R v De

[2020] NSWDC 94

District Court

New South Wales

Medium Neutral Citation:	R v DE [2020] NSWDC 94
Hearing dates:	25 March 2020
Date of orders:	09 April 2020
Decision date:	09 April 2020
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	1.   In respect of count 2 the offender is sentenced to a fixed term of 15 months imprisonment to date from 17 October 2019 and which will expire on 16 January 2021; and 2.   In respect of the count 1 the offender is sentenced to a non-parole period of 3 years and 3 months to commence on 17 October 2019 and which will expire on 16 January 2023. There after there will be a period on parole of 1 year 6 months to commence on 17 January 2023 and which will expire on 16 July 2024.
Catchwords:	CRIME – sentence – sexual intercourse without consent – indecent assault – offending occurred in victim’s home – intellectual impairment of offender – Bugmy principles – accumulation and concurrency
Legislation Cited:	Crimes Act, 1900 Crimes (Sentencing Procedure) Act, 1999
Cases Cited:	R v AJP [2004] NSWCCA 434 Cahaydi [2007] NSWCCA 1 Jolly v R [2013] NSWCCA 76 R v BA [2014] NSWCCA 148 Doe v R [2013] NSWCCA 248 Tepania v R [2018] NSWCCA247 R v Tuala [2015] NSWCCA 8 Bugmy v The Queen [2013] HCA 37 Muldrock v The Queen [2011] HCA 39 Aslan v R [2014] NSWCCA 114 Ngati v R [2014] NSWCCA 125 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; 205 A Crim R 1; [2010] NSWCCA 194 Brown v R [2014] NSWCCA 215 SS v The Queen [2016] NSWCCA 197 LG v R [2012] NSWCCA 249 MMK (2006) 164 A Crim R 481; [2006] NSWCCA 272 R v XX [2009] NSWCCA 115
Category:	Sentence
Parties:	Director of Public Prosecutions (for the Crown) DE (Offender)
Representation:	Counsel: Ms T Hennesy (for the offender)   Solicitors: Ms R O’Meagher (for the DPP)
File Number(s):	2017/214827
Publication restriction:	THE RELEVANT LEGISLATION PROVIDES THAT THERE MUST BE NO PUBLICATION OF THE NAME OF THE VICTIM OR ANYTHING THAT MIGHT TEND TO IDENTIFY HER.

REMARKS ON SENTENCE

THE COURT REMINDS ALL CONCERNED THAT THE RELEVANT LEGISLATION PROVIDES THAT THERE MUST BE NO PUBLICATION OF THE NAME OF THE VICTIM OR ANYTHING THAT MIGHT TEND TO IDENTIFY HER.

1. Following a trial at the Dubbo District Court the offender was found guilty by a jury on 29 October 2019 of two counts, namely:

1. That (he) on 9 July 2017 in Bourke in the State of New South Wales did have sexual intercourse with AL without the consent of AL knowing that she was not consenting, contrary to s 61I of the Crimes Act, 1900 and further

2. That (he) on 9 July 2017 at Bourke in the State of New South Wales, did assault AL and that he DE at the time of such assault did commit an act of indecency upon AL.

2. The matter proceeded to trial and accordingly there can be no discount or consideration for a plea of guilty. That is not to say that the penalty is increased because the accused put the Crown to proof; rather there can simply be no discount or consideration for a plea of guilty.

3. The maximum penalty for the offence of sexual intercourse without consent is 14 years imprisonment. Parliament has specified a standard non-parole period of 7 years in respect of that offence. As the matter carries a standard non-parole period I acknowledge that I am engaged in a one-step instinctive process in which two of the principal guideposts are the maximum penalty and the standard non-parole period. The maximum penalty for the Indecent Assault charge is 5 years imprisonment. There is no standard non-parole period specified in respect of that matter.

Facts

4. For the purposes of proceeding to sentence and consistent with the verdicts of the jury I find the following facts beyond reasonable doubt.

5. The offender and the victim were known to each other and both lived in the township of Bourke in far north-western New South Wales. The offending occurred in the early hours of the morning on 9 July 2017. During the evening and until sometime after midnight there was a party at the victim’s home to celebrate the 21st birthday of her sister. The victim had a number of alcoholic drinks at the party. The state of intoxication of the complainant was an issue at the trial but consistent with the jury’s verdict I find that she was not particularly or overly intoxicated. She went to bed fully clothed in her bedroom at the house.

6. While the party was proceeding the offender came by and was invited into the yard by the sister of the victim. There was a power outage at the house in the course of the night.

7. The victim woke to finding the offender immediately next to her on the bed in a “spooning” position. Her pants were unzipped. The offender had his hand in the victim’s pants and was digitally penetrating her vagina. He then took the victim’s hand and placed her hand around his penis which he had exposed from his own clothing. He said to the victim, “do you want me to lick your mick”, which she understood to be a slang term for her vagina. Although there was a power outage there was sufficient light coming from the street lights for her to recognise the offender who she knew as “Honkey”.

8. The victim understandably became immediately and significantly distressed. When the victim realised what was happening she turned around and told the offender a number of times to get out. The victim’s sister also told the offender to get out. There was an immediate complaint.

9. The case for the accused advanced at trial was that the offender got no further than the bedroom door. Given the nature of the evidence in the Crown case I am constrained to comment (although it is not relevant to the sentence to be imposed) that it is hardly surprising that the jury rejected the version of the offender.

Assessment

10. The offending occurred in the victim’s home and therefore the factor of statutory aggravation pursuant to s 21A(2)(eb) is made out. Not only did the offending occur in the victim’s home but in her bedroom in the early hours of the morning. The sexual intercourse was digital penetration in circumstances where on the facts I have found the victim was asleep. The indecent assault is a serious example of an indecent assault noting it was the taking victim’s hand and placing it on his penis.

11. As to the nature of the sexual intercourse constituting the offending Simpson J (as her Honour then was) said in R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 at [24]:

“It is not possible to create some kind of hierarchy of the seriousness of the various kinds of sexual intercourse contemplated by s 66A and defined by s 61H. It is the facts and circumstances of each case including the nature of the intercourse that makes the proper evaluation of objective seriousness”.

12. In Jolly v R [2013] NSWCCA 76 Bellew J (Hoeben CJ at CL, Slattery J agreeing) said at [72]:

“…The nature of the sexual intercourse which occurs in offending of this nature should not be considered in isolation, and then ranked in some form of hierarchy (see R v King [2009] NSWCCA 117 at [36] per McClellan CJ at CL).

13. More recently, McCallum J. (Gleeson JA, Fullerton J agreeing) in R v BA [2014] NSWCCA 148 at [37] said”

“…Penetration during an act of cunnilingus could be an aggravating factor, but I am unable to accept that the absence of penetration during such an act is a factor which supports an assessment that the conduct falls towards the lower end of the range of seriousness. The Act provides no basis for concluding that cunnilingus is to be considered any more or less serious in itself that an act of fellatio…or penetration of the vagina. Each case must be assessed according to its own circumstances. I would accept the Crown’s submission that the act of cunnilingus performed by a mature man on a child of six years who is under his authority and within his family involves significant criminality”.

14. The Crown Prosecutor in her helpful written submissions (MFI 1 on sentence) refers to the decision of Doe v R [2013] NSWCCA 248. Bellew J (Hoeben CJ at CL, Johnson J agreeing) said at [51]-[52]:

“In R v Hibberd [2009] NSWCCA 20; (2009) 194 A Crim R 1 (to which McClellan CJ at CL referred to in King (supra)) Tobias JA (at [21]) expressed the view that this Court should give consideration to departing from the general proposition that digital sexual intercourse was to be regarded as generally less serious than penile sexual intercourse. James J (at [27]) reserved his position on the issue raised by Tobias JA. However, Price J said (at [56]):

‘Relevant considerations in determining where on the scale of seriousness an offence contrary to s 61I of the Crimes Act lies include "the degree of violence, the physical hurt inflicted, the form of forced intercourse and the circumstances of humiliation ... see R v Gebrail (Court of Criminal Appeal, 18 November 1994, unreported) per Mahoney JA at 10-11. To those matters I would add the duration of the offence. Non-consensual sexual intercourse by digital penetration has generally been considered to be less serious than an offence of penile penetration: see, for example, R v Santos Da Silva (Court of Criminal Appeal, 30 November 1995, unreported) per Grove J at 3, but each case will depend on its own facts. There is no canon of law which mandates a finding that digital penetration must be considered less serious than other non-consensual acts of sexual intercourse. Whilst the form of the forced sexual intercourse is an important factor it is not to be regarded as the sole consideration’.

[52] In MH (the decision cited by counsel for the applicant) R S Hulme J (in reference to the observations of Tobias JA in Hibberd) said (at [37] - [38]):

‘The matter was not argued. Nor was the Court provided with anything like a comprehensive review of prior authorities, and there are a number. Accordingly, this is not the occasion to attempt a detailed review of the topic. However, as a judgment on a matter of fact, my view is that digital sexual intercourse is generally less serious than penile, particularly penile vaginal, intercourse. Inherently, penile vaginal intercourse carries risks or greater risks of venereal disease and pregnancy compared with digital vaginal intercourse. To my mind, and I venture to say in the view of most of the community, penile vaginal intercourse is also a greater affront both physically and mentally to an unwilling victim in consequence of the greater subjugation of her body and intrusion of privacy that such intercourse generally involves.’”

15. Bellew J concluded at [54]:

“To the extent that the submissions of counsel for the applicant suggested otherwise, it should be emphasised that there is no decision of this Court which supports the proposition that digital sexual intercourse is, of itself, less serious than some other form of forced sexual intercourse. Reference to the above authorities demonstrates that it has been emphasised, on more than one occasion, that the objective seriousness of offending is to be determined according to the entirety of the facts and circumstances of the case in question. Concentrating upon, or giving primary significance to, the form of the forced sexual intercourse in determining its objective seriousness reflects an erroneous approach. It is equally erroneous to attempt to rank forms of forced sexual intercourse in some hierarchy so as to determine their objective seriousness.”

16. The offending was opportunistic and certainly not planned. However, there is to my mind a complicating factor in making a determination of the objective seriousness of the matter. This factor was not addressed in any detail by either counsel at the sentence hearing.

17. I will deal in greater detail with the report of Ms Lucas of Duffy Robilliard Psychologists when dealing with the subjective case. However, on the issue of assessment of the objective seriousness of the matters she says at para 69 on p 10 of the report:

“In addition to the mental health difficulties he described he presented with extremely low cognitive function. The level of his intellectual function would satisfy the criterion necessary for diagnosis of an intellectual disability. As such his problem solving capacity and ability to appraise situations and make good decisions would be considered reduced”

18. At paragraph 34 she sets out that the offender’s full scale IQ was 55; that placed him in the lowest 99.9% of intellectual function as compared to others in his age. At para 76 (p 11) she says, “Other custodially based treatment alternatives for people with intellectual disability/cognitive impairment who offend and who need an intensive treatment tailored to their unique responsivity issues in a controlled safe environment should be explored and considered”.

19. With a finding that the offender had a full scale IQ of 55, it is a little surprising that the author of the report is not clearer about a finding or diagnosis of intellectual disability. However, the matters from the report that I have extracted are such that I am prepared to find on the balance of probabilities that the offender has an intellectual disability. The extent of that disability is not otherwise described in the report.

20. The significance of this finding is to be found in the judgment of Johnson J in the decision of Tepania v R [2018] NSWCCA247. His Honour (Payne JA, Simpson AJA agreeing) said at [112]:

“In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at 324-325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at 55-56 [171]-[172] (Callinan J).”

21. The Crown submits that the sexual intercourse without consent count is just below the mid-range and the indecent assault is within the mid-range. My memory, which I concede may be imperfect, is that counsel for the offender submitted that the criminality was lower than the Crown submitted.

22. Noting all of the circumstances of the offending I am of the opinion that the sexual intercourse without consent is below mid-range, but not significantly so. The indecent assault is at the lower end of the mid-range.

Criminal History

23. The offender was born on 10 June 1980 and therefore is 39 years of age and was 37 years of age at the time of offending. He has a number of convictions recorded against him including for Possession of a Prohibited Drug, Larceny, Break and Enter offences, domestic violence offences including Assault Occasioning Actual Bodily Harm and Contravene Domestic Violence Order, Assault and Resist Police and some traffic offences.

24. I deal with the offender’s criminal history on the basis that it is a history that does not entitle him to any particular leniency. His record could not be considered to be an aggravating factor. It is my understanding that this is the approach submitted by both parties.

25. The offender was on a s 9 bond for a High Range Prescribed Concentration of Alcohol offence at the time of the commission of the present matter and accordingly the factor of statutory aggravation of offending while on conditional liberty pursuant to s 21A(2)(k) of the Crimes (Sentencing Procedure) Act, 1999 is made out.

Victim Impact Statement

26. The victim read a comprehensive victim impact statement via audio visual link. That statement became exhibit B on sentence. One can only hope that the offender was listening while that was being read. The statement speaks eloquently of the type of short and long term emotional harm that offending of which the offender was found guilty has on victims.

27. Be that as it may, the Crown does not press that the court could find the factor of statutory aggravation that the victim has suffered substantial emotional harm is made out. In this regard I note the decision of R v Tuala [2015] NSWCCA 8. The Crown appropriately submitted however that the contents of the victim impact statement can be taken into account pursuant s 3A(g) of the Crimes (Sentencing Procedure) Act.

Subjective case for the offender

28. The offender gave evidence at the sentence hearing. He is indigenous. He was born (and I gather from the evidence grew up) in Bourke in far north-western New South Wales. He said he told Ms Lucas, the author of the psychological report the truth. His father died when he was a baby and he was raised by his grandparents. From about the age of 12 or 13 he began living on the streets.

29. I intervened at this point and attempted to get more information from the offender, who on my assessment was very reluctant to say anything critical of his upbringing or background. That is understandable on a number of levels including culturally. The offender remained reluctant and maintained that he commenced living on the streets because he just felt that he was getting no love. From my experience in western New South Wales I suspect very strongly that there are issues beyond what details were given by the offender but it is not something of which I can take judicial notice. The reluctance, or at least what I perceived as reluctance, may also be in part due to the issues of intellectual functioning highlighted by Ms Lucas.

30. The evidence continued that he got to know other street kids and that he would steal food to survive. His mother had a new partner and they were drinking all the time. He commenced using cannabis and alcohol in his teenage years. While living on the streets he became involved in a fight that resulted in him being admitted to intensive care. His mother did not visit him while he was in hospital.

31. He stopped living on the streets when he started shearing. He said that he liked shearing and he felt happy when he was shearing. He met different people and was able to provide for his family. The offender spoke fondly of his time shearing and indicated later in his evidence that on his release he would like to go back to shearing. He has three children. The oldest, a boy, was born when the offender was 18. He has not spoken to that son in about two years.

32. He was able to purchase a house in Bourke. He said that he felt happy when he bought the house because he was able to provide a roof over the heads of his family. Regrettably the house burnt down and he was uninsured which meant that he essentially lost everything. I note that the offender told Ms Lucas that his life spiralled when his house burnt down and his drinking became worse after this occurred. He confirmed a little later in his evidence that he had been under the influence of alcohol at the times he committed the offences on his record.

33. The offender has lived in Sydney where he worked in a concrete factory. He said that he did not feel safe in Sydney. His parents who are in their 60’s and have various health issues live in St Marys in Western Sydney and from the cross-examination it seems that this is so they can be close to health facilities and services.

34. Further, the offender said that he has done some literacy and numeracy courses in gaol. He appeared to be genuinely pleased when he said that he could now write letters to his family.

35. The offender said that he is motivated by his family to go back to work as a shearer when he is eventually released. He maintained that he will “stay off” the drugs and alcohol. He has found that training every day while in custody assists with stress.

28. Under cross-examination the offender said that his parents were not big drinkers and they were not drug users. He confirmed that he went to live on the streets because he felt left out. There was some overcrowding in the house. His one attempt at rehabilitation in 2007 was not successful.

29. Ms Hennessy argued both in the outline of submissions (MFI 2 on sentence) and in oral submissions that I would find the principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37 enlivened therefore reducing the moral culpability of the offender. The Crown argues that they would not achieve much weight. The Crown also addressed on [44] of Bugmy on the issue of protection of the community.

30. It is not without significance that the offender is indigenous and grew up in Bourke. He was living on the streets in his teenage years. There is the issue of the stability provided by his grandparents but clearly there is a reason why he went to live on the streets. It is clear enough that his mother rejected him noting that she did not visit him in hospital after suffering a significant injury. On balance I find what has come to be called the “Bugmy principles” enlivened but they do not achieve anywhere near the same weight in this case as they might in others coming from Bourke or other isolated areas of far western New South Wales.

31. I have already extracted those parts of the report of Ms Lucas going to the intellectual disability of the offender. It is within my experience that a diagnosis of intellectual disability is usually and generally stated a little more clearly and more definitely in reports. Nevertheless I am satisfied on balance that the offender has an intellectual disability.

32. In Muldrock v The Queen [2011] HCA 39 the court said at [54]:

“The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.”

41. My note and memory is that the Crown conceded that the offender suffers from an intellectual disability. However, my further note and memory is that the Crown also submitted on the absence of a causal connection between the intellectual disability and the offending.

42. It is tolerably plain from what was said by the plurality in Muldrock that it is generally necessary where an offender relies on a mental illness or mental condition as a mitigating factor reducing moral culpability some causal connection between that condition and the offending is required. In this regard I note also the decisions of Aslan v R [2014] NSWCCA 114 per Simpson J (as her Honour then was) and Ngati v R [2014] NSWCCA 125 at [46] per Beech-Jones J. In the matter presently under consideration the offender is (to use the expression used by the High Court) “mentally retarded”. It seems to me from the authorities, particularly Muldrock v The Queen that the issue of a causal connection does not necessarily achieve the same significance as with matters involving a mental condition.

43. McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; 205 A Crim R 1; [2010] NSWCCA 194 said at [177]-[178]:

“Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40] - [48]; Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 at [43] - [51]; R v Harb [2001] NSWCCA 249 at [35] - [45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33] - [36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]-[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner:

● Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28].

● It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 - 51; Israil at [22]; Pearson at [42]; Henry at [28].

● It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28].

● It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].

● Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24].

[178] I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence: R v Skura [2004] VSCA 53; R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at [5].”

44. In all the circumstances I do find the principles in De La Rosa enlivened, reducing the offender’s moral culpability and the impact of general deterrence on the ultimate sentence to be imposed. However there is the complicating factor of the offender’s significant intoxication with alcohol, which is also part of the consideration of this issue.

45. I turn now to the other aspects of Ms Lucas’ report. The issue of him living on the streets and receiving a severe injury while doing so are set out at paragraph 6. The issue of no literacy or numeracy skills is raised at paragraph 13. I note however that these issues are being addressed by the offender in custody. The offender had limited formal education, which given his circumstances and lack of literacy skills is hardly surprising.

46. The offender commenced using alcohol when he was 14 and illicit drugs when he was 18 or 19 years of age. The report goes on to say that the offender’s daughter was taken by Family and Community Services in 2017 to live with the offender’s mother because of the offender’s drug use.

47. At paragraph 31 Ms Lucas opines that at the assessment there were no signs or report of thought disorder or other psychotic phenomenon either in the present or in the past. The report then goes into the issue of the offender’s intellectual functioning which have already been dealt with in some detail.

48. The author of the report sets out (paragraph 53) that the offender advised that his recollection of the night of the offending was impaired by his significant intoxication by alcohol and drugs. He maintained an inability to recall the offending. He also maintained that intoxication had also been a factor in other offending, which was consistent with the evidence that he gave.

49. Ms Lucas assessed the offender – see paragraph 60 – as being at an average risk of re-offending. Given this assessment, the offender’s criminal history and the fact that the offences in the present matter were committed while he was subject to conditional liberty I am unable to find on balance that the offender is unlikely to re-offend. There is no material or evidence on which I could make a finding on balance that the offender is remorseful.

50. Further in her report Ms Lucas sets out that the offender’s use of substances should be addressed as part of his rehabilitation plan and appears linked to the underlying longer term or stable risk factors. She goes on to say that although the offender has serious limitations in cognition the offender showed insight into the association between his offending and substance abuse. She recommends that while the offender is in custody he engages in the Intensive Drug and Alcohol Treatment Programme, which is a programme designed for offenders who have alcohol and other drug histories as well as intellectual impairment.

51. Having taken the issue of intellectual impairment or disability into account already in moderating the sentence it would be double counting to also include it as a justification for a finding of special circumstances. However, given the issues raised by Ms Lucas there is going to be a need for ongoing, extensive and intensive supervision to ensure that the offender is able to effectively get treatment for issues relating to alcohol and substance abuse, particularly alcohol.

52. Ms Hennessy argued on behalf of the offender that the court should find on balance that the offender has good prospects of rehabilitation. The arguments advanced by counsel for such a finding include the insight the offender has shown to the connection between his offending and alcohol and substance use, his risk of re-offending is “average”, he has shown he is capable of stable employment, there is no history of sexual offending and there are programmes available to the offender in custody to address his issues.

53. The offender failed at his one attempt at rehabilitation. I accept that rehabilitation is rarely successful on the first occasion. The offender has shown that he can hold down employment. However, it is in my opinion simply too early to tell whether there are good prospects of rehabilitation. Much will depend on whether the offender completes the various courses while in custody and whether he remains abstinent from alcohol and illicit substances on his release. For those reasons I decline to make a finding on balance that the offender has good prospects of rehabilitation.

Statistics

54. The Crown Prosecutor with her usual thoroughness has helpfully provided the statistics kept by the Judicial Commission. They are annexed to the Crown’s written submissions on sentence (MFI 1 on sentence). In respect of the s 61I offence of a sample of 25 cases the total sentence ranges between 3 years and 10 years, with seven cases i.e. 28% receiving a sentence of 3 years. The non-parole periods range between 18 months and 7 years, with 24% (six cases) receiving a non-parole period of 2 years.

55. I have read and considered the statistics however I warn myself about the limited use to which I am able to put those statistics conformably with Brown v R [2014] NSWCCA 215 especially at [80]-[81] per Garling J and the observations of Bathurst CJ in SS v The Queen [2016] NSWCCA 197 at [62]-[73].

Partial accumulation and concurrency

56. There are two offences in respect of which the offender appears for sentence. Those offences were committed as part of the one course of conduct that would have lasted for some minutes. The Crown argues that given there are two separate and distinct offences, each of which caused harm to the victim there should be some accumulation between each sentence to recognise the harm caused by each instance of sexual offending. The Crown refers to the decisions of LG v R [2012] NSWCCA 249 at [24] and R v MMK (2006) 164 A Crim R 481; [2006] NSWCCA 272 at [13]. Ms Hennessy argues on behalf of the offender that given that the offending was so closely connected and is contained within the one course of conduct that there should be concurrent sentences.

57. The principles relating to the issue of accumulation and concurrency were thoroughly summarised by Hall J (Tobias JA, Kirby J agreeing) in R v XX [2009] NSWCCA 115 at [52]:

“There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively: see Cahyadi v Regina (2007) 168 A Crim R 41 per Howie J at 47. However, a number of propositions relevant to the consideration of that issue may be derived from the case law. They include the following:-

(1) It is well established that questions of accumulation are, subject to the application of established principle, discretionary. What is important is that, firstly, an appropriate sentence is imposed in respect of each offence; and, secondly, that the total sentence imposed properly reflects the totality of the criminality: Regina v Wilson[2005] NSWCCA 219 at [38] per Simpson, Barr and Latham JJ agreeing.

(2) In Regina v Weldon; Regina vCarberry (2002) 136 A Crim R 55, Ipp JA at [48] stated that it is "not infrequent that, where the offences arise out of one criminal enterprise, concurrent sentences will be imposed" but his Honour observed that "this is not an inflexible rule" and "[t]he practice should not be followed where wholly concurrent sentences would fail to take account of differences in conduct".

(3) The question as to whether sentences in respect of two or more offences committed in the course of a single episode or a criminal enterprise or on a particular day should be concurrent or at least partly accumulated is to be determined by the principle of totality and the relevant factors to be taken into account in the application of that principle. See observations in this respect of Howie J in Nguyen v Regina[2007] NSWCCA 14 at [12].

(4) In applying the principle of totality, the question to be posed is whether the sentence for one offence can comprehend and reflect the criminality of the other offence. See generally Regina v MMK [2006] NSWCCA 272 at [11] and [13], Cahyadi (supra) at [12] and [27] and Vaovasa v Regina[2007] NSWCCA 253.

(5) If the sentence for one offence can comprehend and reflect the criminality of the other, then the sentences ought to be concurrent, otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the totality of the two offences: Cayhadi (supra) per Howie J at [27].

(6) If not, the sentence should be at least partially cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality: Cayhadi (supra) per Howie J at [27].

(7) Whether the sentence for one offence can comprehend and reflect the criminality of the other calls for the identification and an evaluation of relevant factors pertaining to the offences. These will include the nature and seriousness of each offence.

(8) In cases involving assault with violence where the offences involve two or more attacks of considerable violence and are distinct and separate (eg, see Regina v Dunn [2004] NSWCCA 41 at [50]) or in cases where there are separate victims of the attacks as in Wilson (supra), the closeness in time and proximity of the two offences will often not be determinative factors. See also Regina v KM [2004] NSWCCA 65. In Wilson (supra), having regard to the purposes of sentencing set out in s.3A of the Crimes (Sentencing Procedure) Act, Simpson J observed at [38] that "... to fail to accumulate, at least partially, may well be seen as a failure to acknowledge the harm done to those individual victims ..."

In Dunn (supra), the respondent to the Crown appeal had entered a guilty plea to an offence under s.51A of the Crimes Act 1900 of breaking and entering the dwelling house of a female, being armed with an offensive weapon, namely a knife with which he wounded the victim by inflicting three shallow lacerations to her neck. He also pleaded guilty to the offence of assaulting a male thereby occasioning actual bodily harm, that crime also occurring in the female's home when the male victim attempted to protect her from the respondent.

On the appeal, the Crown submitted that the sentences should have been partially accumulated. Adams J (with whom Ipp JA and Sully J agreed) stated at [50] that there should have been some accumulation in the sentences to reflect the fact that the respondent had persisted in his violence when the male victim attempted, justifiably and lawfully, to restrain him:-

"... there is a distinct difference between assaulting one victim and assaulting two. Each was intentionally injured with the knife. The learned sentencing judge did not articulate his reasons for making the sentences wholly concurrent. Merely that the offences occurred in the course of a single extended episode does not justify such a conclusion. In my view the two attacks were distinct and separate instances of considerable violence and required distinct punishment, although they were so closely related in time and proximity as to require a significant degree of concurrency. Of course, it is also important to ensure that the effective sentence thus derived does not exceed the respondent's criminality considered as a whole."

(9) Where two offences committed during the course of a single episode are of a completely different nature and each individually involved significant or extreme gravity, it is likely that some accumulation will be necessary to address the criminality of the two: Nguyen (supra) per Howie J at [13].

(10) Possession of two different kinds of drugs may not be regarded as one episode of criminality in a case of "deemed" supply: Luu v Regina[2008] NSWCCA 285 at [32].

(11) The fact that the evidence of two offences (eg, documentary evidence or the presence of drugs) are located by police at or in the one place is not a relevant factor in favour of concurrent sentences:-

"... The fact that the evidence of a number of discrete offences is located in the one place is completely irrelevant to any question of how the sentences for those offences should be imposed." (Cahaydi (supra) at [26])

58. In the matter presently under consideration, giving consideration to these matters I am of the opinion - noting the offences were very closely connected and arise out of the one course of conduct that would have lasted some minutes - that concurrent sentences can be imposed. However, in imposing concurrent sentences I will need to ensure that the principles as enunciated by Howie J in Cahaydi [2007] NSWCCA 1 at [27] are applied and that the sentence imposed for the sexual assault contrary to s 61I adequately and properly reflects the criminality involved in the indecent assault.

General Remarks

59. I must give proper regard and effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act, 1999. Section 3A sets out the purposes of punishment, namely:

1. to ensure that the offender is adequately punished for the offence,

2. to prevent crime by deterring the offender and other persons from committing similar offences,

3. to protect the community from the offender,

4. to promote the rehabilitation of the offender,

5. to make the offender accountable for his or her actions,

6. to denounce the conduct of the offender, and

7. to recognise the harm done to the victim of the crime and the community.

60. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the maximum penalty, the standard non-parole period prescribed in respect of the charge contrary to s 61I there must be a sentence of imprisonment. Further given the offending and the standard non-parole period there must be a sentence of full time imprisonment. I did not understand counsel for the offender to argue to the contrary.

60. It was my understanding that both counsel agreed at the sentence hearing that the appropriate commencement date of any sentence was 17 October 2019.

Orders

62. In respect of the charges that

1. That (he) on 9 July 2017 in Bourke in the State of New South Wales did have sexual intercourse with AL without the consent of AL knowing that she was not consenting, contrary to s 61I of the Crimes Act, 1900 and further

2. That (he) on 9 July 2017 at Bourke in the State of New South Wales, did assault AL and that he DE at the time of such assault did commit an act of indecency upon AL.

63. The offender is convicted.

64. Consequent upon those convictions:

1. In respect of count 2 the offender is sentenced to a fixed term of 15 months imprisonment to date from 17 October 2019 and which will expire on 16 January 2021; and

2. In respect of the count 1 the offender is sentenced to a non-parole period of 3 years and 3 months to commence on 17 October 2019 and which will expire on 16 January 2023. There after there will be a period on parole of 1 year 6 months to commence on 17 January 2023 and which will expire on 16 July 2024.

65. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.

66. The non-parole period is approximately 68% of the total sentence, which reflects a finding of special circumstances the reasons for which have been enunciated within these reasons.

67. I recommend that parole be supervised by the Department of Community Corrections and conditioned that the offender obeys all reasonable directions as to ongoing treatment and counselling for alcohol and substance abuse.

68. I direct a copy of the report of Ms Ann Lucas, exhibit 1 on sentence be annexed to the warrant that is forwarded to the Department of Corrective Services.

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Decision last updated: 09 April 2020