R v Barton (a pseudonym)

[2020] NSWDC 389

District Court

New South Wales

Medium Neutral Citation:

R v Barton (a pseudonym) [2020] NSWDC 389

Hearing dates:

21 July 2020

Date of orders:

22 July 2020

Decision date:

22 July 2020

Jurisdiction:

Criminal

Before:

Priestley SC, DCJ

Decision:

See [47]

Catchwords:

CRIME — Sexual offences — Sexual assault

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act1999 (NSW)

Cases Cited:

Muldrock v The Queen [2011] HCA 39

Perrin v Regina [2006] NSWCCA 64

R v Tadrosse [2005] NSWCCA 145

R v Henry (1999) 46 NSWLR 346

Perkins v R [2018] NSWCCA 62

Cowling v R [2015] NSWCCA 213

McCartney v R [2009] NSWCCA 244

Sabapathy v R [2008] NSWCCA 82

Cahyadi v R [2007] NSWCCA 1

R v MA [2004] NSWCCA 92

Category:

Sentence

Parties:

Regina (Crown)
Accused (Barton)

Representation:

Counsel: Ms Oliver for the Crown;
Mr Cochrane for the offender

File Number(s):

2018/00234957

Publication restriction:

Unrestricted

Contents

Judgment

Introduction

Charge, maximum sentence, SNPP

Standard non-parole period

The facts

Objective seriousness

Section 21A.

Subjective case

Psychiatrist report

Good character

Likelihood of reoffending

Remorse and contrition

Good prospects

Victim impact statement

Comparable cases

Accumulation

Special circumstances

Sentencing considerations

Orders

Judgment

Introduction

1. The offender was found guilty of two counts of sexual assault following a judge alone trial before me. The offender was born on 30 October 1968 and so is now 51 years old. The offending occurred in June 2018, when the offender was 49 years old. The victim was 27 years old at the time of the offending.

Charge, maximum sentence, SNPP

2. There are 2 charges under section 61I of the Crimes Act, of having sexual intercourse with another person without the consent of the other person and knowing that the other person does not consent to the sexual intercourse.

3. The maximum sentence for each offence is 14 years imprisonment. Additionally by the provisions of section 54A of the Crimes (Sentencing Procedure) Act (CSPA) and the table set out in that division there is a standard non-parole period of 7 years

Standard non-parole period

4. The standard non-parole period, as is the case also with the maximum sentence for an offence, is to be considered a guidepost.

5. The standard non parole period, as has been said elsewhere, is a guidepost and not a tram track. The matter is to be taken into account together with the maximum penalty as part of the instinctive synthesis process; see Muldrock v The Queen [2011] HCA 39 at [27]. Thus it is a matter to be taken into account with all others with the requirement upon me to set out the reasons why I determine the non-parole period to be something other than 7 years.

The facts

6. The evidence and my findings are set out in my earlier judgment expected to be published at the same time as this judgment under the pseudonym R v Barton. For the details of the facts that judgment is referred to. For present purposes I note the following:

1. The offending occurred following a party…