R v DS (No 2)

[2017] NSWDC 358

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v DS (No 2) [2017] NSWDC 358
Hearing dates:	9 October 2017
Date of orders:	08 December 2017
Decision date:	08 December 2017
Jurisdiction:	Criminal
Before:	Hatzistergos DCJ
Decision:	The offender is sentenced to an aggregate term of imprisonment pursuant to s 53A of the 1999 Act of 22 years comprising: 1 A minimum term of 15 years and 4 months, commencing on 19 February 2015 and expiring on 18 June 2030; and 2 An additional term of 6 years and 8 months, commencing 19 June 2030 and expiring on 18 February 2037 during which the offender shall be eligible to be released on parole subject to a determination of the State Parole Authority.
Catchwords:	CRIMINAL LAW – SENTENCE – offender convicted of 21 Counts of sexual intercourse without consent – offender convicted of one count of attempted sexual intercourse without consent – offender convicted of one count of recklessly cause grievous bodily harm – aggravating factors – objective seriousness – mitigating factors – no prior recorded convictions – good character not established – low to medium likelihood of re-offending – guarded prospects of rehabilitation – remorse not established
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 24, 53A, Div 1A Table Crimes Act 1900 (NSW) ss 35, 61I, 61P
Cases Cited:	Aguirre v R [2010] NSWCCA 115 Coles v R [2016] NSWCCA 32 Gore v R; Hunter v R [2010] NSWCCA 330; (2010) 208 A Crim R 353 Mc Cullough v R [2009] NSWCCA 94 McLaughlin v R [2013] NSWCCA 152 R v CTG [2017] NSWCCA 163 R v De Simoni (1981)147 CLR 383; (1981) 35 ALR 265; [1981] HCA 31 R v DS (No 1) [2017] NSWDC 207 R v Hamid [2006] NSWCCA 302 R v Hibberd [2009] NSWCCA 20 R v Jonson [2016] NSWCCA 286 R v Lulham [2016] NSWCCA 287 R v Mosegaard [2005] NSWCCA 361 R v Schwabegger [1998] 4 VR 649 Sabra v R [2015] NSWCCA 38 ZZ v R [2013] NSWCCA 83
Category:	Sentence
Parties:	DS (Offender) Regina (Crown)
Representation:	Counsel: Self-represented (Offender) Mr C Everson (Crown)   Solicitors: Solicitor for the Director of Public Prosecutions (Crown)
File Number(s):	2015/110707 and 2015/30628
Publication restriction:	Suppression orders in place for names the offender, DS; the victim, AS; and, their children, WS and JS.

Remarks on sentence

Introduction

1. On 4 August 2017, following a judge alone trial that commenced on 17 February 2017, I found the offender, DS, guilty of 21 Counts of sexual intercourse without consent,[1] one Count of attempted sexual intercourse without consent[2] and one count of recklessly causing grievous bodily harm. [3]

   1. Crimes Act 1900 (NSW) s 61I (hereinafter, the “1900 Act”)

   2. 1900 Act s 61P

   3. 1900 Act s 35(2)

2. On 11 August 2017, I made directions which required:

1. The Crown to serve any material that it wished to rely on sentence upon the offender by 15 September 2017.

2. Ordering the preparation of a pre-sentence report.

3. On 29 September 2016 the matter was listed for further directions.

4. On 9 October 2017, I heard oral submissions from the parties as to sentence. I reserved my decision to this day being unable to list the matter at an earlier time.

Facts

5. My reasons for returning verdicts of guilty on the charges for which the offender is to be sentenced can be found in my principal judgment. [4]

   4. R v DS (No 1) [2017] NSWDC 207

6. However, as part of the sentencing process, it is important that I set out the relevant details of the offences as I have found them.

7. There was an extensive amount of evidence led by the Crown in relation to the background and context in which the offences were said to have occurred, as well as evidence about the nature of the relationship between the victim and the offender. I do not propose to re-canvass such evidence in my remarks. However, I note, after careful examination and notwithstanding some inaccuracies in her recollection, I concluded that the victim to be honest and generally reliable in her account. [5] I was satisfied, beyond reasonable doubt, that:

… the circumstances in which the charged acts [were[ alleged were not isolated and follow what involved a history of other acts of domestic violence during the course of the marriage;

(2) the acts involved demonstrate an escalation of violence and an elevated fear by the victim towards the offender;

(3) the victim was dependent and saw herself as vulnerable within the relationship resulting in her being submissive and acquiescing to the offender’s wishes; matters I bore in mind in accounting for her actions and reactions; and

(4) the victim had been reluctant in the past to report and cooperate with law enforcement processes because of concerns that included of the potential consequences for her and her family in light of the economic dependence on the offender and limited other support. [6]

5. R v DS (No 1) [2017] NSWDC 207 at [73] – [88] (Hatzistergos DCJ)

6. R v DS (No 1) [2017] NSWDC 207 at [480] (Hatzistergos DCJ)

8. The offences in respect of which I am to sentence the offender arose from a suspicion on his part that the victim had been unfaithful to him during their relationship and in particular had been having an affair with a Mr Glen Kelly. In the face of what can only be described as persistent interrogation by the offender the victim falsely confessed to having an affair with Mr Kelly. She did so in the belief that the offender would desist from further interrogation and forgive her. Following doing so, the offender on 12 December 2014 told the victim that there was no repairing of the relationship. Subsequently the victim gave evidence that I accepted that the offender stated that if she undertook 18 punishments, he would forgive her and keep her. The victim agreed to submit to the punishments hoping that she could be “forgiven” and that this would result in her family staying together. The sexual intercourse offences the subject of Counts 1 to 4 and 6 to 23 constitute punishments that the offender administered and the victim submitted to.

9. The sexual intercourse offences consisted of felatio (Counts 1-2, 16 and 18); urination in the mouth (Counts 3, 4 and 6) digital penetration of the vagina/use of a sex toy to penetrate the vagina (Counts 7, 9, 19, 11, 12, 13, 17, 20-22) and an attempted anal penetration with the toy (Count 8).

10. Count 24 involved an offence of recklessly inflicting grievous bodily harm following the victim being forced to jump by the offender from the top of a carport located at her home, after a pursuit by the offender.

Count 1 – sexual intercourse without consent

11. I accepted that this Count followed 16 January 2015. On this occasion, the victim stated that the offender hit her on the face told her that she was a “very good person to suck him” because that she had “sucked Glen’s dick” and that she would do “it” to him. [7]

    7. T 172.16 – .19

12. She said she thought that if she did not do it, the offender would hit her again, and she was “scared that he is going to hit me.” [8] She also stated that she complied because the offender would have hit her if she did not suck his penis because he thought she had “done [it] to Glen” that she had to “do it to him too.” [9]

    8. T 172.21 – .23 and T 172.32 – .37

    9. T 178.15 – .20

13. The victim stated that she sucked the offender’s penis by having the offender’s penis in her mouth. [10] According to her account the offender held her head and wanted her to “keep going.” [11] He did this by holding her head tightly from behind so that she could not get away [12] using both hands. [13]

    10. T 172.25 – .30

    11. T 177.34 – .42

    12. T 178.22 – .26

    13. T 178.28 – .32

14. The offender wanted her to “catch everything in [her] mouth” and stated that she had to do it as she had done the same to Mr Kelly. She stated that the offender did not have a “good coming out.” [14]

    14. T 177.44 – .49

15. After she sucked the offender’s penis, the offender told her to “hold it” in her mouth, which she did. [15]

    15. T 663.45 – .47

Count 2 – sexual intercourse without consent

16. Following Count 1, the victim was required to drive the offender to Leumeah train station so that he could go to work. When they arrived at the train station, the offender told her to drive towards the tennis club. [16] She was then advised of a new punishment being that she had to “circumsice.” She was told that if she did not do it then another harsh punishment is to come is to come or she had to lose her nose mouth and her vagina.

    16. T 178.35 – .39

17. At the tennis club the offender told the victim to stop the car. The victim stopped the car in a location where there were “big trees surrounding so the view was blocked towards the club.” The offender got out of the car from the passenger seat and told her to come out. The victim stated that she did not make a “big fuss” and “just came out.” The offender told her: “I want to piss in your mouth.” The offender told her to sit on the ground, but she refused. She told him: “I’m going to sit on the front seat” of the car. She proceeded to open the door and to sit in the car. The offender subsequently told her that he only had “five minutes to do it” and that it was “part of a punishment.” The offender “took his penis out” and put it in the victim’s mouth. The victim stated that the offender did not urinate but she did try to “bite” because she “didn’t want him to do that” to her. [17]

    17. T 178.41 – 179.2

18. The victim stated that the offender’s penis was in her mouth for “five seconds.” [18] Thereafter, the offender verbally abused the victim and told her that this was “part of [a] punishment” and that “new punishments will be coming.” [19]

    18. T 179.19 – .21

    19. T 179.39 – .47

Count 3 – sexual intercourse without consent

19. This count occurred on the same day as Count 2, after the offender had returned home after being picked up by the victim at the railway station.

20. The victim gave evidence that following being physically assaulted the offender called her whilst she was upstairs, and said: “It’s time for your punishment.” The victim stated that she had to feed their children first, but the offender continued to call her. The victim went down stairs and she described what occurred as follows:-

“He said, ‘The punishment is ready’. I asked him, ‘What is that?’ and he said that, ‘Punishment is that I’m going to piss in your mouth’. So I went with him in the toilet and he told me to sit on the pan and I sat on the toilet pan and he wanted to piss in my mouth and I didn’t want to open my mouth. And he told me he will take off your nose and your mouth and your vagina, what is best. I thought that at least he pisses in my mouth I would keep my nose, my mouth and my vagina. I had to live for my children. I made a decision to open my mouth and let him piss in my mouth. If he does that then at least I have my nose and my mouth so can I have to live for my children.” [20]

20. T 184.12 – .21

21. The victim described that she closed the lid of the toilet, sat on it, and the offender held out his penis. The victim saw that his penis was bleeding and the offender stated that she had given him a disease. The victim informed him that she did not have a disease, and the offender said: “Piss is coming” and asked her to open her mouth. The offender then proceeded to urinate into the victim’s mouth. [21] The victim described having to swallow the offender’s “piss with blood.” She stated that it was “smelly” and described vomiting all over the floor because she could not “take it no more.” [22] She stated that the offender’s urine came out “mixed with the blood” and that she could “feel” and “smell” it, but she did not let it go down her throat, notwithstanding the offender’s instruction to “swallow it.” She stated that she did not do it because it was “undescribable [sic], disgusting, so I vomited all on the floor.” [23] She described the offender thereafter as being pleased and happy. [24]

    21. T 185.4 – .9

    22. T 186.9 – .12

    23. T 186.21 – .26

    24. T 186.28 – .40

22. What was involved was described as a single mouthful that was spat out with subsequent vomiting. There was no evidence suggesting urination apart from the victim’s mouth. Nevertheless this act was humiliating and degrading causing the victim clear discomfort.

Count 7 – sexual intercourse without consent

23. On another occasion preceding the circumstances surrounding Count 4 the victim had indicated to the offender that she was feeling sick. Notwithstanding this the offender told her that he was ready to proceed with another punishment.

24. The offender went to the bathroom and retrieved a toy described as being “shape[d] like a penis but it was very, very hard made out of a plastic” and “more than 12 centimetres” long. [25] The victim added that the toy was connected to a belt. [26] She stated that the offender put gel on the toy, “halfway of the toy” and that it was “maybe two inches.” [27] She stated that it was “so big. I was very, very scared and I was terrified.” [28] The victim pleaded with the offender not to use it however was told that it was part of her punishment and she had to get used to it. The victim then begged the offender to do it slowly however he pushed it hard into her vagina. As he was pushing it she described it as very, very painful At one point the victim yelled and screamed, got out, pushed the offender away and her children WS and JS came running down. The offender quickly sent all them out and placed a blanket on the victim. The victim described herself as being shuddered, and just kept quiet. [29]

    25. T 204.44 – .49

    26. T 204.37 – .38; and T 205.5 – .9

    27. T 205.11 – .23; and T 217.33 – .36; At one stage, the victim stated that she was “very much [in] pain because he pushed the toy in and without any gel or anything…”

    28. T 203.25 – .26

    29. T 203.28 – .50

25. The victim gave evidence that she thought that if she denied the offender this punishment, “other punishments would come,” which would be “worse than [the] toy.” [30] When specifically asked as to how the offender would respond, if she had denied him the punishment, the victim stated: “He will – he will hit me.” [31] She later added that she did what the offender told her because “otherwise … the punishment is going to get worse.” [32] She stated that she was awake all night and that the offender did not let her sleep, and that he “verbally, mentally, [and] physically” abused her. [33]

    30. T 206.9 – .19

    31. T 207.13 – .15

    32. T 218.23 – .25

    33. T 207.17 – .19

Count 8 – attempt to have sexual intercourse without consent

26. Following the incident the subject of Count 7 on the indictment, the victim gave evidence of the offender trying to push the sex toy into her bottom. She could not remember if it was on the same day as Count 7.

27. The victim gave evidence of being instructed to have her bottom exposed. She stated that she was very scared and thought that if the offender pushed the whole toy inside her then she may not survive. [34] She stated that she submitted in order to get through the night, to survive and maybe she will be spared. [35]

    34. T 219.10 – .18

    35. T 219.28 – .30

28. The victim stated that the offender held the toy in his hand and tried to push it into her bottom. [36]

    36. T 218.27 – .28

29. The victim stated that she got up and pushed the offender away and told him that it was not the place to have sex and told him: “God has made that for us to poo, not to have sex.” She added that the offender did not care. She asked the offender why he was doing this to her and he stated that it was “just pleasure” and it was a punishment that she had to go through. [37] The offender is also said to have stated: “Other women do it, why can’t you?” [38]

    37. T 217.32 – .33

    38. T 218.33 – .38

30. This offence involved an attempt. The victim was clearly concerned for her safety but did not describe enduring pain and I am satisfied the duration was short.

Count 4 – sexual intercourse without consent

31. The victim recalled the next instance involving urination as post-dating the first use of the toy. She described having done this as the “third one.” [39] By reference to earlier counts this would be within the period alleged of 13 January and 31 January 2015.

    39. T 207.32 – .37

32. The victim gave evidence about an incident occurring in the afternoon, when she picked up the offender from work and she was called to the toilet downstairs. The victim replied that she was feeding her children, and the offender stated: “Well you should know that if I call you, you have to come straight.” She stated that the children asked her to go downstairs and she went downstairs. [40]

    40. T 197.6 – .15

33. As soon as the victim went downstairs, she stated that the offender called her into the bathroom, and said that the “punishment” was ready. At that point, the offender was said to be in the bathroom waiting for her to arrive. [41] The victim stated that she was made to sit on the toilet pan and the offender wanted her to “be [as] normal as possible.” [42] She stated that during this incident, as in the second one, she was “crying, worried, with none-half malnourish [sic]” and thought that she had to go through the punishment because she had previously done it, that the offender would “spare” her “just for mercy.” [43] She stated that she was concerned that if she did not do it, the offender would subject her to a worse punishment, and that this punishment was the “easiest one” because she had to “just open [her] mouth and sit there.” [44]

    41. T 197.18 – .24

    42. T 207.25 – .30

    43. T 207.32 – .37

    44. T 207.42 – .45

34. The victim sat on the toilet pan, she said a prayer to herself, and the offender told her to open her mouth. The offender could not urinate and then went to the basin, and as soon as he commenced urinating, he then inserted his penis into the victim’s mouth to continue. [45]

    45. T 197.26 – .45; and T 198.1 – .5

35. The offender urinated in the victim’s mouth and she vomited the urine out into a bin bucket where she had placed a plastic bag. She stated that she asked the offender why he had made her do that, to which he replied: “It feels good”, that it was part of the punishment, and that he got “a big relief” when he did it. [46]

    46. T 198.10 – .14

36. The victim believed that the offender would “chop” off her nose and mouth stating that “he doesn’t have remorse … no sympathy towards his wife, the mother of his children, who serve him day and night …” and that he was “capable of doing [it].” The victim stated that if the offender could urinate in her mouth with blood in it, and instruct her to swallow he would be “capable of doing anything.” [47]

    47. T 199.23 – .31

37. It is not asserted that this act involved blood as in Count 3. What was involved was described as a single mouthful and there was no evidence suggesting urination apart from the victim’s mouth. The act was nonetheless humiliating and degrading causing discomfort to the victim.

Count 6 – sexual intercourse without consent

38. The victim described an incident which occurred on the same afternoon or night as Count 4 or the next afternoon. [48] For the reasons I gave in my principal judgment, I found the offender not guilty of Count 5 which was said to have also followed Count 4. [49]

    48. T 202.36 – .40

    49. R v DS (No 1) [2017] NSWDC 207 at [586] – [596] (Hatzistergos DCJ)

39. In relation to Count 6, the victim stated that she was called down by the offender who told her that the punishment was ready.

40. When the victim went downstairs into the bathroom, the offender asked her to sit on the pan and to open her mouth. She stated that she forcefully opened her mouth a bit and the offender told her: “You’d better open your mouth big.” [50] The victim stated that she opened her mouth and the offender inserted his penis. The victim described some urine coming out but it was “not much” and the offender said to her: “Just hang on, it’s not coming, I have to wait.” The victim then spat out what was in her mouth. Eventually urine was expelled from the offender’s penis, and the victim spat it all out in the toilet and vomited. [51]

    50. T 202.48 – .50

    51. T 203.50 – .5

38. The offender then said to victim: “You are a bitch, you are good for nothing and your punishment is coming. You have to be ready for the punishment.” The victim wiped her mouth and went into the lounge room.

39. It is not asserted that this act involved blood as in Count 3. What was involved was described as a single mouthful and there was no evidence suggesting urination apart from the victim’s mouth. The act was nonetheless humiliating and degrading causing discomfort to the victim.

Count 9 – sexual intercourse without consent

43. The next occasion followed Counts 7 and 8. Two accounts were given of this incident by the victim in examination in chief, the first on 27 March 2017 and second on the following day, being 28 March 2017.

44. In her first account, the victim stated that this incident occurred on the end of the third, close to the third week of January 2015 in the “afternoon to night”. [52] On the second occasion, she gave evidence that it occurred between 13 January and 1 February 2015, at 10:00 pm at night. [53]

    52. T 208.43 – 209.12

    53. T 223.20 – .25

45. In any event I am satisfied that the offender put some rubber on the toy to make it bigger and thicker and he said” Glen’s dick is that thick and that big” as he saw in a photo. The victim stated that the rubber was placed half way down the toy on the long part. The offender inserted the toy inside the victim’s vagina from behind at a point where the victim’s back was up. The victim experienced significant sharp pain as the offender pushed more and more. Her complaints were ignored.

46. Thereafter, the victim stated that she pushed the offender away and screamed. The children came running downstairs and the offender put a blanket on the victim and put the toy beside the lounge.

47. In her first account of this incident, the victim stated that both children asked: “What happened mummy?” The offender is then said to have stated: “You go quickly” and the victim said: “just go to sleep” and don’t worry about me.” [54]

    54. T 211.39 – .45

48. The victim stated that she pushed but the offender came back again and told her that she should think about her nose and her mouth.

49. The victim stated that she was “very scared” and did what the offender wanted her to do, as it was “better to have this toy and that pain and not lose my nose and my mouth.” [55] The victim believed the threat because she stated if the offender “can abuse me every way he could, he didn’t have any mercy when I asked for, so he will do it.” [56] The victim described the motion of the offender as giving her “so much … pain, sharp pain.” [57]

    55. T 226.3 – .8

    56. T 226.10 – .13

    57. T 226.33 – .35

Count 10 – sexual intercourse without consent

50. This occurred again, between 13 January and 1 February 2015. The offender told the victim to undress as he wanted to have sex with her. At first the victim told the offender that she can't, she was very tired. The offender responded that ‘You can if Glen was here you wouldn't have hesitated, you would have done it.’ The victim replied ‘Okay, if it's only you I will do it, if it's the toy I can't.’ She then proceeded to undress.

51. The offender had the toy and told her to lie down, which she did on her back. The offender started to have sex with on the victim using the toy. At that time he didn't put any gel. The victim described it as was very, very, very painful and unbearable. She said “If I yell and scream my children will know and I don't want my children to know that what I'm going through.” And at times I am quiet, I am numb.” She asked the offender as to how the offender feels the offender replied that he felt better by punishing me, and “then he keeps going. And it's hurting me, I'm crying in fear and in pain, pushing him away. He comes back and he does it again.”

52. The victim described it as lasting about eight minutes with her lying on her back. [58]

    58. T 230.11 – .12

53. In a later description she gave, the victim stated that the pain was “very, very sharp” and she could not bear it and cried. She stated that she feared that if the offender pushed the “whole toy” inside her, that she would stop breathing. She stated that she was numb, her eyes were blurry and she “just wanted to survive.” The victim further stated that her body was “just numb at times” and she could not feel anything and feared that “something is wrong inside” and she did not want to die. [59] The victim stated that the offender told her that he felt “better” by punishing her. [60] She stated that the offender reminded her that he was going to chop her nose and mouth off, and that he would “destroy” her vagina so that it would be “unfixable” and her life would be “gone.” [61]

    59. T 230.34 – .42

    60. T 231.5 – .22

    61. T 231.26 – .28

Count 11 – sexual intercourse without consent

54. This occurred eight minutes after Count 10, when the victim was asked by the offender to turn around so as to allow him to have sex with the toy from behind. [62]

    62. T 233.23 – .30

55. The offender inserted the toy from behind the victim, holding one hand on her hair, and with the other one, was holding the sex toy whilst pushing it inside the victim. [63] The offender was holding two of his fingers straight on the toy and the victim felt that the offender was “pushing two fingers at the same time” in her bottom area. [64]

    63. T 235.21 – .30

    64. T 235.35 – .40

56. The victim stated that the offender was agitated and angry moving around staring at her giving weird looks which she described as a funny kind of smile and wide eyes. She also stated that he was chewing tobacco but was otherwise limited in her recollection.

Count 12 – sexual intercourse without consent

57. The victim described this incident as being the “fourth” incident involving the toy and occurring three nights after Count 10. [65] She later described it as occurring in the last week of January. [66]

    65. T 239.41 – 240.5

    66. T 244.37 – .39

58. This count related to an occasion where the children were in bed and the offender called the victim to go downstairs. When the victim went downstairs she saw that the offender had the toy beside him and that he was naked. She told the offender that she did not “want to” as it hurt her too much. The offender stated: “You must, it is your punishment.” The victim proceeded to undress and let the offender use the toy on her. The offender told her to “bend over the lounge” and she complied. The offender had the toy “belted onto him” over his penis and he put the toy into the victim’s vagina. After “doing it” to the victim for a while, the offender “pushed it too hard and too far inside [her]” and she described it “hurt like a sharp pain.” [67]

    67. T 239.41 – 240.11

59. The victim “screamed out in pain” and their children came running down because they heard her. The offender is asserted to have covered himself and the victim up with a blanket. The sex toy was on the ground next to the lounge and the victim saw WS looking at it without saying anything. She stated that WS wanted to give her a hug but the offender did not let him. The offender chased WS up the stairs. The victim told the offender to not yell at the children. [68] The victim then went upstairs to settle the children down. [69]

    68. T 240.13 – .25

    69. T 241.1 – .2

Count 13 – sexual intercourse without consent

60. Following Count 12 the victim went upstairs to put the children to sleep and fell asleep herself. [70] The victim heard the offender calling her. She proceeded to go downstairs and as she was doing so, told the offender that she was not coming. The offender replied: “Bitch you come, if you don’t come you are finished.” [71] She thereafter went downstairs. She stated that she was questioned “more and more” about having sex with Mr Kelly and she told the offender that she did not have sex with him. The offender quickly held his fist and came close to her face, but did not hit her and instead went back to sit down. The offender said to the victim that if she admitted to having sex with Mr Kelly then he would “spare” her. The offender then asked her how many times did she “suck Glen.” The victim replied that she had done so three times, but the offender told her, “… no, you have done five times.” [72] The victim stated that she was lying when she had told the offender she had sucked Glen three times, [73] in order to make him happy and so that he would spare her. [74] She stated that this meant that the offender would not chop off her nose and mouth and let her go. [75] She stated that she understood the offender’s earlier threat, that if she did not come, she would be finished; as meaning that the offender would kill her. [76]

    70. T 241.35 – .47

    71. T 242.18 – .23

    72. T 242.25 – .32

    73. T 242.34 – .35

    74. T 242.37 – .39

    75. T 242.41 – .42

    76. T 242.44 – .47

61. At the time, the victim described the offender as being very aggressive and very agitated. [77] The victim stated that the offender holding his fist and coming close to her face was something she had seen before, and it was something that he would do whenever he wanted to scare her to “get things out” of her. Most of the time, she would admit to things she had not done as she was scared that she was going to be hit. [78]

    77. T 242.49 – 243.1

    78. T 243.3 – .17

62. The victim reiterated that she did not wish to use the sex toy as it hurt her, and wanted to have “normal” sex with the offender. [79] The victim stated that the offender agreed and they had “normal sex”, however she stated that he did not have a good erection. The victim stated that the offender then told her to “suck him as [she] suck Glen”, however, after sucking the offender’s penis, the offender still did not have an erection. [80]

    79. T 245.10 – .14

    80. T 246.9 – .24

63. Notwithstanding having earlier told the offender that the victim did not want him to use the toy, the offender did ultimately bring the sex toy and put it on himself and started to have sex with the victim using the toy. The victim described him as having tied the toy around his waist and his penis was covered by the toy. The victim stated that she was lying on the sofa and the offender started to push the toy into her vagina. She stated that she was “quiet” and did not cry. She asked him why he was doing this to her and how he felt. The victim asserted that the offender said that he felt much better when he punished her. She stated that whilst the offender was pushing with the toy “hard”, she felt a “very, very sharp pain.” [81] She described the pain as causing her to cry. [82] The victim stated that she felt “very, very scared” because she did not want to go through the pain the offender had caused her previously. She stated that it was still hurting her and it felt like “burning fire.” She described it as “dangerous”, “painful” and “difficult.” [83] She described the physical difficulties as “holding straight and angry” and feeling “very dirty and very, very tired.” [84]

    81. T 246.32 – .38

    82. T 247.15 – .17

    83. T 247.19 – .25

    84. T 247.31 – .33

64. The victim stated that she was concerned that her health was deteriorating. She stated that she could not concentrate properly and she was concerned that if something happened to her, what would happen to her children. [85] She knew it was punishment as the offender told her he uses the toy as part of the punishment. [86] The victim stated that she laid on the lounge and allowed the offender to insert the toy because that was what she was told to do. She stated that if she did not comply, then the offender told her she would have to bend down on the sofa and “have sex from behind” and that was “very hurtful” and she was “just scared and vulnerable at that time.” She stated that it was “easier” for her to “just lie down.” Although it was still painful “from [the] front” it was not as painful as when the offender would go “from… behind.” [87] She stated that the offender was enjoying it because he was punishing her and he was very aggressive. She further stated:-

“He just want to punish me and making me realise or come to terms that there’s forgiveness or he’s going to spare me and …” [88]

85. T 249.50 – 250.4

86. T 250.9 – .11

87. T 250.13 – .20

88. T 250.24 – .26

Count 14 – sexual intercourse without consent

65. Following Count 13, the offender thereafter told the victim that there would be a new punishment coming, which he described as “honky” sex. [89] The victim stated that she did not know what this was, and the offender described this as “play with your hand or fingers.” She stated that she replied: “No, no, I’m very scared. I don’t know how it’s going to go and I don’t want to do it.” [90] She further stated:-

“I didn’t know how it’s going to be and I was very scared that if I don’t do it what’s going to happen next, and I was confused and terrified.” [91]

She also stated:-

“I mean that if I don’t do that punishment then I have to lose my nose, my mouth and my vagina. I was, I was very, very scared. So whatever is told I have to do it, if I don’t do it there’s something big coming towards me, something dangerous coming towards me.” [92]

89. T 246.38 – .41

90. T 252.27 – .37

91. T 252.50 – 253.1

92. T 253.6 – .9

66. An incident occurred on 27 January 2015 where the victim was downstairs during the night time with the offender. [93] The offender told her to undress and lie down. The victim complied. The victim told the offender that she was scared and to “do it as slowly” and then the offender tried to “push” in one finger into her vagina. At this point, the victim was “very, very scared.” She stated that she was shaking and the offender then put two fingers, and then three fingers inside her vagina. She stated that the offender eventually put four fingers inside her vagina. The victim stated that the offender was hurting her and it was “very, very painful” because he had “long fingers and fingernails.” [94] At the time, the offender was naked [95] and she was shaking, “sort of numb” and was crying because it was “very, very painful”. The victim told the offender to stop, but instead he “came back again.” The victim tried to push the offender, but he “came back again and did the same thing again.” [96]

    93. T 253.11 – .39

    94. T 253.41 – 254.1

    95. T 254.3 – .4

    96. T 254.17-.19

67. The victim stated that at the point she was on the lounge, she was thinking that if she did not comply, the offender would cut off her nose, mouth and would destroy her so that no man could have her. She later described this as being in reference to her vagina. [97] When asked at what point she had told the offender to stop, she responded:-

“When he pushed two fingers and then he pushed three and it was - because a third finger had long fingernail and it was like poke inside my vagina and then he push the third one, fourth one and it was very, very painful because previous night I’m already hurt with a toy so much, so swollen, so painful vagina I have. Then he pushes his fingers. It was painful for me, I couldn’t bear it, I couldn’t take it. But at the end I have to go through the punishment so the harsh punishment is not going to come to me, maybe he can spare me. Maybe he can feeling more sorry for me. Just even once let me go.” [98]

97. T 254.48 – 255.13

98. T 255.20 – .29

68. The victim stated that she told the offender during this incident that it was “very dangerous to do those things, it’s a sin.” The offender replied and told her that she had committed adultery and “other women can take it, why can’t you?” [99] She stated that the offender called her a bitch and stated that if she would not “do it” then she was to kill herself. [100] The victim stated that when she asked the offender to stop, he responded by stating: “Don’t trigger me” and acted “crazy.” [101] She stated that the offender was “very scary” and looked as though he was going to kill her and came close to her with his eyes to suggest, “you have to do this, you have to do it, it’s your punishment and get on with it.” [102]

    99. T 256.20 – .22

    100. T 256.24 – .25

    101. T 256.27 – .30

    102. T 256.30 – .33

Count 15 – sexual intercourse without consent

69. The next night, the victim was told by the offender that the punishment would “keep going.” She asked him what that would be and he replied by stating: “Honky sex again.” The victim told him that she could not do it because it was dangerous and she was scared. The offender stated that it was a punishment and he insisted that she had to do it. [103]

    103. T 258.17 – .23

70. The next incident, the victim originally stated occurred on 28 January 2015. However, when her memory was refreshed by reference to her statement that she had provided the police, she stated that it occurred on 29 January 2015. [104] She described the incident as follows:-

“He did the same honky sex with me. He told me to lie my bottom up and I have to listen to him so I positioned lying on the sofa my bottom up. He again tried to push his fingers in my vagina and I tried to push him - dangerously - he came back again and he keep pushing his fingers in my vagina and it was so, so painful like something has cut me inside. I was not sure in that pain that if I have bled inside, terrifying, trying to hang on there so that another punishment doesn’t come. I ask him how he feels, he said that he feels a big relief.” [105]

104. T 258.45 – 259.4; and T 259.47 – .48

105. T 258.26 – .33

71. The victim described the offender using one finger, before inserting two fingers, then three and four fingers and pushing them further into her vagina. [106] She stated that it was “very, very painful … like sharp knife tearing through” and she could feel “heat”. She did not know whether she bled but it was “very, very painful.” She described herself as being in agony and “very, very sore.” She stated that she felt like the offender would “just rip everything apart” so she tried to push the offender away with her feet and leg. However, he was “aggressive” and he came and did it again. The victim stated that she did not have much “power” and was “just hanging on” for her children. [107]

    106. T 260.16 – .22

    107. T 260.26 – .38

72. The victim described her condition as half worn, malnourished with numb eyes [108] without being able to breath properly, eat or sleep. [109] She stated she was confused and hoping that by undergoing the punishments the offender would spare her and tell her to stay. [110]

    108. T 260.32 – .38

    109. T 263.26 – .30

    110. T 261.42 – 262.4

Count 16 – sexual intercourse without consent

73. After Count 15 (which would be still on 29 January 2015) the offender told the victim to “suck him” and she told him that she could not, because she was very tired and wanted to sleep. The offender told her that if he was to be awake, she was to be awake. The victim stated whatever she was told she had to do it so that she could survive or stay. [111] She stated that she proceeded to suck the offender’s penis with her mouth, and was told by the offender to “do as you do to Glen.” [112] She stated that the offender was sitting on the lounge and she was sitting on the floor, [113] downstairs in the lounge. [114] At the time, both the offender and the victim were naked. [115] She stated that between the honky sex incident and the oral sex, she went upstairs to put her children to bed and did not want to go back down. However, the offender kept calling her and he eventually came to grab her hand and took her downstairs. [116]

    111. T 263.47 – 264.1

    112. T 264.3 – .10

    113. T 264.12 – .14

    114. T 264.16 – .17

    115. T 264.23 – .27

    116. T 264.37 – .43

74. The victim stated that “just before” she was sucking the offender’s penis, she was feeling “very sick … not feeling well” and “scared” because she did not want to do it. [117] The victim stated that she was scared for her health, and was concerned that if she did not perform oral sex, that she was going to be hit, or that the offender would chop her nose, mouth and “destroy” her. [118]

    117. T 264.45 – .49

    118. T 264.50 – 265.3

73. The duration of the intercourse was not disclosed and there was no suggestion of ejaculation.

Count 17 – sexual intercourse without consent

76. The victim gave evidence that after sucking the offender’s penis, she recalled again going back upstairs to put her children to the bed and the offender calling her, grabbing her by the hand, and taking her downstairs. The offender told her: “There’s more punishment coming” and that he wanted to use the toy. [119] The victim was told to undress and the offender was using the toy on her, downstairs in the lounge room. She stated that the offender inserted the toy, without any gel, and “just pushed the toy in my vagina” having strapped the toy onto the belt around his waist. [120]

    119. T 267.10 – .15

    120. T 267.17 – .50

77. The victim stated that the offender’s hands were by his side, with one hand on the side, and the other hand was holding the toy. [121] The offender was pushing the toy into the victim’s vagina. [122] The victim stated that she felt a sharp “knife” pain because she was “already bruised.” [123] The victim stated that she did not want the toy to be inserted into her vagina, because it was “very hurtful” and she was “feeling sick.” She stated that she could “hardly describe the pain.” [124]

    121. T 268.1 – .3

    122. T 268.5 – .7

    123. T 268.19 – .23

    124. T 268.25 – .31

Count 18 – sexual intercourse without consent

78. The next incident occurred on 31 January 2015.

79. The victim at that point was sitting with the offender on the lounge, whilst the children were upstairs. The offender got up all of a sudden, pulled his pants down and instructed the victim to suck his penis. She stated that the offender was close to her face and he held her head towards his penis before asking the victim to open her mouth and to suck his penis. [125] She stated that she did not want to suck the offender’s penis, but could not avoid it because he was holding her head so tight towards his penis and then the penis was in her mouth “forcefully”. The victim pushed her head away, but the offender would push her head and remind her about her nose. [126] The victim stated that at the time, she was not comfortable and was “very much depressed.” She stated that it was against her will, but did not have a choice. [127] The victim stated that the offender’s demeanour was “very, very aggressive.” The offender is alleged to have held onto her head tightly and was “very rough.” [128] The victim stated that she told the offender to stop, that it was “enough” but the offender told her that it was a punishment, and that she had to comply or else he would chop off her nose, mouth and vagina. [129] She stated that this incident went “close to ten minutes.” [130]

    125. T 274.18 – .24

    126. T 274.26 – .30

    127. T 274.32 – .34

    128. T 274.42 – .44

    129. T 274.46 – .49

    130. T 275.1 – .2

80. In this count there is no evidence of ejaculation or making demands of the kind in Count 1.

Count 19 – sexual intercourse without consent

81. After the events described in Count 18, (again on 31 January 2015) the offender told the victim that he was going to bring down the sex toy to have sex with her. The victim told the offender that she did not want to because she was scared. [131] The victim stated that the offender told her to undress and lie down. She did not want to lie down and according to her, the offender pushed her, tied the toy around his waist and pushed her bottom up so that he could insert the toy from behind. [132] She stated that she was very scared that the offender would push the “whole of [the] toy inside” her and that she was still feeling the pain that he had previously caused. [133] She undressed herself because the offender wanted her to do it, and she had to listen to him. [134] She stated that this was a punishment for her and whatever the offender wanted her to do, she had to comply. [135]

    131. T 281.38 – .40

    132. T 281.49 – 282.4

    133. T 282.6 – .10

    134. T 282.12 – .16

    135. T 282.18 – .20

82. The offender was also naked. The victim’s bottom was “up” and head down on the sofa. This allowed the offender to “do it from behind.” [136] The offender first tried to push three fingers into her vagina, and when they went inside The victim was crying. The victim asked the offender how he felt, and he said that he felt pleasure and relief. [137] The victimstated that the offender was “very crazy looking”, his eyes were “wide open”, “garnishing his teeth” and he was “very, very rough.” The victim stated that the offender was holding her head, pushing her down and did not let her get up. [138] She stated that she could hear the “cracking” sound of the offender’s teeth, [139] which she described as sounding like “someone crackles nuts or something.” She stated that at this point she was “very, very scared.” [140] The victim stated that she was concerned about her safety because the offender was “acting crazy” and thought that if she did not comply, he had the toy and was using his fingers. She stated that the offender had threatened her about her “nose and everything.” [141] She stated that she was “very, very scared … scared to death” and that she was locked in a house with someone who did not care and did not think about her. [142] The victim stated that at that stage she was “just lost and just – just surviving and listening [to] someone” that was “controlling” her. [143]

    136. T 282.29 – .33

    137. T 282.41 – 283.11

    138. T 283.13 – .20

    139. T 283.22 – .27

    140. T 283.29 – .31

    141. T 283.39 – .44

    142. T 283.44 – .47

    143. T 283.48 – .50

Count 20 – sexual intercourse without consent

83. This count follows Count 19 and involved the offender trying to push four fingers into the victim’s vagina. The fingers went into the victim’s vagina, and the offender then inserted the toy. [144] The victim stated to the offender that she did not want the toy inserted, and the offender stated to her: “I can’t have normal sex with you because you have got disease.” The victim replied that she did not have any diseases. [145] She stated that because the offender’s fingers were “thick enough” and he was pushing the toy, the victim was in pain and she got up, pushed the offender away and ran to the door. [146] She stated that the offender’s fingers went halfway into her vagina and the toy “went little bit inside” and the pain was “severe”. She described the pain “like something through” inside of her. [147] She stated that she cried and asked the offender if he felt sorry for her. The offender responded by stating that it was “just a punishment” and that he did not care because he did not feel sorry for her. She stated that she could not bear the pain, so she tried to push the offender and run for the door. [148] She stated that at the point where the fingers and the toy were in her vagina, she had her head down and bottom up, kneeling on the lounge. [149] The toy was being held by the offender with his other hand, and it was strapped onto the offender. [150]

    144. T 284.1 – .25

    145. T 284.1 – .5

    146. T 284.22 – .25

    147. T 284.39 – .43

    148. T 284.43 – .46

    149. T 284.48 – 285.1

    150. T 285.3 – .8

84. The victim stated that at the time the offender had his fingers and the toy in her vagina, the offender called her a “low life prostitute” and “just another woman.” [151] At the point when the offender’s fingers and the toy were being used, she stated that she could not see, she could only “feel” that the offender’s four fingers were inside her. [152]

    151. T 285.13 – .19

    152. T 285.30 – .32

85. In describing herself as a “rag doll”, the victim stated that the offender showed “no remorse, no sorry, no pain” towards her. [153] She stated that she tried to run for the front door, but realised that she was naked. She tried to run upstairs but the offender came after her, grabbed her and brought her back downstairs. [154] She ran to the door because she wanted to get away, because she said the offender was “raping” her and was “doing things” that were “unbearable” and she “couldn’t take it no more.” [155] She stated that she was “running like a madwoman that doesn’t know what to do, she just wants to escape for her life.” [156]

    153. T 286.9 – .18

    154. T 286.20 – .30

    155. T 286.39 – .41

    156. T 286.43 – .45

86. She stated that after she realised she was not dressed, she went upstairs to dress herself, and the offender grabbed her by the hair and brought her downstairs. The offender made the victim sit downstairs, naked, and talk to him. [157] The victim was told by the offender that he had a “few strings to tighten” and that he was going to leave. [158]

    157. T 287.1 – .8

    158. T 287.10 – .13

Count 21 – sexual intercourse without consent

87. The offender committed further sex acts against the victim that evening. At one point, the offender tried pushing his fingers into her vagina, and push his whole hand into her vagina. The victim stated that it was painful and she jumped on the lounge. The offender grabbed her and told her to come down. The victim stated that she thought the offender was going to push his whole hand into her vagina and “pull everything out” and she would die as a result. [159] She stated that the offender was “acting very crazy, not normal.” [160] She stated that at the time the blinds in the lounge room were open [161] and that both she and the offender were naked. [162]

    159. T 306.30 – .33

    160. T 306.35 – .36

    161. T 306.13 – .14

    162. T 306.20 – .24

88. In relation to this matter I am satisfied from the impact that the victim described that digital penetration was made however as the offender was pushing the victim she jumped up so that the duration of the intercourse was relatively short.

Count 23 – sexual intercourse without consent

89. Another incident on 31 January 2015 occurred where the offender, tried to push his whole hand inside the victim’s vagina. The victim was on the sofa, with her bottom up, and the offender was naked but was wearing black socks. Despite the offender suggesting otherwise [163] the victim’s evidence which I accepted was that he put his hand inside her vagina and she felt it. [164] The victim thought that the offender was going to kill her. At that point, she could not recall if the blinds were open. She stated that the offender was “very, very crazy, weird, evil” and was mumbling to himself. [165]

    163. T 13.14-.19 (9 October 2017, second transcript)

    164. T 307.18-.22

    165. T 306.45 – 307.37

Count 22 – sexual intercourse without consent

90. Following Count 23, the offender grabbed the toy, pushed the victim down and was using the toy from behind as he was garnishing his teeth and chewing tobacco. [166]

    166. T 288.20 – .23

91. The offender had strapped the toy on and was holding the toy with one hand and pushing the toy inside the victim. The victim stated that this was painful and that the offender kept pushing it in and taking it out of her vagina. The victim stated that the offender did this “so hard” that she yelled and screamed. She pushed the offender away, but she did not have much power and the offender was a “big man.” However, the offender did not care and continued to be very rough. She stated that she was “just there” to “take the punishment.” The victim described the incident as being “so brutal” and that she did not know how to explain it. The victim stated that the offender had, at one point, said to her that her “time was coming” and that she did not have a choice. [167]

    167. T 288.25 – .39

92. The victim described struggling to breathe and being in a lot of pain. She tried to push the offender but she did not have enough power to do so. The offender kept holding her head and kept pushing the toy “very, very hard” and the victim told him that she could not take it anymore. However, the offender did not care. [168]

    168. T 291.11 – .15

93. The victim stated that as the offender used the toy on her, he was chewing tobacco and instead of putting the tobacco into a jar, he spat on the toy and pushed the toy inside her vagina.

94. The victim stated that it was “so disgusting [and] … smelly” and that the offender was “crazy” and “just doing things, it was not acceptable.”

95. At one point, the offender noticed WS standing near the stairs, and yelled at him: “You fucking bastard go upstairs” and WS complied. The victim stated that the offender did not care that WS had “seen everything” because WS was like her (the victim). The offender did not stop, and was “just raping” her “like there’s no tomorrow.” [169]

    169. T 290.45 – 291.12

96. The victim described the pain as being “unbearable” and stated that she could not take the pain anymore. As the offender continued, she thought she was going to die and thought about how she could escape. [170] She stated her body must have been shutting down as she did not eat and had not slept for so long.

    170. T 291.15 – .23

97. This was a brutal infliction of painful force that caused the victim to yell and scream, and for her son WS to be disturbed. The victim attempted to push the offender away but he persisted. She was told that her time was coming. She stated she only had a choice to listen and survive. The victim told the offender that she could not take it any more however he persisted holding the victim’s head as he was pushing the toy.

Count 24 – recklessly inflict grievous bodily harm

98. The victim next gave evidence that she told the offender that as the windows were open: “Why don’t you go outside and have sex with me outside.” She also told him that she was cold and she wanted to put a top on. The offender told her not to put on the top and that she did not have a choice. The victim “forcefully put a top on” and managed to hold onto her pyjama pants and a torn jacket. The offender then went outside and the victim managed to push the door, pull up her pants, grab her joggers, leave the door and run upstairs. [171] The victim stated that she thought she was going to die. [172] The victim stated that when she ran upstairs, she picked up her mobile phone and called the police. [173] The victim stated that when she was upstairs she sat beside her children, put on her joggers and looked at them, knowing that this was the end. [174] The victim then stated that she did not call the police because she did not have time. [175] According to the victim, she could hear the offender coming up the stairs, and heard him saying: “Finish, finish.” She feared for her life. She stated that he was “just raging” and she was thinking to herself that the offender was coming to get her and if he did, that he would kill her. [176]

    171. T 291.37 – .44

    172. T 291.46 – .47

    173. T 292.4 – .9

    174. T 292.14 – .17

    175. T 293.18 – .19

    176. T 293.21 – .26

99. The victim stated that as soon as she heard the offender take one step upstairs, she made her way onto the balcony. The balcony was located in front of the bedroom, and she had gotten there from her bedroom. [177] As soon as she made her way onto the balcony, she was scared because the offender was following her. The victim felt that if the offender grabbed her from the balcony, he would throw her from it and she would not survive the fall. The victim quickly went onto the carport, and heard the offender telling her: “Do it or if you don’t do it I’ll do it, just do it.” The victim stated that the offender then tried to put his leg from the balcony towards the carport. [178] At that point, she was standing on the edge, in the corner of the carport, facing towards the street. [179] The victim stated that she was “very scared” and feared that if the offender “did it” that she was not going to survive. She stated that the offender would have “throw[n]” her “hard” or if he grabbed her, he would take her inside or into the backyard to strangle her. She stated that she wanted to live, so she jumped. However, as she jumped, she slipped on the gutter and fell down. [180] The victim stated that the gutter was attached to the car port on the edge, and that she fell on the ground which was dirt. [181] She stated that as soon as she fell down, there was something wrong with her leg, because it was not moving and she stood there, screaming for help. [182] At that point, she described her hands as being “all crooked”, her legs cramping and stated that she could not breathe properly. [183]

    177. T 293.40 – .46

    178. T 293.48 – 294.5

    179. T 294.16 – .22

    180. T 294.24 – .30

    181. T 294.35 – .48

    182. T 294.50 – 295.4

    183. T 295.15 – .18

100. The victim stated that at the time she was screaming for help, the offender was standing on the balcony and that she could see him. The offender told her: “Don’t yell and scream, just put your legs straight” and that nothing had happened to her. She stated that she then crawled up to the letterbox and managed to hold the letterbox to get up. She yelled and screamed further for help and hopped two car lengths to their next door neighbours who heard her and rushed out. The victim stated that she managed to hop to their driveway before giving up and falling down. She stated that she did not have any strength and her neighbours came out to lift her up and put her in their car to take her to Campbelltown Hospital.

101. Evidence from Dr David Cottle, was that the complainant suffered from the following:-

[7] GENERAL PHYSICAL EXAMINATION

Mrs AS was suffering from the following:

•A closed left intra articular distal tibia fracture;

•A left comminuted fracture of proximal second, third and fourth metatarsals;

•Minor soft tissue bruising and abrasions. [184]

184. Exhibit H , NSW Police Force Expert Certificate of Dr David Cottle, dated 10 November 2015 at [9]

102. The Campbelltown Hospital clinical record also recorded:

ADMISSION SUMMARY

Summary of Progress

Mrs AS was also identified as being at risk of Refeeding Syndrome and her EUCs and CMP were regularly checked and she was commenced on Thiamine and a multivitamin for the duration of the admission. [185]

185. Exhibit L, NSW Health South Western Sydney, Local Health District, Discharge Referral printed on 8 May 2015 at 8:20, p 1

Aggravating Factors

Threats and Violence; s 21A(2)(b) of the Crimes (Sentencing Procedure Act) 1999 Act (NSW) [186]

186. Hereinafter referred to as the “1999 Act”

103. The Crown in written submissions argued that the each of the sexual assault offences were committed by the offender in a climate of his threatened use of violence towards the victim in the event that she resisted her “punishment” an aggravating factor under s 21A(2)(b) of the 1999 Act. That submission was not repeated in oral argument. Indeed the Crown acknowledged the potential application of the principle in R v De Simoni [187] in circumstances where no charges have been brought under s 61J(2) of the 1900 Act. [188] This is in conformity with the provisions of s 21A(4) of the 1999 Act.

     187. (1981)147 CLR 383; (1981) 35 ALR 265; [1981] HCA 31

     188. T 16.35-18.50 (9 October 2017, first transcript)

104. Particular reference however was made to the ongoing threat to cut the mouth, nose and vagina of the victim which was described as a key part of the offending towards the victim.

105. That threat was not raised in the context of Count 1.

106. Count 2 was against a backdrop where the offender had just told the victim that she was to endure another punishment including circumcision. At one point it was described as losing her mouth, nose and vagina. The victim was told that if she did not do it then another punishment is coming.

107. After Count 6, the victim was told that her punishment was coming.

108. In one account of the circumstances in Count 9, the victim she described being told that she should think about her nose and mouth. This was a reference to the earlier threat that had been made.

109. Following Count 10, the victim was reminded by the offender that he was going to chop off her nose and mouth and would destroy her vagina so it was unfixable

110. From time to time thereafter the threat was renewed. There were also other threats.

103. In the context of Count 13, the victim was called downstairs, she was told “Bitch you come, if you don’t you are finished.” The victim went downstairs stating that she felt the threat meant that he would hit her. The offender questioned her about the asserted affair with Mr Kelly and held his fist close to the victim’s face but did not hit her. She described this as something she had seen before and was something that he would do whenever he wanted to scare her to get things out of her. At one point the victim gave evidence that the offender told her that if she did not comply with his sexual demand the offender told her that he would do it from behind and it was very hurtful.

104. In the context of Count 14, the victim described that she was concerned very scared and concerned that if she did not do it then she would have to lose her mouth nose and vagina. These words were not expressed however she described that the offender looked very scary and looked as though he was going to kill her and came close to her with his eyes open to suggest that this was a punishment that she had to endure. She was told she was a bitch that if she did not do it she was to kill herself.

105. After Count 16, the victim was told to think about her nose mouth and vagina.

106. After Count 18, the victim was told and she had to comply with the punishment or he would cut off her nose, mouth and vagina.

107. The Crown did not to pursue the abovementioned matters under s 61J(2)(b) of the 1900 Act and the offender is not to be sentenced on such a basis. Indeed the Crown did not submit otherwise.

108. Before the intercourse the subject of Count 1 the victim was also hit in the face and taunted about the fact that she had performed similar acts on Mr Kelly. She submitted to intercourse fearing that she would be further hit.

109. Count 3 also occurred on the same day as Counts 1 and 2, but after the offender had returned from work and after the offender pursed further questioning enroute about her asserted affair with Mr Kelly and the infliction by the offender of multiple acts of physical violence. The complaint described having a swollen face and tears coming down her face and threats that if she walked away she would be hit more.

110. Again the Crown did not pursue these matters under s 61J(2)(a) of the 1900 Act and the offender is not to be sentenced on such a basis. The Crown did not submit otherwise.

111. In oral submission however the Crown contended that the threats to the nose mouth and vagina were in the background and could be relied upon as they do not fall within in the scope of aggravated offences in the context of Counts 3, 4, 6, 22 and 23 so as to elevate the objective seriousness of these offences.

112. I accept in the case of Counts 3 and 4 the threats to the victim’s nose mouth and vagina remained in her mind and could be viewed as being in the background as the threat was not made immediately before each act. However in circumstances where I am unable to take account of the threat itself this is of limited additional consequence.

113. In the case of Count 6, the victim was told that she better open her mouth big. The Crown asserted that this is a statement of the consequences of what would occur if she didn’t accept the punishment that was inflicted amplified by the reference to “You’re a bitch, you’re good for nothing and your punishment is coming. You have to be ready for the punishment.” In my view, these statements should be viewed as renewal of previous threats made to the victim and in this sense fall within s 61J(1)(b) of the 1900 Act such that they should not be taken into account in accordance with R v De Simoni. [189]

     189. (1981)147 CLR 383; (1981) 35 ALR 265; [1981] HCA 31

114. In the case of Counts 22 and 23, I also accept that the threat was repeated prior to count 18 but not immediately before Count 22 and 23. However in the context of those counts the victim gave evidence by reference to the offender’s actions that she thought the offender was going to kill her. In that regard the Crown acknowledged that the threat to the victim’s nose mouth and vagina had less of a place in the victim’s mind. In these circumstances and bearing in mind that I cannot take into account the threat itself this is of limited additional consequence. [190]

Offence committed in the presence of the of a child under the age of 18 years; Section 21A(2)(ea) of the 1999 Act

190. T 18.5-.26 (9 October , first transcript)

123. The Crown also contended that Counts 7, 9, 12 and 22 were committed in the presence of children under 18 years of age. The two children of the offender and the victim being WS (born 11 April 2001) and JS (31 August 2003) were under the age of 18 at the time of these offences.

124. The approach to the application of s 21A(2)(eb) of the 1999 Act was set out in Gore v R; Hunter v R. [191] In McLaughlin v R, Button J reiterated that Gore required a strict approach to proof of this aggravating factor. [192]

     191. [2010] NSWCCA 330; (2010) 208 A Crim R 353

     192. [2013] NSWCCA 152 at [28]-[33] (Latham J and Barr AJ agreeing)

125. The Crown conceded that in relation to this aggravating factor its argument was on weaker ground and it was not suggested that the children were present when Counts 7, 9, 12 and 22 occurred but ‘present’ is something to be inferred in the sense that the children were in the house. [193]

     193. T 13.12.50-13.6 (9 October 2017 first transcript)

126. In Count 7, the evidence was that the victim screamed, got out pushed the offender away and her children heard it and came running out. The evidence does not establish that ‘the offence’ occurred in the presence of the children. At most the facts demonstrate that the children were woken by the sounds and came down to the area where the victim and offender were.

127. In relation to Count 9, the evidence again was that the victim pushed the offender away and was scared. She stated that her children came running downstairs and the offender put a blanket on the victim and the toy beside the lounge. In the first account she gave of this incident she described the children asking “what happened mummy? The offender is then said to have stated “You go quickly’ and the victim said “just go to sleep and don’t worry about me” The complaint said that WS asked for a hug and the offender stated: “no go to your room” and the children went upstairs.

128. The second account the victim stated that she was crying at the time the toy was inserted. The victim gave evidence that at first the toy went in slowly but all of a sudden, the offender pushed it and it hurt her and she experienced sharp pain. She got up and tried to push him away. She stated that she was screaming when the toy went in, and started to cry “like a normal weeping cry. She stated that WS came to her and said: “Mummy.” The offender was “so angry” and is said to have stated to WS: “You fucking bastard, just go in your room.” The victim stated that she told the offender not to say that to them and that she would go and put them to bed. The victim went upstairs, got dressed and spoke to WS. WS asked: “Mum are you okay?” to which the victim replied: “I’m okay.” WS then asked: “That there is a porn thing, mum, on the floor beside the lounge. Does it belong to daddy?” The victim stated that she was embarrassed and told him not to worry about anything and to go to sleep. The victim also comforted JS and told her not to worry, and that nothing would happen to her. The victim stated that she was tired and went to sleep with her children.

129. In both these accounts the offence was not committed in the presence of the children. In my view, s 21A(ea) of the 1999 Act is not engaged in the circumstances. At most the evidence establishes that the children were woken by the sounds, came down to where the victim and the offender were, that WS saw the toy and the children needed to be comforted having expressed concern for the victim.

130. In relation to Count 12, the victim’s account was that she “screamed out in pain” and their children came running down because they heard her. The offender is asserted to have covered himself and the victim up with a blanket. The sex toy was on the ground next to the lounge and the victim saw WS looking at it without saying anything. She stated that WS wanted to give her a hug but the offender did not let him. The offender is said to have chased WS up the stairs. The victim told the offender to not yell at the children. The victim then went upstairs to settle the children down.

131. On this account again I am not satisfied that the offence was committed in the presence of the children within the terms of s 21A(2)(ea) of the 1999 Act. At most the evidence establishes that the children heard the sounds and came down, that WS saw the sex toy and the victim felt the need to comfort the children,

132. In relation to Count 22 the evidence was that whilst this offence was being committed and at one point, the offender noticed WS standing near the stairs, and yelled at him.

133. In relation to this Count, the Crown asserted that the child was present in the sense of being in the house as opposed to witnessing the sexual intercourse. In light of the Crown’s argument and the strict approach discussed earlier I do not find that the offence took place in the presence of the child.

134. Notwithstanding this, I take account that the offences in question occurred in the home which was also of the children and that the children were awoken and made observations as outlined above.

135. In evaluation of the weight to be given the Crown disavowed any suggestion that the acts were intentionally done so they would be seen by the children. [194]

     194. T 14.41-.50 (9 October 2017, first transcript)

Offence committed in the home of the victim or any other person; section 21A(2)(eb) of the 1999 Act

136. With the exception of Count 2, each of the offences occurred in the home of the victim. Whilst this is a factor identified in s 21A(2)(eb) of the 1999 Act it is necessary for the Court to conclude having regard to ordinary sentencing principles that it actually aggravates the offence in question. [195]

     195. R v CTG [2017] NSWCCA 163 at [82]-[83] (Hoeben CJ at CL, with whom RA Hulme J and Wilson J agreed)

137. The offender submitted that no aggravating factor exists as this is the place where both of them lived and that the victim was not detained or her liberty diminished in any way. It was submitted that if she wanted to leave she could leave at any time and she still went shopping, answered the phone, saw visitors and went to the park. It was asserted that she did have a safe place to escape if he wanted to escape. [196]

     196. T 11.28-.37 ( 9 October 2017, second transcript)

138. These submissions cannot be accepted.

139. I have described the circumstances of the relationship in the period leading to the offences as I have found it. In any event at the time of the offences it is clear the victim’s options were limited as she had nowhere immediately to go and was hopeful that by submitting to the punishments the offender required she could be reconciled. The victim gave evidence that she was not planning on moving because house was hers although she conceded that in the last week of January 2015, she “maybe” told her sister-in-law, Ms Sabnam Chandra, that she would be moving out. [197] She also accepted that on 30 January 2015, she had said to Chandra Suarez that the Department of Housing and Centrelink representatives were coming that afternoon because she needed them and they were helping her.

     197. T 622.39 – .49 (Trial)

140. In all the circumstances I am satisfied that this aggravating factor has been made out. Even though the home in question was also that of the offender the offences in question do violate the victim’s reasonable expectation of safety and security. [198] I am satisfied that the offender took advantage of the fact that it was the home of the victim, to commit the offences such that this factor cannot be regarded a factor of even weight.

     198. R v Jonson [2016] NSWCCA 286

The offence involved gratuitous cruelty; Section 21A(2)(f) of the 1999 Act

141. The Crown contended that Counts 3, 4 and 6 involved gratuitous cruelty in that the offender having forced the victim to fellate him also urinated in the victim’s mouth.

142. Count 3 involved the offender requiring the victim to ingest urine which she described as mixed with blood whilst she was seated on the toilet. Although she was told to swallow it the victim would not let it go down her throat .describing it as “indescribable” [sic] and “disgusting.” The victim stated that she vomited on the floor.

143. Count 4 similarly involved the offender requiring the victim to ingest urine while she was seated on the toilet. After the victim urinated the victim described vomiting in to a bin bucket. The offender told it was part of the punishment and gave him a big relief.

144. In Count 6, the victim stated that she was called downstairs into the bathroom, where the offender asked her to sit on the pan and to open her mouth.. The victim described some urine coming out but it was “not much” and the offender said to her: “Just hang on, it’s not coming, I have to wait.” The victim spat out what was in her mouth after the offender urinated in it.

145. In Mc Cullough v R, Howie J held:-

30 Gratuitous cruelty seems to me to suggest that the infliction of pain is an end in itself. It is needless yet intentional violence committed simply to make the victim suffer. It might be found, for example, where a robber inflicts pain upon an already compliant victim who was willing to part with the property demanded or in a case of a sexual offence where the victim is assaulted even though he or she is not resisting the offender. But in offences which are of their nature violent, such as wounding or the infliction of grievous bodily harm, where the purpose of the offence is to cause pain and suffering to the victim there needs to be something more for the factor to be present than merely that the offender had no justification for causing the victim pain. [199]

199. [2009] NSWCCA 94 (McLelland CJ at CJ and Simpson J agreeing)

146. Requiring a victim to ingest urine is clearly a degrading and humiliating act but it does not involve the infliction of pain. However pain is not a necessary precondition for the engagement of s 21A(2)(f) for the 1999 Act.[200] In R v Mosegaard [201] and ZZ v R [202] offences sexual intercourse involving ingestion of urine no argument as to the application of s 21A(2)(f) of the 1999 Act was raised. Counts 3, 4 and 6 did not involve fellating but a sexual connection of the victim’s mouth to the offender’s penis leading to urination. As such I am unable to find the cruelty to be gratuitous.

     200. Aguirre v R [2010] NSWCCA 115

     201. [2005] NSWCCA 361

     202. [2013] NSWCCA 83

147. In my view the fact that the offender urinated in the victim’s mouth is a matter to be taken into account in the assessment of the objective seriousness of the offences a course the Crown conceded was open. [203]

     203. T 12.13-.16 (9 October 2016, second transcript)

The injury, emotional harm, loss and damage was substantial; section 21A(2)(g) of the 1999 Act

148. The victim has made a victim impact statement dated 7 September 2017. In it she states:

since the incident occurred, I have been feeling very depressed and scared. I have also experienced anxiety and panic attacks in many occasions and more often during the court process where I ended up in hospital. I have not been able to sleep at night having flashbacks (nightmares) about the rapes, the tortures and the violence occurred to me in all the years of my marriage and specially in the last stage of my marriage where I came out alive for my two beautiful children.

I feel that my life has changed for ever mentally, physically and emotionally. Mostly because I have been raped by my husband who I loved . I feel scared to go out. I’m always watching my back because he told me that if he comes out one day, he will kill me. I feel that what he has said about killing me is real and that makes me feel very sad, scared and worry because my children rely on me and I am the only mother and father for them. I feel that my children’s conditions (emotional and psychological impact for example) explained everything what I and my children were through. I feel that I cannot trust people any more, especially men, and it’s very hard to meet socialise with people. It has impacted in my personal life because I feel ashamed that people may know what happened to me. It has also impacted in my self-esteem, confidence and willingness to do day-to-day routine and get a job.

149. The Crown did not rely on the statement to establish a circumstance of aggravation. [204]

     204. T 6.29-.33 (9 October 2016, first transcript)

150. The Crown case is that the emotional harm in this instance is substantial. Reliance to this end is made on the report of Dr Susan Pulman Forensic Psychologist and Clinical Neuropsychologist, dated 11 September 2017.

151. The offender submitted that the harm was normal. [205]

     205. T 16.10 (9 October 2017, second transcript)

152. Dr Pulman’s report stated that the victim suffered substantial harm and continues to experience substantial harm as a result of the offender’s conduct upon her. Dr Pulman states:-

AS has symptoms consistent with Post traumatic Stress Disorder of repeated and complex severity. She continues to describe flashbacks, fears and periods of dissociation which continue to impact her life. Her symptoms are of such severity that she restricts her involvement with others outside the family home. She is restricted in her capacity to establishing friendships and devlop social networks.

…..

Ms Singh reported a close continuing relationship with her two children, who she describes as having been significantly traumatised as witnesses to the abuse. She does not seek future relationships with potential partners. AS described feeling ‘scared’ to enter into any future relationships as she fears she could suffer abuse again. She said she has not trust in men, “I have not trust in’. She does however maintain close relationship with her two brothers.

153. I accept Dr Pulman’s evidence. In doing so, I take account of the victim s genuine distress in her presentation when recounting details of the offences.

154. In the terms of s 21A(2)(g) of the 1999 Act, I am satisfied that the victim has suffered substantial emotional harm as a consequence of each of the offences in question. . I am satisfied that each of the offences contributed to the victim’s loss but more so as the various punishments that she endured escalated in their severity and her health declined in the way she recounted in her evidence.

155. I have earlier in these reasons referred to the Plaintiff’s physical harm. The Crown made no submission as to physical harm under s 21A(2)(g) of the 1999 Act. Specifically, I do not take account of the victim’s impaired vision, headaches and migraines referred to in Dr Pullman’s report noting that the Crown made no submission to this effect and that the evidence did not indicate that these matters arose from the offences the subject of the proceedings.

Conditional Liberty; s 21A(2)(j) of the 1999 Act

156. The offender was on bail following being charged with offences for assault, assault occasioning actual bodily harm and property damage on 12 December 2014[206] He was granted conditional police bail and an Apprehended Violence Order was also issued for the protection of the victim.

     206. Described as Incident 18; R v DS (No 1) [2017] NSWDC 207 at [261]-[309]

157. Whilst on bail the offender was charged with two offences for assault on 31 December 2014. One offence involved the victim and the other Ms Namrata Ahluwalia. A charge of contravene AVO was also brought at that time. [207]

     207. Described as Incident 20; R v DS (No 1) [2017] NSWDC 207 at [310]-[ 359]

158. The offender was refused bail and granted conditional bail by Campbelltown Local Court on 1 January 2015.

156. The offences for which the offender is to be sentenced all took place at a time where the offender was on bail for the matters of 15 December 2016 and 1 January 2016 as well as being subject to the AVO.

157. The offender stated that he was not charged with breach of the AVO on 31 December 2014 and the assault matters of that date did not relate to the victim. This is inaccurate. What is clear is that at the time of the offences the offender was on bail for the matters of 12 and 31 December 2014 as well as subject to the AVO in respect of the victim. Furthermore all but one of the offences in respect of which he was bailed involved allegations of violence towards the victim.

158. The commission of these offences whilst subject to conditional liberty in the way I have outlined are matters of serious aggravation to be taken into account for the purposes of determining the appropriate sentence.

Objective Seriousness

162. In R v Hibberd, [208] Price J held:

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 Regina 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, Regina 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 intercourse is an important factor it is not to be regarded as the sole consideration.

208. [2009] NSWCCA 20 at [56] (Price J with whom James J agreed)

163. The fact that the victim and the offender had been in a relationship and knew each other knew each other provides little comfort in the circumstances of these offence. [209]

     209. R v ZZ [2013] NSWCCA 83 at [99]-[103]

164. Each of Counts 1 to 4 and 6 to 23 occurred in the context of the victim submitting to a punishment imposed by the offender for what he believed was the victim’s infidelity. In each instance, I was satisfied that the offender knew the victim was not consenting. It is further clear that on the victims’ account which I accept that the offender derived pleasure and relief in administering the punishments and was not deterred either by the victim’s complaints or protestations or by what I am satisfied was her progressively deteriorating condition.

165. Consistent with my findings and acknowledging that the middle range of objective seriousness is not a narrow band, I make the following assessments of objective seriousness.

166. Count 1 falls just below the middle range of objective seriousness

167. Count 2 falls within the lower range of objective seriousness.

168. Count 3 required the victim to ingest urine mixed with blood in the toilet after the insertion of the penis into her mouth. Although the Crown submitted that this constituted a worst case I am satisfied on the facts found by me the offence falls within the middle range of objective seriousness. [210]

     210. See R v ZZ [2013] NSWCCA 83 at [115]-[116]

169. Count 7 involved the first use of the toy. I would regard this offence as falling within the middle range of objective seriousness.

170. Count 8 followed Count 7, and involved the attempted use of the toy in the victim’s bottom. I would regard this as falling in the lower range of objective seriousness but at the higher end.

171. Counts 4 and 6 involved urination in the victim’s mouth. Although the Crown again submitted that these act each constituted a worst case I am satisfied on the facts found by me the offences falls within the middle range of objective seriousness.

172. Count 9 involved the offender placed a rubber on the toy that made it thicker and went half way up the toy and inserted it from the victim’s back into her vagina I would regard this as falling within the middle range of objective seriousness.

173. Count 10 involved the use of the toy being inserted in the vagina for 8 minutes. I would regard this offence as falling within the middle range of objective seriousness.

174. Count 11 followed Count 10, and involved the offender using the toy from behind and the offender pushing it and two of his fingers inside the victim’s vagina whilst holding the victim’s hair. I would regard this offence falling within the middle range of objective seriousness.

175. Count 12 which occurred three nights after Count 11, involved the use of the toy inside the victim’s vagina .I would regard this as falling within the middle range of objective seriousness

176. Count 13 occurred three nights after count 11. Intercourse involved the use of the toy inserted into the victim’s vagina. I would regard this offence as falling within the middle range of objective seriousness.

177. Count 14 followed Count 13, and involved what was described as a new punishment described as honky sex. I would regard this offence as falling within the middle range of objective seriousness

178. Count 15 involved another incident of what was described as honky sex on 29 January 2015 where the victim described digital penetration of the vagina. I would regard this offence as falling within the middle range of objective seriousness.

179. Count 16 followed Count 15, and involved the victim being required to fellate the offender. I would regard this offence as falling in the lower range of objective seriousness.

180. Count 17 followed Count 16, and involved the pushing of the toy into the victims’ vagina without gel with the offender using one hand to hold it. In my view this offence falls within the mid-range of objective seriousness.

181. Counts 18 to 24 occurred on 31 January 2015.

182. Count 18 involved forcible penis to mouth intercourse for close to 10 minutes. I would regard this offence as falling just below the middle range of objective seriousness

183. Count 19 also involved the offender pushing three fingers into the victim’s vagina. I would find this as falling within the middle range of objective seriousness

184. Count 20 followed Count 19, and involved the offender inserting four fingers into the complaint vagina and then inserting the toy. I would regard this offence as falling within the middle range of objective seriousness.

185. Count 21 involved the offender trying to push his fingers and whole hand into the victim’s vagina. I would regard this offence as falling within the middle range of objective seriousness.

186. Count 23 followed Count 21, and involved further use of the whole hand, which the complaint described as making her feel the offender was going to kill her. I would regard this as a very serious case of digital penetration falling above the middle range of objective of seriousness

187. Count 22 involved the offender using the toy which he strapped on and holding it with one hand to penetrate the victim’s vagina. I would regard this offence as falling above the middle range of objective seriousness.

188. Count 24 involved that pursuit by the offender of the victim in circumstances where she was effectively instructed and coerced to jump by the pursuit of the offender occasioning serious injury to her left leg as earlier described. In the circumstances in which it occurred I would find this offence as just below the medium range of objective seriousness.

Mitigating Factors

Previous Record[211]

211. 1999 Act s 21A(2)(e)

189. The offender has no record of previous convictions a matter the Court takes into account.

Good Character[212]

212. 1999 Act s 21A(2)(f)

190. Notwithstanding the absence of prior convictions no submission or evidence was advanced that the offender is otherwise of good character.

Likelihood of Reoffending and Prospects of Rehabilitation[213]

213. 1999 Act s 21A(2)(g) and (h)

191. The presentence report records that the offender was selective as in the information he provided and declined to provide consent for contact with any third party to verify information. Consequently the statements in the report are based on self-report and perusal of corrective Services records.

192. The report notes that the offender has not received institutional misconduct charges although he was issued with a verbal warning on 28 September for damage to gaol issued property and causing damage to his cell whilst housed at John Morony Correctional Centre. When questioned about this he stated “I can’t remember anything”. Despite this records indicate that he is compliant with centre routine and causes no concerns for centre management, which recent contact with a Correctional Officer in his residential wing at the Metropolitan Reception and Remand Centre confirmed

193. The offender is the eldest of three children born to his parents’ union and relayed a stable and supportive upbringing. He is reported to have a somewhat supportive relationship with his sister wth whom he intends to reside in the Albury area upon his release. Corrective Services records record that his extended family have visited him on a number of occasions whilst in custody.

194. The presentence report records that the offender declined to partake in the sex offender consultation. As a consequence only the STATIC-99 R was completed by corrective Service Psychologist Xiang Hong. The report notes:-

The STATIC-99R was completed without the Dynamic risk factors assessed and found the offender to fall within the Below Average risk range of sexual reoffending when compared to other sex offenders.

Despite this, the Psychologist found potential factors may include sexual deviancy, potential sadism, negative emotionality and hostile views against women. It was recommended given the severity and the repeated nature of the offences he undertake further psychological and psychiatric assessment to clarify his dynamic risk factors and to advise a treatment pathway.

195. According to the Level of service Inventory- Revised actuarial risk/needs assessment tool the offender was assessed as a low-medium risk of reoffending. The identified criminogenic needs are:-

• Sex offending

• Domestic Violence

• Family/marital

• Emotional/personal

• Attitude/orientation

196. The presentence report further records that the offender did not state a willingness to complete sex offender domestic violence interventions. In his submission before me the offender stated:

“… the Crown says that it’s hard for me to rehabilitate. What I want to show is my mindset then when there was so many issues over our separation then. We were separating. My mindset then. Not now. Mindset then, that at the heart of this, we were separating and I was doing everything that we separate the right way. Like, I said the catch not to be separated the young daughter to go to a private school that I wanted her to go and there was a friendly divorce, these are the words all used. So my mindset then. I’m just trying to say that there is rehabilitation in me. I’m not taking paid work or I’m not doing this course, there was not enough information on the phone, what courses- these are my private details, I’m not going to give it on the phone, those things. The courses were not elaborate to me, they were not what are going to do m what we’re going to do. That does not mean I’ve declined it, there’s a stone wall, it’s just that things were not clear at the time as to what I’m going to say or what I’m going to do. [214]

214. T 17.23-.36

197. Whilst rehabilitation can be achieved without confession, remorse and insight remain powerful factors in respect of good prospects of rehabilitation and the unlikelihood of reoffending. In this instance the offender displays neither remorse nor insight. He has failed to engage with the sex offender consultation with the psychologist. I accept over the term of is sentence there may well be prospect that the offender changes his attitude however at this point in time I would regard the offender’s prospect of rehabilitation as guarded.

198. The offending for which he is to be sentenced is specifically in the context of a relationship where he had a belief that he had been wronged by the victim’s infidelity. However it cannot be said that his resort to violence was isolated to such circumstances of these offences. The belief he had in the victim being unfaithful even if genuine gave him no entitlement to act as he did.

199. During the course of the trial, the court heard evidence from Mr Ajay Singh where the offender stated “If I do get convicted will get out and finish unfinished job.”[215] I accepted Mr Ajay Singh’s evidence. [216] Although I referred to it in the course of submissions the Crown did not contend that it represents the offender’s current state of mind but rather as to the concern of the victim. Nevertheless the Crown argued that as the offender has shown no remorse or contrition his risk of re-offending against women with whom he develops a domestic relationship is high.

     215. R v DS (No 1) [2017] NSWDC 207 at [870]

     216. R v DS (No 1) [2017] NSWDC 207 at [888]

200. When I asked about the risk of reoffending more broadly than akin to the circumstances of the victim the Crown submitted:-

EVERSON: The risk more broadly is that your Honour is sentencing a man who, on the evidence that your Honour has found beyond reasonable doubt, committed these offences because he believed he was entitled to because of her alleged infidelity. It's that fact that I'm pointing to as the real dangerousness about him. If he's the kind of man that thinks that the unfaithful wife is someone who is able to be treated in the outrageous way that he treated her, that's where the ongoing dangerousness occurs. Whether or not he's going to be able get away with it for as long as he did here is something that's an unknown quantity because we don't know ….

HIS HONOUR: How that person will react.

EVERSON: if it's going to happen or how that person would react.

201. Doing the best I can, I would accept that his likelihood of reoffending in the future as low to medium.

Remorse[217]

217. 1999 Act s 21A(3)(i)

202. The offender was the subject of a presentence report which I have earlier referred to. The report records that the offender denied the facts in the Crown statement and stated he would defend his innocence. It notes that he sought to deflect the focus onto the victim’s asserted infidelity and his own explanation as to why he would make false claims. This is reflective of the position taken during the trial and in sentence submissions. Remorse is plainly not established.

Delay

203. In Sabra v R,[218]Bellew J cited with approval the Victorian Court of Appeal decision in R v Schwabegger, [219] before adding:-

[45]    Delay which is not attributable to an offender may be relevant on sentence at a number of different levels. Ordinarily, such delay will be a mitigating factor if (as in the present case) it has resulted in significant stress to the offender, or has left him or her, to a significant degree, in a state of uncertain suspense. Where there is evidence that delay has led to consequences being visited upon an offender which are adverse to his or her circumstances and which are over and above stress and anxiety, be those consequences in the nature of interrupted rehabilitation or otherwise, then the weight to be given to such delay in the sentencing process will obviously be greater. But that is not to say that an offender must be able to establish consequences of that kind before delay can become relevant at all. To so conclude would be contrary to the weight of previous authority in this Court. [220]

218. [2015] NSWCCA 38 at [33] (Meagher JA and Schmidt J agreeing)

219. [1998] 4 VR 649 at 569

220. In Coles v R [2016] NSWCCA 32 at [18] – [19] (Fullerton J, with whom Hoeben CJ at CL and Adams J agreed), approved the reasoning of Bellew J in Sabra v R [2015] NSWCCA 38.

204. In sentencing submissions the Crown conceded that that there was a delay in the matter being progressed in part due to what was described as “tardy decision making on the part of those that briefed me as to what to do with the large number of matters that were ultimately transferred here on a 166 certificate.” However it also stated that part of the delay was attributable to the delay brought about by the intermittent representation of the offender.

205. Although there is no evidence of the consequences of delay, the Crown conceded that the offender’s progress in the correctional system may have been delayed. The Crown also conceded and I accept that this was an unknown in the circumstances.

206. In my view it is appropriate to make some allowance for the delay in the progress of the matter for reasons not associated with the offender as the Crown conceded.

Sentence

Commencement of Sentence

207. The offender has been in custody since 6 March 2015. He was also in custody on 1 January 2015 for 1 day for matters the subject of a s166 certificate and 15 days from 2 February and to 17 February 2015.

208. Taking into account presentence custody I propose to commence the sentence from 19 February 2015. [221]

     221. 1999 Act s 24

Special Circumstances

209. The Crown submitted that as this is the offender’s first time in custody, the question is whether the offender is going to require post release supervision more than would occurring the statutory norm between the head sentence and the non-parole period. [222]

     222. T 24.31-.43 (9 October 2017, first transcript)

210. The evidence is that the offender is compliant in custody despite the fact that he did not cooperate with the preparation of the presentence report. Despite the current intransigence exhibited by the offender, the Crown accepted that there are factors that would entitle the offender to a finding of special circumstances. [223]

     223. T 24.30-25.11 (9 October 2017, first transcript)

211. I bear in mind the offender’s submission as noted provides some prospect for rehabilitation notwithstanding the other matters I have referred to,

212. With the length of the sentence that I intend to impose rehabilitation is difficult to assess in the longer term. In this context I am mindful of what was stated as to special circumstances by Bathurst CJ and Beasley P, in R v Lulham. [224]

     224. [2016] NSWCCA 287 at [7] and [10] (Bathurst CJ with whom, Hall J agreed and Adams J agreeing with both)

213. Acknowledging that there are some prospects of rehabilitation albeit guarded, that this is the offender’s first time in custody, the community interest in rehabilitation, the length of sentence and the Crown’s submission as referred to above I am satisfied that it is appropriate to find special circumstances within the terms of s 44(2) of the 1999 Act. Accordingly I propose to vary the statutory ratio.

Maximum penalties and standard non-parole periods

214. The offence of sexual intercourse without consent, contrary to s 61I of the 1900 Act carries a maximum penalty of imprisonment for 14 years imprisonment. For this offence, there is a standard non-parole period of 7 years’ imprisonment. [225]

     225. 1999 Act Pt 4 Div 1A Table, Item No 7

215. The offence of attempted sexual intercourse without consent, contrary to ss 61I and 61P of the 1900 Act, carries with it the same maximum penalty as the offence of sexual intercourse without consent, being 14 years’ imprisonment. It follows that there is also a standard non-parole period of 7 years’ imprisonment for this attempt offence. [226]

     226. 1999 Act Pt 4 Div 1A Table, Item No 7

216. The offence of recklessly causing grievous bodily harm, contrary to s 35(2) of the 1900 Act, carries a maximum penalty of 10 years imprisonmnet. For this offence, there is a standard non-parole period of 4 years’ imprisonment. [227]

     227. 1999 Act Pt 4 Div 1A Table, Item No 4B

217. I have regard to these guideposts as part of the process of instinctive synthesis.

214. In sentencing the offender the need for denouncement, making the offender accountable and specific and general deterrence loom large. However I bear in mind that this is his first term of imprisonment in this regard. The harm occasioned by the victim needs to be acknowledged. These were appalling acts inflicted on his spouse which collectively involved pain, distress, physical and emotional, injury, degradation and humiliation all whilst subject to conditional liberty.

215. In sentencing the offender I bear in mind the statements of Johnson J in R v Hamid:-[228]

[134]    In R v Knight (2005) 155 A Crim R 252, the following was said, at [112], concerning questions of accumulation, concurrence and totality:

“It is necessary to fix an appropriate sentence for each offence and then consider questions of accumulation, concurrence and totality. The total effective sentence must represent a proper period of incarceration for the totality of the criminality involved: R v AEM at [70]; R v Kalache (2000) 111 A Crim R 152 at 184. The mechanism of making some sentences cumulative and others concurrent (or partly so) may be used where the aggregate of sentences imposed in respect of each count exceeds the appropriate total sentence: R v Myers [2002] NSWCCA 162 at [34]. At the same time, it is necessary to ensure public confidence in the administration of justice by imposing sentences which do not suggest that multiple offences will be punished in the same way as one or two offences: R v Wheeler [2000] NSWCCA 34 at [36]-[37].”

[135]    A paramount principle for the law of sentencing is that the aggregate sentence should fairly and justly reflect the total criminality of the offender's conduct. This principle applies in all cases, including those where punishment is imposed for multiple offences: R v Weldon (2002) 136 A Crim R 55 at [46].

228. [2006] NSWCCA 302 (Johnson J, with whom Hunt AJA and Lathan J agreed)

220. The sexual offences involved a series of sexual punishments culminating in a pursuit of the victim to occasion a serious fall in her own house. A number of offences occurred sequentially or within a short time of each and all within a narrow time frame. The offences reflected particular forms of sex acts devised in the regime of punishments. Whilst it is necessary to impose a sentence recognises the overlapping criminality the distinctive character of each offence and the harm and humiliation to the victim involved in each instance cannot be subsumed. To that end, I have taken into account relevant sentencing principles.

Indicative Terms and Aggregate Sentence

221. I propose to proceed by way of aggregate sentencing under s 53A of the 1999 Act. In terms of indicative terms of imprisonment, I would have sentenced as follows:-

1. For Count 1; 6 years; comprising a non-parole period of 4 years and 2 months and an additional term of 1 year and ten months.

2. For Count 2; 2 years and 6 months comprising a non-parole period of 1 year and 9 months and an additional term of 9 months

3. For Count 3; 8 years comprising a non-parole period of 6 years and an additional term of 2 years.

4. For Count 4; 8 years comprising a non-parole period of 5 years and 7 months and an additional term of 2 year and 5months.

5. For Count 6; 8 years comprising a non-parole period of 5 years and 7months and an additional term of 2 year and 5 months.

6. For Count 7; 9 years comprising a non-parole period of 6 years and 3 months and an additional term of 2 years and 9 months.

7. For Count 8; 5 years (attempt toy in bottom) comprising a minimum term of 3 years and 6 months and an additional term of 1 year and 6months

8. For Count 9; 9 years comprising a non-parole period of 6 years and 3 months and an additional term of 2 years and 9 months.

9. For Count 10; 9 years comprising a non-parole period of 6 years and 3 months and an additional term of 2 years and 8 months.

10. For Count 11; 9 years comprising a non-parole period of 6 years and 3months and an additional term of 2 years and 9 months.

11. For Count 12; 9 years comprising a non-parole period of 6 years and 3 months and an additional term of 2 years and 9 months.

12. For Count 13; 8 years comprising a non-parole period of 5 years and 7months and an additional term of 2 year and 5 months.

13. For Count 14; 8 years comprising a non-parole period of 5 years and 7 months and an additional term of 2 years and 5 months.

14. For Count 15; 9 years comprising a non-parole period of 6 years and 3 months an additional term of 2years and 9 months.

15. For Count 16; 5 years comprising a non-parole of 3 years and 6 months years and an additional term of 1 year and 6 months.

16. For Count 17; 8 years comprising a non-parole of 5 years and 7 months an additional term of 2 years and 5 months.

17. For Count 18; 6 years comprising a non-parole of 4 years and 2 months years and an additional term of 1 year and 10 months.

18. For Count 19; 8 years comprising a non-parole period of 5 years and 7months and an additional term of 2 year and 5 months.

19. For Count 20; 9 years comprising a non-parole of 6 years and 3 months and an additional term of 2 years and 9 months.

20. For Count 21; 9 years comprising a non-parole of 6 years and 3 months an additional term of 2 years and 9 months.

21. For Count 22; 10 years comprising a non-parole of 7 years and an additional term of 3 years.

22. For Count 23; 10 years comprising a non-parole of 7 years and an additional term of 3 years.

23. For Count 24; 4 years and 6 months comprising a non-parole period of 3 years and 2 months and an additional term of 1 year and 4 months.

222. On each offence the offender is convicted.

223. The offender is sentenced to an aggregate term of imprisonment pursuant to s 53A of the 1999 Act of 22 years comprising:

1. A minimum term of 15 years and 4 months, commencing on 19 February 2015 and expiring on 18 June 2030; and

2. An additional term of 6 years and 8 months, commencing 19 June 2030 and expiring on 18 February 2037 during which the offender shall be eligible to be released on parole subject to a determination of the State Parole Authority.

Endnotes

Amendments

18 December 2017 - Crimes (Sentencing Procedure) Act 1999 (NSW) s 53B amended to s 53A.

19 December 2017 - Para 218 - grammatical amendments.

Decision last updated: 19 December 2017