R v Marsh

[2020] NSWDC 892

District Court

New South Wales

Medium Neutral Citation:

R v Marsh [2020] NSWDC 892

Hearing dates:

11/12/20

Date of orders:

11/12/20

Decision date:

11 December 2020

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to an aggregate term of imprisonment of 4 years with a NPP of 2 years 3 months (16/12/19-15/3/22). I find special circumstances.

The indicative sentences are:

Seq 1 – 3 years 6 months with NPP 22 months (Form 1 taken into account).

Seq 2 – 3 years with NPP 19 months.

Catchwords:

Crime – Sentence – Sexual intercourse without consent

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Ibbs v R (1987) 163 CLR 447

Category:

Sentence

Parties:

NSW DPP – Crown
Matthew Marsh - Offender

Representation:

Ms C Hurford for Crown
Ms Climo for Offender

File Number(s):

2019/389298

Publication restriction:

Statutory non-publication order in relation to the identity of the complainant

sentence

1. Mr Matthew Marsh is before the Court for sentence in relation to two offences of sexual intercourse without consent and in relation to the first of those offences, that being the sequence 1 offence, he asks that I take into account a third offence of the same statutory type. The maximum penalties for each of the offences under s 61I of the Crimes Act 1900 is 14 years' imprisonment and a standard non parole period of seven years is specified. The maximum penalty and standard non parole are of course guideposts in the sentencing exercise but not goalposts and I must have regard to them as legislative guides to the appropriate penalty. He has pleaded guilty at an early stage and he is entitled to a 25% discount on account of the utilitarian value of those pleas.

FACTS

2. The facts of the offences are agreed and are as follows: The victim was a young lady aged 26 at the time and was known to the offender because they were work colleagues and had been for about four years. For about five years before the offences, the victim's family were in the practice of holding poker nights on the first Saturday of each month. On Saturday, 7 December 2019, which is the date preceding the offences, a poker night was being held at the victim's family home. At about 4 o'clock on the afternoon of 7 December the offender arrived at the home to participate in the poker night activities and the victim and about 20 members of her extended and immediately family were present.

3. During the evening the offender consumed a large amount of alcohol and became noticeably intoxicated. At about 10 o'clock that night the victim, who was feeling tired, went to bed in her bedroom at the rear of the house. When she got into bed she was wearing only a bra and singlet top. At about 4.30am the next morning, that being Sunday, 8 December 2019, she was awoken by a sensation that there was someone in her room and when she opened her eyes she saw the offender standing and staring at her. She was understandably somewhat startled and said to him, "What are you doing here?" to which he replied, "Don't worry about it."

4. Although she, the victim, remained confused as to why the offender had come into her room she assumed he would leave and she rolled over onto her side facing away from him. After that she felt the offender get into bed next to her. He lay next to her putting his arm over her body and hugging her. She then said to him, "What are you doing?" to which he replied, "Shh, it's all right." The victim noticed the offender had an intensely strong smell of alcohol about him. The offender then started to pull the victim's body towards himself and the victim, who was then fearing for her safety, attempted to get off the bed while saying things like, "No, Mattie, what are you doing?" and, "Get out of my bed," however she was unable to break free of the offender who was maintaining a tight grip on her and effectively pinning her to the bed.

5. The circumstances of the sequence 2 offence for which I must sentence Mr Marsh are as follows: Shortly after the events that I have just described, the offender rolled his body on top of the victim's body and placed his right hand over her mouth and said words to the effect of, "Just be quiet, you will enjoy this." The victim started crying and again she tried unsuccessfully to push the offender off her. She also tried to yell at the offender but due to the firm grip that he had over her mouth she was not able to. The offender then placed his hands down towards the victim's genital area and placed his fingers inside her vagina. That is the sequence 2 offence of sexual intercourse for which he is to be sentenced.

6. After that the victim, who was still being held down, effectively, was then subjected by the offender to an act of cunnilingus where he moved his head towards the victim's vagina and then commenced performing that act on her while she was saying, "No, don't. No, man, no, man." That act of cunnilingus is the subject of the offence on the Form 1 document to which I will have regard when I sentence the offender for the sequence 1 offence to which I am about to refer.

7. That offence involved the following circumstances: The victim whilst being physically held down was struggling with the offender. During that struggle she felt him force her legs apart with his legs and once her legs were parted the offender inserted his penis into her vagina for about ten minutes before withdrawing and then reinserting his penis back into her vagina for a further period of time until he ultimately withdrew his penis from her and ejaculated onto her stomach. Throughout these events that I have described the victim was crying continually and made numerous muffled verbal attempts to plead with the offender to stop, to which he would respond by saying, "Shh." Shortly after the offender had ejaculated onto the victim her 5am alarm clock went off. The offender upon hearing the alarm, and without saying anything, got off the victim and left her bedroom.

8. The victim understandably was in complete shock and waited until about midday on Sunday before she disclosed what had happened to a family member. After disclosing the assault to her family she attended at Blacktown Police Station where she spoke with detectives and while she was speaking to detectives the offender sent her a message on Facebook which read, "I'm so sorry for my stupid behaviour. Please forgive me. I'm feeling like the biggest arsehole. I didn't mean to hurt your feelings or scare you. I don't know who to be right now," followed by a crying face emoji symbol. "I apologise for the things I've done. I don't know what to do. Yau," presumably that means you're, "brother hates me. I really feel bad. Sorry T for my actions."

9. The offender attended Riverstone Police Station at about 6 o'clock on 10 December 2019 where he was placed under arrest. He participated in an interview in which he made admissions to going into the victim's bedroom while she was asleep and subsequently engaging in sexual intercourse with her after she had said, "No," a number of times. He claimed that he was intoxicated at the time of the assault. Those are the facts upon which Mr Marsh is to be sentenced.

OBJECTIVE SERIOUSNESS

10. In determining the sentence in this case, of course I am required to make some assessment of the objective seriousness of the offending. The maximum penalties and standard non parole period provide a clear confirmation that Parliament regards these types of offences as extremely serious. That is no doubt in part by reason of their prevalence. It is a very large part of the work of the District Court to deal with these types of offences, however it is important that in determining the appropriate sentence I have regard to the particular circumstances of the offences for which this offender is to be sentenced. While it is true that the two offences for which the offender is to be sentenced, as well as the matter on the Form 1 document, involved a course of conduct, it is necessary for me to make an assessment of the objective seriousness of the two offences for which he is to be sentenced.

11. Each of the offences is aggravated by reason of the fact that they were committed in the home of the victim, and indeed in her bed where she was entitled to feel safe. As the Crown said in written submissions, part of the assessment of the objective seriousness of a sexual assault offence involves taking into account the nature of the particular sexual act and, as the Court noted in Ibbs v R (1987) 163 CLR 447 at 452:

"The inclusion of several categories of sexual penetration within the offence described as sexual assault carries no implication that each category of sexual penetration is as heinous as another if done without consent. When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case. In a case of sexual assault, a sentencing judge has to consider where the facts of the particular case lie in a spectrum at one end of which lies the worst type of sexual assault perpetrated by any act which constitutes sexual penetration as defined."

12. In general terms, as the Crown submitted, penile penetration is often regarded as more serious than acts such as cunnilingus and digital penetration, however of course each case must depend upon its particular facts.

13. The offence of digital penetration, which was the first offence in this case, involved a degree of violence in that the offender, prior to penetrating the

14. victim's vagina with his fingers, held a tight grip on her and pinned her to the bed and also rolled his body on top of hers and placed his hand over her mouth, arrogantly telling her, "Just be quiet, you'll enjoy this." The offender could have been under no misapprehension that his actions were unwanted given that the victim was crying and continually trying to push him away. There is, however, no evidence of any injury resulting from the offence in any physical sense. I agree with the submission made on behalf of the offender that this offence falls somewhat below the mid-range.

15. In my view the offence involving penile penetration is the most serious. Furthermore, it too involved some violence in that the victim was being physically held down as she struggled to prevent the offender from penetrating her. No condom was used increasing the risk of disease and pregnancy, and although the offender did not ejaculate into the victim's vagina he did ejaculate onto her stomach which no doubt would have increased the sense of violation and degradation that the victim felt. This offence took place over a considerable period of time during which the victim was crying continually and pleading with the offender to stop and it only did stop when the offender had ejaculated. In my view the objective seriousness of this offence lies just into the mid-range.

16. In relation to the offence involving cunnilingus, which is on the Form 1 document, the facts are silent as to the duration of this offence and so I will approach it on the basis that it was of relatively short duration. While there is no evidence that this offence involved any specific violence, apart from the violence inherent in the offending itself, it occurred in the context of the victim continuing to protest and no doubt struggling to break free. I regard this offence, however, as being part of a course of conduct in which the two primary offences were committed. It does, as the Crown submitted, place some upward pressure on the sentence required in this case although not, in my view, to a large degree given the continuing nature of the entire incident.

17. In assessing the seriousness of each of the offences I accept that none of them involved any real degree of planning, rather they were likely a product of the offender's excessive level of intoxication at the time. However, as is well known, this provides no excuse nor any mitigation of the seriousness of his offending. Although the victim undoubtedly suffered emotional harm as a result of these offences, I note that the Crown does not rely upon this as an aggravating feature. As the Crown submitted, it is presumed that sexual assault victims will be likely to suffer psychological injury and emotional harm as a result of a sexual assault and I accept that almost certainly that would have been the result of these offences also.

SUBJECTIVE MATTERS

18. Turning to subjective matters relating to the offender, a psychological report has been placed before the Court which sets out relevant background in relation to him. He is currently 34 years of age and was born in New Zealand, initially living on a small island in a Maori community. His childhood as reported by him was relatively uneventful, although his natural parents separated when he was about three and he had no real contact with his natural father until he was in his twenties. The offender left school at about age 15 and moved out of home at about age 16 when he moved to Wellington with some cousins. It was at that point that he started using cannabis and it was this that led to his mother suggesting that he go to live with an uncle in Australia and start afresh.

19. There is no doubt that the offender's childhood was a difficult one in some ways especially given the struggles that he had when he moved to the mainland in New Zealand and had to try to learn English, with which he still struggles to some degree today, as reported in the psychological report.

20. He was 21 years of age when he came to Australia and since then he has, to his credit, been employed fairly steadily. His most recent employment was in a butchering job and he has completed parts of an apprenticeship to become a butcher. Unfortunately he is unable, due to his own actions, to return to his previous place of employment once he is released because the victim of his offences works at that business.

21. He told the psychologist that in the period leading up to his offending his life outside work had involved fairly heavy consumption of alcohol and cannabis which he described as being "part of who I am." However, to his credit the offender has indicated to the psychologist that he intends to remain abstinent from these substances once he is released, however he has yet to engage in any drug and alcohol counselling, although he has expressed a willingness to do so. He is not currently in a relationship and told the psychologist that his most recent relationship had ended about six or seven years ago.

22. The psychologist has expressed the view, based on psychological testing, that the offender presents an average risk of committing another sexual offence in the future and that any such offence would likely occur in the context of substance abuse. She expresses the view, however, that the offender does not present as inherently antisocial, which seems to be supported, in my view, by his background and his limited criminal history. The psychologist says that since being in custody the offender has developed an adjustment disorder with mixed features of anxiety and depressed mood and that this is associated with his current legal problems and detention. There is insufficient evidence however to conclude that he was affected by that condition at the time of the offences. Nonetheless I take into account this evidence as it may, to some extent, make his period in custody more difficult.

23. The psychologist is of the view that it would be in the offender's interests, and in the interests of avoiding future offences, that he receive some intervention in the form of drug and alcohol treatment and counselling or other treatment relating to his sexual offending. I note that the offender is supported by a character reference from somebody named Aaron, who has known the offender for about seven years. He describes the offender in positive terms saying, "He is an honest and loyal person." Aaron indicates that upon the offender's release both he and his mother will provide support, including assisting the offender in finding a job and engaging in drug and alcohol rehabilitation.

24. The offender gave evidence before me today in which he affirmed the contents of the psychological report and in which he expressed significant remorse saying that he realised after he had sobered up following the offence that, as he put it, he was in trouble and he felt sorry for what he had done. He told the Court that he takes full responsibility for his actions and said it has put "a hole in his heart." He said he is very sorry for what he has done and feels very much ashamed of it, and feels like it is a curse that will possibly stay with him for the rest of his life. He also said that he accepts that the offences would have impacted on the victim very deeply. He said he thinks that he has caused her damage and that it would have had a big impact on her but nonetheless he hopes that she might eventually be able to forgive him.

25. The psychologist's report indicates that she discussed the offences with the offender and that he had some difficulties in communicating his recollections about the event, no doubt largely in part due to his intoxication. The psychologist records that the offender did recall that the victim had said, "No," to him but also that he had indicated that she had moved over in the bed which he considered might have indicated some sort of consent.

26. The psychologist also noted that the offender expressed some confusion with regard to the facts of the offences and even indicated that she seemed to enjoy it. He was asked about that observation when he gave evidence today and said, in effect, that what he had said then was selfish and foolish and he now accepts that his actions were completely wrong, non-consensual and, as I have said, that they were likely very damaging to the victim. He further indicated that saying something like that to the psychologist would have involved a stupid belief and he is very much ashamed of what he has done.

27. In my opinion, the offender's actions since his offending are indicative of real remorse. Firstly, by reason of the fact that he sent a message in the form of an apology to the victim the morning after the offences occurred. Furthermore, that he made full admissions apparently to police when he was interviewed and, of course, he was not obliged to give an interview at all. Furthermore, it seems to me that his plea of guilty in itself is some further evidence of remorse because of the fact that proof of these offences would very much have been a word on word Crown case with the inherent difficulties that that would entail, as it always does, for the Crown. I note also that the Crown conceded that in this matter there is some evidence of remorse. I intend to make a further allowance in favour of the offender by reason of what I regard as genuine remorse.

28. The psychologist, as I have noted, referred to the offender as being of average risk of future offending and, as she said, if it was to occur it would like be in the context of the abuse of alcohol or drugs. In my view the offender's risk of future offending is reasonably low. I base that conclusion upon, firstly, his lack of any significant history, certainly any history involving offences of this kind; secondly, his good work history; thirdly, the supports that he apparently has in the community; fourthly, his realisation that his alcohol consumption needs to be brought under control; and, fifthly, his willingness to engage in treatment. Having regard to those matters I am of the view that his prospects of rehabilitation are reasonably good.

DETERMINATION

29. I intend to impose a period of imprisonment and it was not submitted to me that anything else is appropriate in the circumstances. I am therefore satisfied that, as s 5 of the Crimes (Sentencing Procedure) Act 1999 provides, that no penalty other than full time imprisonment is appropriate. I have also had regard to the purposes of sentencing, in particular, those set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. Amongst those of course is the importance of deterrence, both personal and general, although I have not overlooked the other purposes set out in that section either. I have to have regard to the principles of totality in this matter given that I am sentencing for more than one offence and I have had regard to those principles and the importance that, in setting the sentence, I impose a sentence that does not crush any future prospects of rehabilitation of this offender. I intend to impose an aggregate sentence.

29. I also intend to make a finding of special circumstances for adjusting the ordinary ratio between non parole period and head sentence. I find special circumstances based upon the need for an extensive period of supervision on parole given the importance of the offender's drug and alcohol issues being effectively managed. Secondly, this being his first period in custody and, thirdly, the fact that he has an adjustment disorder which may cause some greater difficulty in terms of his serving his term of imprisonment. As I said, I will impose an aggregate sentence in this matter and I am therefore required to indicate the indicative sentences that I would otherwise have imposed. In setting out those indicative sentences I am also required to indicate the non parole periods that I would have otherwise imposed.

30. For the sequence 1 offence, and taking into account the matter on the Form 1 document, the indicative sentence is a term of imprisonment of three years six months and a non-parole period of 22 months.

31. For the sequence 2 offence a head sentence of three years' imprisonment and a non-parole period of 19 months.

32. Instead of those I impose an aggregate head sentence of four years' imprisonment and a non-parole period of two years three months. Those will date from 16 December 2019. The head sentence therefore will expire on 15 December 2023 and the non-parole period on 15 March 2022.

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Decision last updated: 27 April 2021