R v Jokhan

[2019] NSWDC 127

District Court

New South Wales

Medium Neutral Citation:	R v JOKHAN [2019] NSWDC 127
Hearing dates:	20 February 2019
Date of orders:	20 February 2019
Decision date:	20 February 2019
Jurisdiction:	Criminal
Before:	TUPMAN DCJ
Decision:	Community Corrections Order- term of 2 years. Additional condition- supervision by Community Corrections.
Catchwords:	CRIMINAL LAW- Sentenced after trial- Verdicts of not guilty on more serious offences- Aggravated indecent assault- Low objective criminality- Child under 16- Aged 13 or 14- Mother’s boyfriend- No relevant criminal history- Excellent prospects of rehabilitation- Good character not enabling offending- Carer for wife with dementia- Section 5 threshold not reached- Exceptional case.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999, s 21A(5)(a), 88, 89.
Category:	Sentence
Parties:	Ronald Jokhan   The Crown
Representation:	Counsel: F/W- Mr Winch Cr- Mr Skinner Solicitors: F/W- Mr Bartlett Cr- Mr Gaynor
File Number(s):	2017/224675
Publication restriction:	Per s 578A Crimes Act 1900: No publication of material identifying the complainant is permitted.

Judgment

1. HER HONOUR: The offender is before the Court for sentence following his conviction by a jury on 6 November 2019 for count 3 in an indictment dated 29 October 2018.

2. The offender faced trial before a jury in a trial that lasted approximately eight days in the Court at Queanbeyan and in due course the jury acquitted the accused on counts 1 and 2 in that indictment and then convicted of count 3. He therefore stands to be sentenced for an offence of aggravated indecent assault, namely that between 1 December 2016 and 6 February 2017 at Queanbeyan he indecently assaulted the named complainant who was at that stage under the age of 16, namely 13 or 14.

3. The complainant gave evidence in relation to all counts in the indictment. My recollection of her evidence is that in many ways it was not particularly compelling. Her evidence-in-chief was before the Court by way of a JIRT interview which was conducted on 31 May 2017.

4. The background to these offences is that the offender was the boyfriend of and friend of the complainant’s mother over a number of years and came to know the complainant well. He was married and did not live with them, but at least on the surface appeared to have a fairly good relationship with the complainant.

5. He provided financial assistance to the family. The complainant’s mother was not particularly well off. The fact that he was prepared to do so I accept in part had a connection with the shared ethnicity of the offender and the complainant and her mother, they being of Indian heritage, whether from India or Fiji it is not so clear so far as the complainant and her mother are concerned but apparently part of the Sikh community in that part of New South Wales.

6. The particular circumstances comprising this offence were told by the complainant to the police in a fairly broad ranging interview conducted with her on 31 May 2017 after complaint had been made by her, again in circumstances as far as I recall the evidence, that were slightly unusual but nonetheless made by her at school and the interview conducted at her school.

7. The particular answers relevant for this sentence are to be found from question 139 of that JIRT interview which is now exhibited on this sentence and I accept surround an event or an occasion on which the accused gave the complainant a driving lesson in the Queanbeyan area, particularly as I recall it in the bus exchange area at Queanbeyan.

8. She was 13 almost 14 at the time. Again as I recall the evidence she ultimately agreed that she had asked to have a driving lesson and her mother so far as I recall the evidence was aware that this was happening. The offender took her in his car. There was a driving lesson conducted in the broad area of the bus exchange. It was in the daytime. There would appear to have been other people around. I accept more probably than not there was an occasion on which the complainant herself was driving and there was an occasion during which the accused was driving.

9. The evidence is not clear as to at which stage of those two the indecent assault occurred, but I accept that either when she was a passenger or when she was driving, the accused touched the complainant on her leg above the knee in an area she referred to as “her thigh” but there would not appear to be any suggestion that it was other than just on her leg and not at her genital region and he also touched her on one breast and again in her words at question 154 of the JIRT interview, “Pressed it and like you know squeeze it and all that sort of stuff”.

10. This was on the top of her clothing and more probably than not it was just before or around the time of her 14th birthday. Whilst the evidence was not clear about this I accept that it was an offence of extremely short duration. The accused, of course, denies having touched her in any sexual way but the jury must have rejected that evidence by finding him guilty of indecent assault, thereby accepting that the touching on both those areas of her body had a sexual component.

11. Nonetheless, in objective terms, it is at the very bottom of the range for offences capable of being charged under this section, momentary touching in the open, in a car on the outside of her clothing in circumstances where as I recall the evidence again he then drove the complainant home after doing some shopping, although I may have confused that with another charge, and albeit that after these things happened there was no complaint by the complainant to her mother.

12. It is therefore, it seems to me, at the bottom of the range for offences capable of being charged under this section. However, it is an indecent assault of a child. It is a serious offence. The maximum penalty is 10 years with a standard non-parole period of 8 years. That is a clear indication that the legislature takes these offences very seriously, as they ought. Child sexual assault is a regrettably frequent occurrence in the community. The Court is only too aware of the adverse impact that sexual assault has on children and the sometimes very serious impact that it can have on children for many years into their adult lives.

13. There is a victim impact statement which I have read and taken into account in this matter. I accept that the complainant has suffered from some adverse consequences as a result of this offence. She now feels a degree of fear when in company with others and feels unsafe. From the time this matter came to light, as I again recall the evidence and as I understand the file, the offender has been prevented from having any contact with the complainant and there is no suggestion that he has attempted to breach that. Hopefully as time goes by the complainant will overcome some of these fears and regard herself as a survivor of child sexual assault and not allow this to dictate the remainder of her life. She gave the impression when she gave her evidence, albeit that some of it was difficult to follow, that nonetheless of being a very smart and intelligent young woman and hopefully she has been offered some assistance in the community to overcome the adverse psychological sequelae as a result of being the victim of this offence and will go on to live a fulfilled life, not allowing this to dictate her future.

14. As I said, the offender did not plead guilty. He is therefore not entitled to any discount to represent any utilitarian value. However, he is not to be punished or dealt with in a more severe manner because he simply put the Crown to proof. The jury’s verdict on this, given the verdicts of not guilty for the other two counts, is difficult to understand, particularly as it required, for all counts, their close attention in assessing the reliability of the complainant and particularly, in light of the very clear evidence about one of the counts that was alleged to have occurred in the factory, where the evidence was completely to the contrary, which ought to have cast some doubt on her overall reliability. Nonetheless the jury convicted even though they were instructed or directed that it was necessary for them to be satisfied beyond reasonable doubt of the truth of all of her assertions before they could convict.

15. It seems to me that this is, albeit for a serious offence in its own terms, a very minor version of this offence and is a matter which in other circumstances could have been dealt with in the Local Court where the jurisdictional limit would be 2 years’ imprisonment.

16. The offender comes to Court as a 63 year old man in relation to whom there are a number of positive factors set out in letters provided by colleagues and friends. I am hesitant to refer to them simply as references because it seems to me they are a little more than that. There are some that fall into the category of character references and I accept that he is a person of good character, but he is also a person who has had an active involvement in the community across the ACT and in the Queanbeyan area and particularly in relation to multi-cultural events and organising those.

17. He has until fairly recently always been a full time worker, working in various newspapers in the ACT and Queanbeyan and also as production and site manager for a chemical company. He has worked closely with the Australian Anglo-Indian Association of Canberra, as I have said arranging multi-cultural activities. He has been active in the temple activities of a Sikh Temple in the ACT and I accept is regarded very highly by friends and work colleagues alike.

18. One of the most significant aspects, and relevant to sentence today, is the role he has to take on since about 2015 as the carer of his wife who was diagnosed with frontotemporal dementia at the age of 57, which amounted to a diagnosis of early onset dementia. He was required to retire in mid-2005 to support his wife and is now her full time carer, which involves his preparing her meals and supporting her to eat, providing her with social contact because she is not able to be left alone for any period of time. He assists with showering and dressing and toileting and undertakes all household tasks and transportation for her to medical appointments. My recollection of evidence in the trial was that although there are adult children, they are not geographically close and in a position to provide that care themselves.

19. There is a letter of support for his undertaking this role, from which I accept that he is doing so, from a key worker at Dementia Australia. There is also a report from his GP that he undertakes this role. The impact that a sentence has on family members is a factor the Court is entitled to take into account. It is usually only in an exceptional case that it will alter the appropriate outcome of sentences. This, at the very least, approaches that exceptional case, if not crosses the boundary.

20. I accept the opinion offered by both the GP and the care worker at Dementia Australia that if the offender were not available as the carer for his wife, she would need to go into supported living or a nursing home. The Court has some understanding that those who suffer from this unfortunate condition generally deteriorate quite quickly once they are required to go into supported living of that type where, with the best will in the world, the level of attention to their daily needs is not quite the same.

21. He comes to court, as I have said, as a person of good character although not as a person with no prior convictions. He does have two convictions in New South Wales, although they are quite a long time ago. One is for assault female, dealt with in the Cooma Local Court, as it is now known, in 1981 dealt with by way of deferred sentence bond. The second is an offence of common assault committed in June 2009 and dealt with not long afterwards in the Queanbeyan Local Court without conviction. Each of them involved, for the first one, assaulting his wife and second one again assaulting his wife. The facts of that second offence are before me on this sentence. They are of a very minor nature which also is reflected by the fact they were dealt with without conviction.

22. It is necessary to determine prospects of rehabilitation. It seems to me they are excellent. The offender does not admit this offence and therefore it is not possible to make any assessment of his prospects of re-offending as a sex offender, but even without that admission, I accept that for a person who has lived for 60 years without any such offences on his record, and in the light of the other material that is before the Court, he is unlikely to commit similar offences. His prospects of rehabilitation would, however, be benefited, it seems to me, by some professional supervision from Community Corrections and there is a report before the Court setting out what that would be. Particularly so as a man whose life is now devoted to being a carer for his wife, that professional intervention by way of supervision may be able to provide him with some practical suggestions to deal with the stressors of life that no doubt arise from time to time.

23. The sentencing assessment report is couched, in my view, in very positive terms and I note the author’s opinion that the offender generally holds pro-social values.

24. The fact that there is no volunteered remorse if seems to me does not militate against a finding of good prospects of rehabilitation in circumstances where the offender continues to maintain his innocence in relation to this offence.

25. It is necessary to determine whether or not this offence crosses the threshold for imprisonment.

26. It is fair to say that the majority of offences of indecently assaulting a child under the age of 16 would give rise to a term of imprisonment. The statistics indicate that it is an exceptional case where something other than imprisonment is imposed. However, those statistics are at this stage not particularly up-to-date and do not appear to take into account sentencing outcomes following the amendments to the Crimes (Sentencing Procedure) Act, 1999 which came into effect in September 2018 and which abolished suspended sentences in circumstances where an Intensive Corrections Order is not available for this particular offence, albeit that if it were considered that the s 5 threshold was crossed a sentence well under 3 years would be appropriate. Nonetheless, that alternative is not available to the Court should it be that the threshold is crossed.

27. In all of the circumstances, and also taking into account the Crown’s submission to the Court following the jury’s verdict, that a full-time custodial penalty is not called for in this case, it seems to me that this is one of those exceptional cases for this particular offence in which the s 5 threshold is not breached.

28. I bear in mind, too, the provisions of s 21A(5)(a) of the Crimes (Sentencing Procedure) Act, 1999. Whilst there is evidence that this offender is a man of good character, there is no evidence that good character was used to enable him to commit the offences before me. It is, therefore, not a matter in which I am precluded from taking into account his good character as mitigating offence the offence.

29. In all of the circumstances, I have concluded that because this does not cross the s 5 threshold and imprisonment is not necessary, that this is a matter in which a Community Corrections Order is the appropriate outcome for this man at his age in the domestic circumstances that he is now in and given the low objective criminality of the offending. For those reasons I make the following formal orders.

30. The offender is convicted for count 3 on the indictment. He is sentenced to a Community Correction Order for a term of 2 years commencing today. It will be subject to the standard conditions pursuant to s 88 of the Crimes (Sentencing Procedure) Act, 1999. I impose an additional condition pursuant to s 89 that he be supervised for as long as considered necessary by Community Corrections. Supervision may be terminated at any time at the discretion of Community Corrections.

31. I make a further condition that he attend at the office of Community Corrections, Queanbeyan, no later than Friday 1 March to enable the sentence to be administered.

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Decision last updated: 15 April 2019