R v Birger

Case •

[2023] NSWDC 300

•

11 August 2023

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v Birger [2023] NSWDC 300
Hearing dates: 23 June 2023
Decision date: 11 August 2023
Jurisdiction:Criminal
Before: Newlinds SC DCJ
Decision:

1. For Counts 1 & 7 and Counts 2 – 6 on the Form 1, a Community Corrections Order pursuant to s 8 of the Crimes (Sentencing Procedure) Act is imposed for a period of 3 years with conditions set out at [57].

2. Pursuant to s 15 of the Crimes (Sentencing Procedure) Act a fine of $5,000 is imposed.

Catchwords:

CRIMINAL PROCEDURE - Sexual touching and intercourse without consent – Offender aged 18 years and 2 months – immediate expression of remorse and apology - intoxication

Legislation Cited:

Crimes Act 1900, ss 61I, 61KC(a)

Crimes (Sentencing Procedure) Act 1999, ss 3A, 5(1), 8, 15, 15, 17C(1), 17D(4), 21A(1), 21A(2)(d), 21A(2)(g), 21A(3)(b), 21A(3)(g), 21A(3)(h), 21A(3)(k), 21A(5)AA, 23A(3)(e)

Cases Cited:

BP v R [2010] NSWCCA 159

Director of Public Prosecutions v Burton [2020] NSWCCA 54

HG v R [2014] NSWCCA 21

R v Alcazar [2017] NSWCCA 51

R v Nelson [2016] NSWCCA 130

Tepania v R [2018] NSWCCA 247

Thammavongsa v R [2015] NSWCCA 107

Category:Sentence
Parties: Rex (Crown)
Adam Birger (Offender)
Representation:

Counsel:
R Kotsis (Crown)
D McMahon (Offender)

Solicitors:
Office of the Director of Public Prosecutions NSW (Crown)
Eliopolous Lawyers (Offender)
File Number(s): 2021/224511
Publication restriction: Non-Publication Order - that the Offender’s home address not be published

JUDGMENT

Introduction

  1. HIS HONOUR: On or about 15 January 2021, the Offender, who was then 18 years and 2 months old, invited his then girlfriend, the victim, who was then 17 years and 11 months, to his father’s home.

  2. The Offender became significantly intoxicated due to the consumption of a large amount of alcohol and committed a series of serious acts of a sexual nature on the victim without her consent. The Offender has no clear memory of these events, no doubt due to the fact that he was so drunk. He does, however, accept the conduct occurred. He has done so consistently from the next morning when he apologised to the victim. He has continued to express his guilt and remorse to her since that time but has been unable to explain or rationalise his conduct to her or himself.

  3. For at least a significant portion of the conduct, the victim was clearly expressing by her words and conduct that she did not consent to the sexual activity. In relation to what are now Counts 3, 4, 5, 6 and 7, being sexual intercourse without consent in contravention of s 61I Crimes Act 1900, it is contended by the Crown and accepted for the Offender that absent self-induced intoxication, the Offender would have had actual knowledge that the victim was not consenting to the sexual conduct.

  4. On 6 August 2021, the Offender was charged by police. He was granted conditional bail. He has not served any time in custody in respect of these matters.

  5. On 8 March 2023, after the matter had been fixed for trial in the District Court on 24 June 2022, with the trial scheduled to commence on 27 March 2023, the Offender pleaded guilty to Counts 1 and 7 and acknowledged his guilt with respect to Counts 2 to 6 on a Form 1. That offer was accepted by the Crown. On 10 March 2023 (that is, 17 days prior to the scheduled trial), the pleas were entered, and the agreed facts were signed. On that day, the Offender was convicted of Counts 1 and 7.

The offences

  1. The Offender therefore appears for sentence for the following offences:

  1. Count 1 – sexual touching without consent – s 61KC(a) Crimes Act 1900;

  2. Count 7 – sexual intercourse without consent – s 61I Crimes Act 1900.

  1. The Offender asks the Court to take into account on a Form 1 the following:

  1. Count 2 – sexual touching without consent – s 61KC(a) Crimes Act 1900;

  2. Count 3 – sexual intercourse without consent - s 61I Crimes Act 1900;

  3. Count 4 - sexual intercourse without consent - s 61I Crimes Act 1900;

  4. Count 5 - sexual intercourse without consent - s 61I Crimes Act 1900;

  5. Count 6 - sexual intercourse without consent - s 61I Crimes Act 1900.

  1. The Count 1 offence carries a maximum penalty of 5 years’ imprisonment with no standard non-parole period. The Count 7 offence carries a maximum penalty of 14 years imprisonment with a standard non-parole period of 7 years.

The agreed facts

  1. I set out a summary of the agreed statement of facts:

  1. The Offender and the victim attended the same high school. They are three months apart in age, although they were not in the same school year. The victim was one school year below the Offender.

  2. In 2020, the victim was in year 11 and the Offender was in year 12. On 24 June 2020 the victim and the Offender decided to become officially boyfriend and girlfriend. The victim was then 17 years and 5 months, and the Offender was 17 years and 8 months.

  3. Other than on the evening of the offence, the Offender treated the victim with respect, and he was kind to her. He was well liked by the victim’s family.

  4. The victim’s father described the Offender as a ‘decent guy’ who they welcomed into their home with open arms. The victim’s mother described him as a ‘polite and caring boyfriend’. The Offender got on well with the victim’s brother. The victim’s parents were on good terms with the Offender’s parents who they saw from time to time.

  5. Prior to 15 January 2021, from time to time, the Offender and the victim engaged in consensual sexual acts with each other, including consensual acts of sexual intercourse.

15 January 2021

  1. On Friday 15 January 2021, the Offender (18 years 2 months) asked the victim (17 years 11 months) to come to dinner with his family at their Maroubra house. They agreed that the victim would stay over, as she had on previous occasions, because they planned to have some drinks.

  2. At their Maroubra house, there is a bedroom which the Offender shares with his brother. Adjoining that bedroom is a sunroom where a foldout bed can be set up if needed.

  3. Members of the Offender’s family started arriving for dinner. The Offender consumed several beers before dinner. According to the victim he was ‘tipsy’. The Offender drank two more beers with dinner and was becoming a bit louder. After dinner, the Offender drank more beer.

  4. The Offender continued drinking beer. He became intoxicated. According to the victim, she had not seen him so drunk before. When the Offender opened a case of beer, he knocked over drinks that were nearby. The Offender was slurring his words, his eyes were half closed and he was tripping on things that were on the floor.

  5. The Offender’s father came downstairs and told the group to turn the music down. According to the victim the Offender was “really drunk at this point and was slurring his words”.

  6. Later in the evening, between midnight and around 2.00am, the victim told the Offender that she needed to go upstairs. The Offender accompanied her into the house from the garage. He struggled to walk up the stairs.

  7. The victim and the Offender approached a small loungeroom which adjoins the kitchen inside the house (“the loungeroom”). The Offender and the victim sat on the lounge. A short time later, the Offender pulled the victim towards him, and she landed on top of him. The Offender put his hand down her pants, put his hand underneath her underwear and touched her vagina for a few seconds with his fingers without her consent [Count 1; Sexual Touching]. The victim stood up immediately and told him to stop, which he did.

  8. The Offender said, “why aren’t you being fun, I wanna have fun”. The Offender tried to do the same thing again. The victim said “stop, your cousin is right there”. The Offender replied, “it doesn’t matter, why are you being boring”. The victim told him to drink some water and come to the sunroom when he was sober. She went to the kitchen and returned with a cup of water which she left for the Offender on the table. The victim went to the sunroom, where a foldout bed was set up for her to sleep in with the Offender.

  9. The victim changed into pyjama shorts and underwear. She was not wearing a top.

  10. Around 10 minutes later, the Offender came into the sunroom, and he lay behind the victim on the bed. He touched her breasts. The victim said “stop, you’re really drunk, I’m not in the mood for it”: [Count 2: Sexual touching - Form 1 attached to Count 7].

  11. The Offender put his hand under her shorts and digitally penetrated her vagina for about 4 seconds: [Count 3: Sexual intercourse without consent – digital/vaginal penetration - Form 1 attached to Count 7]. The victim told him to stop, and she started crying.

  12. The Offender got underneath the doona and started pulling at the victim’s shorts and underwear. The victim told the Offender to stop. The Offender threw the victim’s shorts on the floor and put his head between the victim’s legs and started licking her vagina with his tongue for about 10-15 seconds. The victim was telling the Offender to stop [Count 4: Sexual intercourse without consent: cunnilingus – Form 1 attached to Count 7]. At the same time the Offender was digitally penetrating the victim’s vagina: [Count 5: Sexual intercourse without consent: digital/vaginal penetration – Form 1 attached to Count 7].

  13. The victim tried to push the Offender off with her hands. The Offender stopped. He moved so he was lying directly behind the victim and put one arm over her stomach. The Offender digitally penetrated the victim’s vagina again for a short time [continuation of Count 3] before inserting one finger into her anus four times; [Count 6: Sexual intercourse without consent: digital/anal penetration – Form 1 attached to Count 7]. The victim was crying and telling him to stop.

  14. The Offender repositioned himself and inserted his penis into the victim’s vagina. The victim tried to push the Offender off and said “stop, get off” and “no, no, no”. The victim was crying. The Offender stopped briefly then kept penetrating her vagina with his penis. This continued for around a minute [Count 7: Sexual intercourse without consent: penile/vaginal penetration]. Suddenly, the Offender stopped and said, “why are you crying?”

  15. According to the victim “all of a sudden something clicked” for the Offender and he stopped doing what he was doing to her.

  16. The victim, who was crying, moved to the other side of the bed. The Offender was upset and kept repeating “why are you crying, why are you crying”. The victim was scared.

  17. The Offender said, “tell me, I’m not going to go to bed until you tell me what happened”. The victim said, “I don’t want to tell you”. The victim kept crying and the Offender said, “I can still hear you crying, I’m not going to sleep”. The victim had difficulty sleeping.

  18. The next day, the victim told the Offender what had happened the previous evening. The Offender said “I thought I was dreaming… I can’t believe I did it, I’m sorry… we will work through it”. The Offender and the victim cried together and remained in the sunroom for around four hours.

Relationship

  1. In the weeks following the incident, the victim and the Offender tried to mend their relationship. The victim was turning 18 on 25 January 2021. She had not disclosed the incident to her parents. The Offender assured her that their relationship would improve, and the victim wanted to believe that was so. The victim’s parents booked a hotel room for the two at Parramatta which her parents paid for on the 23 January 2021. The victim and the Offender stayed together in the hotel room, ate in the room but did not have sexual intercourse. They slept on opposite sides of the bed, clothed, with a doona between them.

  2. On the evening of 25 January 2021, the Offender took the victim to a restaurant in the city to celebrate her birthday.

  3. On 26 January 2021, the victim and the Offender again went out to celebrate her 18th birthday.

  4. Throughout late January and early February 2021, the victim and the Offender continued speaking to each other to work on their relationship. On one occasion they had consensual sexual intercourse. During that act, the victim cried, and the intercourse stopped. She realized that their relationship could not continue because she could not move forward as a result of what the Offender had done.

Hospital Admission

  1. On 18 February 2021 the victim was admitted to St Vincent’s Private Hospital. The victim participated in group and private mental health therapy.

  2. On 24 February 2021 the victim asked to speak with a Registered Psychologist, Tahlia Ricciardi, after a group therapy session. The victim disclosed the offending. She was visibly distressed and crying during the disclosure to Ms Ricciardi. She did not want to report the matter to police. She told Ms Ricciardi that the Offender expressed remorse to her after the incident, she believed he was genuinely remorseful and that he continued to support her. The victim asked Ms Ricciardi to inform her parents. Subsequently the victim’s parents were informed of the offending.

  3. During her hospital admission, the Offender was supportive of the victim. On one occasion, he attended the ward at her request. He attended the ward on several occasions and took her out to get food.

  4. Later she called him and told him that their relationship was over. Both the victim and the Offender cried during that phone call.

April 2021 – Conversations on Snapchat

  1. In April 2021, the victim contacted the Offender on a mobile phone application called Snapchat because she was struggling to deal with what had happened. The victim said, “I have proper anger boiled up inside me because of what u did”. The Offender said:

  • It felt like a dream I had no control in.

  • [the victim] when I saw you crying, I snapped back into reality, I remember everything after that.

  • I wish it didn’t happen… I’m sorry I would do anything to see you happy again.

  • I don’t know what happened. I don’t know why I drank so much. I have no answer.

  • I don’t know what you want me to say. All I can say is that I’m sorry [the victim] and never meant for this. I’m not a bad person… and unfortunately what happened was bad.

  • I fucked up. Unfortunately I lost control of me.

  • Yes it happened, I was drunk. It makes you do things you would never do.

  • I’ve ruined someone, and I regret doing that to you.

  1. Following the above conversation, the victim has not spoken with the Offender other than a phone call in August which I will come to.

Police Report and Arrest

  1. On 18 June 2021 the victim reported the matter to Police.

  2. On 6 August 2021, the Offender attended Maroubra Police Station in the presence of his solicitor, Mr Chris Eliopou and his mother. He exercised his right to silence. He was charged by police. The Offender was released to bail on the same day at Waverley Local Court. A curfew was imposed such that he could not leave the house during the evening without being in company of his mother. A condition requiring him to abstain from drinking alcohol or consuming drugs was also imposed.

Lawfully intercepted phone Conversation

  1. On 29 July 2021, the victim called the Offender. The call was lawfully recorded. During the recorded phone call the Offender said:

  • He still thinks about the victim a lot

  • Alcohol is not an excuse, but it contributed to what happened, because it is not something he would have done if he hadn’t been intoxicated

  • He was thinking of confessing to police because he was scared that years down the track, the victim might say something to someone, and he felt guilty. He was advised not to do so.

  • He remembers seeing the victim crying which brought him ‘down to reality’

  • He felt like it was a dream, ‘didn’t feel real’

  • He did not remember the incident, but he remembered ‘when it snapped back… I didn’t know what had happened’.

  • He told his friends afterwards that he did something sexually that he shouldn’t have done when he was drunk

  • The morning after the incident he remembers being confused and crying because they talked about what happened. He felt ‘emotional, sad, angry, confused’

  • He remembered being on the couch and being ‘a bit touchy’ and the victim saying something like ‘come join me when you’ve sobered up’. He remembered the victim saying no, he got annoyed and excused himself. From there his memory is blank until he recalls the victim was crying on the bed.

  • He doesn’t drink as much alcohol as he used to.

  1. The victim asked during the phone call, whether he has been hearing people talk about the incident. He replied, “your name, your health is the most important thing… when people go around talking and saying these things… it really hurts”. The victim replied, “it hurts you to hear because you did it?” The Offender replied “yeah… I know what happened but still it’s really hard to hear”.

  2. The victim asked if he has come to terms with what he had done. The Offender replied “I’m aware of what happened, I’m aware of the consequences, but I’m still struggling with it… I’m struggling not having you”.

  3. The victim said, “you’re in my dreams every night, and it’s absolutely horrible”. The Offender replied “sorry”. He confirmed that he feels guilty about what happened and that he didn’t mean to do what he did. He said, “I’m never going to forget you [victim’s name]”.

Proceedings: Guilty Plea

  1. On 25 November 2021, bail was varied. The curfew condition was deleted. A condition was imposed requiring the Offender to report to police twice per week.

  2. On 19 May 2022, the Offender was committed for trial to the District Court in relation to the instant charge and additional charges.

  3. On 24 June 2022, the matter was fixed for trial to commence on 27 March 2023.

  4. On 12 August 2022, the bail condition restricting the Offender from consuming alcohol was deleted, and reporting was reduced to one day per week.

  5. On 8 March 2023 the Offender offered to plead guilty to the instant charges in full satisfaction. The offer was accepted by the Crown.

The impact on the victim

  1. The victim gave a “Victim Impact Statement” both in writing and orally before me. I do not find it necessary or appropriate to set out in detail what she said. Her statement started and finished as follows: “Now I know what my rock bottom looks like …” and “over the past two and a half years I could tell that I could see what my rock bottom looks like”.

  2. It is plain that the victim suffered significant trauma during and immediately after the incident. She continues to suffer from that trauma.

  3. She is convinced that the events have caused her significant ongoing mental health issues.

  4. I accept her evidence unreservedly and commend her for her bravery in making her statement in the presence of the Offender in public. She is a brave, dignified and articulate young lady. Nothing of what has happened is her fault. The Court hopes that once this criminal process is concluded that she can focus on regaining her strength and will go on to live a happy and productive life.

Objective seriousness (s 21A(1) of the Crimes (Sentencing Procedure) Act 1999)

  1. I find it wholly artificial and unhelpful to try and disentangle each offence and come to a view of its objective seriousness. Each of the offences for which the Offender is being sentenced, together with the Form 1 matters, form part of what can only sensibly be described as one course of conduct, albeit there is a slight temporal break between the activities in the loungeroom and the subsequent events in the sunroom.

  2. In relation to the objective seriousness, the duration of the overall offending was not lengthy, but neither is a short duration of a matter that reduces the objective seriousness of such an offence. This is particularly so if before the commencement of any part of the activity it is clear to the Offender that there is no consent. At least in relation to the activities in the sunroom which covers Counts 3, 4 5, 6 and 7 – the sexual intercourse without consent – the Offender was so aware.

  3. On the other hand, the offending was obviously not planned but was opportunistic. Moreover, the offending did stop voluntarily. The sexual act was not complete when the Offender “snapped out of it” and stopped.

  1. While I cannot take into account the fact that the conduct was obviously the product of the Offender’s self-induced intoxication – that being no excuse for the conduct nor a matter to mitigate the moral culpability of the Offender – Director of Public Prosecutions v Burton [2020] NSWCCA 54; Tepania v R [2018] NSWCCA 247 at [124] – [127] the fact of the intoxication is to my mind the explanation for the conduct which is why I am comfortably satisfied that it was not premeditated nor part of an ongoing pattern of sexual misconduct going beyond the matters that are before me.

  2. Notwithstanding the submissions on behalf of the Offender that the objective seriousness of Counts 1 and 7 was towards the lower end of the range, I generally accept the Crown’s submission that the objective seriousness is more towards the mid-range rather than the low range. I remind myself that in considering the objective seriousness of the crime, I am not to and therefore do not take into account the intoxication of the Offender.

Aggravating factors – s 21A

  1. The Crown does not rely on any aggravating factors.

  2. As I have said, the victim read to the Court, including to the Offender, a powerful and moving Victim Impact Statement.

  3. The offences have caused her considerable trauma and she believes that trauma has had a significant impact on her mental health. There is no doubt that the impact on her has been significant.

  4. The Crown accepts, however, that notwithstanding the victim’s belief, this is not an aggravating factor for the purpose of s 21A of the Crimes (Sentencing Procedure) Act because on the evidence before me there is nothing to connect the victim’s current state of mental health with the offence. Rather, the significant trauma she has undoubtedly suffered is intrinsic to the instant offences and therefore does not qualify as “substantial harm” within the meaning of s 21A(2)(g) of the Crimes (Sentencing Procedure) Act because it has not been shown to be greater than is ordinarily to be expected from an offence of this kind. That is because the prescribed maximum penalties already take into account harm of the kind expected.

  5. That is not in any way to minimise the legitimacy, reality and cogency of the traumatic impact that these offences have had on the victim. She is a brave young woman who has suffered terribly as a direct result of the Offender’s criminal conduct.

Mitigating Factors – s 21A(3)(b) of the Crimes (Sentencing Procedure) Act 1999

  1. It is not alleged that the offending was part of a plan to organise criminal activity.

  2. The Offender does not have any record of prior convictions – s 23A(3)(e) of the Crimes (Sentencing Procedure) Act. I have read a number of character references which speak highly of his otherwise good character. He was well liked and regarded by the victim and her family prior to these events. I find the conduct to be wholly inconsistent with the Offender’s otherwise good character.

  3. In my opinion the Offender, for reasons I will explain, is unlikely to reoffend and has good prospects of rehabilitation – ss 21A(3)(g) and (h) of the Crimes (Sentencing Procedure) Act.

  4. The Offender, very shortly after the offences, expressed to the victim his remorse and apologised. He thereafter apologised to her on a number of occasions. He has expressed that remorse to various treating medical practitioners and again to me by way of letter. The Crown does not take any point that he did not express that remorse before me on oath and I accept that the Offender is extremely remorseful and contrite and has provided evidence that he has accepted responsibility for his actions and the consequences those actions have had on the victim. He continues to feel significant guilt and remorse. I think those emotions make it highly unlikely he will re-offend.

  5. The Offender pleaded guilty more than 14 days prior to the first day of trial. Accordingly, he is entitled to a mandatory discount of 10% for the utilitarian value of his plea – s 21A(3)(k) of the Crimes (Sentencing Procedure) Act. In addition, I take into account his plea of guilty when assessing his level of contrition and remorse. There is an explanation for the late plea which I will come to. Suffice to say I do not find it inconsistent with his immediate expression of remorse and contrition to the victim.

  6. As I have said, the explanation for the Offender’s appalling conduct is his self-induced intoxication at the time but as commanded by s 21A(5)AA of the Crimes (Sentencing Procedure) Act I do not take that into account as a mitigating factor – see Director of Public Prosecutions v Burton; R v Tepania at [124] – [127]; R v Alcazar [2017] NSWCCA 51 at [126]. I do, however, take it into account when assessing the likelihood of re-offending, together with it being the reason that I find the offending was not premeditated.

  7. The Offender has a full-time job as an apprentice mechanic. His employer speaks highly of him and notwithstanding the offences is keen for him to continue his employment if he remains free to do so. The offender is also surrounded by an extremely supportive family.

The Offender’s mental state

  1. There was some evidence before me as to the effect that throughout his childhood and early adolescence, the Offender was diagnosed with and treated for Attention Deficit Hyperactivity Disorder (“ADHD”). I put this evidence to one side as there is simply nothing to suggest that the ADHD diagnosis is in any way connected with or causative of the Offender’s conduct.

Subjective matters

  1. In my opinion, the Offender presents with an exceptionally strong subjective case. I set out below the various matters that I have taken into account in reaching this conclusion. But I should say at the outset the most weighty and significant to my mind is his youth at the time of the offences. The distinction between members of the community being tried as adults or children and the reason of that distinction is well understood but where the line is drawn must inevitably be wholly arbitrary.

  2. In this case by a matter of months, if the Offender had committed the offences prior to turning 18 he would have been dealt with under a completely different regime with significantly reduced potential sentences (Thammavongsa v R [2015] NSW 107 at 84 – 90; BP v R [2010] NSWCCA 159 per Hodgson JA at [5]; HG v R [2014] NSWCCA 21 at [56]; R v Nelson [2016] NSWCCA 130 at [73]).

  3. The fact that the law treats children and adults differently is a recognition by society that children are immature and that their decision-making powers and, if you like, moral compass can be accepted and even expected to be not fully developed.

  4. In my view, and I think this is supported by the authorities, in circumstances where a young offender otherwise appears to be of good character and has no prior convictions, the prospects of a young offender being fully rehabilitated and reintegrated into the community are significantly greater (as a general rule) than that of an adult.

  5. I take into account the following matters in relation to the Offender’s subjective case.

  1. The first and most significant is he was 18 years and two months of age at the time of offending.

  2. He is otherwise of good character with no prior criminal history.

  3. The Offender presents with a range of extremely powerful character references, and I am satisfied that his conduct was entirely out of character, even applying common sense in the context of intoxication.

  4. The Offender has been extremely remorseful from the outset. He apologised the next day to the victim and has continued to constantly express guilt, shame and considerable insight, albeit it has taken some time for him to connect his self-induced intoxication with what he did.

  5. The odd feature of the conduct is the moment where the Offender appears to “snap out of it” and come to his senses and cease the activity. Professor Woods, in a comprehensive report, thought it appropriate to investigate whether perhaps the Offender was suffering from parasomnia as a potential explanation. That explanation was eventually ruled out after various specialists reviewed the Offender. It was put to me that I ought to infer that those investigations provide an explanation for what might otherwise be seen as the late plea of guilty and that therefore, whilst the Offender is only entitled to a 10% statutory discount, I should not hold against him the lateness of his plea when coming to a view as to his contrition and remorse. I think that is correct and I find that the Offender, from the day after the incident, has been contrite, remorseful and apologetic. Professor Woods indicates at 4.2 of his report:

“In [Offender]’s case the predominant symptoms are those of his high level of guilt and remorse related to stress and self-recrimination in respect of his offending behaviour but more particularly any psychological harm the victim may have suffered.

Perhaps ironically, [Offender]’s confusion (i.e. inability to reconcile the offending behaviour with his personal values) and guilt related self-recriminations in respect of his offending behaviour and its effects on the victim, although a source of traumatic distress, represents a future risk protective factor; as evidenced by his self-imposed abstinence of alcohol and limited social interactions, i.e., decisions not to attend social functions.”

  1. Professor Woods concluded that in his opinion the Offender has a low risk of reoffending and that his prospects of rehabilitation are significant.

  2. My own, non-expert view is that the Offender was clearly in some sort of alcoholic blackout until he “snapped out of it” i.e.. came to his senses. He then realised the victim was not consenting and stopped. This is not an excuse at all, but I do think it is to his credit that he did cease the activity before completing the sexual act. I find that supports the view I had otherwise formed as to his character generally and to his remorse and contrition.

  3. The Offender has a very supportive family and employer.

Sentence Assessment Report

  1. During the hearing of this matter, it was submitted on behalf of the Offender that I ought not be satisfied that the s 5 threshold had been crossed because it was open to me to consider a Community Corrections order pursuant to s 8 of the Crimes (Sentencing Procedure) Act on what were suggested to be “stringent conditions”. I inquired as to whether the Offender was putting forward any conditions other than the standard conditions. The response was that the most obvious stringent condition would be to order community service. However, there was no report assessing the Offender’s suitability for community service and therefore because of the effect of ss 17C(1) and 17D(4) of the Crimes (Sentencing Procedure) Act I could not order such a condition.

  2. I found this state of affairs to be entirely unhelpful and unsatisfactory. As I pointed out in argument, if pursuant to s 5 I am commanded to consider full time imprisonment as a “last resort”, it is necessary for me to judge whether any other penalty is appropriate not by reference to amorphous phrases such as “stringent conditions” but by reference to specific conditions suggested by the Offender.

  3. After the luncheon adjournment, counsel for the Offender handed up a list of conditions which included 500 hours of community service. There was then discussion between bench and bar and it was agreed that, as it seemed likely the Offender would be assessed as suitable for community service, the matter could proceed upon the assumption of him being so assessed and at the conclusion of the hearing I would reserve, direct there be an appropriate assessment of the Offender and only finalise my deliberations and deliver judgment once the outcome of that assessment was known.

  4. I have now had tendered before me a sentence assessment report of Baltej Singh, Community Corrections Officer, dated 7 August 2023, together with Case Note Report of NSW Department of Corrective Services dated 3 August 2023, which I have admitted into evidence (Exhibit B). It confirms that the assumption upon which the argument proceeded before me was correct and the Offender has been assessed as suitable for community service.

  5. The report assesses the Offender as carrying an “average” risk of re-offending. He was initially assessed at “low” risk according to the Level of Service Inventory (LSI-R), but this was overridden by Community Corrections. Notwithstanding that assessment, my own judgment for the reasons I have given is that it is highly unlikely that the Offender will re-offend.

Treatment

  1. The Offender remains under Professor Woods’ care and is being treated by Professor Woods and a counsellor in relation to his mental health and potential alcohol and drug issues.

  2. Since the sentencing hearing, I have received an up to date report of Professor Woods dated 10 August 2023. It is now Exhibit C. The opinions expressed by Professor Woods in that report are consistent with what I had already concluded. As Professor Woods puts it:

“In my opinion, provided [Offender] continues in therapy, the now already low risk of reoffending in any form, will be further reduced.”

Consideration

  1. I am required to take into account the matters identified in s 3A of the Crimes (Sentencing Procedure) Act. Those matters include general deterrence, specific deterrence, protection of the community and prospects of rehabilitation as well as an adequate punishment to make the Offender accountable for his actions, to denounce the conduct and to recognise the harm done by the crime to the victim and the community.

  2. As to general deterrence, this is a weighty matter. The conduct of the Offender was extremely serious and amounts to serious breaches of criminal law. Notwithstanding that he was intoxicated and notwithstanding his young age, the community needs to clearly understand that disgraceful conduct such as that of the Offender is treated extremely seriously by the community and attracts significant penalties. Moreover, it is very important that the community understands that self-induced intoxication is considered by the law to be entirely irrelevant and most certainly is not an acceptable excuse.

  3. As to subjective deterrence I do not think there is any need for the Offender to be deterred from further criminal conduct of this type. I am satisfied that based on his experiences and feelings of guilt, remorse and the like as a result of the matters that bring him before the Court it is highly unlikely that he will reoffend. He has taken positive steps to try and improve his mental wellbeing including, at least for a period, self-abstinence from alcohol and drugs.

  4. As to protection of the community and rehabilitation, as I have said, I regard the Offender as having significant prospects of not reoffending and being fully rehabilitated. I consider that further abstinence from alcohol and an acknowledgement by the Offender that he obviously has some level of alcohol problem (at least as to “binge drinking”) to be significant matters. I have not overlooked the obvious trauma and distress to the victim. The impact on her is not to be diminished by any comment along the lines that her reaction is what one might expect from this sort of trauma. That may be so, but it in no way diminishes the devastating impact the offences have had on her. She is entitled to expect that the Court punishes the Offender appropriately. She is entitled to expect that the sentence will recognise the harm caused to her. She and the community are entitled to expect this type of conduct will be denounced by way of significant punishment.

  5. As I have said, I take into account and give significant weight to the youth of the Offender. I consider that factor together with his immediate expressions of contrition, remorse and apology to the victim in placing his subjective case towards the upper end of what might be described as to the range.

  6. I am required under s 5(1) of the Crimes (Sentencing Procedure) Act to not sentence the Offender to imprisonment unless I am satisfied having considered all possible alternatives that no penalty other than prison is appropriate.

  7. The Crown has submitted that the threshold for s 5 has been crossed and I should be so satisfied. However, the Crown has also acknowledged that it would be open to me to conclude that a community corrections order on “the most stringent” conditions would be open to me. That is not to be taken as a concession by the Crown that such a course is appropriate, but I do regard it as of some significance.

  8. With some hesitation, and acknowledging that the sentence I propose can properly be characterised as lenient, taking into account the availability of a community corrections order, together with the fact that it is open to me to impose conditions on such an order including community service, curfews and the like that reflect significant punishment on the Offender so as to take account of the need for retribution and to hold him accountable for his conduct. I also propose to impose a monetary fine on the Offender.

  9. The conditions I propose are intended to be a significant punishment on a young man, albeit well short of full-time imprisonment. I am confident that the Offender’s family will assist him and ensure that he complies with the conditions I intend to impose. In all the circumstances, I have concluded that the s 5 threshold has not been engaged.

  10. In the circumstances, I have decided to impose a Community Corrections order for a period of 3 years with the following conditions:

  1. That the Offender not commit any offence.

  2. That the Offender submit to supervision by a Community Corrections Officer and report to the Community Corrections Office within 48 hours for direction.

  3. That the Offender perform 500 hours of community service as directed by the Community Corrections Office over that 3-year period.

  4. That the Offender complies with all reasonable directions for treatment by Professor Stephen Woods including as to counselling, attendance upon any programs including drug and alcohol counselling, attendance upon other treating professionals and medication.

  5. That the Offender attend upon Professor Stephen Woods for review and, if necessary, treatment at least once a month for the full 3-year period.

  6. That the Offender regularly attend meetings of Alcoholics Anonymous and report details to Professor Woods. He is to do this for the full 3-year period unless Professor Woods concludes it is not necessary and advises Community Corrections in writing to that effect.

  7. That the Offender continue to see Hayley Mayer (counsellor) at least once a month for the full 3-year period unless otherwise directed by Professor Woods.

  8. That the Offender not consume any alcohol or drugs without a prescription.

  9. That the Offender not enter any licensed premises.

  10. That the Offender not associate with, or in any way seek to contact the victim, and to comply with any apprehended violence orders in place from time to time.

  11. That for the first 18 months of the 3-year period, the Offender not be absent from XXXXX XX NSW, (or any new place of residence later approved by Community Corrections Office) between the hours of 9.00 pm and 4.00 am. To be clear, during that 18-month period, the Offender is not to absent himself from his prescribed premises for any reason other than hospitalisation or other medical appointments. This means the Offender is not to have weekends or holidays away from his residence.

  12. For the second 18 months of the 3-year period the Offender is to reside at XXXXX X NSW or such other new place of residence later approved by Community Corrections.

  1. In addition to the Community Corrections order I impose a fine pursuant to s 15 of the Crimes (Sentencing Procedure) Act of $5,000.

Explanation as to consequence of breach

  1. I am required by s 17(1) of the Crimes (Sentencing Procedure) Act to explain to the Offender the consequences of any breach by him of any of the conditions I have imposed upon the Community Corrections order.

  1. The Offender and his family and supporters must clearly understand that these conditions must be strictly complied with. If any of the conditions are breached, the matter can be brought back to Court and the Offender re-sentenced for these crimes. The Offender should understand that complying with these conditions will be difficult for him and that he will find his liberty is significantly curtailed. That is, however, the point; they are intended to be a significant punishment and compliance will be difficult. He will be tempted to bend the rules, but he must refrain from doing so.

  2. The Offender needs to understand that he has been the recipient of what can reasonably be described as a lenient sentence, and that the only reason I did not impose a term of full-time imprisonment was because of his youth and immediate expressions of remorse and guilt. The conditions I have imposed are intended to be a significant punishment. The Court expects them to be strictly compiled with. The Offender would be unwise to assume that if he came back before the Court for any breach of the conditions, he will be given any further chances.

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Decision last updated: 18 August 2023

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Cases Cited

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Statutory Material Cited

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BP v R [2010] NSWCCA 159
Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54
HJ v R [2014] NSWCCA 21