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District Court 20 June 2024

R v PRATAP

[2024] NSWDC 221

Sexual offences
CRIME CHILD SEXUAL OFFENCES SEXUAL INTERCOURSE WITH CHILD UNDER 10 CHILDREN OF WORK COLLEAGUE CUNNILINGUS SEXUAL TOUCHING CHILD UNDER 10

Citation: R v Pratap [2024] NSWDC 221
Court: District Court of NSW
Date: 20 June 2024
Judge: Lerve DCJ

Background

The offender, a Fijian national working in regional NSW on a temporary visa, was a friend of the father of two young victims. He visited the family home regularly, often staying overnight after consuming alcohol with the victims' father. The victims were aged six to eight years old at the time of the offending.

Following a trial at Wagga Wagga District Court, a jury convicted the offender on four counts involving sexual intercourse and sexual touching of two children under ten. The offending occurred across separate occasions in August 2022, all at the victims' home. The jury acquitted the offender on one further count.

The sentencing judgment addressed offence seriousness, statutory aggravating factors, subjective matters including a detailed psychological report, and the appropriate aggregate sentence.

Legal Issues

  • Whether the offending involved an abuse of trust as a statutory aggravating factor
  • Where each offence fell on the range of objective seriousness
  • Whether the offender's significant childhood trauma reduced his moral culpability under the principles in Bugmy v The Queen
  • Whether the offender could be found remorseful or unlikely to re-offend, given his continued denial of guilt
  • Whether special circumstances existed to justify a non-parole period that departed from the standard ratio
  • What aggregate sentence was appropriate across four counts involving two victims

Decision

Issue 1: Objective seriousness of each offence

Count 1 involved cunnilingus performed on a victim aged seven or eight. The court confirmed the conduct fell within the statutory definition of sexual intercourse, notwithstanding the absence of penile or digital penetration (at [17]-[18]). The offending was not fleeting, occurred in the victim's home, involved a substantial age gap, and showed some persistence. The court assessed it as below mid-range but not substantially so (at [21]).

Count 3 involved the offender kissing the victim on the face while positioning himself over her body as she slept. The court assessed this as at the lower end of the range of seriousness, noting that in isolation it would not cross the threshold requiring a custodial sentence under s 5(1) of the Crimes (Sentencing Procedure) Act 1999 (at [22]). Counts 4 and 5 involved skin-on-skin sexual touching of a younger victim's vagina and breast respectively. Count 4 was assessed at the lower end of mid-range, while count 5 was assessed as below mid-range but not at the low end (at [28]-[29]).

Issue 2: Abuse of trust

The Crown submitted that each offence was aggravated by an abuse of trust. The court rejected this, accepting the offender's submissions and applying DPP v Burton [2020] NSWCCA 54 (at [19]-[20]). The court nonetheless noted that the offender had abused his friendship with the victims' father, which remained part of the factual context.

Issue 3: Subjective factors and Bugmy considerations

The court received a detailed psychological report from Dr Sidhu. The report documented severe childhood deprivation, including the death of the offender's father in infancy, violent stepfathers, removal to foster care, physical abuse across two placements, and sexual abuse including rape at age eight (at [35]-[37]). The court accepted this material in full, the Crown having not required Dr Sidhu for cross-examination (at [56]). These matters enlivened the principles in Bugmy v The Queen [2013] HCA 37, and the court found the resulting reduction in moral culpability to be "a very meaningful one" (at [38]).

Issue 4: Remorse, reoffending risk, and rehabilitation

Because the offender continued to deny guilt, the court could not find remorse (at [47]). The psychological report assessed the offender at average risk of reoffending on one actuarial tool, with elevated risk noted on another due to continued denial and poor insight (at [46]). The court was not satisfied on the balance of probabilities that the offender was unlikely to reoffend, and declined to find good prospects of rehabilitation (at [48]-[49]).

Issue 5: Special circumstances and aggregate sentence

The court found special circumstances, citing the offender's age, his first time in custody, and his clear need for extended post-release supervision (at [52]). It noted that the practical effect of likely deportation to Fiji meant the offender would probably not access the treatment he clearly required. An aggregate sentence of nine years was imposed, with a non-parole period of six years, producing a ratio of two-thirds (at [66]-[69]).

Orders Made

  • The offender was convicted on counts 1, 3, 4 and 5.
  • An aggregate sentence of 9 years imprisonment was imposed, with a non-parole period of 6 years.
  • The non-parole period commenced 28 August 2022 and expires 27 August 2028.
  • The balance of term (3 years) commences 28 August 2028 and expires 27 August 2031.
  • The offender is eligible for release to parole at the expiration of the non-parole period, with the court recommending such release.
  • A copy of Dr Sidhu's report was directed to be forwarded to the Department of Corrective Services with the relevant warrant.

Key Takeaways

  • Cunnilingus constitutes sexual intercourse within the meaning of s 61HA of the Crimes Act 1900 even where there is no penile or digital penetration. The District Court confirmed this while also assessing the absence of penetration as a relevant consideration in placing the offending on the range of seriousness (at [17]-[18]).

  • A statutory aggravating factor of abuse of trust does not automatically apply merely because an offender had social access to a victim's household. The court applied DPP v Burton and declined to find the statutory factor made out, even though the offender's abuse of friendship with the victims' father remained part of the factual matrix (at [19]-[20]).

  • Under Bugmy v The Queen, severe and well-documented childhood trauma, including physical abuse across multiple placements and childhood sexual assault, can produce a "very meaningful" reduction in an offender's moral culpability, even for serious child sexual offences (at [38]).

  • Continued denial of guilt after conviction prevents a sentencing court from finding remorse and also bears on reoffending risk assessments, particularly where psychological evidence identifies poor insight as an elevated risk factor (at [47]-[48]).

  • Where an offender faces likely deportation upon release, the practical unavailability of recommended treatment programs is a relevant consideration in the assessment of rehabilitation prospects and in the framing of the non-parole period (at [49], [52]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes ( Sentencing Procedure) Act 1999

Cases
- Bravo v R [2015] NSWCCA 302
- Brown v R [2014] NJSWCCA 215
- Bugmy v The Queen [2013] HCA 37
- Chamseddine v R [2017] NSWCCA 176
- DPP v Burton [2020] NSWCCA 54
- Hili & Jones v the Queen [2010] HCA 45
- Makarian v The Queen (2005) 208 CLR 357
- MC v R [2017] NSWCCA 316
- R v Burchell (1987) 34 A Crim R 148
- R v Storey is reported at [1998] 1 VR 359
- R v Van Ryn [2016] NSWCCA 1