R v PRATAP

Facts - background

1. The offender is a Fijian national who entered Australia on a working Visa on 27 April 2018. After coming to Australia he began working at the Junee abattoir where the father of the two victims also worked. The victim's father and the offender became friends and the offender would frequently go to the home of the victims and their father on a Saturday afternoon. The victims' father and the offender would consume considerable quantities of alcohol. The offender had known the victims' family for about 18 months before his arrest in August 2022.
2. On the occasions that the offender went to the home he would usually stay overnight. Usually, he would sleep on the lounge but as there was a change of sleeping arrangements within the home, two of the girls started sharing a room and one room became a craft room for their mother. On the occasions that the offender stayed over at the home after that change he would sleep in the room that had been converted to the craft room.

Offences - JC

1. The victim JC was 7 or 8 years of age at the time of the offending and her sister KC was six or seven years at the time of the offending. All of the offending occurred at the victims' home on the occasions that the offender was visiting that home.
2. In respect of count 1 on the indictment, sometime between 27 April 2022 and 28 August 2022 the victim was going to bed. The offender followed her into her bedroom. Her sister KC told her that the offender had followed her into the room. At the time there was something of a mouse plague. As there were mice or at least evidence of mice having been present, the victim lay down on a large mat that had a rainbow type pattern to sleep.
3. The offender knelt down beside her on the floor, removed her underpants and held her down with his hand on her stomach while she was lying on her back. He then put his head between the victim's legs and began licking her vagina. In the recorded interview, MFI 2 (first recorded evidence in chief interview), at Q/A 265 the victim said that this lasted for 10 hours. The next question was "OK, and is ten hours, is that a really long time or a short time?" The answer was a "long time". Clearly the victim's perception was that it lasted a long time, but equally clearly it could not have continued for the period of 10 hours.
4. Further on this aspect at Q/A 250 and 251 of MFI 3 (second evidence in chief interview) the victim JC said that the accused was holding her straight and holding her stomach. The conduct stopped when the victim said that she wanted to go the toilet - see Q/A 267 of MFI 2.
5. Going to count 3, the offender was visiting the home of the victim on 28 August 2022. The offender had been at the home the day before, that is 27 August 2022. The mother of the victims was away out of town visiting friends. The offender and the victims' father stayed up until the early hours of the morning drinking alcohol. It seems they were drinking outside the house. A mattress had been set up in the lounge room in front of the children in order that the two victims and a younger sister could have a movie night. All the girls had fallen sleep in front of the television.
6. At the trial a video taken by police of the lounge room was played. It is obvious that the mattress that had been set up on the floor took up almost all of the room with there being only a very small space between the mattress and furniture in the room. At some point in time after the three girls had fallen asleep, their father came inside and fell asleep on one of the armchairs in the lounge room. The offender came in and sat in a chair next to the victims' father.
7. While the victims' father was asleep the offender went to where the victim JC was on the floor and positioned himself in a "planking position" over the victim. While in that position the offender kissed the victim on the side of her face. At some earlier time, the offender had said to JC words to the effect of, "I love you". The kiss woke the victim who described the offender leaning over her whole body. It is that act of kissing the victim on the face which grounds the offence in count 3 on the indictment.
8. The victims' father woke up and saw the accused crouched over JC with his body on top of her. He also saw the offender holding the victim's face with his hands and he saw him kissing the victim's face. Not surprisingly, the victim's father told the offender to, "Get the fuck out of my house". There was an altercation between the victims' father and the offender.

Assessment of offending re JC

1. Going initially to count 1, the sexual intercourse was cunnilingus with there being no actual penetration. I note authorities such as Bravo v R [2015] NSWCCA 302 where Hulme J (Beazley P, Johnson J agreeing) said at [42]: "As was observed in R v Gavel : '[97] … It is erroneous to attempt to rank forms of sexual intercourse in some hierarchy so as to determine their objective seriousness. The objective seriousness of offending is to be determined according to the entirety of the facts and circumstances of the case in question: Doe v R [2013] NSWCCA 248 at [54]; Simpson v R [2014] NSWCCA 23 at [33]-[34].'"
2. The Crown submitted that cunnilingus was an offence of penetration, after I made the observation to the effect that there was no actual penetration in the sense of penile or digital penetration. Mr Metcalf for the offender reminded me of the definition of sexual intercourse. I note that s 61HA of the Crimes Act 1900 defines sexual intercourse as: 1. The penetration to any extent of the genitalia or anus of a person by - 1. Any part of the body of another person, or 2. Any object manipulated by another person, or 1. The introduction of any part of the genitalia of a person into the mouth of another person, or 2. The application of the mouth or tongue to the female genitalia, or 3. The continuation of sexual intercourse as defined in paragraph (a), (b) or (c).
3. I maintain my original observation that the offence did not involve actual penetration as with penile or digital penetration. Nevertheless, the conduct is within the definition of sexual intercourse. The offending was not fleeting. However, on the evidence I cannot make any finding as for how long the offending continued beyond it was not fleeting.
4. The Crown submits in written submissions that the offences involve an abuse of trust. Mr Metcalf in his written submissions puts that this factor of statutory aggravation is not made out and refers to DPP v Burton [2020] NSWCCA 54 where Basten JA (Rothman and Cavanagh JJ agreeing with brief additional reason) said at [30]: "Section 21A(2)(k) refers to the offender abusing 'a position of trust … in relation to the victim'. The term is used by way of alternative to a position of 'authority'. As the cases indicate, it should be understood as referring to an established relationship, rather than simply a situation in which the victim asserts trust in the offender, or a social arrangement involving a close knit group. As Howie J had explained in Suleman v R the aggravating factor 'is not made out simply because the victim trusted the offender for some reason or other.'"
5. Given this, I accept the submission of Mr Metcalf. However, the offender abused the friendship with the victims' father, which is part of the factual matrix of this matter.
6. The victim was 7 or 8, which is towards the upper end of the age range contemplated by s 66A(1) of the Crimes Act. There is a very substantial age gap between the victim and the offender. The offence occurred in the home of the victim. The offending also involved some persistence on the part of the offender, noting the conduct stopped when the victim said that she needed to go to the toilet. In all of the circumstances the matter is below mid-range but not substantially so.
7. The sexual touching to which count 3 relates is kissing on the face. There is also the issue of this occurring in the victim's home. However, in all of the circumstances, the matter is at the lower end of the range of seriousness. Indeed, as I observed at the sentence hearing, that matter taken in isolation would not cross the threshold within s. 5(1) of the Crimes (Sentencing Procedure) Act 1999.
8. As the trial judge I am firmly of the opinion that the acquittal in respect of count 2 can be quite easily explained by the fact that the contact to which count 2 related was revealed by the complainant in a second interview, some time after the initial interview. The jury was of course directed that they must consider the evidence in respect of each count separately and that they would be required to return separate verdicts to each count on the indictment.

Facts - offences re KC

1. I turn now to counts 4 and 5 involving KC. Both offences occurred on the same day but some few hours apart. The accused was visiting the home of the victims on 20 August 2022. KC and her sisters were in the back yard of the home when the offender approached them and said words to the effect of, "I'm going to play the touch your private parts game". The victim and her sisters said, "no". With that the offender put his hand inside KC's pants and touched her skin on skin on the outside of her vagina. KC remembered that the offender's fingers were cold. The victim said that the offending continued for 10 minutes. I accept that that is what it felt like to the victim but given the overall description of the offending I could not be satisfied that the offending continued for that period of time. However, it was not fleeting.
2. Mr Metcalf for the offender in his written submission (MFI 2 on sentence) and initially in his oral submissions on sentence put that count 4 related to an account that KC gave of the accused touching her on the vagina while she was being "piggy backed". I made the point that the Crown case was put as set out above. Given the verdict of guilty it must be the case that count 4 relates to what is set out in the paragraph immediately above. I understood that Mr Metcalf ultimately accepted that this was the case.
3. Count 5 was also a charge of Sexual Touching a Child Under 10. Later in the day that the offending to which count 4 relates was committed the offender went to the victim who was inside the house and said words to the effect of, "It's time to play touch your booby parts because earlier I touched your wee part". The offender then put his hand inside the victim's clothing and touched her breasts.

Assessment - offences re KC

1. The victim was 6 or 7 which is slightly above the middle of the age range contemplated by the section. The offending occurred in the home of the victim. The offending was opportunistic. In respect of count 4 the touching was skin on skin of the victim's vagina for a time. There was some limited degree of planning noting that the offender said words to the effect of "I'm going to play the touch your private parts game". However the offending was essentially opportunistic in nature.
2. Mr Metcalf argued that count 4 is below mid-range. I understood the Crown's position was that it was mid-range. Noting the age of the victim, the nature of the skin on skin touching of the victim's vagina and that it was not fleeting, the matter is at the lower end of the mid-range.
3. The touching in respect of count 5 was also skin on skin but on the victim's breast area. Again, there was the limited degree of planning noting that the offender said, "It's time to play touch your booby parts" but again, the offending is essentially opportunistic. That matter is below mid-range but not at the low end of the range.

General Deterrence

1. It is undoubted that there is a strong need for general deterrence when dealing with offences of child sexual assault. This concept goes back to at least the Crown appeal in the matter of R v Muldoon unrep. NSWCCA 13.12.1990. More recently, see for example the judgment of Hulme J in R v Van Ryn [2016] NSWCCA 1 at [179] where his Honour said: "The Crown referred to EG v R [2015] NSWCCA 21 at [42] where Hoeben CJ at CL said: 'General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually abuse children intentionally and repeatedly that their actions will not be tolerated and that they will receive significant punishment.'"
2. Walton J in giving the leading judgment (Hoeben CJ at CL, Hulme J agreeing) in Chamseddine v R [2017] NSWCCA 176 said at [50]: "It is well recognised that sexual offences against children are objectively serious and cause significant harm to the victims. In R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469, the Court stated at [110]: 'This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psychological, which premature sexual activity can do". The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39].'"
3. I note that as much is now recognised by legislation noting s 25AA of the Crimes (Sentencing Procedure) Act. Some of the other cases that deal with the issue of general deterrence include R v Burchell (1987) 34 A Crim R 148 and MC v R [2017] NSWCCA 316.

Criminal History

1. The offender was born on 11 January 1985 and accordingly is now 39 years of age. He has nothing recorded on his criminal history and accordingly is of prior good character. However, there is clear authority for the proposition that that factor does not have the same significance with this kind of offending as it might in other cases.

Subjective case for offender

1. No oral evidence was called from or on behalf of the offender. However, a very comprehensive psychological report prepared by Dr Sidhu was tendered and became exhibit 1 on sentence.
2. That report sets out that the offender's natural father died of kidney disease when the offender was an infant. His mother remarried but his stepfather was violent to his mother and the offender with the offender telling the author of the report that his stepfather tried to kill him. He was removed from his mother's care and placed into foster care. That was not positive either as he lost contact with his mother and his brother during childhood.
3. Further the offender's foster carers took advantage of him, making him work long hours on a farm and was he subjected to extensive periods of manual labour. He was also physically abused by his foster carers. His teachers noticed injuries on him, and the authorities intervened, placing him with another foster family. However, he was also physically abused and neglected during that second placement.
4. The offender was sexually abused, including rape when he was 8 with the perpetrator being a stranger. The author of the report opines (paragraph 12) that the physical and sexual abuse remains unprocessed, and it is apparent that these matters remain a difficulty for the offender in adulthood.
5. All of these matters go to enliven the factors enunciated by the High Court in Bugmy v The Queen [2013] HCA 37, reducing the moral culpability of the offender. In the matter presently under consideration that reduction is a very meaningful one.
6. The offender came to Australia on a working visa in 2018 and was gainfully employed on a grape farm in Western Australia and more recently the abattoir in Junee before he was taken into custody in August 2022. He understands that his visa has been cancelled and that he will be deported to Fiji upon his non-parole period expiring. He has no connections in Fiji. It would seem that the offender has a good work ethic and a good work history. He wishes to resume paid work upon his release.
7. So far as formal education is concerned, the offender is essentially illiterate with him having left school during Year 8. He commenced work in unskilled labouring type work upon leaving school.
8. Dr Sidhu notes that the offender reported an early introduction to alcohol with the offender describing drinking alcohol as a "little kid after school". He drank to "stop thinking". The report notes (paragraph 21) that the offender was intoxicated at the time of offending, but later (paragraph 36) notes that the offender maintains his innocence and continues to deny the allegations. The offender does not appear to have any issues with illicit substances.
9. A number of tests were administered for the preparation of the report. Dr Sidhu opines (paragraph 26) that the offender is currently experiencing moderate psychological distress. There were no symptoms consistent with psychosis, drug induced psychosis, bi-polar disorder, mania or schizophrenia.
10. The offender has a daughter aged 14 who lives with her mother in Fiji. However, the offender was caring for his daughter before he came to Australia in 2018. He struggled with the breakdown of his relationship with the child's mother and he coped with alcohol. The offender reported to the author of the report that his (offender's) relationships were age appropriate.
11. However, Dr Sidhu opines (paragraph 34) that: "In sum Mr Pratap appears to have had a significantly disrupted sexual pathway from puberty into adulthood. This was due to his poor attachment, isolation and low-confidence as a child, in addition to his own sexual trauma. He was fearful and confused and as a socially isolated man he was unable to utilise peer supports to understand sexual relationships better. From his account…(he) remains a sexually immature man with limited healthy sexual experience and limited healthy social templates for him to model".
12. Later, at paragraph 39 Dr Sidhu sets out: "…He could not understand the abuse and did not have access to any healthy social supports with whom he could process his experiences with. Instead, he avoided his distress and utilised alcohol from an early age to self-medicate his emotional distress and trauma. He failed to develop a robust self-identity and had limited social connections as an adult. He had some stability in that he was largely employed across his life and formed a long-term relationship which resulted in the birth of his daughter. However, his lack of insight into how his complex trauma shaped him, meant that despite some stabilising factors in his life he remained a man of low confidence who struggled interpersonally and to manage stressors effectively".
13. In the paragraph immediately following the above Dr Sidhu opines that the continued denial of the offending requires further exploration. Dr Sidhu goes into some detail setting out various risk assessments as to the likelihood of further offending. According to the Static-99R test the offender is at an average risk of re-offending. The RSVP (Risk of Sexual Violence Protocol) was also used. Dr Sidhu opines (paragraph 50) that the offender presents with difficulties in most of the domains, noting that the risk is elevated by his continual denial of the offending of which he has been convicted. The report also notes that the offender has poor insight into his difficulties.
14. Given the continued denial of the offending and the contents of the report overall, I could not find on balance that the offender is remorseful. I did not understand counsel for the offender to submit that I could make such a finding.
15. Further, given the contents of the report, despite the lack of criminal antecedents, noting that on one of the actuarial assessments the offender is at an average risk of re-offending and noting the poor insight I could not find on balance that the offender is unlikely to re-offend.
16. I am not prepared to find at this point that there are good prospects of rehabilitation. The lack of insight of which Dr Sidhu speaks is of particular concern in this regard. Much will depend on what happens when the offender is released, and if he remains in Australia the level of his participation with the relevant authorities upon his eventual release.
17. Dr Sidhu notes that the offender does not meet the criteria for the Deniers Programme, but nevertheless recommends that the offender participate in the that or a similar programme. He also recommends that the offender will also benefit from completing a treatment group with a broader focus such as the Real Understanding of Self-Help (RUSH).
18. At paragraph 53 Dr Sidhu observes that the offender is an isolated and complex individual who is likely to require lengthy carefully sequenced intervention which will include exploring his own childhood trauma. Further, Dr Sidhu opines that the offender will require the support of a skilled clinician and he will need structure in his life when released.
19. Given the offender's age, that this is his first time in custody but moreover the clear need for an extended period of supervision upon release there should be a reasonably generous finding of special circumstances. The reality is however, that the offender will in all likelihood be deported upon release, the practical effect of which will be that he will not get the assistance that he so clearly needs.
20. At the sentence hearing the Crown submitted that although the author of the report was not cross-examined, I should regard the subjective material with some degree of circumspection (my word, not the Crown's). The submission continued to the effect that this is because the information relied upon by Dr Sidhu is from the offender himself and it is untested. Further, the Crown put that there is really no way the Crown can test whether the offender was sexually assaulted as a child.
21. This can be easily resolved by going to the decision of Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54 at 27 said: "As to the standard of proof that should be applied, we would adopt what was said by the majority in R v Storey - that a sentencing judge 'may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.'"
22. R v Storey is reported at [1998] 1 VR 359.
23. Dr Sidhu was not required for cross-examination. The Crown put that that would have been futile. Quite simply, I cannot reject anything in Dr Sidhu's report.

General Remarks

1. The parties agree that the appropriate commencement date for the sentence is 28 August 2022. Accordingly, that is the date on which I will commence the sentence.
2. I will need to give proper regard and effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, and 7. to recognise the harm done to the victim of the crime and the community.
3. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the maximum penalty of life imprisonment for the s 66A(1) offence, the maximum penalty applicable to the other matters and the standard non-parole period specified in respect of count 1 on the indictment there must be a substantial sentence of imprisonment imposed. That sentence must be a sentence of full-time imprisonment. Counsel for the offender to submit otherwise.
4. In the preparation of these reasons I consulted the sentencing statistics kept by the Judicial Commission. In respect of offences contrary to s 66A(1) of the Crimes Act of a total sample of 89 cases the total sentence varies between 12 months and life imprisonment. Almost 60% (59.5%) of offenders received a total sentence of 7 years or less. The non-parole periods vary between 18 months and 18 years. Given the relatively small sample and the significant range the statistics are of very limited utility. Be that as it may, as I observed towards the end of the sentence hearing, given the maximum penalty of life imprisonment and the standard non-parole period of 15 years I was surprised that the sentences indicated in the statistics were as low as they are.
5. In respect of the Sexual Touching Child Under 10 years offence contrary to s 66DA(a) 80% of offenders received a sentence of full time imprisonment with the remaining 20% receiving Community Correction Orders. Of the offenders that received sentences of full time custody of a sample of 25 the total sentence varied between 18 months and 7 years. Again, given the small sample and wide range the statistics are of limited utility.
6. Further, I warn myself on the use of statistics conformably with decisions such as Hili & Jones v the Queen [2010] HCA 45 and Brown v R [2014] NSWCCA 215 at [80]-[81]. However, I observe that given the maximum penalties and the standard non-parole periods provided the trend is lower than what would have been expected.
7. This is an appropriate matter for an aggregate sentence. If separate sentences were imposed there would have to some level of partial accumulation in respect of the two counts relating to each victim to recognise the different offending and there would also have to be meaningful partial accumulation between the sentences involving the different victims to recognise the different victims. In respect of count 1 and 3, noting where count 3 falls on the scale of seriousness any degree of partial accumulation would be very modest indeed.
8. It will be necessary to set out what sentences would have been imposed had separate sentences been imposed. Those sentences are: Count 1 - Sexual Intercourse with Child Under 10 - 7 years imprisonment with the non-parole period of 4 years 6 months; Count 3 - Sexual Touching Child Under 10 years - 9 months imprisonment with a non-parole period of 6 months Count 4 - Sexual Touching Child Under 10 years - 3 years with a non-parole period of 2 years Count 5 - Sexual Touching Child Under 10 years - 2 years with a non-parole period of 15 months

Orders

1. In respect of counts 1, 3, 4 and 5 on the indictment in respect of which the jury returned verdicts of guilty the offender is convicted.
2. The offender is sentenced to an aggregate sentence of 9 years with a non-parole period of 6 years.
3. The non-parole period will date from 28 August 2022 and will expire on 27 August 2028. The balance of term on parole of 3 years will commence on 28 August 2028 and will expire on 27 August 2031.
4. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.
5. The non-parole period indicates a finding of special circumstances, the reasons for which were enunciated within these reasons. The ratio between the non-parole period and the total sentence is two thirds - 66.6%.
6. I direct that a copy of the report of Dr Sidhu be forwarded to the Department of Corrective Services with the relevant warrant.

Amendments 21 June 2024 - Date of decision amended DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 June 2024