R v Ivanov

[2023] NSWDC 408

District Court

New South Wales

Medium Neutral Citation:

R v Ivanov [2023] NSWDC 408

Hearing dates:

27/6/23-5/7/23, 25/8/23

Date of orders:

25/8/23

Decision date:

25 August 2023

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to a term of imprisonment of 4 years 9 months with a NPP of 3 years (19/6/23-18/6/26). I find special circumstances.

Catchwords:

Crime – Sentence – Sexual intercourse without consent – Reckless infliction of actual bodily harm

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Category:

Sentence

Parties:

NSW DPP – Crown
Mark Ivanov - Offender

Representation:

Ms K Henry for Crown
Mr J Clarke for Accused

File Number(s):

19/210305

Publication restriction:

Statutory non-publication of the identity of the victim.

remarks on sentence

1. The offender Mr Mark Ivanov stood trial before a jury from 27 June 2023 on a single count indictment for an offence of sexual intercourse without consent in circumstances where immediately afterwards he inflicted recklessly actual bodily harm to the complainant.

2. On 5 July 2023 the jury found the offender guilty of that offence and he now must be sentenced for that, being an offence under s 61J(1) of the Crimes Act 1900. The maximum penalty for that offence is 20 years imprisonment and it is subject to a standard non-parole period of ten years. The maximum penalty and also the standard non-parole period are important guideposts in the sentencing exercise to which I have had regard.

FACTS

3. The facts are to be determined by myself but must be consistent with the jury’s verdict. Matters in aggravation must be proved beyond reasonable doubt while matters in mitigation need only be proved on the balance of probabilities.

4. The Crown has set out in its written submissions a summarised form of the essential factual matters making up the relevant evidence of the offence. While the offender maintained his innocence, his counsel appropriately conceded that the Crown’s summary accurately reflects the evidence that the jury must have accepted.

5. I find the following facts. The offence occurred on 30 November 2018 at Gladesville. The offender met the victim for the first time at the Establishment Bar on George Street in Sydney.

6. The victim and the offender first came into contact with one another at about 1.10am inside that bar when the offender approached the victim and began dancing with her. After this they remained in each other’s company dancing, talking and at times kissing and cuddling until they left the venue at about 2.19am. The victim got into the offender’s car after he had offered to drive her to where she was staying in Sydney.

7. However, after being driven for about ten minutes the victim realised that they were not heading in the right direction and she questioned the offender. He told her that he was taking her to a house belonging to a family member. However he drove to a carpark in some parklands called Gladesville Reserve and said he needed to rest. The victim got out of the vehicle pretending to urinate to give herself some time to think.

8. When she got back into the rear seat of the vehicle the offender said words to the effect of “let’s have sex, I have a condom.” However, the victim said no and told him that she did not feel safe having sex in a public place like that. She however began massaging his hands and shoulder in the hope that he would relax and would take her home.

9. After a minute or two the offender got out of the front driver’s seat of the vehicle and into the back seat where the victim was. He then pushed her back against the car door and closed and locked the doors. He held her left arm up over her head and used his other hand to open her legs, pull her underpants aside and he then inserted his penis into her vagina.

10. The complainant told him to stop more than once and fought with him trying to push him away. After the offender had ejaculated without using a condom, he got out of the car and walked around to the door against which the complainant had been pushed. He opened that door and pulled the complainant/victim out of the car and dragged her across to a grassed area after which he called her a bitch and a slut. The victim suffered bruising and scratches to her arms and legs as the offender dragged her from the vehicle and onto the ground and those injuries were depicted in photographic exhibits that were placed before the jury. Those are the essential facts upon which I proceed to sentence.

OBJECTIVE SERIOUSNESS

11. The seriousness of the offence is marked firstly by the maximum penalty of 20 years imprisonment and by the fact that a standard non-parole period of 10 years is specified. It is important however that I make an assessment of the objective seriousness of the particular example of this offence that is before the Court based on its facts.

12. The offence of sexual intercourse without consent involving the reckless infliction of actual bodily harm can of course involve a range of sexual acts and physical acts, and while there is no particular hierarchy, penile/vaginal sexual intercourse can usually be said to be among the more serious forms of that type of offence.

13. The victim made it clear at the relevant time that she did not wish to engage in sexual intercourse with the offender and so I am satisfied that he was well aware that there was no consent. As noted, no condom was used which increased the seriousness of the offence given the risk of pregnancy, disease and the additional sense of invasion and degradation that would have been experienced by the victim. The offence also involved other degrading conduct in that the offender after dragging the victim from his car abused her using offensive names and then abandoned her in the park in the early hours of the morning.

14. Also I am satisfied that the offender took the victim to the park in Gladesville so as to isolate her and make it easier to commit the offence.

15. As to the reckless infliction of actual bodily harm immediately after the offending, the victim suffered bruises, scratches and grazing as a result of being dragged from the car and along the ground. While the bodily harm was not serious and was not long lasting, it was certainly not trivial. There was however no additional or gratuitous violence.

16. I accept the characterisation by both the defence and Crown that the offence falls in the lower end of what might be described as the mid-range for this type of offence.

VICTIM IMPACT STATEMENT

17. A Victim Impact Statement was read to the Court this morning on behalf of the victim. While the Crown does not rely upon the contents of that report as aggravating the offence, the statement confirms the understanding and expectation held by modern courts about the effects of sexual assaults on victims. Those effects are usually experienced by victims for a long time afterwards and in some cases are life-long. The Victim Impact Statement before the Court confirms that this case is no different.

SUBJECTIVE MATTERS

18. Turning then to subjective matters relating to the offender himself. He was aged 21 at the time of the offence and he is now aged 26. He has a minimal criminal history and no prior offences of a sexual nature. The subjective case has been placed before the Court by means of a volume of written material. The psychological report of Anthony Diment notes that the offender was born in Armenia. His childhood was good and he described his parents in very positive terms. He attended private schools in Armenia. He came to Australia when he was 17.

19. After moving to Australia the offender engaged in some study and worked in his father’s painting business. The offender has no problematic history with drugs or alcohol.

20. The psychologist Mr Diment found that on testing the offender scored in the severe range for stress and clinical anxiety, with a range of symptoms including panic attacks. He also scored highly in relation to depression, however the psychologist notes that most of this is due to these proceedings. There is no evidence that his emotional state was problematic before the offence or before his arrest.

21. The offender is diagnosed as currently suffering from adjustment disorder with mixed anxiety and depression of a moderate to severe degree. The Court also has the report of psychologist Mario Mihalic who has seen the offender only once, that being in August 2022 when he had symptoms consistent with stress induced anxiety and depression, although apparently in the context of his criminal proceedings.

22. The offender’s mother has provided a letter to the Court which is consistent with what a mother might be expected to believe and say about her son, namely that she does not accept the jury’s verdict. The letter is of minimal assistance to the offender or the Court other than to indicate that the offender at least continues to have the support of family members.

23. The offender is also supported by some other general character material in which the author has described their positive views about his good character and in some cases note that he could not have committed the offence, of which he has, nonetheless, been convicted.

24. The offender’s father has today provided an affidavit in which he confirms his support for his son and also his good work history and he also confirms the stress and other difficulties and restrictions that have been experienced by the offender and to some extent by his father due to the delay in these proceedings and the onerous bail conditions to which the offender has been subject for some time.

25. Material has also been placed before the Court by the offender showing that he has in recent times engaged himself in studies and made other efforts to improve himself and I take these into account in the offender’s favour.

DELAY

26. There has been significant delay in this matter, with the offence occurring nearly five years ago. Through much of that time, until the jury verdict, the offender had been on fairly restrictive bail conditions involving reporting to police and complying with a curfew. These matters were reported by the offender and by his father as having caused significant stress leading to the offender consulting with a medical practitioner. It has also taken a toll in relation to the offender’s daily activities including participation in basketball, in which sport he apparently has considerable talent. I have taken these matters into account as some degree of punishment that has already been experienced by the offender.

REMORSE AND REHABILITATION

27. The offender still strongly denies his guilt and so there is no remorse in this case. In terms of prospects of rehabilitation and future risk of reoffending, it is positive that the offender still has the support of his family. There is however no evidence that he has acknowledged his offending. To the contrary, he maintains his innocence and in effect says that the victim has lied, a matter that the jury rejected, which in my view was not surprising.

28. Although the offender was assessed as low risk on the LSI-R assessment tool, this assessment was stated to be overridden to “high” by Community Corrections due to an assessment carried out by a psychologist. That assessment notes that testing on the Static-99 actuarial tool resulted in a score of 5 which is said to be roughly two and a half times the risk of a “typical” sex offender. That testing of course has limitations and being actuarial does not necessarily reflect the risk level of a particular offender which may be lower or higher. Given that this assessment did not involve any direct assessment of the offender in person, I approach the assessment with caution.

29. The offender is still a relatively young man, maintains the support of his family and apparently has employment available on release. Having had regard to all the material, including the risk assessments by Community Corrections and by Mr Diment, and having regard also to the offender’s lack of insight and remorse, as well as his need for treatment which he has not yet received, but also having regard to his admittedly limited criminal history, I regard his future prospects as reasonable but guarded.

YOUTH

30. As I have already noted the offender was aged only 21 at the time of the offence. While he was not a child or a youth, he was nonetheless a relatively young man. I have therefore had some regard to the principles that apply when sentencing young offenders and the greater emphasis on rehabilitation rather than punishment and deterrence. I do not suggest that youth is a powerfully mitigating factor in this sentence, however, as I have said, it is of some relevance.

DETERMINATION

31. I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 which I do not intend to recite. I am satisfied for the purposes of s 5 of that same Act that no penalty other than imprisonment is appropriate and indeed no submission to the contrary has been made to me on behalf of the offender.

32. I intend to make a finding of special circumstances for adjusting the ordinary ratio between head sentence and non-parole period. I will make that finding based on this being the offender’s first time in actual custody and also based on the psychological conditions that he is experiencing and which will make his time in custody somewhat more difficult.

33. I impose a head sentence of four years, nine months. I impose a non‑parole period of three years. Those will date from 19 June 2023. The head sentence therefore will expire on 18 March 2028. The non-parole period will expire on 18 June 2026.

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Decision last updated: 05 October 2023