R v Evatt (a pseudonym)

[2024] NSWDC 113

District Court

New South Wales

Medium Neutral Citation:	R v Evatt (a pseudonym) [2024] NSWDC 113
Hearing dates:	28 March 2024
Date of orders:	12 April 2024
Decision date:	12 April 2024
Jurisdiction:	Criminal
Before:	Priestley SC DCJ
Decision:	See [98-101]
Catchwords:	CRIME — Apprehended violence orders — Contravene apprehended violence order CRIME — Sexual offences — Aggravated sexual assault — Inflicts actual bodily harm CRIME — Violent offences — Aggravated break and enter and commit serious indictable offence CRIME — Sexual offences — Sexual intercourse without consent
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Family Law Act 1975
Cases Cited:	Muldrock v The Queen (2011) 244 CLR 120 Millwood v R [2012] NSWCCA 2 Hall v The Queen [2021] NSWCCA 220 R v Holder [1983] 3 NSWLR 245 Mill v The Queen [1988] HCA 70 Cahyadi v R [2007] NSWCCA 1
Texts Cited:	Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
Category:	Sentence
Parties:	Rex The offender
Representation:	Counsel: Anderson for the offender Franklin for the crown Solicitors:
File Number(s):	2021/00303594

Reasons on Sentence

Introduction

1. The offender appeared for sentence at Coffs Harbour on 28 March 2024 in respect of the offences detailed below. Due to the number of other matters in the list and the shortness of available time that day the reasons on sentence were adjourned to 12 April 2024. These are those reasons.

2. The offender is charged with two counts (counts 1 and 3) of sexual intercourse without consent pursuant to section 61I of the Crimes Act and one count of entering a building with intent to commit an indictable offence, namely intimidation, pursuant to section 114(1)(d) of the Crimes Act.

3. The maximum sentences for the section 61I charges are 14 years imprisonment and there is a standard non-parole period of 7 years. The maximum sentence for the section 114 offence is 7 years imprisonment and there is no standard non-parole period.

4. In respect of the section 61I offence which is count 3 there is to be taken into account by way of the Form 1 procedure a further offence of sexual intercourse without consent.

5. Pursuant to section 166 of the Criminal Procedure Act there is a further offence to be dealt with by this court in a summary fashion being the offence of contravening an apprehended domestic violence order. The maximum term of imprisonment for that offence is two years.

6. In relation to the maximum sentences and, in respect of the section 61I offences, the standard non-parole period, those matters are taken into account as legislative guideposts, indicating the legislature’s view of the seriousness of those offences to assist in arriving at the appropriate sentence. In relation to the standard non-parole period I note that in Muldrock (2011) 244 CLR 120 at [29] the High Court made clear that it has application even when the offending is not considered to be in the middle of the range of seriousness as that term is used in section 54A of the Crimes (Sentencing Procedure) Act (“CSPA”). The standard non-parole period is an indication of the legislative view of the seriousness of the offence.

7. In regards to the Form 1 procedure it is important that the focus remains on the principal offence for which the offender is being sentenced. The procedure allows that in doing this greater weight may be given to the elements of personal deterrence and the community’s entitlement to extract retribution for serious offences. Those two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence; see Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ.

8. The offences all occurred on 25 October 2021. The offender was arrested on 8 November 2021 and has been remanded in custody since that time. The offender was not on conditional liberty at the time of the offending.

The facts

9. The victim of these offences is X, who at the time of the offending was the wife of the offender. The agreed facts state the offender and the victim separated approximately 18 months prior to the offences, so in 2020. They had been in a relationship since high school and eventually married. Both the offender and victim were born in 1989 and were both 32 years old at the time of the offending. Two children were in the house where the offending occurred though they were asleep at the time. They were the two children of the offender and the victim, the eldest being born on 20 May 2013 and so 8 at the time of the offending and the other born on 30 June 2017 and so 4 at the time of the offending.

10. The offender had been in the army since age 17. Prior to the parties separating they resided in A. Upon the breakdown of the marriage the victim moved to an address in B. The victim intentionally kept that address a secret from the offender and he remained in A.

11. In about August 2021 the victim commenced a relationship with Z.

12. On 4 March 2021 an apprehended domestic violence order was granted by the a Magistrates Court naming the offender as the defendant and being for the protection of the victim. The conditions of that order included a prohibition on the offender locating or attempting to locate, by himself or someone else, the victim. The offender was also prohibited from approaching to within 100 metres of the victim with a number of exceptions which are not relevant to the present matter. The order also prohibited the offender from publishing pictures of the victim.

13. On 21 May 2021 parenting orders were made under the Family Law Act which included that the victim and offender communicate about parenting issues concerning their two children via email; such communication was to be no more than once a week unless there was an emergency in which case they could communicate promptly by phone.

14. On Friday 22 October 2021, so 3 days before the offending, the victim dropped the children to the offender to spend time with him that weekend as he was in B.

15. On 23 October 2021 the offender communicated with the victim by telephone call and by message seeking to attend her house to obtain a child’s scooter which the victim declined. The following day, 24 October, another text message was sent by the offender wanting to come to the victim’s house to get towels for the children so they could go swimming. The victim again declined. The offender asked the children where they lived and said to them he would send them to their rooms unless they told him. He took them to a park near the victim’s house and one child said “oh that’s mum’s house”.

16. Later that day the victim and offender met so the children could be returned to the mother and the offender said that a child had pointed out their house. She became worried. The offender sent a Facebook message to a friend in excited terms telling her that he now knew the victim’s house saying “yeah lol [B] lol”. Later that same evening the offender attended a friend’s house and was drinking beers. About midnight he told his friends he was going for a walk and would then come back to take his medication.

17. That same evening, though by now early in the morning of 25 October 2021 at 2 AM, the offender attended the victim’s house at B. The victim and the children were asleep. The offender entered the house. The victim woke up hearing noises and thought she saw a head peek around her bedroom door. She came face-to-face with the offender who grabbed her by the throat and said “hello [X]”. It caused the victim pain. The offender pushed the victim towards the bedroom leading her by holding her throat and said “Guess I’m really going through with this after all… My heart is racing”.

18. It is those facts which found count 2, the section 114 offence.

19. The offender sat on the victim’s bed and pulled her towards him so that she was between his legs facing him. She could smell alcohol on his breath. He grabbed her phone from a shelf next to her bed. The offender asked questions about the victim’s boyfriend and where he lived before threatening to kill him and to rape his daughter. He eventually said “I’m just going to kill them all”. He also made threats to physically harm the victim.

20. The offender laid back on the bed and pulled out his penis, demanding that the victim suck it. Out of fear she did so and whilst that was happening the offender made remarks such as “good girl”.

21. The above constitutes the basis of count 1.

22. The offender used the victim’s phone to send himself messages intended to show him in a good light for example by saying “you are a good dad”. He also sent messages to Z purporting to end their relationship and falsely saying that one of the children had told the father that Z had exposed himself to the child.

23. The next agreed fact is that the offender then repeatedly apologised for his previous conduct. Whether that is meant to have been the conduct of that very evening or his earlier conduct leading to the ADVO is not clear though as he was trying to convince the victim not to go to the police it would seem to be and I find is a reference to the events of 25 October. The victim said she would think about it in the hope that he would leave without hurting her.

24. Following those events the offender said “get on top of me” and the complied. The offender inserted his penis into the victim's vagina and had sexual intercourse with her for a number of minutes without a condom. The victim complied out of fear and hope he would leave without hurting her.

25. That is the basis of count 3.

26. The conduct founding the Form 1 matter which is a further count of sexual intercourse without consent then follows. The offender told the victim to “get on all fours”, and he inserted his penis into her vagina from behind for a number of minutes. He then performed cunnilingus upon the victim for a number of minutes before asking the victim “your mouth your ass or your pussy?”.  The facts do not go on to say as might have been anticipated that there was then a further act of sexual intercourse. As it is, the facts make out 4 acts of sexual intercourse without consent, being counts 1 and 3, and the Form 1 matter shows a further two acts of sexual intercourse. The Form 1 matter should be approached as being just one count of sexual intercourse, but for that one count the facts surrounding what occurred need to be taken into account.

27. There was no ejaculation. The offender then wiped down the victim’s phone and door handle and eventually left the premises and returned to his friends and went to sleep.

28. A significant agreed fact is that the entire incident at the house lasted approximately two hours.

29. It is an agreed fact that the offender had actual knowledge that the victim was not consenting to any of the sexual intercourse.

30. The victim immediately phoned Z, then the police and then her mother and subsequently attended the C Hospital.

31. At 5:11 AM on 25 October 2021, so less than 1 ½ hours after the offending, the offender spoke to a friend and told him he knew where X lives and the friend asked whether he needed to call the police or the ambulance and whether the victim was okay to which the offender stated “it’s all good I got the closure I needed, everything was fine when I left, she gave me a hug goodbye, X was fine and all good”.

32. In the ensuing police investigation the offender could not be found. When he was aware the police were involved he fled New South Wales. An extradition order was obtained on 8 November 2021 and the extradition occurred on 9 November. The offender participated in a recorded interview. He said he was drunk and was medicated. He claimed that he had attended the house after receiving messages which based on the agreed facts can now be seen to be false. The offender told police that he felt he was walking into a set up which again can be seen to be false. He told police that it was the victim who initiated sex. He told police that his penis does not work without tablets and even with tablets is dysfunctional, presumably to try to support his claim that whilst they tried to have sex he could not because of his erectile dysfunction. He said that he went through the victim’s phone and looked at her Facebook to see she had moved on with her life which was a turning point for him to just “be happy for her”. He did not admit to sending messages to Z. He did admit his son told him where the victim lived but said it was not intentional.

33. It should be noted that that interview occurred 15 days after the offending and is a totally false account of what occurred.

Objective Seriousness

34. The submission of the Crown is that this offending is at the very highest end of objective seriousness for offences of the type charged.

35. In respect of the section 61I charges there is arguably nothing that factually sets them apart other than the second occasion of it occurring is in the context of the offender having already acted in that way suggesting, and I find, a real determination on the part of the offender to dominate, humiliate, control and degrade the victim not to mention assault her.

36. To support its contention the Crown relies on what is said to be a motivation of jealousy, that it occurred so closely following an offence of breaching a DVO, though that concerned the use of intimate pictures, and is a far remove from what occurred here.

37. This is a case of actual knowledge of lack of consent rather than some belief not being reasonably held and I take that into account. There was also the lack of any protection.

38. The Crown argues there was a high level of planning. That is to overstate the lead up to the offending. The matter is better described by the accused having a significant level of determination to go about the offending; his comments to others and his comment to the victim clearly show that he had given this forethought and it was not impulsive. The fact that he was probably intoxicated having been drinking beer with his friends that evening cannot be taken to mitigate the offending. He had sought to obtain the victim’s address despite knowing that it was not wanted to be known and having learnt the address he that very night, attended at 2 AM. The use of the phone (but not the attendance at the house) could easily be described as opportunistic rather than the fulfilling of some well thought out plan.

39. The most significant aspect of the offending that adds to its seriousness is its duration and the time at which it occurred, and the callous disregard that was had for all concerned. It is only good fortune that has seen the offender's own children not come upon the scene of this offence as they slept in nearby rooms.

40. In terms of the actual offending count 1 is forced fellatio where the offender demanded that the victim fellate him shortly after he had appeared unannounced at her bedroom door at 2 AM in the morning. That he made remarks such as “good girl” reflects the finding I make that this offending was all about domination and control. It needs to be remembered that this offending occurred in a family law context where the provisions of the Family Law Act had been invoked so that orders were made governing the times at which the offender could see the children. To the credit of the victim despite what is described as a toxic relationship she complied with those orders. The additional communications in the days leading up to the offending are in breach of those orders. The idea that the offender needed to come to the victim’s house to get towels for the children is clearly not an emergency, and should be seen for what it is, a ruse simply seeking to create some excuse for contact with the victim which is not permitted. Not only was their relationship governed by those orders insofar as it related to the children it was also governed by the domestic violence order.

41. The second section 61I count which is count 3 on the indictment is much in line with the first with the offender making demands of the victim, this time for penile vaginal sex.

42. Following count 3 there is then the occasion where the offender tells the victim to get on all fours and he penetrates her from behind and the facts also recount a further sexual assault of cunnilingus which I take to be part of the facts or circumstances of the Form 1 matter. This Form 1 matter is to be taken account of in respect of count 3. The sentence in respect of this count will necessarily be greater because applying the Form 1 procedure when the matter being taken into account is as serious as it is here must be reflected in the sentence for the principal charge albeit it must be within the proportionate range of the sentence for the principal offence, which remains the focus of the sentence to be imposed.

43. The assessment argued for by the offender is that this offending falls within the upper midrange. That submission is sought to be supported by the acts appearing to be relatively short lived and opportunistic. I reject each of those submissions; the period in which the offending occurred extended to approximately two hours and this was not opportunistic; having discovered the address the day before it was not some random circumstance saw him passing by the door. I also accept the Crown submission that to rely on a lack of sustained violence is of little assistance given that such conduct would turn it into a section 61J offence. At the same time I accept the offender’s submission that there is a broad spectrum of conduct which may make out this offending.

44. Whilst I largely accept the submissions made by the Crown in preference to those of the offender I do not accept that it is “at the very highest and of objective seriousness”. Taking into account the various matters outlined above, to which I would add the fact that it occurred in the home of the victim, I assess the objective seriousness of the offending to be in the high mid range.

45. The Crown argues there are a number of aggravating factors. Firstly that the offending involved actual or threatened violence. The offending was carried out in a way that included significant intimidation both directly and by reference to others. I accept that submission.

46. The Crown also relied on the offending occurring in the victim’s home, however I have taken that into account in assessing objective seriousness and so do not take it into account a second time.

47. The Crown also relied on the fact that the injury, emotional harm, loss or damage caused by the offence was substantial, a matter which is conceded by the offender. The Crown made reference to the victim impact statement of the victim which was part of exhibit A. In that statement the victim sets out how she needed to move from her new home because of the trauma now associated with it. Economically this meant moving back to live with her parents and a loss of independence. The victim is as she says “hyperaware” of men and seeks to avoid them in public places. She is anxious about security. Her work life has been affected. She has needed to see a psychologist, some financial cost. She suffers from anxiety. She does not lead the life she led before. The offences significantly affected her sense of self worth, pride and confidence. The victim also recounts the impact it has had on the children with the eldest son feeling responsible for what occurred. I do take this into account as aggravating the offending.

48. The Crown also makes reference to how this has occurred in a domestic violent context. The context in which the offending occurred has been taken into account in determining objective seriousness.

49. As to the s114 offence that is a serious example of that type of offence; it was not some opportunistic conduct on seeing an open door. That offence occurred in precisely the same context as the section 61I offences. I consider that offence a serious matter given those surrounding circumstances. Not only was it unlawful by reason of section 114 it was also in breach of the ADVO.

Subjective matters

50. The offender relied on a report of a psychologist, Patrick Sheehan dated 22 August 2023. There was also a supplementary report dated 25 March 2024 from Mr Sheehan and there was also a report from Mr Sheehan dated 27 March 2024 tendered by the Crown. The need for the second report relied on by the offender was because there had been a change to the agreed facts that he had been initially provided. In particular that additional fact was that at the time of the offending the offender made threats to kill the victim’s then boyfriend and to rape that boyfriend’s daughter. An issue was also raised which was not significantly pressed as to comments made by the offender's mother about him. Mr Sheehan re-interviewed the offender including as to the additional fact just referred to. At [17] the report states “it was already accepted that [the offender] had threatened to kill the complainant and her partner. The addition of a child to the target of the threat may add a further degree of moral reprehensibility to the intimidation offence but does not appear to be viewed as a discrete offence but rather as part of the threatening behaviour”. The amended agreed facts did not alter the psychologist’s understanding of the offences or the factors underpinning them. Earlier in that paragraph the additional agreed fact was said to be consistent with the broader threats and consistent with the description of the state of mind previously described by the offender relating to his rage and his desire to hurt. In other words what is being said is that the threat should be seen to reflect the desire to intimidate and cause fear rather than being reliable statements of intent.

51. The Crown at the sentencing hearing did not place great weight on the statements attributed to the offender's mother and in my view rightly so. There is something of a fractured relationship between them and it is an untested opinion rather than the statement of any facts whether agreed or disputed.

52. At [20] the view was expressed that Mr Sheehan does “not view [the offender’s] completion of the remand domestic violence program to be commensurate with his treatment needs.”. Mr Sheehan reinforced the need for his earlier recommendations to be followed.

53. The second supplementary report which was marked exhibit B involved a series of questions being asked which was done for the sensible purpose of seeking to avoid the need to cross examine Mr Sheehan. Five questions were put to the psychologist. The first question was based on the fact that he had sought to find the victim’s address rather than coming across it inadvertently which was relevant according to the psychologist on the question of intent but not otherwise. This is consistent with the view I have taken in assessing the objective seriousness and how he came to learn the address.

54. The second question concerned the fact previously not known to the psychologist that the breach of the domestic violence order 20 days before the offence in B was of using intimate images to force the victim to respond to him. This was said to be an act to attempt to establish control as the offender cannot tolerate the feeling of not being in control. It was further put to him by the Crown in a conference that given the offending came soon after making full admissions and supposedly being remorseful for the earlier offending, could his now expressed remorse be accepted. The opinion given was that it could be and the rationale for saying so is set out in exhibit B. In short an expression of remorse that is then followed by another offence should not be taken to mean that any subsequent expressed remorse is to be dismissed. I accept that view but that is not to say that the expressions of remorse are accepted without a degree of guardedness. The conduct of fleeing after the offending, and the fabricated story given to police, support taking this guarded view.

55. The third question asked about the risk of reoffending. No formal risk assessment has been carried out. The psychologist did identify however that grievance fixation was the most prominent dynamic risk factor. I accept that point also in that I take grievance fixation to be a way of expressing the context in which this offending occurs. It is not something which in my view shows the offender in a favourable way. His grievance is the fact that the victim left the marriage and his response to that is to seek to control, degrade and punish her as evidenced by the offending.

56. The fourth question asked if the index offending is consistent with narcissistic traits and the answer was in effect no.

57. The fifth question again addressed the question of risk and the extent to which treatment programs recommended would impact on that risk. The evidence at the top of the final page of the report is that targeted programs have an overall effect in reducing rates of reoffending for violence and sexual offending but the impact is limited and certainly not complete. That was explained as saying the risk can be reduced but not extinguished. It should also be borne in mind that in considering this matter it would be relevant to know just what in percentage terms the risk of reoffending that is being reduced but not extinguished actually is.

58. Mr Sheehan considered a relapse into substance use as a risk factor and recommends an abstinence clause in any supervision schedule.

59. Turning then to the primary report which formed part of Exhibit 1 the psychologist took a history from the offender. The offender was born and raised in the B area. His parents separated when he was aged 2 and he remained with his mother with little contact with his father. There was an occasion where his father “kidnapped” the offender and his brother. The offender had been told his father was a heroin addict and domestically violent, and it would seem this information comes from his mother. His mother re-partnered when the offender was about 13 and there were no complaints as to the stepfather though he said he never really bonded with him. He spent extended periods on his maternal grandparents farm and was close to them. His grandfather was his primary male role model.

60. He said he recalled poverty and lived in housing commission and had less than the other kids at school. His mother smoked cannabis. She would strike him in the face in anger. Severe trauma or clear sexual abuse was denied.

61. On his own account the offender was “a shit of a kid, had a bad temper”. He was diagnosed with ADHD which was treated. He left home at 17 and joined the army. When his first child was born his father sought to contact him but he rebuffed that gesture. Several months later his father died, he was told by way of an overdose after feeling rejected. The relationship with his mother was uneasy and she did not accept his decision to join the army. He says he has always disliked his brother who apparently has a prior history of drug use problems.

62. At school he was aggressive and expelled from primary school. His motivation was to join the army so he studied and completed year 11 adequately. On leaving school he first worked at an abattoir and then joined the army still aged 17 and remained there for the following 14 years obtaining the rank of Lance Corporal. There was work-related trauma but that did not trouble him but rather he felt his body was breaking down and also it would seem there was a psychological impact as he went on stress leave in October 2020 and never returned to work. He was medically discharged in December 2021.

63. During the interview the offender was preoccupied with the family separation and associated issues such as financial distribution and child access and saying he was unable to propose ideas for his future employment given also the uncertainties of sentencing. That he should still be so preoccupied with the family matters is a concern given some two years had passed since the offending and almost 4 years since separation. This had improved by the time of the second interview on 25 March 2024; see exhibit 2 at [8].

64. In terms of his social life his temper resulted in frequent fighting. In later years during his periods off work seem to involve keeping company with other heavy drinkers.

65. As to his relationship with the victim it started at school and they married when he was 18. He described not being emotionally present in a pattern whereby there would be a buildup of internal distress and disproportionate anger. He denies earlier domestic violence which is disputed by the victim and stands at odds with the domestic violence order. Following the separation there were court procedures which built up feelings of resentment and grievance at a time he was not working and drinking heavily.

66. He was highly sexually active and said that in the marriage they solved their problems with sex which the psychologist refers to as a pattern of sexual coping which is said to have played a role in the commission of the current offences. The offender suffered erectile dysfunction from 2020 and used Cialis to counter this. His libido has declined since his arrest which is said to reflect that he equates sex with the shame and disgrace of the offending.

67. He had no history of illicit substance use however does abuse alcohol and a psychiatrist Dr Apel diagnosed alcohol use disorder along with major depressive disorder on 26 September 2022. In October 2020 he was admitted to hospital having overdosed on alcohol and various medications. He said to the psychologist that he would just want to blackout for the 12 days until he saw the children again.

68. The medical and psychiatric history given was of some depressed discs in his back and some shin splints but otherwise his health is currently good and he exercises vigorously daily. Psychologically there was the childhood ADHD which was treated and it does not seem to be suggested that it is currently active. There was reference to the offender’s explosive temper. In 2013 he briefly saw a psychologist following a trauma response following a motor vehicle accident. There was some abuse of narcotic pain medication at this time. The offender reported that he felt prominent internal stress for some years but did not acknowledge it due to the workplace culture where emotional problems are considered a weakness. He reached crisis point in 2020 when he lost his employment and his wife and there was then the admission to hospital in October that year. He was treated by Dr Apel and was medicated and a diagnosis of major depressive disorder and alcohol use disorder was made. In custody there has been a stabilisation of mood and Mr Sheehan considers that the major depressive disorder is currently in partial remission. The alcohol use disorder is said to be moderate in sustained remission in a controlled environment.

69. At paragraph 24 there seems to be a summary of the view of Mr Sheehan as to the offender. That view is of there being some indicators of personality vulnerability, a man with a pattern of strained and troubled relationships, a lack of emotional maturity and reduced tolerance to the challenges of everyday life. The full threshold is not met for personality disorder. There is inadequate evidence of antisocial personality disorder.

70. As to the offending the offender said “I remember feeling rage just thinking I’d been kicked and kicked and kicked worrying about her new boyfriend. I was fuming. I just wanted to hurt. I remember going to the house. I remember pushing her. I remember raving on and threatening to kill her boyfriend. I remember using her phone. I remember some of the sex but the rest isn’t clear”. And, “I shouldn’t have been there. I shouldn’t have been drinking on my medication. I showed no compassion or thought of how it would affect others. Full on chip on my shoulder rage. I’ve done the worst thing you can do to a woman. I’ve set a terrible example to my kids”.

71. The rage the offender says he feels is consistent with his bad temper which he has demonstrated throughout his life. This offending occurs some 18 months after separation. There is an ADVO in place. He says he was worrying about the victim’s boyfriend. On what basis? That statement underlies that his emotional state was one of jealousy, which due to the nature of the offender’s personality he was unable to cope with, leading to, in his words, “rage”, which as noted elsewhere in these reasons has elements of a desire to control, and to act in a way that degraded the victim.

72. The summary and opinion and recommendations given by Mr Sheehan are as follows and what follows is unaffected by the addendums in the following two reports:

1. So-called personality variables seem a likely contributor to problems with emotional control, as well as the presence of a depressive disorder. He has poor coping habits through substance abuse and sexual coping. He says that he was clearly suffering a major depressive disorder at the time of the offence. The report stops short of asserting a clear causative link between any mental illness and the offending, and no submission was made to that effect.

2. The risk of reoffending which was not arrived at by way of a thorough risk assessment (see exhibit B) was said to be in the average range.

3. The offender would benefit from programs such as the high intensity program unit available in custody followed by a release to supervision. The intensity program should occur near release so as to maintain a sense of momentum. That course is of some 16 weeks. A number of relevant programs are identified.

4. Mr Sheehan states that he sees the offender more as a domestic violence offender than a sex offender, a view with which I agree given the context in which this offending occurs.

73. Part of Exhibit 1 was a certificate showing the completion of a positive lifestyle program by the offender in custody in March 2023 dealing with issues such as grief and loss, anger, depression and self awareness. This supports the view that the offender recognises the need for intervention and in fact seeks it.

74. Also in evidence was a letter written by the offender to the court in which he apologised to everybody and in particular the victim. He acknowledges his wrongdoing and says he has reflected on how his actions have impacted on his children and the victim and their extended families. He says he has read the victim impact statement and acknowledges the pain and distress of the victim. Further evidence of remorse can be drawn from his plea of guilty, albeit at a fairly late stage.

75. Lastly was a letter from Jonathan Cooper who is the inmate education clerk at the Clarence Correctional Centre. He speaks positively of the offender as being decent and respectful. At the offenders suggestion steps were taken which led to certain programs being made available for people on remand. It also notes the offenders work as a librarian and assisting other inmates.

76. The offender pleaded guilty after the matter had been committed to this court and approximately two months from the listed trial date. In accordance with section 25D of the Act this means that he is entitled only to a 10% discount on his sentence for his plea of guilty.

77. Prior to the separation the offender had no criminal history. Subsequent to that there is one charge prior to this offending of contravening the domestic violence order.

Submissions and findings

78. The Crown urges that any view of the prospects of rehabilitation should be guarded given the treatment provided in the lead up to the offending. It is also noted the offending was a great escalation from the earlier contravention of the domestic violence order.

79. The offender argues there are prospects of rehabilitation. The offender points to the expressions of remorse and also to the expressions of empathy as borne out in the letter written to the court by the offender dated 20 March 2024. It is said the letter shows insight. The desire of the offender to rehabilitate is said to be supported by seeking treatment for his psychological condition of depression in effect weekly between November 2020 and November 2021. As already noted it is not submitted for the offender that state of depression was in any way causative of the offences. I accept the Crown’s argument in that regard that whilst there is reference to the depression being suffered at the time of the offending the evidence does not amount to suggesting such a causal connection. The key paragraph seems to me to be at paragraph 31 of the first report of Mr Sheehan. He talks of the problems of emotional control as likely being contributed to by personality variables and depression. Yet a difficulty with emotional control is not said to extend to committing these serious offences.

80. In contrast to the rather positive submission as to the likelihood of rehabilitation put by the offender the Crown argues that the escalation in the offending and the threats made on the occasion of the offending should lead the court to consider he is a very real and serious risk to women and particularly the victim upon release. It is said the real stressors for the offending were jealousy, possessiveness and anger. I would accept the last part of that submission which in my view takes away from the first part. The offender prior to the separation had no criminal history. There is no evidence he was at anytime a risk to women in a general sense. The offender is a risk to the victim and to any other person he forms an intimate relationship with, but not to women generally.

81. In terms of his prospects of rehabilitation they must be considered at best as guarded particularly in light of the qualification or caution at paragraph 20 of exhibit 2 where Mr Sheehan says the completion of a remand domestic violence program is not viewed as commensurate with his treatment needs. In other words significant treatment is needed as per his earlier recommendations. That is, there is much to do on the path to rehabilitation and the issues being dealt with seem to be inherent in the personality make up of the offender resulting in my finding that his prospects of rehabilitation as a domestic violence offender can only at best be viewed as guarded.

82. I do accept however that the expressions of remorse he makes in the far more calm circumstances in the time that has passed after the event are genuine. That does not lessen my guardedness as to his prospects of rehabilitation because the violence occurs when he is in as he says such a state of “rage” that some earlier expressed remorse is unlikely in my view to temper his irrational uncontrolled rage.

83. It was said on behalf of the offender that he experienced a childhood of scarcity with little emotional support from his father and an uneasy relationship with his mother. The offender submitted that the offender’s background gave rise to Bugmy considerations. What is evident from the historical background is that the offender himself recognises that from a young age he had a bad temper. Most likely the circumstances in which he was raised did contribute to him being a person not very capable of dealing with emotions with his outlet apparently being sex and drinking. He did however have a good relationship with his grandparents and a male role model in the form of his grandfather. The offender’s background is less than optimum or perhaps could be expressed as being somewhat more difficult than, to adopt the words of Justice Simpson from Millwood, [2012] NSWCCA 2 at [69] might be expected in a “‘normal’ or ‘advantaged’ upbringing”. The offender in Millwood had an upbringing described as “tragic and dysfunctional”, and far more disadvantageous than the present offender. In Millwood the background allowed “some (although limited)” mitigation. The offender has suffered some disadvantage in his upbringing. It is a matter that is taken into consideration. The lenience it provides is minor. It does not result in a reduction of significance in the emphasis that this sentence should place on deterrence.

78. The purposes of sentencing are set out in section 3A and they are as follows:

1. To ensure the offender is adequately punished

2. To prevent crime by deterring the offender and others from committing similar offences

3. To protect the community from the offender

4. To promote the rehabilitation of the offender

5. To make the offender accountable for his actions

6. To denounce the conduct of the offender

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

85. In this case first and foremost what is needed particularly given the domestic violence context is a sentence which reflects significant general and specific deterrence. As noted above the subjective case of the offender is not such as to lessen the weight to be given to these purposes by any significant extent. Secondly, the sentence should reflect significant denunciation. Thirdly, the offender should be held accountable for his actions. The breakdown of the family unit is a commonplace occurrence in modern society. To react to that event in the way the offender has harms not only the victim most directly but also his children and the community. The harm that he has done which is outlined in the victim impact statement should be recognised and tragically it extends beyond the victim to the children whose lives he says he wishes to be a part of.

86. The purpose of sentencing of rehabilitation should also be recognised. In my view there should be some leniency extended to the offender based on the fact that for 31 years he was a pro social and contributing member of the community. The sentence should aid him in being able to return to such a role. Given the length of the sentence there is perhaps little call for special circumstances for any period of parole will be significant by the application of the statutory ratio. Nevertheless there will be a finding of special circumstances, albeit modest. The extended period of supervision is justified when it is considered how deeply ingrained the attributes of the offender are that have caused him to act this way. That is his personality make up will require significant and ongoing assistance. That said the recommendation was that there be an intense program before release to supervision being a program which takes some 16 weeks. Nevertheless I infer that upon his release there would be the need for ongoing treatment for a range of issues, including alcohol and other drug counselling, relationships, and what were referred to as his “personality variables”. That should be taken into account. His depressive condition is in remission so does not add to the onerous nature of custody.

87. Following the hearing and just prior to sentence being delivered the offender by email made one further submission. The submission was that the court should take into account that as the offender has been in custody since 8 November 2021 to date it should be inferred that his period of incarceration was made more difficult due to it partly being during the Covid period. There is no evidence of any time spent in lockdown as was commonly the case in New South Wales gaols in the Covid period. In my view the widespread occurrence of reasonable frequency of lockdown due to Covid is a matter of judicial notice. It is a matter I take into account but without knowing more of the facts as they affected the offender, it does not have any marked impact on the ultimate sentence, and is best addressed by taking it into account in determining the extent of the finding of special circumstances.

Determination

88. It should be remembered that the two section 61I offences have a maximum term of 14 years and a standard non-parole period of 7 years. Section 54A(2) provides “for the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the table to this division that take into account only the objective factors affecting the relative seriousness of that offence is in the middle of the range of seriousness”. Section 54B(2) provides that the standard non parole period is to be taken into account without limiting the matters otherwise required to be taken into account in determining the appropriate sentence.

89. The assessment of the objective seriousness of the section 61I offences is above that point described by section 54A as “the middle of the range of seriousness”. As noted at the beginning of these reasons this standard non-parole period is a legislative guidepost in the same way as a maximum sentence. Whatever may be said about a non-parole period for an offence that is at the midpoint of objective seriousness that is the midpoint of the maximum sentence, what is clear is that the legislature considers this conduct to be very serious offending and requires significant terms of imprisonment. That of course is subject to all other relevant matters to take into account including the subjective case of the offender to enable a sentence to be arrived at by way of the instinctive synthesis process.

90. The focus of these reasons has been on the section 61I offences. They were both of course preceded by the section 114 offence. As noted above that too was a serious matter. The same subjective considerations apply in respect of this offence and those matters have been taken into account. There will also be a degree of concurrency not only of sentence for the section 114 offence and the section 61I offences on the basis of it being a course of conduct as recognised by the Crown, but there will be significant concurrency in respect of the section 14 summary matter also being dealt with. In respect of that offence it is plainly very serious given the nature of the breach.

91. The sentence will be an aggregate sentence. In accordance with section 53A(2) the indicative sentences will be stated both before and after the application of the 10% discount. Further in accordance with section 54B(4) it will state the non-parole period that would have been set for each section 61I offence had a separate sentence of imprisonment been set. As required by subsection (5) the reasons as to why that period is different to the standard non-parole period are due to the 10% discount, and the reasons for the finding of special circumstances. The indicative non-parole periods are also approximately in the same proportion to the head sentences as the aggregate non-parole period is to the aggregate sentence.

92. In respect of count 3 the indicative sentence will take into account the further occasion of sexual intercourse without consent on the Form 1.

93. Before setting out the indicative sentences, it was submitted by the offender that section 61I is satisfied by a wide range of conduct. That is undoubtedly the case. Without minimising the seriousness of a s61I offence, it can be established by a brief episode of digital penetration, or by conduct that begins consensually and becomes non-consensual in social circumstances where the parties had been together for an evening. The decided cases show a great many cases where the sentences are less than will be imposed here. That is because each case is determined on its own facts and circumstances. In this case objectively those circumstances are far more serious than the two examples just given, and are beyond the midpoint of seriousness (described above as in the high mid-range), and the subjective case of the offender is not an outstanding one.

94. The indicative sentences are:

1. Count 1:   7 years prior to the discount, so 6 years and 3 months after the 10% discount (rounding it down to the nearest month). The indicative non parole period is 5 years.

2. Count 2:   2 ½ years prior to the discount so 27 months after the 10% discount.

3. Count 3:   9 years taking into account the Form 1 matter, so 8 years and 1 month after the 10% discount (rounding it down to the nearest month). The indicative non parole period is 6 ½ years.

4. Section 166 matter, s14 Crimes (Domestic & Personal Violence) Act:   15 months before the discount, so 13 ½ months after the discount of 10%.

95. The principle of totality clearly has a role to play here. On the lineal approach the sentence arrived at is disproportionate. In the case of Hall v The Queen [2021] NSWCCA 220 Hulme J reviewed the principles of totality. He referred to R v Holder [1983] 3 NSWLR 245 which makes it plan that what is required for a sentencing judge to evaluate the overall criminality involved in all of the offences and to adjust the aggregate sentences, "To achieve an appropriate relativity between the totality of the criminality and the totality of the sentences." Put perhaps more simply his Honour referred to Mill v The Queen [1988] HCA 70 where it was said the Court, "Must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences."

     Hulme J also referred to Cahyadi [2007] NSWCCA 1. At [27] of Cahyadi it was said in considering whether the sentence for one can comprehend the criminality of another:

96. "This is so regardless of whether the offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course, it is more likely that where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will affect the criminality of both."

97. This is a case where that final sentence of Cayhadi is relevant. Particularly so in respect of the offences under section 114 (count 2) and the summary matter. The concurrency of those sentences with the sentences for section 61I will be substantial. The same applies to the to section 61I offences but not to the same extent. The criminality of the repeated carrying out of those offences and the third occasion represented by the Form 1 offence needs to be recognised. Put another way, whilst the offending is the one course of conduct, to comprehend the criminality of what may be viewed as one episode, the fact of 2 separate acts of sexual intercourse without consent (and with a third to be taken into account with count 3), means that the degree of concurrency will be less than for count 2 and the summary matter.

98. The aggregate sentence will be a term of 12 years imprisonment with a non-parole period of 8 ½ years. In terms of actual time this allows only a period of  6 months as special circumstances.  No greater period is provided for as the non parole period is considered the minimum time of custody necessary to account for the objective seriousness of the matter as requried by the principle of proportionality.  The offender has been in custody solely in relation to these offences since his arrest on 8 November 2021 and so the sentence will date from 8 November 2021

Orders

99. Of the three counts on the indictment and the offence on the section 166 certificate the offender is convicted.

100. Note: The indicative sentences have been set out above with the Form 1 matter being taken into account in respect of count 3.

101. The offender is sentenced to an aggregate term of imprisonment with a non-parole period of 8 ½ years to date from 8 November 2021 and expiring on 7 May 2030 and with a balance of term of 3 ½ years expiring on 7 November 2033.

102. A final apprehended domestic violence order is made against the offender for the protection of X, for an additional period of 2 years after the term of imprisonment ends.  The parties are to provide the court with an agreed form of that order by 4pm Friday 12 April 2024 and the order will be made in chambers.  Failing agreement, the matter is listed on 17 April 2024 for the making of the order.

Decision last updated: 26 April 2024