R v Bourke (a pseudonym)

[2020] NSWDC 10

District Court

New South Wales

Medium Neutral Citation:	R v Bourke (a pseudonym) [2020] NSWDC 10
Hearing dates:	16 December 2019
Decision date:	14 February 2020
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 16 years and 6 months with a non-parole period of 12 years.
Catchwords:	CRIME - SENTENCE - sexual intercourse with person above 14 years of age but less than 16 years of age - sexual intercourse without consent - assault with act of indecency - common assault - threatened use of an offensive weapon with intent to commit an indictable offence - intimidation - larceny - destroying or damaging property.
Legislation Cited:	Crimes Act 1900 (NSW): ss66C(3), 61I, 61L, 61, 32b(1)(a), 117, 195(1)(a); Crimes (Domestic and Personal Violence) Act 2007: s13(1)
Cases Cited:	Bugmy v R [2013] 249 CLR 571
Category:	Sentence
Parties:	Regina (Crown) Mr Bourke (a pseudonym) (Offender)
Representation:	Mr Page (Trial Advocate) Mr Rajalingam (Counsel for the offender)
File Number(s):	2017/389374
Publication restriction:	Non - publication order made of the offender and the victims and any other information which might directly or indirectly identify any of them

Judgment

1. To the extent necessary, I confirm and continue the non-publication order previously made of the name of the offender and of the two victims of the offender’s criminal conduct and of any other thing that might identify any of them, directly or indirectly.

2. Mr Bourke, you appear for sentence today in relation to 14 offences.

3. As I shall explain, 11 of those offences followed a trial which commenced on 16 September 2019 and which concluded on 19 September 2019. The jury found you guilty in relation to all 11 Counts that were before them.

4. A further two related offences were on a s 166 certificate.

5. You pleaded guilty to the fourteenth offence at the conclusion of that trial and after the jury returned its 11 verdicts of guilty; and after I found you guilty of the two matters on the s 166 certificate.

6. The fourteenth offence was sexual intercourse with a person above 14 years but less than 16 years of age.

7. The fourteenth offence involves a contravention of s 66 C (3) of the Crimes Act. The maximum penalty for that offence is 10 years imprisonment. There is no standard non-parole period.

8. In relation to this principal offence, you have asked me to take into account a matter of sexual intercourse with a person aged above 14 years but less than 16 years on a Form 1, which I have certified.

9. In relation to the 11 verdicts of guilty, six of the relevant offences were sexual intercourse without consent.

10. These offences each involve contraventions of s 61 I of the Crimes Act. The maximum penalty for that offence is 14 years imprisonment. There is a standard non-parole period of 7 years imprisonment.

11. Two of the offences were assault with an act of indecency.

12. These offences each involve contraventions of s 61 L of the Crimes Act. The maximum penalty for that offence is 5 years imprisonment. There is no standard non-parole period.

13. One of the offences was common assault.

14. This involves a contravention of s 61 of the Crimes Act. The maximum penalty for that offence is 2 years imprisonment. There is no standard non-parole period.

15. One of the offences was the threatened use of an offensive weapon with intent to commit an indictable offence.

16. This involves a contravention of s 32 B (1) (a) of the Crimes Act. The maximum penalty for this offence is 12 years imprisonment. There is no standard non-parole period.

17. The final offence, the subject of a verdict by the jury, was intimidation.

18. This involves a contravention of s 13 (1) of the Crimes (Domestic and Personal Violence) Act. The maximum penalty for that offence is 5 years imprisonment. There is no standard non-parole period.

19. Finally, the s 166 certificate contained two offences.

20. The first of those offences was larceny.

21. This involves a contravention of s 117 of the Crimes Act. The maximum penalty for that offence if prosecuted in the District Court is 5 years imprisonment. There is no standard non-parole period. If prosecuted in the Local Court, the maximum penalty is 2 years imprisonment.

22. The second offence on the s 166 certificate was destroying or damaging property.

23. This involves a contravention of s 195 (1) (a) of the Crimes Act. The maximum penalty for that offence if prosecuted in the District Court is 5 years imprisonment. There is no standard non-parole period. If prosecuted in the Local Court, the maximum penalty is 2 years imprisonment.

24. Before turning to the facts surrounding your offending conduct, some procedural history needs to be noted.

25. On 16 September 2019, I granted leave to the Crown to file in Court an amended indictment. That indictment contained 14 Counts. Counts 1 to 3 inclusive were referrable to the (then) complainant, Suzanna (a pseudonym); and Counts 4 to 14 inclusive related to the (then) complainant, Ms Jones (a pseudonym).

26. Upon the presentation of that indictment, you were arraigned and you pleaded not guilty to all of the Counts on the indictment.

27. Following that arraignment, and on the application of your Counsel, I ordered that Counts 4 to 14 be severed from the balance and that the trial in relation to Counts 1 to 3 would run immediately after the trial in relation to Counts 4 to 14.

28. At the conclusion of that first trial, the jury, as I have already said, returned verdicts of guilty in relation to all 11 Counts on the indictment.

29. Following the jury’s verdicts in relation to those Counts, I then found that the matters of larceny and property damage, which were contained on the s 166 certificate, had, on the evidence given in the trial proceedings, been proved beyond reasonable doubt.

30. Following the jury’s verdicts in relation to Counts 4 to 14, I was informed by your Counsel that the matters involving Counts 1 to 3 would now be unlikely to proceed to trial but rather those matters would be “short”.

31. On 20 September 2019, I granted the Crown leave to file in Court a fresh indictment which was limited to Suzanna  and which contained two Counts.

32. You were arraigned upon that indictment. You entered a plea of guilty in relation to Count 1 and were convicted. No plea was required in relation to Count 2 because the subject matter of that Count had been incorporated in the Form 1 to which I have earlier referred.

33. The sentence hearing in relation to all of these matters was conducted on 16 December 2019, at the conclusion of which all matters were stood over to today for the imposition of sentence.

34. The facts concerning your criminal misconduct against Suzanna are contained in agreed statement of facts. Slightly recast by me as to style but not substance they may be stated as follows.

35. You and she were friends. The friendship did not involve any romantic association or physical intimacy.

36. On a date somewhere between 12 July 2011 and 21 November 2012, you and Suzanna went to a party being held at a mutual friend’s house.

37. At the time, Suzanna was either 14 or 15 years of age and you were either 15 or 16 years of age.

38. Whilst at this party, both you and Suzanna  consumed alcohol and cannabis.

39. At about midnight, you and Suzanna left the party. You walked through a park heading towards her home.

40. Whilst you were walking through this park, you started to touch her on the breasts and vagina on the outside of her clothes.

41. You pushed her to the ground and you managed to remove her pants.

42. You then attempted to place your mouth on Suzanna’s vagina. Suzanna  was surprised and, no doubt, not a little afraid by your conduct and told you to stop. She was trying to push you off her.

43. Suzanna managed to get her pants back on.

44. You then took her by her hand and led her a short distance into some bushland.

45. Suzanna wanted to know why you were taking her in that direction and repeatedly told you that she wanted to go home.

46. You forcibly pushed her to the ground in that bushland. You pinned her down and touched her breasts through her clothing. You then again took her pants off and inserted your finger into her vagina. You moved your finger in and out of her vagina for a short period of time.

47. It is this digital penetration of Suzanna which is the matter of sexual intercourse on the Form 1 to which I have earlier referred. The nature of that matter, notwithstanding that it might be seen as a part of a continuous course of conduct in connection with the relevant principal offence will, nevertheless, result in a meaningful increase in the sentence for that principal offence.

48. You then removed your pants and had penile-vaginal intercourse with Suzanna. This is the principal offence of sexual intercourse with a person above 14 years but under 16 years of age.

49. Whilst you were having this intercourse with her, she was trying to push you off her and she told you to stop.

50. The intercourse continued for about five minutes and then you stopped.

51. You did not ejaculate during this sexual intercourse. Given the struggle which Suzanna was putting up, it is difficult to see how you could have been able to interrupt your attack in order to apply a condom. So whilst the agreed facts do not expressly address the point, the only rational inference in the circumstances is that you were not wearing a condom. There was, therefore, a real risk of pregnancy or the transmission of disease.

52. Suzanna managed to dress and she ran home.

53. Suzanna did not immediately tell her parents about the sexual assaults which she had suffered until approximately five or six years later.

54. By 2017, however, Suzanna had informed her parents of what you had done to her. Her father saw you at a hotel in a Sydney suburb after that disclosure and he confronted you with having sexually assaulted his daughter some five or six years beforehand.

55. Your response to this was to get angry and to challenge Suzanna’s father to a fight. You asserted that the sexual intercourse had been consensual, and you went further and said that his daughter was a “slut”.

56. You were arrested in relation to this matter on 24 January 2018.

57. Somewhat surprisingly, the offence is not a serious children’s indictable offence. However, given the seriousness of the offence and your age and maturity at the time of the offence and at the time of sentence, I order that you be dealt with in accordance with law.

58. In terms of its objective seriousness for an offence of its kind, it is slightly below a mid-range offence.

59. In this context, a victim impact statement was provided to the Court by Suzanna. The statement was not objected to; nor was Suzanna required for cross-examination on it. Although it is brief, it is graphic. It informs the Court that, following your offending conduct, she has, amongst other things, developed mental illness, has had suicidal thoughts, and has on a few occasions actually attempted self-harm. However, whilst it might have been thought that, although brief, the contents of that victim impact statement indicate that Suzanna sustained substantial emotional harm as a result of your sexual assault on her so as to constitute an additional aggravating factor, the Crown has specifically submitted that there are no additional aggravating factors in connection with that victim. That submission may have been made because the Crown had available to it information of which the Court is unaware. And no doubt, because of the Crown’s submission, your counsel did not address the Court this issue. I shall in these circumstances accept that specific submission of the Crown concerning an absence of additional aggravating factors for this victim.

60. There will be a five percent discount on the relevant sentence because of the utilitarian value of the late plea of guilty. There will be no additional discount for remorse because there is no persuasive evidence of remorse.

61. At the time of your offending against her, Ms Jones was 45 years of age and lived in a western suburb of Sydney. You were 22 years old. Her home was situated amongst a number of town houses that face one another. Your father lived in another of those townhouses. You often stayed with your father. The two townhouses were approximately thirty metres away from another. This is how you and Ms Jones met.

62. Ms Jones commenced a relationship with you in late 2017 approximately ten weeks before the night these offences were committed. You initiated that relationship which Ms Jones was initially reluctant to enter into because of the age difference. The relationship was a sexual one and you stayed overnight at Ms Jones’s home from time to time.

63. While the relationship was affectionate in the beginning, your behaviour began to change in a negative manner a few weeks in. There were arguments about your controlling and erratic conduct leading up to the night in question.

64. On the morning of Saturday, 23 December 2017, you and Ms Jones had consensual sexual intercourse. You spent the day together and went shopping and sometime during the day had lunch together at a local hotel. After that you returned to Ms Jones’s home. Ms Jones began to get ready for a pre-arranged night out with you another local hotel.

65. Later that evening, you and Ms Jones arrived at that second hotel, having been driven there by your father. While at the hotel you and Ms Jones both consumed a number of alcoholic drinks but neither of you was intoxicated. There were a number of heated arguments between you during the night. When Ms Jones spoke to one of her friends at the hotel, you confronted him, telling the man you were Ms Jones’s partner and that you and she were on a date night.

66. At the end of the night, you and Ms Jones caught the hotel’s courtesy bus back to Ms Jones’s home. You verbally abused her during the bus trip home and when you were walking up to Ms Jones’s home.

67. You grabbed the Ms Jones’s keys and opened the front door. You insisted you were going to attend her family Christmas lunch and Ms Jones told you that she did not want you there. Eventually, Ms Jones told you the relationship was over. Ms Jones told you, “You’re not coming [to Christmas] and it’s over.”

68. After Ms Jones made this comment you ‘went nuts’. You started yelling at her and told her she had to reimburse you for the money you had spent on her during your relationship. You demanded that she drive you to the bank, so she could repay you. She refused because she had been drinking that night. You then wrote the following on a piece of paper:

“I [Ms Jones] give [Mr Bourke] $400 as reimbursement for money during our relationship. I will not contact police or any law enforcement in regards to any criminal activity done by [Mr Bourke].”

(What was intended to be captured by that last comment was not revealed in the evidence). 

69. Ms Jones told you that she would not sign the document. She thought it was a joke and laughed at you. She then went to let her dog out the back door. You grabbed her and pushed her back inside the unit. You said, “You’re not going anywhere.” You made her sit next to you on the lounge. You both continued arguing about the contract for a period of time.

70. When Ms Jones attempted to stand up, you pushed her back down on the lounge and told her she was not leaving. When you went to the toilet, Ms Jones ran out the back door and went over to your father’s unit. She knocked on the screen door which was closed and locked. She yelled, “Help me Patty, help me!” When your father came to the door, she was begging him to help her and crying.

71. You then arrived and grabbed Ms Jones from behind on her shoulders. You said to your father, “If you know what's, what's fucking good for you, you'll close the fucking door.” Your father shut his door. You then pushed Ms Jones back to her unit. You continued to push her every few steps. You pushed her to the ground near her car. When she got up, she slapped you on the face. You yelled at her.

72. Ms Jones walked to her back door and you pushed her inside. She fell onto the floor. She was crying and begging you not to touch her again. She said, “It took the last guy four years to hit me and it’s taken you ten weeks.” You apologised and tried to hug her on the floor telling her you loved her. Ms Jones screamed at you to get off her. You then stood over her and repeatedly yelled, “Gawdy dog cunt” at her. You told her that she had tripped and you had not pushed her.

73. It is these facts which constitute the offence of common assault (“Count 1”).

74. You then picked up the “contract” you had written earlier and demanded Ms Jones sign it. She signed the first page but then ripped the document up. This enraged you. You picked Ms Jones up and threw her on the couch. You picked up a multi-purpose tool which had a knife attached to it. The blade was not exposed but you held that tool up to her face. You said, "I'll kill you. I’ll slit your throat and watch your blood drip. Then I'll kill your entire family. Did you hear me? You then repeated it telling her, “Did you hear what I fucking said? I’m coming to kill you and your family, your entire family”. Ms Jones was hysterical as she started imagining her family members being killed. She believed you were going to kill her. She was still crying as you said this to her.

75. It is these facts which constitute the offence of using an offensive weapon with the intention of committing an indictable offence (“Count 2”).

76. You said to Ms Jones, “Stop crying, shut the fuck up, stop crying. She told you she wanted to go to sleep on the couch. She closed her eyes because she did not want to look at you anymore. You told her not to go to sleep. You grabbed Ms Jones and walked her into the bedroom. She put her pyjamas on and you took all your clothes off. You demanded that she take her pyjamas off. She said, “Please [Mr Bourke] I have my period.” You yelled, “Get them off and take it out.” Ms Jones went to the bathroom and took her tampon out. You followed her and watched her flush the tampon down the toilet. You then yelled at her to get back in bed.

77. Ms Jones got into bed and you also got into bed with her. You put your leg over her and started kissing her. She did not kiss you back and was laying on the bed. You told her to kiss you like she usually did. It was at this point you grabbed her hands and forced her to masturbate your erect penis. She said, “Don’t touch me, I don’t want to touch you.” You ignored her and told her to “Shush”. She was forced to touch your penis for a minute or two.

78. It is these facts which constitute one of the two offences of indecent assault (“Count 3”).

79. You then rolled on top of Ms Jones and inserted your penis into her vagina. You were kissing her while you were having sexual intercourse with her. She was just lying there crying while you were having sexual intercourse with her. She was crying and begging you to stop.

80. You grabbed her body with both hands and flipped her body over. You then started having sex with her ‘doggy style’ – i.e. Ms Jones was on her knees and you were on your knees behind her. She was still crying as this occurred and begging you to stop. After a few minutes, you ejaculated inside her vagina.

81. It is these facts which constitute the first of the offences of sexual intercourse without consent (“Count 4”).

82. You pushed Ms Jones down onto the bed and made her cuddle you. You told her to cuddle you like she used to cuddle you. You were face to face and you were kissing her on the face and upper body. Ms Jones lay there frozen. She was not responding in any way. You were forcing her to cuddle you for about five to ten minutes.

83. It was at this point Ms Jones saw the multi-purpose tool on the bedside table. It was on the side of the bed you slept on. This tool was within your reach. This further terrified her.

84. After a time, you began kissing Ms Jones again. You got on top of her and pushed her legs above her head so they were straight up in the air. You then inserted your penis into her vagina and started having sexual intercourse with her again. Ms Jones was begging you to let her put her legs down saying, “Please stop, let me put my legs down, please let me put my legs down” as her legs were hurting. You then let her put her legs down.

69. You rolled her over once and inserted your penis into her vagina from behind. You continued having sex with her even though she was begging you to stop and leave her alone. She was crying as she said this to you. This sexual assault lasted a long time. She eventually stopped verbally protesting but she continued to cry. She just waited for you to stop. You eventually ejaculated inside her vagina. You made her roll over and cuddle you again.

70. It is these facts which constitute the second offence of sexual intercourse without consent (“Count 5”).

71. You asked Ms Jones if she wanted a cigarette. She accepted the cigarette and you both smoked in bed. You then started telling her how you would be coming to her family Christmas lunch. She said, “It’s over, I don’t want you coming near my family.” You said “You didn’t believe me when I said I was a standover man. I will slit your throat and watch your blood drip.” She was crying uncontrollably. You told her several times to shut up.

72. It is these facts which constitute the offence of intimidation (“Count 6”).

73. Ms Jones pretended to go to sleep for 10 to 15 minutes while you were lying next to her. At some point in the night, she got up slowly and tried to leave the bedroom. You immediately got up and told her to get back into the bed. She complied because she was scared. When she was back in the bed, you put your arm and leg over her so she could not get up again without waking you.

74. Ms Jones woke up next to you the following morning (24 December 2017). You were looking at her as she awoke and said, “Good morning.” You tried to kiss her. She begged you not to. She said, “Don’t go there again, please don’t go there again.” You ignored her and continued kissing her.

75. You got on top of her and inserted your penis into her vagina. You had sexual intercourse with her for a short time and ejaculated soon after. While this was occurring, she was telling you to stop.

76. It is these facts which constitute the third offence of sexual intercourse without consent (“Count 7”).

77. Afterwards you began talking about Christmas again and asked if you could come to her family Christmas. She agreed to let you attend as she thought it was the only way to end what was happening and that if she agreed she may be able to escape.

78. You began ranting about New Year’s Eve and how 2018 was going to be both your and her year, and that you were so in love with her you would be together forever. You told her she would never have another boyfriend and that you would be her last boyfriend.

79. After that conversation, you rolled Ms Jones onto her back and got on top of her again. You inserted your penis into her vagina. She said, “I’m sore, [Mr Bourke], can – enough I’m so sore,” but you ignored her. She said that to you a number of times.

80. You rolled her onto her front so she was on her knees and had sexual intercourse with her from behind once again. You then ejaculated inside her vagina. This incident of sexual intercourse was one of the longest instances of that offence.

81. It is these facts which constitute the fourth offence of sexual intercourse without consent (“Count 8”).

82. Afterwards you made her cuddle you once again. You told her that you loved her. She never responded to you. You were cuddling her for 20 minutes to half an hour.

83. After that period of time, you began kissing Ms Jones on her lips and on the top of her neck. You then took her hand and placed it on your penis. You made her masturbate you for a few minutes. This time it was more forceful. She did not want to touch you, but she thought if she went along with it would be over more quickly.

84. It is these facts which constitute the second offence of indecent assault (“Count 9”).

85. After a period of time you said, “You need to grind me.” Ms Jones rubbed herself up and down on you like you wanted her to. You then got on top of her once again and placed your penis into her vagina.

86. As you were having sex with her, she was crying and telling you, “Not any more I am so sore. Enough.” After a while she told you that she needed to go to the bathroom. You stopped having sex with her and allowed her to go to the toilet. You accompanied her to the bathroom and watched her go to the toilet.

87. It is these facts which constitute the fifth offence of sexual intercourse without consent (“Count 10”).

88. When she finished using the toilet, you led her back to bed. She begged you, saying “No more” as she was still very sore. You asked if you could perform cunnilingus on her instead. She responded, “[Mr Bourke], No, I have my period, just leave me alone. You’re not going there.” You then said, “Well what the fuck do you want me to do with this then?” while pointing to your erection.

89. You then told Ms Jones to bend over the bed. She did as she was told. You stood behind her and put your penis into her vagina and had sexual intercourse with her while she was leaning over the edge of the bed. She said to you she was sore and begged you to stop but you ignored her.

90. The sexual assault went for a long time and was quite hard. The sexual intercourse on this occasion was more painful and more forceful. After a long time, you removed your penis from her vagina and said, “I can’t cum my balls must be empty.” You then made her get on the bed and cuddle you.

91. It is these facts which constitute the sixth offence of sexual intercourse without consent (“Count 11”).

92. While you were laying on the bed, Ms Jones asked you where her phone was. You responded, “Sorry your phone has gone in the ocean.” At the time she did not know what you meant by this. Her mobile phone (Apple iPhone 5 valued at $500) has not been recovered.

93. It is these facts which constitute the offence of larceny on the s 166 certificate (“Sequence 7”).

94. After the conversation about her phone, you removed her keys from under the mattress. She immediately saw the key to her car had been bent. You grabbed the multi-purpose tool on the bedside table. You used the pliers to try to straighten the key. In the process, the key snapped in half. She was unable to drive her vehicle as a result.

95. It is these facts which constitute the offence of damaging property on the s 166 certificate (“Sequence 9”).

96. Around 11 am on the 24th December 2017, Ms Jones told you that she wanted to go call her mother. Her phone was missing so she asked you if she could go ask her neighbour (John) for her mum’s phone number. After she got dressed, you allowed her to leave her home with her dog. She took her dog with her as a possible distraction.

97. You went with her. Ms Jones knocked on John’s door and she spoke with him when he opened the door. As you were standing behind her, you could not see her face. During the conversation with John, Ms Jones mouthed the words. "Call the Police." John made up a story about needing to speak with another resident in the unit block named Les. John said, “Come help us look for Les, [Mr Bourke].” You and Ms Jones followed John upstairs.

98. John went into Les’ apartment and called the police. You and Ms Jones were standing together outside the unit while that call was made. When John came out of Les’ apartment, John gave Ms Jones a thumbs up to indicate the police were on their way.

99. After she had raised the alarm, you and Ms Jones returned to her unit and lay on her bed. She was attempting to keep you calm until the police could arrive.

100. You then told her that you were going over the road to your father’s place to get fresh clothes so you could have a shower at her place. A few minutes after you left, Ms Jones locked the front door and bolted the back door. She took your belongings and put them into a suitcase.

101. You returned a short time later and began banging on the front door. You yelled, “[Ms Jones] what are you doing? Let me in. I thought everything was ok.” She responded, “It’s not ok and it’s never going to be ok, you’re never coming in my fucking house again. Stay the fuck away from me.” You kept saying, “What’s going on I thought were ok, let me in.” You then ran around to the back of the unit and began banging on the back door.

102. When she heard you at the back door, Ms Jones opened the front door and threw out the suitcase with all your belongings. You managed to get back to the front of the unit and prevented her from closing the door. As you were pushing the door open, Ms Jones was screaming at you to get out of her house. You managed to push the door open and force her outside. You then closed the door.

103. John came out of his unit and told you to leave Ms Jones alone. You grabbed some beer and bourbon from Ms Jones’s kitchen and then walked out of the unit. Ms Jones told you, “That’s not even yours I paid for that.” You responded, “I don’t give a fuck I’m taking it.” You also grabbed the suitcase with your belongings and then walked over to your father’s unit. John stayed with Ms Jones until the police arrived.

104. Police attended the scene soon after. They saw Ms Jones’s obvious distress. It was quite evident to attending police she was extremely fearful of you. Police entered Ms Jones’s home with her permission. They seized a number of items including the bottom half of the ‘contract’ you had drawn up the previous night and forced her to sign. The top half of this document was not recovered.

105. Ms Jones attended Liverpool Hospital and underwent a SAIK examination. Analysis of the SAIK kit revealed a number of supporting pieces of evidence: namely, semen was detected on the high and low vaginal smears. A DNA profile matching you was located on the high vaginal swab.

106. It is now necessary for me to make findings of the objective seriousness of the individual offences for offences of their kind in relation to Ms Jones.

107. Count 1 is somewhere equidistant between the middle and the bottom of the range.

108. Count 2 is well above the mid-range and into the upper range.

109. Count 3 is just above the mid-range.

110. Count 4 is well above the mid-range.

111. Count 5 is above the mid-range and into the upper range.

112. Count 6 is well above the mid-range.

113. Count 7 is just above the mid-range.

114. Count 8 is well above the middle of the range.

115. Count 9 is above the mid-range.

116. Count 10 is well above the mid-range.

117. Count 11 is approaching the top of the range of objective seriousness.

118. Insofar as the two s 166 certificate offences are concerned, the larceny offence is slightly below a mid-range offence for an offence of its kind, and the damage property offence is towards the bottom of the range.

119. I have made these express findings as to the objective seriousness of each principal offence involving Ms Jones, as I am required to do. However, it would be totally unrealistic, in assessing the totality of your criminal offending, to look at any one offence in isolation. Each offence was but one part of an horrific ordeal to which you brutally and callously subjected this lady over many hours. Whilst some of the offences, if they had occurred in isolation, might have attracted a lesser description, taken as a whole, your overall criminality is well into the upper range of objective seriousness.

120. Each of the offences against Ms Jones is additionally aggravated by the fact that it was committed in her home.

121. Furthermore, each of the offences is additionally aggravated because of the substantial emotional harm done to her. In this regard, I refer to the contents of the confronting and harrowing victim impact statement in which, amongst other things, Ms Jones has told me of the manner in which you have effectively destroyed her life. In particular, her mental health has been very substantially compromised. A graphic example in this regard can be found in the fact that Ms Jones’ daughter is so afraid of her mother’s mental health issues – as a direct result of what you did to her – that that daughter rings her mother at least 3 to 4 times a day because she is afraid of her mother taking her life.

122. At the time you committed the sexual offending against Suzanna somewhere in 2011 or 2012, you were either 15 or 16 years of age.

123. At the time you committed the sexual offences against Ms Jones, you were 22 years of age. You are now 24 years old.

124. You did not give direct evidence in the sentence hearing as to your subjective circumstances. Rather, those subjective circumstances have come before me by means of a report from Dr Calvin, a psychiatrist.

125. In this context, I have looked with scepticism on much of what you have told Dr Calvin, unless that history has been independently corroborated – for example, by the Sydney Children’s Hospital records and the reports from DOCS. This is because you are, in my opinion, a dishonest person. In this regard, I have noted earlier how you asserted to Suzanna’s father in the hotel that she had consented to the sexual intercourse (an assertion clearly untrue given your late plea of guilty); and in the history you gave to Dr Calvin, you apparently said that you used methamphetamine and cannabis with Ms Jones – something that I regard as untrue.

126. However, it may be accepted that your early childhood was dysfunctional and that accordingly your moral culpability for your offending is to be reduced in the manner directed by the High Court in R v Bugmy.

127. You had behavioural issues before you were 7 years of age.

128. At 7 years of age you were involved in a motor vehicle accident in which you sustained a significant head injury which exacerbated your behavioural problems, which seem to have a further deteriorated when you were about 12 years of age.

129. In passing, I note that in the interview with Dr Calvin you apparently wondered if you were “psychopathic”. Having closely watched you during the trial and the sentence hearing in which you displayed absolutely no emotion whatsoever, not even during the harrowing manner in which Ms Jones read her victim impact statement to the Court, I had a similar thought about you.

130. Dr Calvin has concluded that you suffer from a Cluster B personality with prominent anti-social, borderline and narcissistic personality traits.

131. You have used illicit drugs since you were 15 years old. Those drugs started with cannabis but quickly escalated to methylamphetamine and heroin, such that you now suffer from a chronic cannabis, opiod and stimulant use disorder. You have made unsuccessful attempts at rehabilitation and you are unable to remain abstinent even in a controlled environment.

132. You have no insight into your offending conduct (such insight as you do have is superficial at best); and your judgment is impaired.

133. I do not accept the second-hand expressions of remorse which you provided to Dr Calvin.

134. You have never had a functional long-term personal relationship. And you have not had a history of meaningful or consistent employment.

135. At the time you committed the offence in 2011 / 2012 against Suzanna, you did not have any previous criminal convictions. Accordingly, you are entitled to the leniency which, in appropriate circumstances, can be extended to a first offender in relation to that offending – and also to the additional leniency that can be extended to a young offender.

136. However, by the time you committed the offences against Ms Jones, you had not only committed the offence against Suzanna together with other serious offences as a juvenile (which cannot be held against you) - but you also, as an adult, have received terms of imprisonment for a variety of offences, such as assaulting an officer in the execution of duty, common assault, resist an officer, larceny, demand property with menaces, and assault with intent to rob in company. You are therefore not entitled to the leniency which, in appropriate circumstances, can be extended to an adult first offender.

137. I have also noted the many punishment details on your record since you were taken into custody after your arrest on 24 December 2017.

138. In my opinion, your prospects for rehabilitation are poor, notwithstanding your relatively young age.

139. In your case, specific and general deterrence and the need to protect the community are of much greater significance than rehabilitation – although it remains relevant.

140. You have been in custody since you were arrested on 24 December 2017, and the sentence which I shall shortly impose will be backdated to that date.

141. Notwithstanding your relatively young age, I decline to make a finding of special circumstances to vary the ratio of the non-parole period to the head sentence. The non-parole period I shall impose will be of sufficient length to assist in your rehabilitation.

142. I intend imposing an aggregate sentence.

143. It is therefore necessary for me to state the indicative sentences underpinning that ultimate aggregate sentence – a sentence which must ultimately have regard to totality.

144. Those indicative sentences are as follows.

145. In relation to the offence involving Suzanna, and taking into account the matter on the Form 1, the indicative sentence is 5 years minus 5 per cent, that is 4 years 9 months.

146. The following are the indicative sentences in relation to Ms Jones.

147. In relation to Count 1, the indicative sentence is 6 months imprisonment.

148. In relation to Count 2, the indicative sentence is 7 years imprisonment.

149. In relation to Count 3, the indicative sentence is 3 years imprisonment.

150. In relation to Count 4, the indicative sentence is 8 and a half years imprisonment and the indicative non-parole period is 6 years 4 months.

151. In relation to Count 5, the indicative sentence is 9 years imprisonment and the indicative non-parole period is 6 years 9 months.

152. In relation to Count 6, the indicative sentence is 3 years imprisonment.

153. In relation to Count 7, the indicative sentence is 7 and a half years imprisonment and the indicative non-parole period is 5 years 7 months.

154. In relation to Count 8, the indicative sentence is 9 years 6 months and the indicative non-parole period is 7 years 1 month.

155. In relation to Count 9, the indicative sentence is 3 years 6 months.

156. In relation to Count 10, the indicative sentence is 9 and a half years and the indicative non-parole period is 7 years 1 month.

157. In relation to Count 11, the indicative sentence is 12 years imprisonment and the indicative non-parole period is 9 years.

158. Finally, in relation to each of the two matters on the s 166 certificate, in each case, the indicative sentence is 6 months imprisonment.

159. Mr Bourke, in relation to the 11 Counts of which the jury found you guilty, the two matters on a s 166 certificate of which I have convicted you, and of the one Count on the indictment to which you pleaded guilty, I sentence you to an aggregate term of imprisonment of 16 years and 6 months.

160. I fix a non-parole period of 12 years to date from 24 December 2017 and which will expire on 23 December 2029.

161. I fix a balance of 4 years and 6 months to date from 24 December 2029 and which will expire on 23 June 2034.

Decision last updated: 19 February 2020