R v Berriman

[2021] NSWDC 771

District Court

New South Wales

Medium Neutral Citation:

R v Berriman [2021] NSWDC 771

Hearing dates:

3 September 2021

Date of orders:

6 December 2021

Decision date:

06 December 2021

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

Sentence imposed one of an aggregate sentence of 8 years and 6 months imprisonment with an aggregate non-parole period of 5 years and 6 months. The sentence commences on 11 April 2019 and expires on 10 October 2027. The non-parole period expires on 10 October 2024.

Make an Apprehended Domestic Violence Order under s39 of the Crimes (Domestic and Personal Violence) Act which commences today 6 December 2021 and expires on 9 October 2029.

Catchwords:

CRIME– Sexual offences – Aggravated sexual assault – Threat to inflict actual bodily harm with offensive weapon or instrument

SENTENCING — Aggravating factors — Use of weapon

SENTENCING – Subjective considerations on sentence – Special circumstances

Legislation Cited:

Crimes Act 1900 (NSW), s 86(2)(b)

Crimes Act 1900 (NSW), s 37(1)

Crimes Act 1900 (NSW), s 61KC(a)

Crimes Act 1900 (NSW), s 61J(1)

Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases Cited:

DPP v De La Rosa (2010) 79 NSWLR 1

Hall v R [2021] NSWCCA 220

Lawson v R [2018] WSWCCA 215

Moiler v R [2021] NSWCCA 73

Category:

Sentence

Parties:

Mitchell Berriman (Offender)
Director of Public Prosecutions (Crown)

Representation:

Counsel:
Crown: Ms Steedman
Defence: Mr Park

File Number(s):

2019/00113994

Publication restriction:

Statutory non-publication order regarding the identity of the complainant

SENTENCE

Introduction

1. Earlier this year the offender stood trial before me, sitting without a jury, on an indictment containing six counts alleging offences against the victim RK. On 3 September 2021 I returned verdicts of guilty on five of those counts, and not guilty on one of the counts, being count 2. The offender stands to be sentenced on the five counts that I found him guilty of, the particulars of which are as follows.

2. Count 1; the offender on 11 April 2019 at Miller detained RK without her consent with the intention of obtaining an advantage, namely a psychological advantage, and at the time of the detaining, actual bodily harm was occasioned to RK. That is an offence under s 86(2)(b) of the Crimes Act and has a maximum penalty of 20 years imprisonment and there is no applicable standard non-parole period.

3. Count 3; the offender on 11 April 2019 at Miller intentionally choked RK so as to render her incapable of resistance, and was reckless as to rendering her incapable of resistance. That is an offence under s 37(1) of the Crimes Act and has a maximum penalty of ten years imprisonment, and there is no applicable standard non-parole period.

4. Count 4; the offender on 11 April 2019 at Miller intentionally sexually touched RK without consent, knowing she was not consenting. That is an offence under s 61KC(a) of the Crimes Act. It has a maximum penalty of five years imprisonment and there is no applicable standard non-parole period.

5. Count 5; the offender on 11 April 2019 at Miller had sexual intercourse with RK without her consent, knowing she was not consenting, in circumstances of aggravation, namely at the time of that offence, the offender threatened to inflict grievous bodily harm to RK. That is an offence under s 61J(1) of the Crimes Act and has a maximum penalty of 20 years imprisonment and there is an applicable standard non-parole period of ten years.

6. Count 6; the offender on 11 April 2019 at Miller had sexual intercourse with RK without her consent, knowing she was not consenting, in circumstances of aggravation, namely that immediately before that offence, the offender threatened to inflict grievous bodily harm on RK. That too is an offence under s 61J(1) of the Crimes Act and has the same maximum penalty and standard non-parole period as the offence in count 5. There is also a related offence on a s 166 certificate of resist officer in the execution of duty.

The facts

7. The offender is to be sentenced on the basis of facts that are consistent with the findings I have expressed in my verdict judgment. To the extent I make a finding of fact adverse to the offender, I must be satisfied of that fact beyond reasonable doubt. In my verdict judgment, for the reasons I gave in that judgment, I essentially considered the victim to be a truthful and reliable witness, who was significantly supported by the evidence of her friend, Ms Finch, her mother, Dr Nittis, and her immediate complaint to the police.

8. In the verdict judgment I rejected the evidence the offender gave at the trial. The following facts concerning the offences are consistent with those findings. The offender and the victim commenced a domestic relationship in November 2018. They did not live together. The victim would visit the offender regularly at his unit in Miller. The offender ended the relationship with the victim in the middle or end of March 2019 and gave the victim no reason for doing so. Around the time of the breakup, the victim noticed changes in the offender's behaviour. The offender would on occasions refer to his unit as a church, and would talk to himself and not look at her. After the breakup, the victim continued to visit the offender in his unit once or twice a week. The purpose was to "see if he was okay", having noted the changes in his behaviour to which I have just referred.

9. The victim had consensual sexual intercourse with the offender after he had terminated their relationship on a single occasion on 20 March 2019. The victim continued to visit the offender to check on him, and also to see whether they could "work things out" in the sense of rekindle the relationship. The victim visited the offender on Wednesday, 10 April 2019 to see if he was okay and give him money for food. She described the offender on that date as hard to talk to and not making sense. Her evidence was that she was there for the full day on that occasion.

10. On 11 April 2019 the victim again attended the offender's unit as a consequence of the offender's behaviour the day before, and to give back keys to his unit and a jumper of his that she had. The victim arrived at about 11am and knocked on the door. The offender answered and she walked in. The offender shut the door and pushed a lounge against it. The offender asked her why she was there. The victim told him she was there to give him his keys and property back. The offender questioned her why she left the day before and the victim told him that she had to pick up her daughter Ava. The offender told the victim she should not have left the previous day, he being at that point lying on a bed.

11. The offender stood up, picked the victim up and threw her onto the bed. The offender got on top of her and called her a slut. He got close to the victim's face and squeezed her throat. The victim found it hard to breathe and could not speak. The offender headbutted her to the centre of her forehead. He still had his hand around her throat but by now was not squeezing it. The victim then asked if she could use the toilet and the offender said yes. The victim went to the bathroom. The offender at some point knocked on the bathroom door and proceeded to enter the bathroom. The offender then began to take off his clothes and told her he wanted them to have a shower together, and the victim told him she did not want to. The offender began to remove her clothes and the victim tried to stop him.

12. The offender at that point said to the victim he would hurt her or "break" her face. The victim was pushed into the shower by the offender and he attempted to wash her hair telling her he would punch her in the face if she did not do what he said. After the shower incident, the victim asked the offender if she could leave. The offender told the victim she was not going anywhere and that she would have to stay with him. The victim got dressed, picked up her phone from the TV cabinet and told the offender she wanted to go home and asked him where her keys were. The offender had hidden the victim's keys so she would not be able to leave. The offender picked up a knife with a long blade and black handle and played with it. While doing so he said words to the effect of "If you try to leave here I will kill you and chop you up into little pieces." The victim was crying and scared.

13. The offender took her phone and she gave him the code for access to his phone as she was scared he would hurt her if she refused. After she and the offender argued about whether she had been in contact with certain friends, he smoked a cigarette outside the screen door. The offender said if the victim left, he would kill her. While he was outside smoking, the victim retrieved her phone and sent her friend, Courtney Finch, a message on Facebook; see exhibit 1 during the trial. In that message the victim told Ms Finch that the offender was not letting her leave. The victim sent the location of the offender's unit to Ms Finch and asked her to call the police.

14. Ms Finch contacted Liverpool Police at 1.22pm and a number of times thereafter. It was understood there would be a delay in police attending. She called the victim's mother, Michelle Stern, at 2.29pm and told her that she thought the victim may be in trouble as the offender would not let the victim leave his unit, and that she had called the police. The victim's mother told Ms Finch she would go to the offender's unit.

15. The offender after smoking his cigarette came back inside the unit and took the victim's phone saying she did not need it. The victim asked the offender if she could leave and the offender said she was not going anywhere. The victim sat on the bed and the offender started to pull her hair and pulled her onto her back on the bed. The offender got on top of her and placed his hands around her throat and squeezed it so she could not breathe. The offender told the victim she could not leave, that he was her boss, and to do what he told her. The offender shook the victim's head from side to side. The victim tried to stop the offender but could not. The victim was in pain and struggling to breathe. That is the conduct that constitutes the intentional choking offence in count 3.

16. The offender at some point stopped choking the victim and proceeded to headbutt her and hit the left side of her face with a closed hand. The offender hit the victim's jaw which caused pain. The victim kept telling the offender she wanted to leave and go home. The offender would not let her do so. The offender then grabbed her hand and put it on the outside of his shorts on his penis and said "suck me". The victim said, "No, I don't want to do anything. I want to go home." The victim removed her hand. That is the conduct that constitutes the sexual touching offence in count 4.

17. After this the offender stood up and took his clothes off. He proceeded to grab the victim on the wrist and pull her down onto the ground so that she was on her knees. The offender pulled the victim by the hair and laid down on the bed with an erect penis. The offender told her to "suck him". The victim told the offender "No, I don't want to. I want to go home." The offender was holding her by the hair and then forced his penis into her mouth. The offender said if the victim did not engage in oral intercourse he would "break" her face, nose and jaw. The episode of oral intercourse lasted for approximately ten minutes, during which time the victim tried to get the offender's hands off her and tried to get up. During this part of the incident the offender also said if she did not do what he said, he would dig a hole and bury her. This conduct constitutes the sexual intercourse without consent offence in count 5.

18. The offender then told the victim to get on top and the victim responded "I don't want to have sex with you. I want to go home. I don't want to do anything with you." The offender then grabbed the victim under her armpits and pulled her on top of him and her skirt up. The victim kept telling the offender that she did not want to do anything with him and she wanted to go home. The victim rolled off the offender and onto her back. She tried to get up but the offender rolled on top of her. The offender moved her arms to the side and forced his penis into her vagina. He had penile-vaginal intercourse with her for about 20 minutes, but did not ejaculate. That is the conduct that constitutes the sexual intercourse without consent offence in count 6.

19. Whilst the penile-vaginal intercourse was occurring there was a knock on the door of the offender's unit. The offender said "Who is it?" and the victim's mother Michelle Stern said, "It's RK's mum. Let her out." The offender said "We're a little busy at the moment". The victim's mother said, "Let RK out". The offender responded more aggressively after this saying "Who the fuck are you to come knocking on my door?". The victim's mother arrived at the offender's unit around 2.30pm.

20. The offender started to get dressed and the victim started looking for her keys. Whilst she was looking, the victim said to her mother "I'm coming mum. Mitchell has my keys." The victim asked the offender where her keys were and the offender said he did not know. She was unable to find them but picked up her phone. Before she went to open the door, the offender stepped in front of the victim and asked for a kiss. The victim did not kiss the offender and instead opened the door. The victim a saw her mother and told her the offender had her keys. The victim appeared to her mother to be quite distraught and her hands were trembling. There were words exchanged between the victim's mother and the offender, during which time he called her a slut.

21. The victim got into the car with her mother and in response to her mother's questions told her the offender had hit her. The mother asked the victim if they needed to go to the police, and the victim replied yes. The victim's mother then drove directly to Liverpool Police Station. There was no officer available to speak with the victim at that police station and they ultimately decided to drive to Penrith Police Station. There she told an officer what occurred. The victim was referred to Nepean Hospital and underwent an examination by Dr Nittis. Dr Nittis found that there was no obvious swelling to the neck or voice change. The victim complained of it being difficult to swallow and that she had a headache. The doctor found that there was tenderness at the outer edges of the voice box but observed no acute injury.

22. The doctor recorded that there was tenderness and some mild redness to the middle of the lower forehead above the right eyebrow, and the victim told the doctor she had been headbutted. The doctor observed a purple bruise on the outer corner of the lower lip on the left side of the victim's face. The doctor also noted tenderness over the left angle of the jaw, together with a round blue bruise approximately 0.75 centimetres in size below the left angle of the jaw. Two brown bruises were noted on the left side of the neck. The doctor also noted a small round bruise on the back of the victim's left wrist. The doctor also found a 2 centimetre blue bruise on the inner left thigh.

23. At 8.45pm Plainclothes Senior Constable Smart and Detective McRitchie attended the offender's premises. When they arrived, the offender was at the front door yelling "Fuck off cops" and shut the door. The offender pushed a couch behind it. Police knocked, identified themselves and said "We need to speak to you". The offender replied "Fuck off". Police forced the door of the offender's unit partially open and the offender ran towards the front door and was naked and wet. Police deployed OC spray in the doorway and the offender retreated. Police were then able to enter the unit by pushing the couch aside. The offender went to the bathroom and was in the shower. He was placed under arrest in the shower and was told it was for sexual assault. The offender was wet and naked.

24. Plainclothes Senior Constable Smart said "There was a physical struggle in arresting him" and that this also involved Detective McRitchie. After a struggle, the offender was subdued. At some point during either his arrest at the scene or his processing at Liverpool Police Station, the offender asked the police for "some Christian clothes". The offender's conduct towards the police constitutes the offence that is on the s 166 certificate. The offender was taken to Liverpool Police Station where he was charged. A crime scene warrant was executed. Police located knives in the kitchen but I cannot determine which knife was used in the manner described by the victim.

Objective seriousness

25. Turning then to my assessment of the objective seriousness of each offence. The five offences committed against the victim are appropriately characterised as offences of domestic violence, as the victim was a former partner of the offender. It cannot be said that the offences involved any significant planning on the part of the offender. While there is no victim impact statement, I am satisfied that the victim would have been very frightened and traumatised by the whole incident.

26. In terms of count 1, the victim was detained for approximately three and a half hours and the detention could not be said to be fleeting, but is less than that which occurs in many such offences. The advantage that was obtained was that of a psychological advantage. Leaving to one side the conduct that was committed by the offender during the period of that detention that is the subject of counts 3, 4, 5 and 6, during the period of detention, the victim was choked, punched, headbutted, threatened with a knife and forced to shower with the offender. The detention only ended when the victim's mother arrived at the unit. The level of actual bodily harm inflicted upon the victim was fortunately towards the lower end. I assess the objective seriousness of the offence, which is count 1, as being within the lower part of the mid-range of objective seriousness.

27. The offence in count 3 involved the offender pulling the victim's hair and putting her on her back on a bed. He got on top of her and squeezed her throat with his hands so that she could not breathe. While doing so, he told her he was her boss and to do what he told her. He shook her head from side to side. The victim was in pain and struggled to breathe and was left with bruising around the neck and a tender voice box. I assess the objective seriousness of the offence in count 3 as being within the lower part of the mid‑range of objective seriousness for such offending.

28. The offence in count 4 involved the offender taking the victim's hand and placing it on the outside of his pants so that she touched his penis. I consider given this did not involve skin on skin touching of an intimate area, the offence is well below the mid-range of objective seriousness.

29. There is no hierarchy of seriousness in relation to sexual intercourse offending. However, penile‑vaginal intercourse is generally considered to be more serious than oral intercourse. However, forced fellatio in circumstances such as here has a significant degree of seriousness attaching to it. No condom was used by the offender and the victim was the subject of significant violence and threats of violence. The forced fellatio lasted for approximately ten minutes and the penile-vaginal intercourse for approximately 20 minutes, but did not involve ejaculation. The threats made at the time of the acts of intercourse were serious ones. In my opinion, both offences fall within the mid-range of objective seriousness.

30. I consider the offence on the s 166 certificate to be towards the lower end of the objective range of seriousness, given the fairly limited level of struggle with the officers, and that the offence did not last for very long.

31. In relation to the detention offence, the Crown submitted that count 1 involved the use of a weapon, a knife, and that was an objective aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act. I am satisfied beyond reasonable doubt that aggravating factor is present, but have it considered in my assessment of objective seriousness to avoid double counting.

The offender’s subjective case

32. Turning then to the offender's subjective case; he was born in 1990, making him now 31 years of age, and he was 29 as at the date of the offences. The offender has a criminal history dating back a number of years and demonstrates a pattern of violent offences, in particular domestic violence offences. He has served sentences of full-time imprisonment in the past for offences of assault occasioning actual bodily harm, breach of an apprehended domestic violence order, common assault, and resist officer in the execution of his duty.

33. These present offences are, however, the offender's first offences of a sexual nature. I do not consider that his criminal history is an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act, although it does disentitle him to leniency in this sentence. The offences were committed while the offender was on conditional liberty. On 7 December 2017, he was placed on a s 9 good behaviour bond for two years for an offence of assault occasioning actual bodily harm. The fact that these offences were committed while on conditional liberty is an aggravating factor on sentence under s 21A of the Crimes (Sentencing Procedure) Act.

34. In terms of documentary material, I have before me the following: A psychiatric report by Dr Alexi Sidorov, forensic psychiatrist, dated 14 January 2020, which was prepared for the purpose of determining whether the offender was fit to plead to the charges. A sentencing assessment report dated 30 November 2021, and a case note report dated 29 November 2021, and a psychological report by Mr Tim Watson-Munro, psychologist, dated 25 November 2021. The offender did not give evidence on sentence.

35. In terms of the offender's family background, he told the psychologist Mr Watson-Munro that he has two brothers and a sister, with whom he has no contact. The offender reported that as a child, his father was physically violent towards his mother and his parents separated when he was around four or five years of age. The offender told the psychologist that he believed his father passed away about four years ago. According to the sentencing assessment report, the offender has limited family support, and whilst he speaks to his mother weekly while in custody, she is not willing to support him upon his release to the community. The offender told the psychologist that he has never married, although he has a nine year old son from a prior relationship which had lasted for seven years.

36. In relation to his education and employment history, the offender told the psychiatrist Dr Sidorov that he struggled academically. The offender told the psychiatrist that he would often get into fights at school and was suspended numerous times. He reportedly completed his year 10 certificate at Cambridge Park High School before he moved into the workforce. According to the reports, the offender undertook a roof tiler apprenticeship before working as a scaffolder for ten years. The psychologist notes that this work continued up until his work related injury which causes him chronic pain, and the overarching impact of the onset of his psychotic illness. According to the sentencing assessment report, he plans to return to scaffolding upon release and this has been confirmed with his employer.

37. Turning to the offender's substance use, according to Dr Sidorov the offender disclosed using methylamphetamine intermittently on a weekly or monthly basis. The offender also stated that he used cannabis on a daily basis from the age of 13 to 26. The psychologist agreed with the conclusion of Dr Sidorov that the offender meets the diagnostic criteria for cannabis and methylamphetamine use disorder. The essential feature of such a disorder is:

"A cluster of cognitive behavioural and physiological symptoms indicating that the individual continues using the substance despite significant substance related problems."

38. The psychologist noted that, "It is clear that the offender's stimulant abuse has in turn compounded his psychiatric illness." According to the psychologist, the offender disclosed in the days leading up to the current offending that he had been using illicit drugs and as such "He described eyelets of memory concerning the allegations". The psychologist opined that:

"It would appear that the offender was undermedicated in the leadup to his offending. Attendant to this he became more symptomatic experiencing auditory hallucinations."

39. The offender told the author of the sentencing assessment report that he was in a drug-induced psychosis on the day of the offence. The psychologist concluded that whilst in custody, the offender is now appropriately medicated.

40. Turning then to consider the offender's psychological history. According to Mr Watson-Munro, the offender presented as a "cooperative though clearly disturbed man" with a "complex and protracted psychiatric history". According to Dr Sidorov, the offender reported that he had been diagnosed with schizophrenia around the age of 24, 25 years by a psychiatrist at the St John of God Hospital. The offender has also reportedly had at least seven previous psychiatric admissions. Dr Sidorov considered that the offender suffers schizophrenia, experiencing symptoms such as hallucinations and a degree of functional impairment, and an antisocial personality disorder being a "pervasive pattern of disregard for the violation of the rights of others".

41. The psychologist further reports that the offender is presently suffering features of a depressive disorder, including being anxious about the future and concerned about the welfare of his son. Dr Sidorov also opined that it was likely the offender "has a degree of cognitive impairment secondary to his chronic psychotic illness and possibly some developmental delay". It is unfortunate that the psychologist was not able to administer psychometric testing to the offender on the issue of his possible cognitive impairment, and that issue remains unexplored on the evidence. Dr Sidorov noted that prior to the offender's incarceration, he had reportedly stopped taking his medication and, as a consequence, became angry and paranoid.

42. The psychiatrist further noted that even though there appears to be "no direct nexus between the offender's condition and the offending behaviour", a psychiatric condition as severe as schizophrenia "contributes to offending in an indirect way by impairing judgment of the individual". The psychologist Mr Watson-Munro had reportedly attempted to assess the offender twice prior to his interview on 23 November 2021, noting that "he was deemed to be unfit to be interviewed by personnel at the MRRC", hence the delay in these current sentence proceedings.

43. According to the sentencing assessment report the offender is currently under a forensic community treatment order, and housed in a mental health ward in custody. The case note prepared by Ms Rourke, a specialist psychologist with the Mental Health Screening Unit with Corrective Services, expressed the opinion that "Another factor which may be related to his sexual offending is Mr Berriman's mental health". There was evidence at the trial which was consistent with the offender suffering a psychosis as at the time of the offences. The victim who had been in a relationship with the offender said that in the weeks after he had broken off their relationship, she had noticed changes in his behaviour, that he had on an occasion referred to his unit as a church, and would talk to himself and not look at her.

44. His behaviour when the police arrived can be described as erratic, running at them while wet and naked, and at some point asking for "Christian clothes". I note also the sentencing assessment report records that Justice Health has confirmed that the offender has met the access requirements for the National Disability Insurance Scheme. On the balance of probabilities the evidence before me supports a finding that at the time of the offending, the offender was suffering a significant mental illness, schizophrenia, for which he was not taking appropriate medication. It seems highly likely he has a cognitive impairment, but absent proper psychometric testing, I am not able to find that he has that condition. I will return later to the consequences of those findings for the imposition of sentence upon him.

45. The sentencing assessment report also notes that the offender has been subject to multiple periods of supervision by Community Corrections. In terms of the offender's response to supervision in the past, the offender was on a community corrections order at the time of these offences. The sentencing assessment report indicates that the supervision condition of this order had been suspended as at the time of the offending as the offender had responded positively by way of engaging well in meetings and intervention. The sentencing assessment report also records that whilst in custody, the offender has received adverse reports from staff related to aggressive and sexually inappropriate behaviour. The offender has also reportedly accumulated six institutional misconduct charges related to assault and fighting.

46. In regard to the offender's attitude to the offences, the sentencing assessment report noted that the offender did not display insight into his offending behaviour, nor did he accept responsibility for it. The offender reportedly denied that the events were non-consensual, and maintained that the victim is lying. This is in conflict with the psychological report which noted that the offender reported regret for his behaviour, although that report does not describe how the offender expressed that regret, and in those circumstances I put it to one side. The psychiatrist, Dr Sidorov, opined that the offender's possible cognitive impairments, as well as his antisocial personality style "may impair his ability to have full insight into his alleged offences and may affect the degree to which he feels remorseful".

47. In terms of the offender's risk of reoffending, the sentencing assessment report assessed the offender as at a medium risk of reoffending. The offender was also placed in the above average category for sexual recidivism. Dr Sidorov concluded "It is likely that the offender's comorbid psychiatric disorders would increase his future risk of reoffending, especially if not adequately managed."

48. In this State, there is a close connection between an offender's mental health condition and the objective seriousness of an offence. See in that regard Lawson v R [2018] NSWCCA 215 at [35]. It seems to be the more accepted position that a person's mental health is relevant to an assessment of a person's moral culpability or responsibility for an offence. The principles in relation to the relevance of a person's mental health to sentencing are well known. They were helpfully summarised in DPP v De La Rosa (2010) 79 NSWLR 1 and are essentially as follows:

"Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence.

It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed. It may mean that a custodial sentence may weigh more heavily on the person because the sentence would be more onerous for that person, the length of the prison term or the conditions under which it is served may be reduced.

It may reduce or eliminate the significance of specific deterrence. Conversely, it may be that because of a person's mental illness they present more of a danger to the community. In those circumstances considerations of specific deterrence may result in an increased sentence. Where a person has been diagnosed with an antisocial personality disorder there may be a particular need to give consideration to the protection of the public."

49. Where there is a combination of both mental health conditions and being under the influence of prohibited drugs at the time of the offending, the decision of Moiler v R [2021] NSWCCA 73 is of considerable relevance. Button J, giving the judgment of the Court, noted:

"In my opinion care should be taken not to take too prescriptive an approach in a process of instinctive synthesis whereby mitigating factors such as mental illness or cognitive impairment are thought to require establishment as the direct or precipitating cause of an offence before they can operate to reduce the appropriate sentence.

It is noteworthy that the first dot point of that oft quoted paragraph in the reference to De La Rosa speaks of material contribution to offending, not singular or direct causation of it. His Honour also said:

Whilst it is true that abuse of prohibited drugs played a role in the commission of the offence, and that abuse of such substances is not a mitigating feature on sentence, except in unusual circumstances, care needs to be taken not to permit that statutory prohibition to lead to insufficient weight being given to a closely related mental illness, especially when that illness and the abuse of prohibited drugs are so tightly bound up with each other."

50. Button J's comments in Moiler v R in my opinion have real resonance in this case. On the balance of probabilities, I am satisfied that at the time of the offending here, the offender was affected by prohibited drugs and was psychotic in that he was suffering from schizophrenia which was untreated at the time. I note also that it seems likely that he suffers from a cognitive impairment. In these circumstances, I consider that the principles in De La Rosa are engaged such that there is some reduction in the offender's moral culpability for the offending. I also consider that his mental health condition means that his time in custody is likely to be somewhat more onerous than it is for persons who do not suffer his mental health conditions, although I have not lost sight of the fact that he is able to be properly medicated within the gaol system.

51. His mental health condition means that he is less of a suitable vehicle for the expression of the principle of general deterrence when imposing a sentence.

52. While there is some evidence before me that the offender did not have an easy early life, it was not submitted that the principles in Bugmy v R (2013) 249 CLR 571 were applicable here.

53. There is no evidence of remorse here, given the content of the sentencing assessment report, although I note Dr Sidorov's opinion as to the fact that the offender's mental health may impact upon his ability to have remorse.

54. Given his criminal history and his failure in the community to take his mental health medication and stay away from prohibited drugs, it is difficult to assess his prospects for rehabilitation. On the material before me, they are no better than guarded at this point in time. This man will need considerable assistance when next in the community in relation to the management of his mental health condition, and in engaging in prohibited drug rehabilitation. I am also sentencing him during the resurgence of the COVID-19 pandemic. Current public health orders mean that there are no in-person visits to gaols and less programs are on offer within the gaol system. There has also been outbreaks of the disease in the prison population. For all of those reasons I propose to make a finding of special circumstances when fixing the non‑parole period.

Imposition of sentence

55. The offender has been in custody since 11 April 2019 and the sentence will be backdated to then to take account of pre-sentence custody. There are a number of discrete offences, although they all occur in the one incident which lasted for about three and a half hours. In the circumstances, I consider that it is necessary that there be some limited level of accumulation of the sentences, having regard to totality principles. I will utilise the aggregate sentencing provisions and will reflect my view of the need for limited accumulation in determining the aggregate sentence and aggregate non-parole period.

56. I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act. Violent sexual offending against women is abhorrent to all right thinking members of the community. Women are entitled to go about their lives without being subjected to violent, degrading sexual offences like those committed by this offender. As I explained earlier, the concept of general deterrence has less of a role to play in this sentence because of my findings in relation to the offender's mental health. I consider though, given his record of domestic violence in the past, there is a need to properly reflect personal deterrence in this sentence.

57. The maximum penalties, and where appropriate the standard non-parole period, have been taken into account as legislative guideposts. It will be seen that I have departed from the standard non-parole period where applicable, and I have done so because of my finding of special circumstances and the offender's mental health issues. I have also considered the cases the Crown referred me to. The decision in Hall v R [2021] NSWCCA 220 involved far more serious offending than here in my opinion. It was not suggested that the authorities I was referred to constitute a range of sentences for such offending.

58. I will firstly record the indicative sentences, and where there is an applicable standard non‑parole period, an indicative non-parole period. In determining the indicative sentences and fixing the aggregate sentence I have had regard to all of the objective and subjective factors I referred to earlier.

59. The sentences that Mr Berriman will hear me first announce are what are called indicative sentences. He will then hear me announce an aggregate sentence which is the sentence and non-parole period he will serve. It is not arrived at by simply adding up all of the indicative sentences. When announcing the aggregate sentence I will tell him the date it starts from, the date it ends, and the date when he is first eligible for parole.

60. The indicative sentence for count 1 is four and a half years imprisonment. The indicative sentence for count 3 is two years and four months imprisonment. The indicative sentence for count 4 is 12 months imprisonment. The indicative sentence for count 5 is six years imprisonment and there is an indicative non-parole period of four years imprisonment. The indicative sentence for count 6 is six years imprisonment and the indicative non-parole period is four years.

61. I impose an aggregate sentence of eight and a half years imprisonment with an aggregate non-parole period of five and a half years. The sentence commences on 11 April 2019 and expires on 10 October 2027. The non‑parole period expires on 10 October 2024. The earliest date Mr Berriman is eligible to be released to parole is the date of the expiry of the non-parole period which is 10 October 2024. Whether he is in fact released to parole that day is a matter for the State Parole Authority, which will no doubt take account of his behaviour in prison in determining whether he is released then or on another date. In terms of the offence on the s 166 certificate of resisting police in the execution of duty, I simply record a conviction with no further penalty.

62. I make an apprehended domestic violence order pursuant to s 39 of the Crimes (Domestic and Personal Violence) Act which commences today and expires on 9 October 2029. The terms are that he must not assault or threaten, stalk, harass or intimidate RK and he must not intentionally or recklessly destroy or damage any property that belongs to her or is in her possession. He must not approach RK or contact her in any way unless the contact is through a lawyer. A breach of the order is a criminal offence which has a maximum penalty of two years imprisonment.

Orders

1. The offender is convicted of the offences of which he was found guilty after Judge Alone Trial.

2. Impose an aggregate sentence of 8 years and 6 months imprisonment with an aggregate non-parole period of 5 years and 6 months. The sentence commences on 11 April 2019 and expires on 10 October 2027. The non-parole period expires on 10 October 2024.

3. On the offence on the s.166 Certificate of resisting police in the execution of duty: record a conviction with no further penalty, under s 10A of the Crimes (Sentencing Procedure) Act.

4. Make an Apprehended Domestic Violence Order under s39 of the Crimes (Domestic and Personal Violence) Act which commences today 6 December 2021 and expires on 9 October 2029.

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Decision last updated: 06 April 2022