R v McMahon

[2021] NSWDC 437

District Court

New South Wales

Medium Neutral Citation:

R v McMahon [2021] NSWDC 437

Hearing dates:

11 June 2021

Date of orders:

18 June 2021

Decision date:

18 June 2021

Jurisdiction:

Criminal

Before:

King SC DCJ

Decision:

Convicted.

Special circumstances found – first time in custody, family hardship

Sentenced to a term of imprisonment of 3 years, comprising a NPP of 1 year and 6 months commencing on 17 June 2021 and expiring on 16 December 2022, and a balance of term of 1 year and 6 months to commence on 17 December 2022 and to expire on 16 June 2024.

Catchwords:

CRIMINAL – sentence after trial - sexual intercourse without consent – aggravating circumstance/s – course of conduct – where jury finding of not guilty in re Count 1 and 2, but guilty in re Count 3 – impact on victim – subjective matters

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act

Cases Cited:

R v Fisher [2021] NSWCCA 91

Category:

Sentence

Parties:

Regina
Patrick McMahon

Representation:

Counsel:
Defence: Ms J Layani-Ellis
Solicitors:
Crown: Ms S Tasneem, ODPP
Mr G Rixon, ODPP
Defence: Mr S Tully, Tully & Chiper Lawyers

File Number(s):

2019/00157232

Publication restriction:

NPO in respect of the name of the complainant and anything that might tend to identify her

Judgment

1. HIS HONOUR: Patrick McMahon appears for sentence in respect of a single offence, being sexual intercourse without consent contrary to s 61A of the Crimes Act 1900.  The maximum penalty provided is 14 years' imprisonment, and there is a relevant standard non‑parole period of seven years.

2. I will first refer to some of the relevant history of the matter.

3. The offence was found by the jury to have occurred between 26 and 27 January 2015.  It was reported to the police by a friend of the complainant's, and the complainant was taken for a medical examination that day.  However, she indicated to the police that she did not wish at that point in time for any action to be taken, but preferred to think about it, in effect.

4. The offender was interviewed immediately after the alleged events were reported and admitted to having had sexual intercourse, in the sense of digital/vaginal penetration, cunnilingus and penile/vaginal intercourse.  It was alleged by the complainant that he had also attempted to insert his penis or some other object into her anus, which he denied.  In his interview he asserted that the acts admitted to were consensual in the light of the complainant's physical reactions to his physical conduct towards her.  He was charged with four counts, being digital penetration, cunnilingus, attempting to have anal intercourse, and having penile vaginal intercourse.  Those four counts proceeded as a trial before Whitford SC DCJ in 2020 over approximately a nine day period.  The jury was unable to agree on three of the four counts, being the digital penetration, cunnilingus and penile penetration of the vagina.  They acquitted the accused in respect of the alleged offence of attempting to have anal…