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District Court 30 July 2020

R v Copas

[2020] NSWDC 829

Sexual offences
CRIME SENTENCE UNDER AUTHORITY

Citation: R v Copas [2020] NSWDC 829
Court: District Court of New South Wales
Date: 30 July 2020
Judge: Bourke SC DCJ

Background

The offender operated a cleaning business with his wife and hired the victim, a 28-year-old woman with an intellectual disability and speech delay, in September 2018. The victim had previously been living out of her car and needed the employment. As her employer, the offender held a position of authority over her throughout the relevant period.

From shortly after she began work, the offender made repeated unwanted sexual comments and advances. Despite the victim's clear rebuffs, the conduct escalated significantly over the following months, including explicit verbal propositions in December 2018.

On 17 December 2018, while the two were at a property being cleaned, the offender committed multiple acts of unwanted sexual touching and ultimately had penile/vaginal intercourse with the victim without her consent. The victim lay still throughout the assault, frozen with fear, and did not consent or indicate consent at any point.

  • The appropriate sentence for a charge of aggravated sexual intercourse without consent under s 61J of the Crimes Act 1900, where the victim was under the offender's authority
  • The weight to be given to three additional Form 1 offences of aggravated sexual touching (under s 61KD of the Crimes Act 1900) in determining the overall sentence
  • Whether special circumstances existed to vary the standard ratio between the non-parole period and the head sentence
  • The relevance of mitigating factors, including an early guilty plea, prior good character, remorse, and the conditions of custody during the COVID-19 pandemic

Decision

Bourke SC DCJ imposed a sentence of full-time imprisonment, finding no alternative was appropriate given the seriousness of the offending. The offender had pleaded guilty at the earliest opportunity and received a 25 per cent discount on that account. The court acknowledged mitigating factors including prior good character, a sound work history, expressed remorse, and reasonable prospects of rehabilitation supported by the offender's willingness to engage in treatment.

The three Form 1 matters, involving escalating physical assaults on the same victim on the same day, were treated as aggravating the sentence for the principal offence. The court emphasised the particular importance of personal and general deterrence, as well as the community's entitlement to retribution for serious sexual offending of this kind.

The court found special circumstances justifying a departure from the ordinary ratio between head sentence and non-parole period, on the basis that this was the offender's first time in custody. This allowed a longer parole period to assist with rehabilitation and reintegration.

The court also acknowledged that the offender's custody was being served during the COVID-19 pandemic, which had made conditions more onerous through restrictions on family visits. Given that a significant portion of the sentence had already been served before the pandemic, however, this warranted only a minor adjustment to the otherwise appropriate sentence.

Orders Made

  • Head sentence of 5 years and 6 months imprisonment for aggravated sexual intercourse without consent, commencing 18 December 2018 and expiring 17 June 2024
  • Non-parole period of 3 years and 6 months, expiring 17 June 2022
  • Three offences of aggravated sexual touching taken into account on a Form 1 document

Key Takeaways

  • The District Court confirmed that an employer-employee relationship can constitute a circumstance of aggravation under s 61J of the Crimes Act 1900 on the basis that the victim was "under the authority" of the offender.
  • Where Form 1 offences form part of an escalating sequence of conduct culminating in the principal offence, the sentencing court treated them as increasing the appropriate penalty, particularly given the imperatives of personal deterrence and retribution.
  • An early guilty plea attracting a 25 per cent utilitarian discount does not preclude a substantial term of full-time imprisonment for serious sexual offending.
  • Special circumstances justifying a varied non-parole ratio were established by the offender's status as a first-time custodial prisoner, reflecting the need to allow adequate time for supervised reintegration.
  • Custodial conditions during the COVID-19 pandemic were accepted as a relevant sentencing factor, though their weight was reduced where a material portion of custody had already been served prior to pandemic restrictions taking effect.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 61KD
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A

Cases:
- KAB v R [2015] NSWCCA 55
- Perkins v R [2018] NSWCCA 62