R v Brisbane (a pseudonym)

[2019] NSWDC 785

District Court

New South Wales

Medium Neutral Citation:	R v Brisbane (a pseudonym) [2019] NSWDC 785
Hearing dates:	12 December 2019
Decision date:	12 December 2019
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 7 years with a non parole period of 5 years 3 months.
Catchwords:	CRIME - SENTENCE - Sexual intercourse without consent (domestic violence context); doing an act with intent to pervert the course of justice; contravening an apprehended violence order.
Legislation Cited:	Crimes Act 1900 (NSW), ss61I and 319; Crimes (Domestic and Personal Violence) Act 2007 (NSW) s14(1)
Category:	Sentence
Parties:	Regina (Crown) Mr Brisbane (a pseudonym) (Offender)
Representation:	Mr Diggins (ODPP Campbelltown) Mr Jauncey (Counsel for the offender)
File Number(s):	2018/287720
Publication restriction:	Non publication order made of the names of the offender, victim or of anything that might directly or indirectly identify either of them.

Judgment

1. Mr Brisbane (a pseudonym), you appear for sentence today in relation to three offences.

2. The first offence is that of sexual intercourse without consent, in a domestic violence context. This involves a contravention of s 61I of the Crimes Act. The maximum penalty for that offence is 14 years' imprisonment and there is a standard non-parole period of 7 years' imprisonment.

3. The second offence is that of doing an act intending to pervert the course of justice. This involves a contravention of s 319 of the Crimes Act. The maximum penalty for that offence is 14 years’ imprisonment and there is no standard non-parole period.

4. The third offence is a matter on a s 166 certificate, which you have consented to this Court dealing with, and that is contravening a prohibition or a restriction in an apprehended violence order. This involves a contravention of s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007. The maximum penalty for that offence in the Local Court is a period of 2 years’ imprisonment.

5. The facts surrounding your offending are contained in an agreed statement of facts - to an extent supplemented, or qualified, by the contents of a sentence assessment report and a psychological report.

6. I find the facts to be as follows.

7. You were in a domestic relationship with the (female) victim for a period of three years until the middle of 2018.

8. At the time you commenced that relationship with that lady, she already had two children.

9. During the course of your relationship with her, she had a third child to you.

10. The relationship was one which was marked by domestic abuse and, indeed, it was because of that domestic abuse - from you to her - that caused the relationship to finally end.

11. As at 14 September 2018 you and she had been separated for some time -and as at 14 September 2018 you were on bail for a series of offences (or, at that point, alleged offences) involving that lady.

12. On 16 September 2018, and whilst on bail, you began messaging her (it would seem by use of a mobile phone) in which you sought to “rekindle” the relationship. She was not interested.

13. Late in the evening of 16 September 2018, in breach of your bail, you went to her house and you used a key to get in. She was upset at your arrival and she told you to leave. You contemptuously refused to do so.

14. You then made yourself “at home” by making a meal and consuming it in the lounge room, notwithstanding that the victim continued to tell you to leave.

15. You then proceeded to shower in her house.

16. Once you had finished showering, and got dressed, she again continued to tell you to leave.

17. There was a physical struggle between the two of you.

18. You then told her that you were going to rape her.

19. The struggle continued between the two of you.

20. The victim continued to tell you to leave. You became angry with her and you again told her that you were going to rape her - and that is exactly what you did. You pulled her pants off; you forced her legs open; and then you had penile/vaginal intercourse with her (during which you were not wearing a condom) and you ejaculated into her.

21. There is some suggestion in the material that you were under the influence of methylamphetamine this night but that rape of that woman has to be understood in the context of a long term domestic abuse by you of her. It was the latest act of abuse from you to her.

22. You were ultimately arrested in relation to that offence and you were refused bail.

23. After you had been arrested, the apprehended violence order which had previously been in existence was varied to include a condition that you were not to approach her or contact her in any way unless the contact was through a lawyer.

24. Whilst you were on remand, and in breach of that order, you arranged for your mother to contact the victim repeatedly, trying to get her to drop the charges. Your mother was a willing participant in that attempt to pervert the course of justice. Your mother was also a willing participant in that breach of the apprehended violence order. Strangely, she has not been prosecuted.

25. These attempts to get the victim to withdraw her cooperation with the police constitute both the breach of the AVO and the pervert course of justice offences.

26. In terms of their objective seriousness for offences of their kind, the sexual assault matter is a mid-range offence; the do act with intent to pervert the course of justice is towards but not at the bottom of the range; and the breaching of the AVO is also towards but not at the bottom of the range of objective seriousness for an offence of its kind.

27. The sexual assault offence is additionally aggravated because: it occurred in the home of the victim; it was committed whilst you were on conditional liberty; and it involved both the threat and the use of actual violence.

28. There is no victim impact statement from the victim. Undoubtedly that experience would have been deeply traumatising to her - but there is no material before me to suggest that her reaction is more severe than might be expected so as to constitute an additional aggravating factor.

29. You did not give evidence in the sentence hearing. Rather your subjective circumstances have been advanced through the sentencing assessment report and the psychologist’s report which provide for very depressing reading - because in both of those reports you display no insight into your criminality; you minimised your criminality. In fact, to the author of the sentencing assessment report, you continued to maintain that the assertions of the victim are fabrications.

30. You are now 28 years old.

31. You have a criminal history which does not assist you. It does not aggravate your offending; but you are not entitled to the leniency which, in appropriate circumstances, can be extended to a first offender.

32. You were brought up in a loving and supportive household. There is nothing in your background to explain why it was that you had such a toxic and vicious relationship with this woman. According to the sentencing assessment report, you were unable to identify yourself as a sex offender. Let me disabuse you of that, Mr Brisbane: you are - and a vicious one.

33. When you left school, you worked hard, mostly in the roofing industry. But your employment has been sporadic because, according to your own psychologist’s report, you like to “break the rules”.

34. You have a long term and significant drug abuse history. You have used cannabis, amphetamines, ecstasy, cocaine and, in more recent times, methylamphetamine. You have not sought any treatment for your drug use and you minimise the extent to which it has influenced and disrupted your life.

35. Your plea of guilty was entered on arraignment and the law requires me to give you a discount of 10% for your pleas.

36. The Court is required to assess your prospects of rehabilitation.

37. The usual starting point is an offender’s expression of remorse but that is absent here. Quite the reverse.

38. It is submitted that your connection to your son, who will be four years old soon, will be an incentive to you to realise your wrongdoing. I pause to observe that it has not caused you to realise that yet. I am informed that your mother is intending to obtain custody of that child in the Family Court. Whether she succeeds or not is a matter for that Court. The attitude of the child’s mother might well be of significance to the Family Court and, of course, the Family Court will take into account, as its paramount consideration, the best interests of the child. I am not able to speculate as to the outcome of your mother’s application. Her role in your offending conduct may be something that the Family Court considers significant, but that will be a matter for that Court. The point being, Mr Brisbane, I am not currently satisfied that your commitment to your son is a motivating factor in you rehabilitating. There is in fact nothing in the material before me that says you are remotely interested in rehabilitating. I regard your prospects as poor; and they would certainly not be enhanced by a longer period on parole.

39. In your case, specific and general deterrence, and the need to protect the community, are all fully engaged.

40. I intend imposing an aggregate sentence.

41. I am required to state the indicative sentences underpinning the aggregate sentence.

42. For the offence of sexual intercourse without consent, except for your plea of guilty, I would have sentenced you to a term of imprisonment of 7 years. Because of the discount of 10%, the indicative sentence is 6 years and 3 months. The indicative non-parole period is 4 years and 8 months.

43. In relation to doing an act intending to pervert the course of justice, except for your plea of guilty, I would have sentenced you to a term of imprisonment of 2 years. After the discount of 10%, the term of the indicative sentence is 1 year and 9 months.

44. In relation to the contravention of the AVO, except for your plea of guilty, I would have sentenced you to a term of imprisonment of 6 months. After the discount of 10%, the indicative sentence is 5 months.

45. Except for the aggregate sentence, the terms of imprisonment for the pervert course of justice and the breach of the AVO offences would have been totally concurrent. They would, however, have been partially accumulated with the offence of sexual intercourse without consent.

46. I note that you were imprisoned in relation to other matters from 14 September 2018 to 13 December 2018. By having regard to totality, the start date of the sentence I shall impose will be 14 December 2018.

47. For these three offences, Mr Brisbane, I sentence you to an aggregate term of imprisonment of 7 years. I fix a non-parole period of 5 years and 3 months to date from 14 December 2018 and which will expire on 13 March 2024.

48. I fix a balance of 1 year and 9 months to date from 14 March 2024 and which will expire on 13 December 2025.

49. Whether you are admitted to parole or not, Mr Brisbane, is a matter for the State Parole Authority; and, to a large extent, that will depend upon whether you satisfactorily complete any of the programs that are made available to you. I note that in the course of your experienced counsel’s submission I was informed that you would be required to participate in the MYSOP program. If you persist in the attitudes disclosed to the psychologist and the author of the sentencing assessment reports it is unlikely you would satisfactorily complete that program and that will imperil your prospects of being released to parole.

Decision last updated: 31 January 2020