Citation: R v Perkins [2020] NSWDC 803
Court: District Court of New South Wales
Date: 17 August 2020
Judge: W Hunt DCJ
Background
The offender pleaded guilty to a single count of aggravated sexual intercourse with a child under 16 years of age, contrary to s 66C(2) of the Crimes Act 1900 (NSW). The victim was ten years old at the time of the offence, which occurred on a date between September and November 2011. The maximum penalty for this offence is imprisonment for 20 years, with a standard non-parole period of nine years.
The offender had been known to the victim's family for several years. The victim was a friend of his daughters and was staying at his home for a sleepover when the offence took place. The offender was heavily intoxicated. The following morning he repeatedly apologised and asked the victim not to tell anyone. The victim did not disclose the offending until 2017, when a school lecture on sexual assault prompted her to recognise what had occurred. The offender was arrested in May 2019 and pleaded guilty in the Local Court before being committed to the District Court for sentence.
By the time of the sentence hearing, the matter had been subject to several adjournments, first to allow further submissions on the psychological evidence, and then due to COVID-19 restrictions that led the court to defer proceedings for offenders on bail who would inevitably be entering custody.
Legal Issues
- What was the appropriate objective gravity of the offence, taking into account its nature, duration, and circumstances?
- Whether the circumstance of aggravation (the victim being under the authority of the offender) precluded separate weight being given to the breach of trust involved.
- Whether a causal link between the offender's own childhood victimisation and the offending reduced his moral culpability.
- What weight should be given to the offender's subjective circumstances, including remorse, rehabilitation prospects, and extra-curial punishment?
- Whether special circumstances existed to justify a departure from the standard non-parole period ratio under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
- What utilitarian discount applied to the guilty plea?
Decision
Hunt DCJ assessed the objective seriousness of the offence as significant, noting that although the particular sexual act was less physically invasive than some forms of child sexual assault, it was not of limited duration. The court rejected the characterisation of the offending as "brief," describing ten minutes of cunnilingus performed on a ten-year-old as neither brief nor of limited duration. The intoxication of the offender, the vulnerability of the victim, and the context of the offending all contributed to its gravity.
Because the indictment charged the aggravated form of the offence on the basis that the victim was under the authority of the offender, His Honour declined to treat the breach of trust as an additional aggravating factor. To do so, the court found, would constitute impermissible double-counting. The court nonetheless acknowledged that the breach of trust was a serious feature of the facts.
On the offender's subjective case, the court accepted evidence from a treating psychologist experienced in sexual offending against children. The court considered whether the offender's own history of childhood sexual abuse created a sufficient causal link to reduce his moral culpability, though the reasons do not resolve this question in explicit terms. The court gave weight to the offender's genuine remorse, his early guilty plea (which spared the victim from giving evidence), and a range of extra-curial consequences including the breakdown of his marriage and the significant stress caused by the protracted sentencing process. A 25% utilitarian discount was applied, as agreed between the parties.
The court found special circumstances warranting a longer than usual parole period, citing the need for extended supervision and support during the offender's rehabilitation, as well as the fact that this was his first period of full-time imprisonment.
Orders Made
- The offender was convicted.
- Sentenced to five years' imprisonment, with a non-parole period of three years.
- The sentence was backdated to commence on 8 June 2020, expiring 7 June 2025.
- Earliest date of release to parole: 7 June 2023.
- A finding of special circumstances was made.
Key Takeaways
- The District Court confirmed that where a circumstance of aggravation is charged on the indictment, a court must not separately aggravate the sentence by treating the same factual feature as an additional sentencing consideration, as this constitutes double-counting.
- Under s 66C(2) of the Crimes Act 1900 (NSW), the standard non-parole period of nine years operates as a legislative guidepost or benchmark, and courts are required to have regard to it in the manner contemplated by the authorities.
- Extra-curial punishment, including the breakdown of personal relationships and the psychological burden of a protracted sentencing process, can constitute a mitigating factor relevant to the overall sentencing exercise.
- A genuine early guilty plea carries utilitarian value beyond saving court time, particularly where it spares a child complainant from the prospect of giving evidence, and this can support a higher utilitarian discount.
- Special circumstances justifying a departure from the standard non-parole period ratio may be established where an offender requires a longer supervisory period on parole for rehabilitation, and where the sentence represents the offender's first experience of full-time imprisonment.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 66C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
Cases:
- Henry v R [2009] NSWCCA 69
- R v BJW [2000] NSWCCA 60
- R v Rich [2000] NSWCCA 448