R v Carlos Robinson

[2007] NSWDC 119

CITATION:	R v Carlos Robinson [2007] NSWDC 119
JUDGMENT DATE:	30 March 2007
EX TEMPORE JUDGMENT DATE:	13 September 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Convicted ; NPP – 2 ½ years date 30/3/07 expire 29/9/09; Balance of term - 2 years expire 29/9/2011
CATCHWORDS:	Criminal Law - sentencing - after trial - s61I Crimes Act 1900 - sexual intercourse without consent - nature of criminality - standard non parole period - guidelines in assessing mid-range of seriousness - imprisonment - consequence to third party.
LEGISLATION CITED:	Crimes (SP) Act
CASES CITED:	Gladue v The Queen [1999] 1 SCR 688 at [80]. R v Cuthbert [1967] 2 NSWR 329 R v Rushby [1977] 1NSWLR 594 R v Hayes [1984] 1 NSWLR 740) R v Gebrail unreported NSWCCA 18/Nov 1994 R v Hartikainen unreported NSWCCA 8 June 1993 R v Pay [1999] NSWCCA 40 at [7] R v AJP [2004] NSWCCA 434 R v Wirth (1976) 14 SASR 291 at 295-96
PARTIES:	Regina Carlos Robinson
FILE NUMBER(S):	06/21/0195
COUNSEL:	Crown: C. Patrick Accused: S Ocampo

SENTENCE

1 On 18 June 2005, three businessmen and a businesswoman sat down at a Korean restaurant in Strathfield for what was to be a convivial social connection as each sought to network and consolidate their contacts within the tourist industry. Carlos Robinson was at the dinner. He had not previously met the petite and attractive woman. The males were all Korean, she was Japanese.

2 Alcohol flowed freely, perhaps too freely among them. Well into the night, the female feeling as though she may be ill, made her way to the toilet lest she be sick in front of the men. Of the two toilets, the lady's toilet was occupied. She opened the door to the men’s toilet, it was empty. She made her way inside. Within two or three minutes, Carlos Robinson made his way to the toilet. He too was well affected by alcohol. Whilst in the toilet, something happened.

3 The female claimed to the other men she had been sexually assaulted by him. He denied that was so. Between 20 and 30 November, he was tried upon two charges of having sexual intercourse with her without her consent. His defence was that it was he who had been sexually assaulted by her.

4 The jury found him guilty to the second count in the indictment, an allegation of enforced fellatio. Today he is to be held accountable for his criminal conduct.

5 As sentencing judge, it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for this offence before this Court committed by this offender harming this victim in this community (See Gladue v The Queen [1999] 1 SCR 688 at [80].

6 My initial task requires an assessment of the objective criminality of the offence before the Court. I will also need to have regard to matters personal to the offender, subjective matters. The starting point for such assessments requires a sentencing judge to make findings of fact from the evidence before the Court relating to the offence and to the offender.

7 When a jury has given a verdict, it is open to the trial judge to make findings of fact so long as those findings of fact are consistent with the verdict rendered by the jury. The facts do not have to be those most favourable to the accused, nor those most against his interests, but rather, the findings of fact the judge feels are appropriate in the light of the jury verdict.

8 The offender’s rehabilitation prospects will need to be assessed even if looking at the future through a glass darkly. Before any final sentence can be determined, there are likely to be technical questions relating to deterrence, whether the offence attracts a standard non parole period and if so, the length of the parole period, whether special circumstances are to be found and to the ultimate length of the term of imprisonment that is to be imposed. None of these can be commenced until the primary facts are determined. What weight needs to be given to all of these matters against the imperative that all sentencing should have as its primary focus, the protection of the community will also need to be determined (see R v Cuthbert [1967] 2 NSWR 329; R v Rushby [1977] 1NSWLR 594 and R v Hayes [1984] 1 NSWLR 740).

FACTS

9 The complainant worked at a Duty Free shop located near the Quay. On 17 June, she and her boss JC had an after work drink at a bar at Circular Quay. JC received a call from Carlos Robinson insisting, as acquaintances sometimes can, that he come to Strathfield to meet at a local Korean restaurant where food and alcohol were available. The complainant who did not know Carlos Robinson willingly went along with her boss. I am satisfied she did so to widen her contacts within the tourist industry and because she was enjoying the evening thus far.

10 At Strathfield, she was introduced to Carlos Robinson and his companion. All four took a table towards the rear of the restaurant. In making their way from the front to their table, they passed the male and female toilets. Each toilet was adjacent to the other. Entry was gained to each by its own door, the doors were close to each other.

11 Throughout the night, the four consumed some Korean noodles, but mainly drank. Significantly, the accused occupied JC in conversation, spoken in Korean, a language with which the complainant was not familiar. Robinson’s companion Yoon Mo Sung had reasonable fluency in English. He engaged the complainant in conversation. As I earlier referred, there came a point where the complainant needed to go to the toilet. The suju was having an effect upon her. She was feeling very sick. She thought she was about to throw up.

12 She moved from the table to the female toilet, it was occupied. At that time there were but a few patrons remaining at the restaurant. She moved over to the male toilet. On the left wall of that toilet was a urinal and in the rear left corner was a sink. Adjacent to the sink was a toilet bowl. The toilet was empty. She made her way to the toilet bowl and bent over it. She remained there for some moments.

13 At some point her attention was drawn by the opening of the door to Mr Robinson’s arrival. I cannot ascertain what precisely the complainant was doing at the time he walked in, but I regard it as most likely that she was washing her hands. She said to the offender “I’m sorry, I know this is a male toilet, so I am leaving.”

14 Mr Robinson was well affected by alcohol. He had entered the toilet to urinate and immediately commenced to do so either reckless or oblivious as to whether that conduct would embarrass or offend the complainant. It is likely the complainant’s hands were wet, she may have taken a moment to dry them. I am satisfied though that she did ultimately attempt to leave.

15 Robinson blocked her path pushing her backwards with both hands. She fell backward against the toilet bowl. He moved forward touching firstly her shoulder and then her breast, using his right hand. The initial touching occurred on the outside of her clothing. He then moved his hand inside her clothing and bra touching her on her left breast, squeezing it. She pushed back and tried to escape. He brought his face close to her face and neck and tried to kiss her on the lips and neck. He undid the zipper and catch of her pants and they fell to her ankles. He pulled her underpants downwards. She hung onto them hoisting them upwards. She said to him in English “Go away”. He was touching all of her body. With his body, he pushed her backwards a second time. Her back hit the wall and she sunk towards the floor. Carlos Robinson unzipped his pants or loosened them and exposed his penis. His penis was flaccid, meaning soft, he tried to place it in the complainant’s mouth, she moved her face, she did not want his penis in her mouth.

16 His penis came closer and closer to her mouth. She called out for help. Her head was against the wall, she could retreat no further. As she moved her face from right to left, she realised she could not avoid his penis any further. She felt there was no way out. She put his penis into her mouth. It was still flaccid. She does not recall if it became erect. I imagine it is very likely she would have remembered had it become erect. She does not remember the penis moving in and out of her mouth. She claims she bit the penis, not to injure him, but hard enough to encourage him to withdraw it.

17 Robinson communicated his feelings and commands in Korean. At one stage the door was opened by JC looking for the complainant. The offender barked out a single word, probably “What?”. JC immediately closed the door without seeing the complainant. That opening of the door must have occurred at a time when the offender was blocking a direct view of the complainant. I am satisfied the door was only partially open and remained open but for an instant. I am satisfied JC never had a full view of the toilet. It is unlikely his view passed the centre line of the room.

18 Although the complainant felt the act of fellatio lasted a long time, it is unlikely to have lasted as long as a minute. Once the door had opened, the offender stopped, the complainant gathered herself and left immediately. She made a bee line to the table where JC and the other man were sitting. She said “That guy just tried to rape me”. As she was complaining, the offender returned. She struck out at him with her foot. It is likely she connected with the accused’s shins or legs. The accused resumed his seat, the complainant and the other two ultimately made their way from the restaurant.

OBJECTIVE SERIOUSNESS

19 From the facts as he finds them to be, a sentencing judge is required to assess the objective criminality of the offence as an essential step in assessing the seriousness of the criminal behaviour of the offender. That is done by comparing objectively the criminality exhibited in this case with criminality of offences of a similar kind. It is in that way that the seriousness of this criminal activity can be evaluated. The objective criminality has an important impact on the overall sentence to be set.

20 A useful starting point in the assessment of objective criminality in sexual assault cases is to remind the Court of part of a judgment of Mahoney JA, as he then was.

“As I have indicated, every offence of this kind is a serious offence. But those whose duty it is to deal with crimes of this kind, and to sentence those who commit them, know that though each case is inherently serious, some are more serious than others. In some cases, the degree of violence, physical hurt inflicted, the form of forced intercourse and the circumstances of humiliation and otherwise are much greater than involved [in other cases]. It is to be understood that in sentencing, it is appropriate - indeed in most cases it is necessary - that the sentencing judge form and record his assessment of where on the relevant scale of seriousness, the particular offence lies.” ( R v Gebrail unreported NSWCCA 18 November 1994)

21 In 1993, the then chief justice, Justice Gleeson, made the point that non consensual intercourse is an extreme form of violence and one which the community expects courts to take very seriously (R v Hartikainen unreported NSWCCA 8 June 1993) even if no additional violence is administered other than the intercourse (R v Pay [1999] NSWCCA 40 at [7]). Unwanted forced intrusion into the privacy, indeed the intimacy of a complainant’s body and psyche against her will by use of physical power and callous disregard of her wishes or feelings marks the essence of criminality of sexual intercourse without consent type offences.

22 The crown seeks a finding that this offence falls into a mid range of seriousness for offences of this kind. The defence argues that it falls below that point.

23 The crown has drawn my attention to R v AJP [2004] NSWCCA 434. For the purposes of assessing the objective criminality in the instant case, I draw from AJPthe following guidelines.

• That the offence is an isolated incident is not irrelevant to its evaluation for purposes of assessing whether it is in the mid range.
• Where an offence is defined in the statute to include several categories of conduct, the heinousness of the conduct in a particular case depends not upon the statute defining the offence, or the particular category of conduct, but upon the facts of the case, of which the nature of intercourse will be but one factor that will determine the seriousness of the offence.
• While penile vaginal penetration may well be more serious than enforce fellatio, it does not mean fellatio must necessarily fall below the mid point of seriousness.
• Section 21A matters of aggravation will be matters that may lift a matter to or beyond the mid point of seriousness.
• Other matters that may impact upon objective seriousness include how the offence took place, the span of time over which an offence occurred, the degree of force or coercion applied to the complainant, the use of threats before or after the criminal intercourse to ensure compliance with demands made and/or subsequent silence, the level of physical and other harm done to the complainant.

24 The crown puts the objective seriousness of the offence thus.

“The offence committed by the offender was a brazen violation of the complainant in circumstances where the offender detained the complainant in the toilet and forced himself upon her. Thereafter, the offender brushed aside the complainant’s resistance, fondled her indecently and pushed her into the rear of the toilet so that in the end, the complainant was left with no effective choice except to have the offender’s penis placed in her mouth. Nothing justified the action of the offender. The fact that the complainant was in the male toilet or that she was affected to some degree by alcohol did not entitle the offender to force himself upon the complainant. Although the complainant had met the offender that night in the restaurant, her social contact with him was limited. Nothing in this previous contact explains or mitigates the actions of the offender.”

25 I am prepared to accept the accuracy of the crown’s assessment as an obvious starting point in assessing the objective criminality.

26 The defence has sought to mitigate the seriousness of the offence by seeking findings of fact that include:

• Alcohol was involved in the commission of the offence.
• The offender had no control over the circumstances that placed the complainant in the men’s toilet.
• The victim walked into the men’s toilet of her own accord.
• The victim did not leave immediately upon the offender entering the toilet.
• The degree of physical force used was towards the lower end of the scale
• The victim places the offender’s penis into her mouth and commenced to suck it through a combination of fear and having nowhere else to move.
• The offence took place over a relatively short period of time.
• The offence was not premeditated.

27 I have already recognised that this is an offence in which alcohol played its part. The complainant’s sickness was alcohol induced, the offender’s impaired judgment, skills and dis-inhibition owe their origin to alcohol. The offence was opportunistic. The complainant was not confronted until after she was in the male toilet. However, her presence in the male toilet did not provide some reason for this offender to treat her with disrespect or humiliate her. Her presence in the male toilet gave him no right or permission to abuse her sexually or in any other way. To couch a submission suggesting she is somehow contributing to her sexual attack by not evacuating the toilet immediately is based upon a misconception. There can be no circumstance arising out of her slowness of departure that created any entitlement or provided any mitigation for the sexual assault upon her.

28 The level of physical force is towards the lower end. There were two occasions when he pushed the complainant, otherwise he crowded her and mauled her. I have no doubts that the complainant found his size and stature threatening. I have no doubt she found his activity with his hands also threatening.

29 I am satisfied his tone was at very best dismissive of her. On the other hand, the level of force used, particularly when sexual connection itself occurred, was more subdued. This was not a case where the complainant’s head is forced and held onto the offender’s penis by some vice-like grip. This is not a case where an erection is thrust deep into the complainant’s mouth forcing her to gag. In fact, there is no evidence of any erection. This is not a case where a stream of degrading threats and insults are spat at the complainant. This is not a case where ejaculation into the complainant’s mouth, face or body is forced upon her by an offender. In fact, there is no evidence of ejaculation.

30 The offence is said to take place over a short period. I have found the act of fellatio was probably less than a minute, but it was interrupted. It would be unrealistic though to ignore the proceeding minutes when the offender satisfied himself he could do as he willed with the complainant. That having been said, the whole episode is to be measured in minutes rather than quarter hours or even longer time frames.

31 This offence was not part of some longer series of events either over past times or within the criminal activity. While the complainant was well affected by alcohol and momentarily alone, and in that sense at her most vulnerable, she was not otherwise a vulnerable person.

32 I note that there was some racial overtones in remarks made by the offender towards the complainant, but I cannot be satisfied the offence was motivated by race. It was motivated by something else, but lack of respect for the Japanese lowered the barrier of respect normally accorded to all women.

33 In all the circumstances, this is not an offence reaching the mid range of seriousness on its objective facts. Nor, however, is it a trivial example of Section 61I offences. I would place it at a point where it is best described as approaching a mid range without having reached that point, that is, slightly below the mid range of seriousness.

SUBJECTIVE MATTERS

34 I turn now to the subjective factors. I am both entitled and required to do that. Not only am I sentencing for this criminal offence, but I am also sentencing this offender for it.

35 Each offender coming before the Court varies from other offenders who stand or who have stood for sentence. Circumstances personal to the offender may offer to the court some explanation and insight into the commission of this offence by this offender, or some reason why a more or a less sentencing outcome is appropriate.

FAMILY BACKGROUND AND SOCIAL DYNAMICS

36 Carlos Robinson is a forty one year old (thirty nine at the time of the offence) married man. He was born in South Korea as Sang Woo Jeon. In 1998, he changed his name after arriving in New Zealand to Carlos Robinson for reasons associated with his business interest in tourism. His choice of name honoured a close friend and was an attempt by him to integrate into the New Zealand culture. He has two younger siblings and a mother still living in South Korea. He met his wife in 1994 while working as a tour guide in New Zealand. Initially they established a long distance relationship. They married in Sydney in 2002. By this time he had been living in Australia for two years.

37 In Sydney, he has been active within the Korean community, most of his contacts would be Korean. Neither he nor his wife have family in Sydney. His father-in-law passed away in 2006. His own father had died earlier in 1997 when he was aged thirty one. He had good relations with his parents, they were supportive and loving. He was not exposed to domestic violence, physical or sexual abuse. He has good relationships with his siblings. He has had four relationships, the longest lasting seven or eight years. He has lived with his wife since 2002. She has remained strongly supportive of him.

EDUCATION AND EMPLOYMENT HISTORY

38 Carlos Robinson did his schooling in Korea, he was an above average student. He had and maintained friendships within the school. He interacted well with teachers. After leaving school, he completed a Bachelor of Science in 1991 from Danbook University. Thereafter he worked as a software engineer for one year. He was posted to Auckland as a software engineer but resigned, returned to South Korea, applied for permanent residence to New Zealand, and returned to New Zealand from Korea in 1993. That year he began to work in New Zealand as a tour guide for incoming Korean tourists. He ran his own touring company between 1994 and 1997. That business closed in 1997. He commenced study at Auckland University of Technology for a Diploma of Tourism and Travel which he apparently completed in 2000. He immigrated to Australia in 2000 to make a new start. He remained in tourism beginning again as a tour guide. Since October 2003, he has been the general manager of Oriental Express Tour and Travel Services Pty Ltd. .An overview of his work is as marketing manager and tour operator. Those who know of him through work speak of him having skills in that area.

GENERAL HEALTH

39 He presents in Court as a man of average height, although overweight for it. In 1991 he was involved in a motor vehicle accident. One of the sequela of that accident was a number of injuries requiring surgical intervention.

40 Impotence, as events turned out, was a lasting injury. It was though, a condition that varied in intensity. On occasions he would achieve an erection, but he never achieved a full erection. His wife was aware of his impotence when they married. As a consequence of his ongoing impotence and their desire for children his sex life with his wife was less than satisfactory. After marriage he became increasingly depressed and no doubt stressed.

41 Between December 2004 and June 2005 he and his wife attended IVF clinics without success. They focused on three cycles, the last of which was in June 2005. There was re-emergence of depressive mood, reduced appetite, weight loss, reduced energy, motivation, concentration and sleep disturbance at that time. There was increase of alcohol consumption.

42 He also suffers from diabetes mellitus for which he has been prescribed Diamicron. He has had a tumour removed from his adrenal glands in 2003. He had injuries to his jaw and right hip as a consequence of the motor vehicle accident. He suffered injuries to his urethra which caused difficulties in urination. Whether they have been resolved or not is not established on the evidence.

MENTAL HEALTH

43 I have made reference to his depressive mood for which he has been prescribed Luvox. Since verdict there has been at least one serious incident of suicidal ideation; the plan being to commit suicide together with his wife. Each has participated in some mutual self harming, grieving ritual by banging their heads on the concrete in their kitchen with a view to killing themselves.

44 Since verdict he has become anxious. At times he was panicked at work, experiencing symptoms of palpitation, shortness of breath lasting five to six minutes and occurring four to five times daily.

45 Dr Allnut, a forensic psychiatrist retained by defence, does not think though that this amounts to panic disorder. In his culture “face” and presentation to others appears to have far deeper significance than may be the general case in western culture. Shame and dishonour of a criminal offender will have more widespread recognition and a more judgmental recognition throughout his community embracing even members of his family than is so in western cultures.

46 This loss of intrinsic respect generally given to others has contributed decidedly to the depression he was already experiencing. His wife’s predicament being also captured by this loss of family standing has also added to his depression. He and his wife have been seeking psychological counselling since the beginning of 2007, Dr Kim PhD, a psychologist, diagnosing his depression as severe.

ALCOHOL ISSUES

47 Carlos Robinson’s drug of choice is hard alcohol (Soju) a Korean saki and VB beer. He first drank alcohol aged twenty-two. In the past three years it has increased to twelve VBs daily. He denies he has an alcohol problem. Those who know him will not acknowledge he has a problem, whether for fear of offending him or seeming to be impolite I cannot tell. I am satisfied he was well affected by alcohol on this night. It is likely he contacted the two other males as much for drinking company as for networking.

48 He claims alcohol has not impacted significantly on his interpersonal relationships or occupation. He does, however, have two prior criminal convictions relating to alcohol: refuse breath tests in March 2004 and low range PCA in August 2005. There is evidence that on other occasions he has slept in his car because he has drunk too much to drive.

CIRCUMSTANCES MOTIVATING HIS OFFENDING BEHAVIOUR

49 At thirty-nine this offence appears to be entirely out of character. His psycho-sexual history as given to Dr Allnut appears conservative enough. His first sexual experience was at twenty. He has had two sexual partners both female. He identifies as heterosexual. He denies any deviant or aberrant fantasies, urges or behaviours. Violence has not previously played any part in his sexual behaviour.

50 I am satisfied he is one of those Koreans who does hold Japanese in no regard. On his account the complainant was the aggressor. In the course of aggression he said to her, “Get out you fucking Japanese”. I am reminded that the complainant does not give this evidence. I am satisfied he did utter the words “Get out”. I am also satisfied however that the phrase “you fucking Japanese” does reflect a racial bias against Japanese. In that sense they [Japanese] are less worthy of respect as to the physical and sexual integrity than others may be.

51 At the time of this offence he and is wife were struggling with impotency issues focusing on an IVF program and the high personal cost to both of them around the non-conception of a child. The only sense that I can make of this incident is that there must have been some nexus - anger, frustration, desire to combat his impotence, resentment at the need continually to perform sexually on command - between him, his criminal conduct and the sexual issues within his marriage.

52 However, in the light of his defence his motive can only remain one of speculation. I am satisfied his inhibition and judgment skills were adversely affected by his alcoholic condition. It is unlikely he would have embarked upon this first time course of conduct if he was not striving to obtain an erection and of course the other consequences of fellatio.

53 Significantly when he presented his penis to the complainant’s mouth it was not erect. The evidence is silent on whether it ever became erect. In the circumstances of this case I would have to be satisfied beyond reasonable doubt it did so, as I earlier said I cannot be so satisfied.

ATTITUDE TO THE OFFENCE

54 There is a serious unwillingness to recognise his conduct as offending. That may have origin in the immense loss of face to him, his wife and family as a consequence of such admission. It may also relate to the derogatory view he holds of the complainant. Dr Allnut opines [he] “manifests extreme minimisation and denial of sexual offence”. As I see it he has done that by creating his own sexual fantasy that she came on to him because she was impressed with his sexual equipment.

CHARACTER AND CRIMINAL HISTORY

55 Prior to June 2005 this offender had led a productive and valuable life. He was responsible for bringing many tourists to Australia and showing them sights of beauty in Sydney and perhaps beyond. No doubt he also explained some of the cultural values of Australia to his Korean tourists.

56 Father Gabriel Scong Kyoun Youn regards this offence as being out of character. He has presented at the Korean Martyrs and St Stanislaw’s Catholic Church as a man of deep faith, strong sense of justice, honest and responsible. Father Gabriel reports him as making many contributions to the church community and being helpful to others.

57 A work colleague Daniel Sung speaks of him giving cruising parties to senior citizens with Captain Cook Cruises. He speaks of other charitable works being undertaken by Robinson. He describes Carlos Robinson as a man of integrity, extremely dedicated to his family. Sung regarded this offence as out of character.

58 Nak Yoon Pak spoke of the offender’s charitable work among the Korean community. Within the community he has an excellent reputation. He wrote of the offender overcoming business hardships in New Zealand, studying and succeeding. He too regarded the offence as being out of character.

59 The only matters of prior trouble with the law are the two alcohol matters earlier referred to. Given his prior character and antecedents he is entitled to some mitigation of penalty when the final sentencing disposition is determined.

60 On the positive side:

• The offence seen by those who know him as being out of character. It is his first and only significant criminal offence in forty-one years.
• Dr Allnut reviewing the available information both actuarial and from history and objective facts assesses the risk of future sexual recidivism as a low/moderate one.
• Robinson has strong support from his wife and his family although the family are in South Korea.
• The offender has expressed to Dr Allnut a willingness to pursue intervention for his sexual difficulties.
• Likewise he is prepared to pursue drug and alcohol counselling.
• He has extensive experience, qualifications and skill within the tourist industry. While the evidence before me suggests that it may be difficult for him to find acceptance within the Korean community organising as part of the Korean community tours to Australia, he still has much to offer. An Australian based tourist organisation with his Korean connections is a distinct possibility that could suit both him and that Australian tourist organisation.

61 There are matters that may suggest more caution in assessing his rehabilitation.

• It is likely his problem with impotence will continue if not worsen.
• I have seen some nexus, although not clearly identified, between his own personal sexual problems and the offence as one of several factors that had input into his offending conduct.
• He has sought to minimise his criminal conduct through the creation of some sexual fantasy in which his potential for sexual prowess is magnified.
• In court he has not recognised his drinking problem. To date he appears to have done nothing about it. Frankly it does not appear to me that he is getting much assistance from his network or contacts in the Korean community in respect of his drinking problem or any encouragement from them to diminish it. I accept that may be a cultural issue. If it be so I am at a loss to understand it.

62 Overall I am prepared to assess his risk of offending as Dr Allnut did, low/moderate.

HARDSHIP TO MRS ROBINSON

63 Ms Ocampo, counsel appearing on sentence although not retained at the trial, submitted this was a case of extraordinary hardship falling upon Mrs Na, wife of the offender, as a consequence of his impending imprisonment. Ms Na attended each day of the trial. That ordeal could only have been highly stressful for her as she heard the allegations made by the crown and complainant and the evidence of the complainant.

64 The conviction of her husband on the second and more serious count on the indictment could only have been traumatic for her. The time between trial and sentence I recognise as emotional turmoil for them both.

65 Her closeness to her husband, her remoteness from her family still in Korea, her sense of dishonour accumulating to her as a consequence of the jury verdict, her compassion for her husband’s inevitable fate of imprisonment, her personal response of denial of the only outcome available, that is, incarceration, has brought on an emotional response of depression, weeping, emptiness and sense of abandonment.

66 Her husband is well aware of her hardships both since the verdict and to come. That of course will make his incarceration the more difficult for him. He cannot be with her to support her. I am satisfied she presents as vulnerable, depressed and emotionally raw. There has been evidence led of her deep depression and her incapacity to cope.

67 One of the consequences of offending is the devastation it causes to wives and children of the offender. They too become victims of the offender’s criminal conduct. Much as the Court may feel for the grieving and distress a faithful and loving wife may feel when she is separated from her husband by prison walls, the Court’s duty lies in impartially dealing with offenders unless the circumstances be exceptional.

68 I accept that her depression has been deep, but the evidence suggests that it may abate. I am sure that once things settle down after incarceration commences it will abate. Her concern as to continuation of the IVF program could not have been certain even without the jury verdict. As with other programs the progress and suitability of candidates would need to be reassessed after each episode.

69 There has been as I understand it no further IVF attempts in the almost two years since the last program. Even if the complainant’s psychological condition was not to improve I would not regard the circumstances as sufficiently exceptional to an extent where I would mitigate the otherwise appropriate sentence on her account.

70 There is concern that Ms Na’s income stream will disappear when her husband is incarcerated. That regrettably is a cost of the punitive paradigm for serious criminal offending that operates in this State. It has been well supported by appeal courts for several centuries in this and English jurisdictions.

71 Ms Na was regarded as a successful businesswoman in Korea. While she has not worked in Australia and believes she will have difficulty gaining employment, neither of those propositions has been proved. I am satisfied the evidence establishes that the present situation is unlikely to last throughout the offender’s incarceration.

72 Chief Justice Gleeson when dealing with the same subject that I have been dealing with in these sentencing proceedings turned to a judgment which he described as the most frequently cited judgment in Australia, that of Wells J in R v Wirth (1976) 14 SASR 291 at 295-96. What Justice Wells said was this:

“Hardship to spouse, family, and friends, is the tragic, but inevitable, consequence of almost every conviction and penalty recorded in a criminal court... It seems to me that courts would often do less than their clear duty - especially where the element of retribution, deterrence, or protection of society is the predominant consideration - if they allowed themselves to be much influenced by the hardship that prison sentences, which from all other points of view were justified, would be likely to cause to those near and dear to prisoners. But it has been often remarked that the strength of our law lies in the willingness of judges, when applying a principle, not to carry it past the point where a sense of mercy or of affronted common sense imperatively demands that they should draw back. So it is proper that I should here add, in my opinion, hardship likely to be caused by a sentence of imprisonment under consideration ought to be taken into account where the circumstances are highly exceptional, where it would be, in effect, inhuman to refuse to do so... For example, if it were demonstrated to the satisfaction of the court that to send a man to prison would, without much doubt, drive his wife to suicide, it would be a steely-hearted judge who did not, however illogically, at least try to meet the situation by suitably framed orders as to penalty. But further than that, in my judgment, courts should not go.”

73 I have reviewed the evidence. I am satisfied as I say that I do not believe the matter is as Justice Wells referred to it in Wirth. In this case there has been, as earlier referred to, suicidal ideation exhibited by Ms Na. To her credit she has been seeking counselling. There has been some improvement. I have observed her in court. It is obvious to me she has found the sentencing proceedings very distressing, she is frequently weeping.

74 The factors driving her depression though are multifactorial. While one factor, the loss of her husband to incarceration, is one and a poignant one, there are others. The loss of opportunity to pursue another round of IVF, her concern as to a loss of income stream, her sense of isolation in the community. The loss of her husband to incarceration will be for a substantial period, but it is far from permanent. Other factors causing the depression can be dealt with.

75 She has a family in Korea who would be supportive of her and so far as I can gather the resources to return to them for a period while she recovers her health. The tension competing with Ms Na’s needs, needs to be resolved by the Court taking into account the objective seriousness of the offence for which her husband stands and the associated need for retribution, deterrence and protection of the community that more modern legal authority still regards as being achieved by incarceration.

SETTING THE SENTENCE

76 This is an offence in which general deterrence must be applied. That is so because sexual assault offences occur in a vast variety of situations and it would seem, such as this one, sometimes by persons acting out of character. General deterrence is aimed at persons who breach the criminal law recognised they do so at their peril.

77 For an offence falling within a mid-range of seriousness there is a standard non-parole period of seven years.

NO STANDARD NON-PAROLE PERIOD

78 The objective circumstances of the offence have been found to fall slightly below the mid-range of seriousness. There is nothing to be found in the subjective features which elevates the offence into one falling within the mid-range of seriousness. This is not a matter that attracts the standard non-parole period.

79 That having been said, however, I must bear in mind that the standard non-parole period will have the effect of driving upwards what previously would have been an appropriate sentence for this offence.

BALANCING THE SUBJECTIVE AND OBJECTIVE FACTORS

80 This was as the crown catalogued a brazen violation of the complainant’s person and intimacy. On any view sexual intercourse without consent is an offence of violence. In this case the complainant was detained against her will while she was sexually assaulted.

81 The offender is now forty-one years old. To date he has made a useful contribution to the community through a generally law-abiding life.

82 Even though I have determined this offence below the mid-range of seriousness I am required to recognise the standard non-parole period as a reference point and benchmark for offences falling within the mid-range where an accused has been found guilty after trial and gauge the sentence I set for this offence bearing that benchmark in mind.

83 I have determined the overall sentence to be one of four and a half years. That is the minimum sentence that could be given in the circumstances of this case.

84 Special circumstances have been found for the following reasons:

• This is his first time in custody.
• His custody will be more arduous for him because he is Korean, speaks little English and will at forty-one be older than a prison population that is predominantly English speaking, western culture and aged eighteen to twenty-five.
• His wife has serious depression issues that have to be discussed in some detail. His awareness of her psychological situation together with the knowledge that he has contributed significantly to it will make his custody time the more arduous.

• Generally his rehabilitation prospects are better advanced in the community.
• Sex offender programs in custody are sometimes accessed when the offender becomes eligible for parole. In his case the sooner they are accessed the better for him. It is important to have treatment closer to the offending to which it relates. Its chances of being efficacious are far greater if the course has immediate relevance rather than a requirement to be completed before parole is given. That is not to say there would be no value in some booster program as the offender prepares himself for release.
• He has health problems including type 2 diabetes.

85 Would you stand up please, Mr Robinson? Carlos Robinson, I convict you of the offence that you on or about 18 June at Strathfield had sexual intercourse with A..N. without her consent knowing that she was not consenting. I sentence you to a non-parole period of two and a half years to date from today 30 March 2007 and to expire on 29 September 2009. I set a balance of term of two years to expire on 29 September 2011.

86 The first date upon you will become eligible to be released to parole will be 29 September 2009. I order that your warrant be marked “depressed and a possible suicide risk”.

87 The decision to release you to parole is not one that I take or the Court takes but is a decision of the Parole Board. Before the Parole Board releases you to parole it will review the progress that you have made in prison. If you make good progress in prison and in particular if you are able to complete the sex offenders’ program in prison before your eligibility date it is likely you would be released to parole on time. If you do not make progress in prison your chances of being released on the due parole date become weaker.

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