R v Lee

[2022] NSWDC 482

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Lee [2022] NSWDC 482

Hearing dates:

14 October 2022

Decision date:

14 October 2022

Jurisdiction:

Criminal

Before:

NOMAN SC DCJ

Decision:

The offender is convicted on each of the two offences.  The sentence is backdated to 18 July 2022 to reflect pre-sentence custody.  Count 1, sexual touching:  Fixed term, equating with what would have been the non-parole period, of 9 months imprisonment to date from 18 July 2022;  Count 2, sexual intercourse without consent:  3 years imprisonment with a non-parole period of 2 years to date from18 September 2022. The term will expire on 17 September 2025 with the non-parole period expiring on 17 September 2024.  This is a variation to the statutory ratio to one of 66%.

The effect of both sentences is that the overall sentence is one of 3 years and 2 months with a non-parole period of 2 years and 2 months. This accumulation impacts variation to the statutory ratio from the finding of special circumstances on count 2. The ratio becomes one of 68%. No lesser non-parole period would address the seriousness of the offending.

Catchwords:

SENTENCING — Penalties — Imprisonment – sexual offences – sexual intercourse without consent – sexual touching.

Legislation Cited:

Crimes Act 1900 (NSW)

Category:

Sentence

Parties:

R;
Jim Lee

Representation:

Counsel:
Defence: P. Boulten SC
Solicitor:
Crown: A Walkowiak
Crown: S Marsh
Defence: E Zacharia

File Number(s):

2020/261431

Publication restriction:

Statutory non-publication order over the victim’s name or anything which could identify her.

JUDGMENT

1. There is a statutory non-publication order over the victim’s name or anything which could identify her. I propose not to use her name in the reasons to maintain her confidentiality as the proceedings are not in closed court.

2. This is a sentence after a trial and it is therefore necessary that I determine the facts for sentence that are not inconsistent with the verdicts. I accept the different onus that applies dependant on whether I am considering an aggravating or mitigating factor. I acknowledge that findings on sentence must be made beyond reasonable doubt unless they mitigate the offending in which case the lower onus applies. Both parties provided proposed facts for sentence with some limited aspects not in agreement.

3. On 6 July 2022 upon an arraignment before a jury the offender entered pleas of not guilty to two counts. On 18 July 2022 the jury returned verdicts of guilty on both counts. The first count was an offence of sexual touching contrary to s. 61KC(a) Crimes Act with an applicable maximum penalty of 5 years imprisonment. The second count was an offence of sexual intercourse without consent contrary to s.61I Crimes Act for which the maximum penalty is 14 years imprisonment and there is a standard non-parole period of 7 years.

4. Both the maximum penalty and where applicable the standard non‑parole period operate as legislative guideposts and represent the legislature’s assessment of the seriousness of the offence. I appreciate that the SNPP operates differently between after a plea or after trial.

5. I am required to assess the seriousness of each offence. This requires a consideration of the individual characteristics of each offence. The offending occurred on the one evening but at separate times on 6 September 2020. The Crown submitted both counts fell towards the mid-range of objective seriousness and the offender submitted count 1 fell below the mid-range albeit not at the lower end of the range of objective seriousness and count 2 fell below the mid-range of objective seriousness. Both parties outlined the pertinent features said to inform the assessment.

6. In undertaking this task, I am mindful that both offences are of a different nature and occurred upon the sole victim on the one occasion and over a period of no more than some hours. Neither offence occurred in isolation. Each occurred in the context of other offending.

7. The offender and the victim were friends from 2017. They had met when they were studying part of their tertiary education for a year in China. They had not been and were not in a relationship. Neither was studying their degree in Sydney. Both ended up in Sydney in 2020 during the COVID restrictions and resumed their friendship. She was a belated invitee by another friend to a party the offender was hosting at his home. Both the offender and the victim consumed alcohol.

8. The offender nominated he had about 10 beers and 3 or 4 tequilas from about 1pm. The offending occurred after 10pm. The offender’s own account was that although he was feeling the effects of the alcohol he understood what was happening. His offending was not planned. That he acted out of character, and sexually abused a friend including at a time she was asleep, is explained by his apparent sexual interest in her and his consumption of alcohol. This in no way excuses his conduct.

9. Count 1 is an act of sexual touching of the breast area. It occurred in a room in which two other males were present. There is a brazenness to the offending. The offender denied the conduct relied upon. His account was that the conduct only involved hugging which was consensual. His version was evidently not accepted.

10. According to the victim the offender commenced by trying to remove the victim’s dress from covering her breasts and placed his face to her skin in the area between her breasts. He remarked, by using her name, that she had ‘nice boobs’. The fact he used her name as he did is indicative he was not addressing her. He was blowing on her skin and moving his head around her breasts. He made a remark about ‘motorboating’. He continued to touch her after she told him to stop more than once and resisted. The touching only ceased when she extracted herself and left. This unwanted touching accompanied by the comments was accepted on behalf of the offender to have entailed demeaning conduct. The history between the offender and the victim was that they would, as did other friends, play wrestle. I allow for the fact that the offender commenced this activity reckless as to the lack of consent. However, almost immediately it was resisted by words and or movement. Subsequent to these indications I am determine he persisted with actual knowledge of her lack of consent.

11. The offence reflects spontaneity. I do not accept it to be acceptable ‘playful’ activity. Even the initial touching sought to expose the victim’s breasts. Touching a person, even a friend, in such a fashion without clear consent is not playful. I have considered the area of the body touched and by what part of the body, the direct contact to skin and the imprecise but relatively brief duration. It was maintained after resistance and a clear indication of absence of consent. I have taken into account that although not being viewed by others, others were present in the room.

12. Count 2 involves an act of digital/ genital penetration. The victim said she had wrapped a doona around herself at a time the offender was lying behind her and ‘spooning’ her. She said she was in this position when she fell asleep. She said she was awoken by feeling something inserted into her genitals and moving in and out. The doona was no longer wrapped around her and her dress was raised above her waist with her bottom exposed. She froze for a period before she confronted the offender. He told her to, in effect, be quiet. This act of penetration, once the victim was awake, occurred for not longer than 10 seconds and was for a very short duration. The occurrence of the act caused the victim to awaken so it is apparent the penetration was occurring for some indeterminate period. I accept there is no general hierarchy applicable to the nature of the intercourse.

13. It is submitted on behalf of the offender that although the victim was asleep the evidence does not establish the offender’s knowledge of this and he should be sentenced on the basis he was reckless as to her lack of consent.

14. I accept beyond reasonable doubt her evidence that her bedding and clothing was moved after she fell asleep. She did not actively participate or assist in this activity. This offence did not occur as part of a continuous act of spooning. I determine the offender is responsible for this movement and it could only have been to facilitate the offence.

15. I am satisfied beyond reasonable doubt that the offender knew the victim to be asleep and he opportunistically offended with actual knowledge.

16. The victim said when she awoke and told the offender, to in effect, stop. He pulled her closer and placed his hand over her mouth. It is submitted on behalf of the offender that I should not accept the account of the hand movement. Reliance is placed on the first disclosure of this aspect arising in evidence in chief. I accept the version arose belatedly. The offender’s account has no bearing given his denial of the act and the offence. It accords with the offender telling the victim to “ssh’. I accept beyond reasonable doubt that this act occurred. It does not elevate the seriousness given that it was momentary and not forceful and connected to the silencing sound.

17. The victim was vulnerable due to being asleep. She sufficiently trusted the offender to agree to share a bed with him and another friend and to fall asleep in that position. That trust was violated.

18. In considering an offence of sexual intercourse I take into account the nature of the act of intercourse and the duration.

19. Both offences fall modestly below the mid-range of seriousness.

20. Consistent with the pleas of not guilty and the denial of the offending in evidence during the trial, there has been no acceptance of responsibility for the offending conduct and there has been no expression of remorse. It is stated in the Sentencing Assessment Report that the offender advanced the victim fabricated “the story” to retaliate for a prior verbal altercation. I observe the victim did not at any time present as a person with such an agenda. As a witness she presented as someone deeply upset and betrayed by what occurred but not vengeful. Underpinning her demeanour was a sense of seeking justice not retaliation.

21. I have considered his telephone conversation with the victim. I do not accept his account that he apologised for the conduct he accepted occurred. I accept that his apology expressed to her was a genuine apology for the offending. At that time, close to the offending conduct, he had the strength of character to accept and own his conduct and to be prepared to express his regret to the victim. The sentiments conveyed to the author of the Sentencing Assessment Report evidence not a mere denial but a preparedness to advance the victim would falsely accuse him in response to a disagreement. His initial remorse has entirely dissipated.

22. The offender was on bail after arrest and subject to an AVO. He breached the AVO by attending a location close to the victim’s work address. Without diminishing the importance of an AVO and the seriousness of compliance, this was a minor breach. I allowed character to be raised in the trial. The offender has no criminal history other than this breach and comes before the court as a person of prior good character. I am mindful of the evidence in the trial reproduced for sentence. This operates to permit some leniency. Not only did he have no criminal history he presented as possessing a good work ethic and as a decent person held in high regard. He has numerous positive attributes. He had and has continued support in the community. Various witnesses gave evidence during the trial that supported his character and his respect for women. The conduct alleged was said to be inconsistent with the person each knew for differing periods and in different contexts. The offender, whilst denying the offending, addressed the change to his conduct in interacting sexually to ensure there is no miscommunication about consent.

23. Much of the offender’s subjective circumstances were disclosed in the trial. I am additionally assisted by the Sentencing Assessment Report and a psychological report of Professor Stephen Woods. Background material is addressed therein which is consistent with but more detailed than that led in the trial.

24. There is an obvious elevation to depression and anxiety related to the diagnosed adjustment disorder. These issues correlate with his predicament of entering custody and facing the imposition of an inevitable sentence of imprisonment. Some of this may commence to dissipate once the term is known and the transition from freedom to custody progresses. Some is expected to continue given the dramatic change in fortune and circumstance.

25. There is no persuasive evidence that he would benefit from offence related programs in custody.

26. His upbringing and childhood demonstrate considerable advantage. He boarded at an elite private school through late primary school and high school. He retains friendships from that period. He advanced some bullying or exclusion at school. The particulars entail unacceptable aspects but nothing exceptional. It was relatively confined in acts and duration. He proceeded to thrive and excel in the school environment and gain acceptance. He was provided with an opportunity to complete his tertiary studies in America and China. Whilst on bail a close friend died. Although his parents separated the interaction remained amicable. His mother is supportive and present in his life. She returned to Sydney to reside with the offender upon his arrest. It is contemplated he will return to reside with her upon release. His father, through international business requirements, is less present physically but remains supportive. He has remained in Australia until sentence is resolved. His principal residence and his other family, including his partner and four children, is in China although he has strong connections with Australia. The premises in which the offending occurred was the offender’s father’s house. Based on the photographs tendered in the trial it is an opulent residence and one of considerable heritage and financial value. There is evidently considerable family wealth. There will be reduced opportunity for contact with his father and other overseas based family during his sentence.

27. His father’s international business success will assist the offender to reintegrate. He has been employed in the family business internationally and domestically and there is nothing to suggest this would not continue. Given this family connection, his convictions will not hinder his opportunity for gainful employment.

28. He is utilising his time in custody to assist others, including with literacy, and keeping himself occupied. He has engaged with his faith and assists in the library.

29. I have had regard to the purposes of sentencing.

30. One of the purposes is to recognise the harm done to the victim of the crime and the community. This type of offending causes alarm within the community and it also has a tangible impact on the victim. The victim did not provide a Victim Impact Statement. The immediate impact involving distress was observed by those to whom she made complaint. The impact was discernible to some extent when the victim gave evidence. She is articulate and she was understandably confronted by what occurred to her. Although she did not have an opportunity to conclude her answer during the trial, it was clear that she felt as a lawyer she had a responsibility to call out sexual abuse. She was entitled to go to a party and not be exposed to sexual violation. The deleterious impact and inevitable harm to her should be and is acknowledged.

31. Although real and appreciable harm has undoubtedly been occasioned it does not fall at the level to be an aggravating factor.

32. The offender’s risk of reoffending is assessed in both reports. I consider that the court process and his convictions will serve a particularly salutary lesson. Given the conduct was out of character and with an enhanced understanding of the personal ramifications I do not consider that his risk of reoffending is anything other than low. His affidavit conveys he is wary of further complaint. I determine that the offender has good prospects of rehabilitation and of not reoffending. This behaviour is irreconcilable with his normal conduct. Personal deterrence plays a very limited role.

33. General deterrence and denunciation are important considerations in sexual offending. Sexual offences against others will not be tolerated within the community.

34. Sentencing statistics and comparable cases of 5 sentences were provided on behalf of the offender. Each case provides some guidance. As addressed in submissions these cases entail various acts of penetration, differing states of mind and differing findings on objective seriousness. There were differing subjective cases. Although providing assistance none is said to be entirely similar.

35. Submissions were advanced on penalty. The Crown submitted full-time sentences were required. It was accepted on behalf of the offender that full-time custody was warranted for the sexual intercourse but that the s.5 threshold was not met for the act of sexual touching. There may have been a more compelling case to support that submission had the sexual touching occurred in isolation. In evaluating the seriousness of the offence and the subjective case I do not accede to this submission.

36. Only sentences of full-time imprisonment are warranted for the individual offences and therefore overall.

37. The offences were of different sexual acts albeit occasioned on a sole day. I acknowledge that I am to consider each individual sentence and then reflect on whether the criminality reflected in a sentence is capable of encompassing other criminality. This requires some accumulation.

38. This is the first custodial sentence for criminality entailing modest accumulation. I accept that there are greater restrictions under COVID resulting in more onerous conditions than is usual. I accept personal visits are restricted and that this will continue. Access to normal programs and activities are more limited. The offender has already experienced some of these privations since entering custody. This includes far less opportunity to socialise or be absent from his cell. I do not determine that the offender will require an adjustment to the statutory ratio to provide for a longer period on parole to facilitate reintegration. This is also informed by the length of the sentence I propose to impose. The offender has the inner fortitude and resolve and support of family and friends to ensure he will readily reintegrate. I make a finding of special circumstances, but there is only a modest alteration to the statutory ratio required.

39. Mr Lee, you are convicted on each of the two offences. The sentence is backdated to 18 July 2022 to reflect pre-sentence custody.

40. Count 1, sexual touching: Fixed term, equating with what would have been the non-parole period, of 9 months imprisonment to date from 18 July 2022;

41. Count 2, sexual intercourse without consent: 3 years imprisonment with a non-parole period of 2 years to date from 18 September 2022. The term will expire on 17 September 2025 with the non-parole period expiring on 17 September 2024. This is a variation to the statutory ratio to one of 66%.

42. The effect of both sentences is that the overall sentence is one of 3 years and 2 months with a non-parole period of 2 years and 2 months. This accumulation impacts variation to the statutory ratio from the finding of special circumstances on count 2. The ratio becomes one of 68%. No lesser non-parole period would address the seriousness of the offending.

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Amendments

19 October 2022 - coversheet - corrected case name

Decision last updated: 19 October 2022