plea, special circumstances, and the aggregate sentence

A 15 percent discount was applied for the guilty plea. The Court found special circumstances justifying a departure from the standard non-parole period ratio, citing the offender's lack of prior criminal history, his intellectual disability, the fact that this would be his first time in custody, and the heightened need for rehabilitation and supervision upon release. The Court imposed an aggregate sentence of four and a half years, with a non-parole period of two and a half years. Indicative sentences were 18 months for the indecent assault and four and a half years for the sexual assault (each before the plea discount), with a degree of concurrency applied to reflect the totality and proportionality principles given the short timeframe of the offending.

Orders Made

  • The offender is convicted.
  • The offender is sentenced to imprisonment for a term of four and a half years, commencing 28 March 2019 and expiring 27 September 2023.
  • A non-parole period of two and a half years is set, commencing 28 March 2019 and expiring 27 September 2021.
  • The earliest eligible release date is 27 September 2021.

(Note: Order dates were amended on 6 September 2021 to accord with the court record.)

Key Takeaways

  • Breach of trust arising from a friendship with the victim's family, and offending within the victim's own home, were identified as significant aggravating features in the sentencing exercise.
  • A medical finding of fresh blood on a child victim's underwear, even without visible external injury, was treated as capable of aggravating the principal offence where the court was satisfied it was likely caused by the assault.
  • Under the Form 1 procedure, additional offences cannot increase the penalty beyond the maximum for the principal offence, but they do permit greater weight to be given to personal deterrence and community retribution than would otherwise apply to the principal offence alone.
  • Special circumstances were established by the combination of intellectual disability, the offender's first time in custody, the additional burden that custody places on a person with mental health difficulties, and the need for extended post-release supervision to support rehabilitation.
  • An aggregate sentencing approach was applied, with a degree of concurrency allowed to reflect the short overall timeframe of the offending and the principles of totality and proportionality.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 66A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 44(2B), 54B
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Part 9

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- De La Rosa [2010] NSWCCA 194
- Muldrock v The Queen [2011] HCA 39
- Veen v The Queen (No 2) (1988) 164 CLR 465
- OO [2002] NSWCCA 416