R v Birger

[2023] NSWDC 300

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Non-Publication Order - that the Offender’s home address not be published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…