R v Bullaman

[2022] NSWDC 588

District Court

New South Wales

Medium Neutral Citation:

R v Bullaman [2022] NSWDC 588

Hearing dates:

17 November 2022

Date of orders:

25 November 2022

Decision date:

25 November 2022

Jurisdiction:

Criminal

Before:

Mahony SC DCJ

Decision:

Full-time custodial sentence. For orders see [66].

Catchwords:

CRIME – sentence – sexual intercourse without consent and knowing no consent given – s166 offence – carry cutting weapon upon apprehension

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Criminal Procedure Act 1986

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67

Fisher v R; R v Fisher [2021] NSWCCA 91

Jonson v R (2016) 263 A Crim R 268; [2016] NSWCCA 286

R v Carter [2003] NSWCCA 243

Veen v R [No. 2] (1998) 164 CLR 465; [1998] HCA 14

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
Duncan Andrew Bullaman (Offender)

Representation:

Counsel:
K. Hogan (Crown)
T. Ramrakha (Offender)

Solicitors:
S. Doi (ODPP)
S. Knowles (Legal Aid)

File Number(s):

2021/00050384

Publication restriction:

Section 578A of the Crimes Act 1900 prohibits publication of any matter which identifies the complainant or any matter which is likely to identify the complainant in the proceedings.

remarks on sentence

1. On 18 August 2022 the offender was arraigned on the following two counts on an Indictment:

1. On or about 22 February 2021, in [R] in the State of New South Wales, did have sexual intercourse with [PW] without her consent and knowing that [PW] had not consented to the sexual intercourse.

2. On or about 22 February 2021, at [R] in the State of New South Wales, did intimidate [PW] with the intention of causing the said [PW] to fear physical harm.

2. The offender pleaded not guilty to both counts.

3. On 29 August 2022 the jury delivered a verdict of Guilty on Count 1 and Not Guilty on Count 2. The offender is therefore to be sentenced in respect of Count 1, an offence under section 61I of the Crimes Act 1900. The maximum penalty prescribed for the offence is 14 years imprisonment and there is a standard non-parole period of 7 years imprisonment.

The Sentence Hearing

4. The sentence hearing took place on 17 November 2022. The Crown sentence summary became Exhibit A. It noted that in addition to being sentenced for the offence in Count 1, the offender was also to be sentenced in respect of sequence 3, being an offence of carry cutting weapon upon apprehension pursuant to s547D of the Crimes Act 1900. That was an offence that was on a certificate pursuant to s166 of the Criminal Procedure Act 1986 to which the offender had pleaded guilty.

5. The parties agreed that the following facts may be derived from the jury verdict.

1. The offender in this matter is Duncan Bullaman (DOB 26.11.1976). He was 44 years old at the time of the offence. At the time of the offence, the offender lived with a person known as Jacqueline Fuller at premises at Walker Street, Redfern (“the residence”). The victim is [PW]. The offender and the victim are known to each other. The victim knew the offender for around five years and considered him a friend.

2. On Saturday 20 February 2021, the victim was visiting Jacqueline and stayed at the residence overnight. The witness, Keegan “Boogle” Laurie, was also staying at the residence.

3. On Sunday 21 February 2021, the offender came home in the afternoon. The victim, Boogle and Jacqueline went to the park next to Central Station for a meal. They returned to the residence at 6:00pm.

4. The offender put a mattress on the floor. The witness and the victim laid on the mattress and fell asleep. A short time later, the witness got up and moved to the lounge because he was tossing and turning.

5. When the witness was on the lounge, he saw the offender lay down next to the victim. The victim was asleep and did not wake up.

Count 1: Sexual intercourse without consent - Pursuant to s 61I of Crimes Act 1900 (NSW)

1. At around 1:15am on Monday 22 February 2021, the victim was sleeping on her left side. She woke up when she felt the offender’s penis inside of her vagina. The victim felt two pushes and then stood up and saw the offender lying directly behind her on his side.

2. The victim did not know whether the offender ejaculated, nor whether he was wearing a condom.

3. She started punching the offender in the face and yelled at the offender, “What the fuck? What the fuck’s going on you dog?”

4. The victim went into the room where Jacqueline was sleeping and screamed at her to ‘get up’ because ‘this fucking dog raped me.’

000 call

1. The victim, the witness and Jacqueline left the unit. They went to the phone box on Morehead Street and the victim called “000”. During the call, the victim said the following –

• “I just need [police] because I laid down to sleep and this so called friend, I woke up and he was, he was touching me down there.”

• “His first name is Duncan. I don’t know his surname mate.”

• She had just woken up “from that dirty filthy cunt putting his cock inside me in his house.”

Admission

1. The witness returned to the unit to collect his luggage. The offender said to the witness, “I shouldn’t have did [sic] that” and “it wasn’t my fault.”

Complaint

1. When police arrived, the victim told police, “I woke up and he was inside me.” When asked who she was referring to, she said “Duncan.” The victim is captured on body worn footage saying to police, “it’s like ‘did he have his cock inside you?’ And it’s just like that again. I’ll have to say yes he did”.

2. The victim was then taken to Royal Prince Alfred Hospital where she was examined by Dr Jennifer Martinez. The victim told Dr Martinez that she had woken up to a known male acquaintance on top of her, and that he was engaging in penile-vaginal intercourse on top, from behind her.

Plea of guilty - Carry cutting weapon - Pursuant to 547D of Crimes Act 1900 (NSW) (Offence on s 166 Certificate)

1. At around 2:00am on the same day, police arrived at the residence. Police approached the front door of the unit when they heard a noise from downstairs like the opening and closing of a door. Police then saw the offender in a blue t-shirt and chequered shorts coming up the stairs. The offender was holding a pair of silver scissors and a broken plastic fork in his left hand and a pair of shoes in his right hand. Police then activated body worn footage. The pair of scissors was seized.

Arrest

1. The offender was placed under arrest and cautioned. The offender exercised his right to silence and declined to take part in an interview.

Forensic evidence

1. A Sexual Assault Investigation Kit was administered on the victim at Royal Prince Alfred Hospital. Dr Martinez took a high vaginal canal swab and smear. A DNA analysis was conducted and a male profile “Y1” was recovered. Y1 matched the offender and is also expected to match all male relatives on his paternal line.

2. Police took a tape lift of the inside front of the blue bonds underwear seized from the offender. The DNA recovered is a mixture that originates from at least two individuals. The offender and the victim cannot be excluded as contributors to this mixture. Assuming there are two contributors, and that one of the contributors is the offender, it is greater than 100 billion times more likely to obtain this mixed profile if it originates from the offender and victim, rather than if it originates from the offender and an unknown, unrelated individual in the Australian population.

6. The facts as agreed by the parties coincide with the facts that I derived from the jury verdict and other facts upon which the offender is to be sentenced.

7. Exhibit A also included the offender’s criminal history which was lamentable. The offender was born on 26 November 1976 and his criminal history commenced in 1989 in the Walgett Children’s Court. There were numerous offences in that jurisdiction and from the age of 18 numerous convictions in the Local Court for dishonesty, violence, malicious damage, possession of drugs, offensive conduct, assault with intent to rob, being armed, robbery, aggravated robbery, and assault police until 2001. There was then a hiatus in his offending until 2009 when he had moved to Sydney and his offending escalated over the ensuing years for numerous offences of dishonesty, violence, robbery, weapons, resist and assault police, possession of drugs, possession of housebreaking implements, and goods in custody for which he was sentenced to increasingly lengthy terms of imprisonment.

8. In 2004 he had been convicted of an offence of sexual intercourse without consent. Exhibit A included the facts behind that offence which disclosed that the victim had been asleep and awoke to find the offender having penetrative sexual intercourse with her, not unlike the present index offending.

9. The index offences were committed at a time when the offender was subject to five Community Corrections Orders relating to six separate offences although four of those orders had been imposed for a period of 2 years from 16 May 2019 and they had been substantially completed.

10. Exhibit A further noted that between 2 July 2021 and 1 October 2021 the offender served a three-month sentence for goods in personal custody. The offence occurred on 22 February 2021 and he was in custody from that date following his arrest until 1 July 2021, and then from 2 October 2021 to the present, a total of over 1 year and 9 months.

11. Exhibit A included the victim impact statement in which the victim outlined the impact of the offending on her. She stated that it made her feel “angry, shameful, sad” and that her sleep was “disturbed”. She was planning to start counselling to help her deal with her anger, stress and sadness and relationships with men which were difficult for her because she had trust issues which impacted upon her every day. She also felt unsafe unless she was locked in her room and she struggled to leave her house. She expected the offence will stay with her for the rest of her life.

12. Exhibit B was a Sentencing Assessment Report under the hand of T Olsen dated 8 November 2022. The author noted that the offender had incurred three institutional misconduct charges since February 2021 and had displayed aggressive behaviour towards staff and other inmates. He had attended two sessions of the addiction support program during his current remand period. The author noted the offender’s intention of residing on the Central Coast in social housing to be closer to his daughter upon his release from custody. He maintains contact with his partner who offers emotional and financial support.

13. The author noted the offender’s extensive history of violent behaviour including domestic and sexual violence with convictions for robberies and drug possession. His previous sexual assault conviction was noted to be of a similar nature and circumstances to the current offence. It was noted that his offending appeared to be linked to his illicit substance dependency.

14. Under the heading ‘Attitudes’ the author noted that the offender refused to discuss his offending. Whilst he did not specifically deny the offence, he reiterated that he initially pleaded not guilty but now reported that although reluctant, he accepts the offences so that he can “move on”. A CSNSW psychological consultation identified a number of risk factors which included a lack of significant social influences, hostility towards women, impulsivity and negative emotionality. He was assessed as falling within the average risk range for sexual recidivism.

15. CSNSW records also indicated a decline in the offender’s mental health from March 2022. He was prescribed anti-depressant medication which led to a positive shift in his mental health.

16. Under the heading “Insight into impact of offending” the author noted the offender was unwilling to reflect on the impact of this type of offence on victims in general. He was focused on the ramifications his incarceration has had on his own mental health.

17. It was noted the offender was willing to engage in intervention to address his alcohol and drug use and mental health. He was assessed as a high risk of reoffending and as unsuitable for community service work.

The offender’s evidence

18. The offender relied on an affidavit of his solicitor Suzanne Knowles affirmed on 14 November 2022. It annexed relevant records from Corrective Services NSW and Justice Health and identified five periods of isolated quarantine and lockdowns sustained during the offender’s incarceration. Those periods varied between 3 days and 18 days in duration and totalled 48 days. The annexed documents clearly evidenced that the offender had been incarcerated substantially in protective custody. The Justice Health records provide evidence of his life of disadvantage growing up in Walgett and being exposed to alcohol and domestic abuse, his history of drug and alcohol addiction, his mental health issues and his suboxone therapy.

The Crown submissions

19. The Crown relied on a written outline of submissions in which in respect of Count 1 it was submitted that there was no alternative to a sentence of fulltime imprisonment.

20. The Crown submitted the following aggravating factors should be taken into account pursuant to s21A(2):-

1. (2)(d) – Record of previous convictions.

The offender’s extensive criminal history including an offence of sexual intercourse without consent that occurred in similar circumstances in 2004 meant that retribution, deterrence and protection of society may indicate that a more severe sentence is warranted than otherwise. It was noted that there are a number of offences relating to the custody of a knife in a public place.

2. (2)(eb) – The offence was committed in the home of the victim or any other person

Relying on Jonson v R (2016) 263 A Crim R 268; [2016] NSWCCA 286 the Crown submitted that whilst the offence occurred in the offender’s home the victim was staying there at the time and as such this was an aggravating factor.

3. (2)(j) – The offender was on conditional liberty

The Crown submitted that the offender was subject to five Community Corrections Orders at the time of the offences and therefore was on conditional liberty which was an aggravating factor.

21. The Crown submitted that it was a mitigating factor to be taken into account pursuant to s21A(3)(k) that the offender had entered a plea of guilty in relation to the related offence at an early opportunity.

22. The Crown submitted that the objective seriousness of the offending here was to be assessed by reference to the penetrative sexual activity whilst the victim was asleep. The victim was vulnerable and was clearly significantly distressed when she awoke to find the offender engaging in penile-vaginal sexual intercourse with her. The Crown submitted the offending fell just at the mid-range of objective seriousness. The Crown conceded that the objective seriousness of the related offence fell at the lower-end of objective seriousness for an offence of it’s type.

23. The Crown relied on Fisher v R; R v Fisher [2021] NSWCCA 91 in which Brereton J had described similar offending as “presumptuous and contemptuous of the complainant’s personal rights, bodily integrity and dignity and calls for denunciation and general deterrence” (see [44]). It was submitted that general deterrence is paramount in the sentencing here as was specific deterrence.

24. The Crown submitted that the Victim Impact Statement spoke of the harm caused by the offence which had to be recognised in the sentence.

25. In her oral submissions the Crown submitted that based on the Sentencing Assessment Report the offender had very limited remorse which was self-focused. He had declined to participate in intervention programs for sexual offenders and had been assessed as being a high-risk of recidivism and unsuitable for community service.

26. The Crown rehearsed her submissions in relation to the offender being on conditional liberty, being subject to five community correction orders for six different offences at the time of the current offences. The Crown submitted this indicated that he had real issues with compliance with court orders. He also had long standing substance abuse issues and had refused treatment or rehabilitation.

27. The Crown noted that the offender in his written outline of submissions had submitted the objective seriousness of the offence was diminished by an inference to be drawn from the evidence that it was a reasonable possibility the offending occurred over a matter of seconds. The Crown submitted it was not possible to determine how long the sexual intercourse took. The victim gave evidence that she didn’t know because she was asleep at the time. Also relevant to the assessment of objective seriousness was the question of the offender’s knowledge that the victim was not consenting. The Crown had gone to the jury on three bases, namely, that the offender knew that the victim was not consenting because she was asleep, or alternatively he was reckless as to her consent or that he had no reasonable grounds for such a belief.

28. The Crown submitted that the fact that there was no threat or violence was irrelevant to the assessment of objective seriousness relying of Fisher v R at [242]. The Crown conceded that this was an offence involving opportunism in that there was no evidence of planning. Given the nature of the penile-vaginal penetration the offending fell within the mid-range of objective seriousness.

29. The Crown submitted that on the evidence before the court it was unclear what disadvantage the offender had suffered during his life. The documents relied upon by the offender annexed to the affidavit of Ms Knowles from the Department of Corrective Services stated that the offender feels “well supported and stays in touch with his family”.

30. On the question of totality, the three month prison sentence which the offender served for goods in personal custody between 2 July 2021 and 1 October 2021 was entirely unrelated offending and the Crown submitted there should be no backdating of the sentencing to provide concurrency with that sentence.

31. On the question of special circumstances, the Crown relied on R v Carter [2003] NSWCCA 243 to submit that in circumstances where there was no firm commitment to rehabilitation, a finding of special circumstances should not be made. This was applicable here where the offender had a poor history of compliance and had not taken advantage of numerous opportunities for rehabilitation. The Crown did however accept that the COVID-19 pandemic had impacted on the prison population and was a basis for finding special circumstances pursuant to s44(2) of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”). There was however real concern for this offender’s prospects of rehabilitation.

The offender’s submissions on sentence

32. Counsel for the offender also relied on a thorough and detailed written outline of submissions in which he set out well established principles concerning fact-finding by a sentencing judge following a jury verdict relying on Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67.

33. In assessing the objective seriousness of the offending the offender submitted that the court could not exclude the reasonable possibility that the offence occurred over a matter of seconds. This was based on evidence by the victim that when she woke up she felt the offender’s penis inside her vagina and said that she felt two pushes only before she reacted. That proposition was supported by the evidence of Mr Laurie who gave evidence that the victim stood-up suddenly moments after the offender laid down next to her on the mattress on the floor.

34. The offender submitted the Crown case was prosecuted on the basis inter alia that the offender was reckless as to whether the victim had consented to the intercourse and the court could not exclude the reasonable possibility that the jury verdict was based on a finding of recklessness as to consent. It was further noted that there was no physical injury, violence or humiliation which would lead the court to finding the offence was well below the mid-range of objective seriousness for an offence pursuant to s61I.

32. It was submitted the offence of carrying a cutting tool was trivial as it related to a pair of small scissors the offender was carrying in his hand when arrested by police.

33. In respect of the aggravating factors pursuant to s21A(2) of the CSPA the offender acknowledged his criminal history but submitted his record did not evince a continuing pattern of sexual offending. He was however subject to a 2 year community correction order at the time of the offence. The offender submitted the degree of harm to the victim was not substantial and did not include any injury (s21A(3)(a)) and that the offending was spontaneous and opportunistic and therefore not planned (s21A(3)(b)).

34. The offender also referred to s21A(5) to submit that whilst these factors may be relevant to the sentence the court is not required to increase or decrease the sentence on account of any such factor.

35. The offender submitted that s21A(2)(eb) did not apply here as an aggravating factor as the offender’s unit was not necessarily a place of security. The evidence at trial established that the lock to the front door was broken and that it was a place that could be freely entered by any person.

36. In relation to the offender’s criminal history it was noted that his first interaction with the criminal justice system was at the age of 13 and that as an adult such interactions have been steady over time. His adult record included convictions for a wide spectrum of offences however his criminal history as a youth is consistent with a disadvantaged background. It was submitted that if he was not already institutionalised his criminal history indicated that the offender is at risk of institutionalisation.

37. It was noted that the offender has had conduct issues whilst in custody and submitted that at least one of those events coincided with a recent deterioration in his mental health. The custodial records bore out that he had an extensive history of seeking protection in custody and being fearful for his safety. He was also at times identified as being at risk for self-harm. Notwithstanding that it was submitted that the offender had made some attempts towards engaging with psychological services, programs and employment opportunities. It was further noted that whilst in custody for the duration of the pandemic the offender has been placed frequently in lockdowns and once in isolation after contracting COVID-19.

38. The offender noted that the Justice Health Records recorded a long history of addiction to heroin, and he has now been placed on an opioid treatment program which represents his first real attempt to address his addiction issues. He had also received treatment for anxiety, depression and PTSD.

39. The offender noted that his brother was shot and killed in a police encounter in 2021 and the offender had struggled with that loss whilst separated from his family and friends. The Justice Health records noted that whilst growing up in Walgett he was exposed to a history of heavy alcohol use in his family. It was submitted that he also experienced sexual abuse as a child and periods of homelessness. His early exposure to alcohol use resulted in early alcohol abuse in his teens and he graduated to heroin when he moved from Walgett to Sydney.

40. The offender’s counsel included a number of comparative cases. It was submitted that the offending here was less serious than in those cases as the victim was not heavily intoxicated or suffering from the stupefying effects of any drug at the time of the offence, that she became aware of the offending seconds after it commenced, and it did not persist after she had woken up. It was submitted the victim was not left in a state of uncertainty about what had occurred.

41. The offender submitted that he will require ongoing assistance to reintegrate into the community to address his longstanding addiction to drugs and a finding of special circumstances was warranted to aid in his rehabilitation. His sentence should be backdated and as at the date of the sentence hearing he had been in custody for 634 days. Counsel submitted the sentence should be backdated by at least 542 days so as to commence on 24 May 2021 and in accordance with the principle of totality it would be appropriate to backdate the sentence for a further period to make it partly concurrent with the three month sentence he served for goods in custody.

42. In his oral submissions counsel referred to the judgment of Fullerton J in R v Fisher at [89] where her Honour stated that in the assessment of objective seriousness it was relevant that the offending could not be described as being of limited duration. Further the mental element involved was relevant to the assessment of objective seriousness and the deliberation involved would point to actual knowledge. Here the court did not know the basis of the jury verdict and applying Cheung v The Queen the court would necessarily have to find the jury found the offender guilty on the basis of recklessness not actual knowledge. Whilst recklessness did not mitigate the offending it properly informs the nature of the offending. The duration of the offending was also a relevant factor.

43. Counsel rehearsed his submissions in relation to the objective seriousness of the offence in sequence 3 and his submission that the offending was opportunistic. Also rehearsed were his submissions in relation to the offender’s long criminal history which involved one previous offence of sexual intercourse without consent many years earlier but no offending of a like manner in the intervening period.

44. Counsel also rehearsed his submissions in relation to the aggravating factor pursuant to s21A(2)(eb) noting that people entered the offender’s unit freely and it was not the most secure place.

45. Counsel submitted that there was some evidence of insight and acceptance on behalf of the offender of his criminal conduct. This was found in the Sentencing Assessment Report. There is a real risk of further institutionalisation on the offender however he is now on an opioid replacement therapy program and this was the first time he had done something about his drug use.

46. Counsel referred to the principle in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 and acknowledged there was no evidence of any nexus between this offending and his disadvantaged background. However, his history of disadvantage was submitted to leave a mark on him and was relevant to his subjective circumstances. The court would therefore take into account his history of alcohol abuse and homelessness.

47. Counsel rehearsed his submissions in relation to a finding of special circumstances. It was submitted that given his risk of institutionalisation and the fact that he was now being treated for his depression and PTSD, this was not a hopeless case and the offender should be given the benefit of the principle of rehabilitation.

Submission in reply

51. The Crown submitted in reply that even if the duration of the offending was brief it still constituted a gross violation of the victim. Further, given the prior offence of sexual intercourse without consent, which occurred some years earlier, the offender had clearly not rehabilitated his proclivity for sexual offending.

Determination

52. Section 3A of the CSPA sets out the purposes of sentencing as follows:

“3A The purposes for which a Court may impose a sentence on an offender are as follows:

(a) To ensure that the offender is adequately punished for the offence,

(b) To prevent crime by deterring the offender and other persons from committing similar offences,

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

(e) To make the offender accountable for his or her actions,

(f) To denounce the conduct of the offender,

(g) To recognise the harm done to the victim of the crime and the community”.

53. In assessing the objective seriousness of the offending I accept the Crown’s submission that the victim was vulnerable in that she was asleep and awoke to find the offender engaging in penile-vaginal sexual intercourse with her. The evidence at trial does not and could not establish the duration of the offending conduct which was opportunistic by the offender. Although the Crown case was put to the jury as on the basis that the offender knew that the victim was not consenting or alternatively was reckless as to her consent, given that she was asleep there is a clear inference that he knew that she was not consenting. I reject the offender’s submission that there it is a reasonable inference that the offending lasted a matter of seconds, although I find the offending was of relatively short duration. Given the fact of the penile vaginal intercourse the offending fell within the mid-range for an offence pursuant to s61I of the Crimes Act but towards the lower-end of the mid-range.

54. The objective seriousness of the related offence of carrying a cutting weapon upon apprehension pursuant to s547D of the Crimes Act which related to the offender carrying a pair of scissors at the time of his arrest was clearly at the lowest end of the range of objective seriousness for an offence of that kind.

55. I accept the following aggravating factors are to be taken into account pursuant to s21A(2) of the CSPA:-

1. (2)(d) The offender had an extensive criminal history including an offence of sexual intercourse without consent that occurred in similar circumstances in 2004. I have regard to what the High Court said in Veen v R [No. 2] (1998) 164 CLR 465 at 477 where the plurality said:

“The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. The antecedent criminal history is relevant, however, to show that the incident offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience to the law. In that case retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted.”

It was clear from the offender’s criminal history that this offence was a continuation of his disobedience to the law and therefore means that retribution, deterrence and protection of society indicate that a more severe sentence is warranted.

2. (2)(eb) The offence was committed in the home of the accused where the victim was visiting and had stayed over for a number of nights. She was entitled to feel safe in that place and this aggravating factor is not diminished by reason of the fact that the front door could not be locked given that it was the offender who perpetrated the crime on her and not some other person.

3. (2)(j) The offender was on conditional liberty in that he was subject to five Community Corrections Orders at the time, I note however that in respect of four of those Community Corrections Orders, the period of two years had almost expired.

56. It was a mitigating factor in relation to the related offence on the s166 certificate in that the offender had entered an early plea of guilty – see s 21A3(k).

57. General deterrence is important in sentencing for sexual assault offences. As Brereton J stated in Fisher v R, supra, the offending is “presumptuous and contemptuous of the victim’s personal rights, bodily integrity and dignity and calls for denunciation and general deterrence”.

58. Specific deterrence is also important in that the offender must understand that given his criminal history he will be subjected to increasingly severe sentences if he continues to offend.

59. I find that the offender has expressed limited remorse and insight into his offending conduct as reported by the author of the Sentencing Assessment Report. As outlined above he reported that although reluctant, he now accepts the offence so that he can “move on”. Further he was unwilling to reflect on the impact of this type of offence on victims in general and was focused instead on the ramifications his incarceration has had on his own mental health. Thus his insight is self-centred and does not mitigate his moral culpability for the offending.

60. Given his criminal history I accept the assessment of Community Corrections that this offender is a high-risk of reoffending, particularly having regard to his long history of substance abuse. He had not, until now, embarked on any rehabilitation program and his placement on an opioid replacement therapy means that his prospects of rehabilitation must be extremely guarded given the high risk of relapse. Sadly, given the amount of time he has spent in custody as an adult he is very much institutionalised and in danger of becoming even more so.

61. Counsel for the offender did not advocate that the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 operate here. However, I find the offender’s life was one of disadvantage, as viewed through the prism of the Justice Health records which are sufficient to evidence a life of disadvantage as a child during which he was exposed to alcohol and domestic abuse. This led to him consuming alcohol at a very young age and following his move to Sydney as an adult, that drug was replaced with an even more insidious drug, namely, heroin to which he became addicted. The impact of such disadvantage must endure for the whole of the offender’s life and therefore I take it into account on sentence. I note however that he has some support from his partner and a desire to live closer to his family upon his release from custody.

62. Having regard to all of those factors I am satisfied that the standard non-parole period should not apply to this offender given his age and the subjective matters that I have outlined above.

63. I intend to impose a sentence of 4 years imprisonment and find special circumstances given the offender has been remanded in custody during the COVID-19 Pandemic, where for the safety of the whole prison population the conditions of the incarceration have been particularly onerous including absence of visitation rights, inability to access programs and the need to endure lockdowns. I therefore intend to vary the statutory ratio between head sentence and the non-parole period and impose a non-parole period of 2 years commencing on 22 February 2021 and expiring on 22 February 2023.

64. The sentence is to be served concurrently with the three month sentence he served for the offence of goods in personal custody between 2 July 2021 and 1 October 2021.

65. In respect of the offence pursuant to s547D I intend to convict the offender but impose no further penalty, pursuant to s10A of the CSPA.

Orders

66. I hereby order as follows:-

1. You are convicted of the offence pursuant to s61I of the Crimes Act 1900 of sexual intercourse without consent.

2. You are sentenced to a non-parole period of 2 years imprisonment to commence on 22 February 2021 and expire on 21 February 2023.

3. The balance of the term will be 2 years to commence on 22 February 2023 and expire on 21 February 2025.

4. You are convicted of the offence pursuant to s547D of the Crimes Act 1900 of carry cutting weapon upon apprehension.

5. Pursuant to s10A of the Crimes (Sentencing Procedure) Act 1999 I impose no further penalty in respect of that offence.

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Decision last updated: 25 November 2022