District Court New South Wales Medium Neutral Citation: R v RP [2017] NSWDC 310 Hearing dates: 27 October 2017 Date of orders: 27 October 2017 Decision date: 27 October 2017 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Sentenced to an aggregate term of imprisonment consisting of a non-parole period 8 years with a head sentence of 12 years Catchwords: CRIMINAL LAW – Sentence – Form 1 – Sexual intercourse with a child under 10 – Indecent assault –Act of indecency – Breach of trust – Grandfather of victim – Offender suffers stroke leading to frontal lobe dysfunction – Reduced moral culpability. Category: Sentence Parties: The Crown RP Representation: Counsel: Mr R Munro – The Crown Ms R Suters – The offender Solicitors: Director of Public Prosecutions File Number(s): 2016/108166 Publication restriction: There is to be no publication of the name of the complainant or of any material which may tend to identify the complainant. SENTENCE 1. HIS HONOUR: Often enough in these courts judges deal with a particular form of offence and offender. The offender is a man of advanced years, who has lived a lifetime of conservative and law abiding behaviour, yet he commits a serious sexual assault against a child, usually someone known to him. In most cases it is difficult to understand why that happens. But in the present case there is an explanation. The offender, RP, suffered a stroke. It has led to him suffering some frontal lobe dysfunction and him now facing sentence for a number of offences which carry maximum penalties of life imprisonment. It is far from Mr P's fault that he had a stroke. He would not have committed these offences if that had not happened. His moral culpability is significantly diminished, but it remains the case that he has committed offences of terrible seriousness, which have caused enormous harm. 2. Mr P has a granddaughter. When she was only three years of age, the offender began a relatively confined period of offending against her. The first offence was an indecent assault on a person under the age of 16. The offender was with his daughter, his son-in-law and his granddaughter at a shopping centre. His granddaughter was in the shopping trolley, sitting in the seats available for children, with her feet dangling down from the foot holes. The offender was pushing the trolley and as he did so, he used his fingers to rub her genital area on the outside of her clothing. That offence appears on a Form 1, attached to the next offence I will describe. 3. That offence occurred on a different occasion. This time the victim was at her grandfather's house with her parents. She was in an upstairs spare bedroom and wanted the offender to play with her. He went upstairs. He rubbed her genitals with his finger and then penetrated her vagina with his finger. It is poignant to note how young she was. Indeed, she was wearing a nappy at the time. Soon after this offence he performed an act of cunnilingus upon her and then stood up, exposing his penis to her for a short time. Those three offences consist of two offences of sexual intercourse with a child under the age of 10, one being an offence involving digital penetration, the other an offence involving cunnilingus and an offence of committing an act of indecency with a person under the age of 10, which also appears on the Form 1. 4. We next come to an offence committed on 3 April 2016, when the offender was at a friend's house. As before, the victim was there with her parents. There were other adults there as well. At one stage the offender was in the lounge room playing Lego with the victim. The victim was wearing a skirt and a nappy. As she lay on her back, the offender placed the fingers of his right hand inside the leg of her nappy, rubbed her genitals with his finger and penetrated her vagina with his finger. That is another offence of sexual intercourse with a child under the age of 10. She then rolled over onto her stomach and the offender inserted his fingers again under the nappy, rubbed her buttocks and penetrated her anus with his finger. 5. Matters came to light when the victim complained to her mother that she experienced pain on urination. Her mother, the offender's daughter, examined her daughter and saw that her vagina and anus were red. The victim told her mother, "Poppy puts his finger in my giney and bum". She further told her mother that they play a secret game, where he puts his finger in her giney and told her further that "Poppy said I'm not supposed to tell you". 6. The following day the victim's father went to the offender's home and confronted him about his daughter's disclosures. The offender admitted abusing his granddaughter. A few days later the matter was reported to police. The victim was interviewed as part of the JIRT process and a short time later, the offender was arrested. He made full admissions to the offences, stating that he knew that what he did was wrong and that, "It's my fault, so I'll serve the time". 7. As I mentioned, the most serious of these offences carry life imprisonment as a maximum penalty. They also carry a standard non-parole period of 15 years. I have taken into account both the standard non-parole period and the maximum penalty in determining the appropriate sentence to impose upon the offender. My reasons for not imposing the standard non-parole period appear in these remarks on sentence. 8. Consistent with the offender's immediate admissions to his son-in-law and the police, he pleaded guilty at the earliest opportunity. The sentences I impose upon him will thus be about 25% less than they would otherwise have been. 9. The offender had an unremarkable upbringing. He was born in Italy and came to Australia as a very young boy. He had relatively few sexual encounters before he married his wife. He has been married to her for 50 years. Their sex life was unremarkable too, gradually decreasing as the offender aged. But something happened. He had a stroke. Thereafter, his family noticed that he would act differently. He had sex with his wife more often and although he was previously a conservative man, he began acting quite differently, propositioning his wife for sex in public and in front of their children and even at one stage, putting his hand up his daughter-in-law's dress. 10. Investigations carried out for the purposes of today's sentencing proceedings have revealed that the offender suffers from frontal lobe dysfunction. It is beyond doubt that the offender's changed sexual behaviour, in particular his commission of these most serious offences, resulted directly from the stroke that he suffered. 11. The offender has expressed his remorse. That is consistent with his early admissions and the fact that he disclosed further offences to police, beyond those which his granddaughter had told them about. He told a psychologist that he could not work out why he had done it. 12. In the circumstances I have described, the offender's moral culpability is significantly diminished. The sentence I will ultimately impose upon him is much lower than it would otherwise have been in order to reflect that circumstance. 13. On the other hand, no-one has suggested that he was incapable of controlling his desires to molest his granddaughter. No-one has suggested he was acting as some sort of automaton, powerless to resist his illegal desires. He must still be punished for giving in to those desires, even if he had less ability than most to resist the temptation he was subject to. 14. The parties made submissions to me about the effect of the stroke upon the offender and in particular, whether the stroke caused the offender to engage in paedophilic behaviour that he desired but was able to resist before the stroke, or whether the stroke caused the offender to want to engage in paedophilic behaviour. The evidence would suggest that the latter is the case. I am told by Ms Suters, who appears for the offender, without objection from the Crown, that nothing was found on examination by police, on the offender's computer or anywhere else, which would indicate any interest of a sexual nature in children. The offender's stroke has both created a perverted interest in children and rendered him less able to control such desires. It almost goes beyond saying, but I will say it, that the offender is not a suitable vehicle for a sentence containing a large component of general deterrence. 15. The offending is most serious indeed. The three specific offences for which I must sentence the offender, all have a maximum penalty of life imprisonment. Three of them involve penetration of the victim's vagina and anus. There is some small mercy that there was no penile penetration. The harm which he has caused was both foreseeable and regrettably commonplace. There was a gross breach of trust with the offences having a brazen quality about them, the child's parents being in the location where the offences occurred, and he attempted to get his granddaughter's silence, knowing of course, that what he was doing was seriously wrong. The victim was vulnerable indeed. She was only three years of age and thus able to be influenced by the depraved attentions of a family member. 16. I mentioned the harm that has been caused. Because the victim herself, being now only four years of age, cannot tell us about it, her parents have prepared a victim impact statement on her behalf. The consequences for her of the offender's crimes are serious. But as I said, they were entirely foreseeable. The offender is responsible for that harm, something he clearly acknowledges. 17. I have taken into account that this was a relatively confined period of offending. But that was not because the offender intentionally stopped what he was doing. It was because the complainant disclosed matters to her mother, despite the offender's attempts to get her not to. 18. As far as the offender's prospects of rehabilitation are concerned, I have to say they are uncertain, given the organic nature of what led to these offences in the first place. He has no support from almost all his family. A sister-in-law and a brother-in-law will do what they can to assist him upon his release from custody. 19. The offender's time in custody will be harder than would ordinarily be the case. His mental functioning is poor. He has problems with his memory and he is, vulnerable in prison to the predations of other prisoners. There is a risk that he will spend the entirety of his sentence in protection and there is a risk that if that happens, his conditions of custody will be harsher than those applying in the general prison population. 20. There are special circumstances in this case. He is now 68. It will be some years before he is released from custody. He will need close supervision and assistance upon his release because of his age and mental condition, and that supervision may need to occur for an extended period of time. Accordingly, I will make a finding of special circumstances in his favour. 21. In case I have not mentioned it, I have allowed a discount of 25% for the offender's early pleas of guilty. 22. I will impose an aggregate sentence of imprisonment. Were I not to have done so, would have imposed sentences as follows. Sequence 2, taking into account the matters on the Form 1, digital penetration of the vagina, six years with a non-parole period of four. For sequence 3, the offence of cunnilingus, five and a half years, with a non-parole period of three and a half years. Sequence 5, digital penetration of the vagina, six years with a non-parole period of four years. Sequence 6, digital penetration of the anus, six years with a non-parole period of four years. I note that of course, the ratio for those indicative sentences does not match the ratio of the aggregate sentence, but as the indicative sentence ratios are not determinative of the aggregate sentence ratio, I will apply my finding of special circumstances to the aggregate sentence. 23. I set a non-parole period of eight years to date from 8 April 2016 with a head sentence of 12 years. The offender will be eligible to be released to parole on 7 April 2024. 24. I will recommend that all reports in exhibits A, B and C are provided to the Corrective Services authorities, so that appropriate placement for Mr P can be arranged. ********** 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: 10 November 2017