R v Medlin

[2024] NSWDC 639

District Court

New South Wales

Medium Neutral Citation:

R v Medlin [2024] NSWDC 639

Hearing dates:

26 August 2024

Decision date:

14 November 2024

Jurisdiction:

Criminal

Before:

King SC DCJ

Decision:

Convicted on each count.

Special circumstances found:

1st substantial period of custody, delay in resolution, mental health considerations, the need for an extended period of supervision on parole.

Indicative sentences: see attached Schedule.

Aggregate sentence:

Sentenced to a term of imprisonment of 12 years with a NPP of 8 years commencing on 1 December 2020 and expiring on 30 November 2028 and a balance of term of 4 years commencing on 1 December 2028 and expiring on 30 November 2032. Eligible for release to parole on 30 November 2028.

Catchwords:

CRIME – Sentence – sexual offending – serious offences of domestic violence against same victim – breaches of ADVO – intentionally choke - sexual intercourse without consent, - multiple threats of physical harm occasioning high levels of fear - ongoing instances of intimidation - fraud, larceny, intentionally damage property by means of fire

CRIME – Sentencing - where matter has a convoluted & protracted history - eventual guilty pleas to 5 (non-sexual) offences & conviction at jury trial in respect of 7 offences – mental health issues –eloquence of Victim Impact Statement - seriousness of offences – aggravating factors – totality - subjective matters

Legislation Cited:

Crimes Act 1900

Crimes (Domestic and Personal Violence) Act 2007

Cases Cited:

Bugmy v The Queen [2013] HCA 37

DPP (Cth) v De La Rosa [2010] 79 NSWLR 1

Elias v R [2013] 248 CLR 483

Markarian v R [2005] 228 CLR 357

Pearce v The Queen [1998] HCA 57

Category:

Sentence

Parties:

Regina
Medlin, John Francis

Representation:

Counsel:
Defence: Mr A Conwell
Solicitors:
Crown: Mr S Morrison, Ms E Anderson ODPP
Defence: Mr H Husseini

File Number(s):

2020/00341214

Publication restriction:

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

JUDGMENT

1. HIS HONOUR: The offender, Daniel Medlin, appears for sentence in respect of 12 offences and an additional offence contained on a s 166 certificate. He stood trial in respect of 12 counts. He entered pleas of not guilty in respect of Counts 1, 2, 5, 6, 7, 8 and 9, and pleas of guilty in respect of Counts 3, 4, 10, 11 and 12. At the conclusion of the trial he was found guilty in respect of Counts 1, 2, 5, 6, 7, 8 and 9 and it was indicated that he would plead guilty to the offence contained on the s 166 certificate, being an offence contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act.

2. There was one count on the indictment contrary to s 37(1A) of the Crimes Act of intentionally strangle, which has a maximum penalty available of five years.

3. There were five offences contrary to s 61I of the Crimes Act, being offences of sexual intercourse without consent, those being Counts 2, 5, 6, 7 and 8. In relation to each of those offences the maximum penalty available is 14 years’ imprisonment and there is a standard non-parole period provided of seven years.

4. There was a further count defended at trial, being Count 9, which is an offence contrary to s 195(1)(b) of intentionally damage property by fire, which has a maximum penalty of five years.

5. At the commencement of the trial, Mr Medlin pleaded guilty to Counts 3 and 4 which were acts of intimidation contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act, in respect of which the maximum is five years.

6. There was a further offence, Count 10, of larceny contrary to s 117 of the Crimes Act. The maximum penalty available is five years’ imprisonment.

7. There were a further two offences of fraud, Counts 11 and 12, being contrary to s 192E(1)(b), in respect of which the maximum penalty is 10 years’ imprisonment. The previously referred to offence on the s 166 certificate was an offence of knowingly contravening an Apprehended Violence Order contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act. The maximum penalty available in respect of that offence is two years.

8. I note that s 14(1)(4) of that Act provides that unless the court otherwise orders, a person who is convicted of an offence against subs 14(1) must be sentenced to a term of imprisonment if the act constituting the offence was an act of violence against a person. The matter has had a convoluted course through the court system. The offender has been represented on different occasions by a number of different legal representatives. At least as far as barristers are concerned, Mr McKenzie appeared for him in the early stages. Mr M Doyle appeared for him at trial and Mr A Conwell appeared for him in relation to the sentence proceedings. It has had a convoluted course because of the offender variously entering pleas, traversing them and withdrawing them.

9. Eventually, although the matter had come before me at the Port Macquarie circuit on one occasion in respect of sentence, the psychological and psychiatric report provided on behalf of the accused indicated that he was continuing to maintain that he had not committed an offence, and the pleas were rejected. In due course, he was allowed to withdraw pleas that he had entered, and there was a real issue during the course of the matter proceeding before the court as to his fitness to plead at the time when he had entered the guilty pleas.

10. Eventually, the matter came before me for trial with a jury at Port Macquarie on 11 September 2023. Verdicts were returned by the jury on 20 September 2023 in respect of Counts 1, 2, 5, 6, 7, 8 and 9, and at the outset of the trial, as previously indicated, he entered pleas of guilty in respect of Counts 3, 4, 10, 11 and 12. I note in respect of those charges to which he pleaded guilty at that time, that is on the first day of the trial, it has been submitted by the Crown and accepted on the offender’s behalf that in the circumstances he is only entitled to a 5% discount on sentence in respect of each.

11. I note, in that respect, that the evidence in relation to those matters was given at trial on the basis that there was a dispute still extant in relation to the facts in those matters, and on the basis that the court would be able to resolve any dispute of fact on the basis of the evidence at trial. However, subsequent to trial, Mr Doyle indicated that there was no dispute remaining in relation to the facts for those matters, and indeed there had been no challenge during the course of the trial of any significance in relation to those particular matters.

12. Mr Doyle, who of course conducted the trial, also indicated that he accepted on behalf of the offender the facts as outlined by the Crown as the findings that the Court would find beyond reasonable doubt in relation to each of the offences. Essentially, I note that was the acceptance of what was provided by way of the original Crown case statement. Accordingly, the facts that I find beyond reasonable doubt are as follow:

BACKGROUND

1. SJ (the complainant) and DM were in a relationship for approximately four years, separating around Christmas in 2019. They have two children, being A1, (DOB March 2018) and A2, (DOB May 2020).

2. They purchased the house together in Kennedy Drive, Port Macquarie. When they separated, the accused moved out and the complainant remained at the house with the children. At the time of these allegations, SJ was arranging to put the house up for sale.

3. There has been a history of abuse in their relationship, heard and observed by neighbours. One of those incidents led one of the neighbours to call the police, resulting in the accused being charged and having to appear at Port Macquarie Local Court on 1 December 2020. A provisional ADVO was served on the accused on 16 September 2020 as a result, with standard conditions as well as conditions preventing the accused from residing at the same premises. The events referred to hereafter constitute a breach of that ADVO.

4. The complainant has asthma. The accused is known to be a user of the prohibited drug, methamphetamine.

COUNT 1 - INTENTIONALLY CHOKE

13 November 2020

5. Between 8.36 am and 10.06 am in the morning of 13 November 2020, the accused sent the complainant 18 text messages of an emotionally abusive nature, accusing her of ruining his life, not caring about him and wishing that he goes to gaol. When the complainant responded, saying she had been dealing with the children, he continued to abuse her and accuse her of not talking to him. She said she would talk to him at 1pm as she was dealing with the house sale. The accused became angry at this, accusing her of having time for others but not him. He demanded she help him with the court matter the following day; being the previously referred to ADVO. The complainant responded she would, but he needed to back off a little, saying “It’s too much”. That was the last text in the sequence of that conversation, sent at 11.16am.

6. The complainant had a gardener at the premises at 10.30 for about an hour. The gardener had worn earmuffs for the first 40 minutes while he was attending to the front lawn and did not see anyone arrive at the house during that time or hear anything. He then proceeded to work on the rear yard for 10 to 15 minutes, spraying weeds. He did not have earmuffs on at that time but did not see or hear anything of note. As he was leaving, he observed a male depart the house. He had not previously met the accused and could not confirm who this male was.

7. The complainant said that the gardener left shortly before the accused arrived at about 11.30am and went to the toilet.

8. When the complainant went inside, the accused again said that the complainant did not care about him and that he was stressed out about going to gaol for the assault.

9. The accused became angry and tried to take the TV, saying it was his. The complainant asked him not to take the TV as she was trying to sell the house and did not want furniture missing. The accused started arguing with the complainant.

10. The complainant turned on the video recording on her mobile phone and put it in her back pocket hoping to be able to show people what the accused was like as he never takes responsibility for his abuse. She yelled at him to get out. The short ten second recording is black in picture but depicts the audio of the accused threatening her and directing her to sit down. He is recorded saying, “If you yell or scream once more, I am going to fucking rip your throat out. Now sit the fuck down now, this is your last chance, sit the fuck down, sit down, go, sit down”.

11. The offender realised the complainant was trying to record him. He took her phone and went through it. He saw a message from a female friend thanking her for the last night when they had gone out for a drink and accused her of seeing other people. He took the phone and put it to charge on top of the TV so that the complainant could not get it.

12. They continued arguing. About five minutes later the complainant walked around to then other side of the lounge from the accused, she was then holding her son, A2, and her daughter was at day care.

13. The accused was trying to reach her; he came behind the complainant and put his arm around her neck starting to choke her. The complainant could not breathe or speak and tried to claw at the accused to get him to stop. She dropped her son on to the lounge and started to wrestle with the accused on the floor. The complainant was “seeing stars” and thought she was going to die. She was very scared. The accused let the complainant go. She got up on to the lounge to make sure her son did not roll off. She could not speak and had a sore throat. She later observed that she had bruises to her neck.

COUNT 2 - SEXUAL INTERCOURSE WITHOUT CONSENT

30 November 2020

14. The accused then had the complainant lay on the lounge and he got her asthma puffer, he then sat over the top of the complainant and made sexual advances towards her, rubbing her genital area. He tried to undo her shorts and pull them down. The complainant tried to stop him, she was saying “Please don’t do this, please stop it”. The accused kept trying and took her shorts and underwear off. She tried to reach her shorts to pull them back on.

15. The accused was standing up while the complainant was laying on the lounge. He held her legs up and inserted his penis into her genitalia without her consent. The complainant was attempting to tell him to stop.

16. The complainant’s son, A2, was in a baby chair in the room. He started crying while the accused was having sexual intercourse with the complainant. The accused got A2 from the chair and put him next to the complainant while continuing to have sex with the complainant. A2 continued to cry, and the accused said, “Shut the baby up” and made the complainant breast feed A2 while he continued having sex with her. The rocking movements made it impossible for the baby to latch on, and he continued crying. The accused stopped having intercourse with the complainant as a result and said, “I will go to gaol for rape as well”.

17. The intercourse took place at the corner of the lounge with the complainant on her back. The accused did not ejaculate at the time.

COUNT 3 - INTIMIDATION - PLEA OF GUILTY

30 November 2020 (all morning and afternoon conduct of the accused during this first visit.)

18. The accused went into the garage and said he was going to burn the house down, or the complainant. He got a petrol-powered leaf blower from the garage or his vehicle. He returned to the lounge room and poured the petrol out of the blower into a glass which he handed to the complainant. He then handed the complainant a lighter. The offender screamed at the complainant to pour the fuel over herself and set herself on fire.

19. The complainant tried to get up, and said “I’ll do anything you want, please don’t do this, please stop”. The accused took the petrol and put it on the table. The accused threatened the complainant, telling her she was going to die. Further, he communicated to the complainant that he wanted the complainant to pay for making his life hell and that she had taken his family and children from him. The complainant was begging the accused, and said, “Marry me, I want to marry you”. The complainant said “I’ll do anything. I’ll marry you” because she was fearful for her life (and no doubt the lives of her children.)

20. The complainant said, “Can we just go and pick up our little girl and I will say goodbye to her”. The complainant said this to buy time. The accused agreed and the complainant got up to change A2’s nappy. The accused flicked some petrol on the complainant and was teasing her with the lighter by flicking the lighter on and off. The accused said that he makes the rules now and that he is in control, and if the complainant plays nice, it will get better.

21. The accused tipped the petrol out in the sink and rinsed the glass a few times before leaving it in the sink.

22. The complainant believed that the accused spent at least 1.5 hours at the house; he arrived at about lunch time and left around 2 or 2.30. When he left, he said he would come back in the evening to watch a movie with the kids. She told him not to as she would not be there. He told her “Oh, you’ll be there”, “I make the rules now”.

23. The complainant stayed home and was very shaken up. The complainant still felt as though she could not contact the police because he would know where the complainant would go.

24. At 1.25pm he sent her a text message saying, “Last chance” followed by “You don’t make the fucking rules anymore” at 1.38pm.

25. At 5.04pm the complainant sent a message on Facebook Messenger to the accused’s mother, GN, to confirm she was still okay to look after the kids the following day as the complainant had agreed to take the accused to court. GN confirmed. The complainant sent a text “I’ve had the scariest day of my life, but I’ll talk to you in person, and I’ll delete this message. x”. GN asked if the complainant wanted her to come and stay the night, the complainant said, “I do, but he’s coming back, so no, it’s okay”. GN told the complainant to call her if she needed her.

COUNT 4 - STALK INTIMIDATE INTEND FEAR PHYSICAL HARM - PLEA OF GUILTY

On or about 30 November 2020 (events after the accused returned, inclusive of the evening, night and next morning).

COUNT 5 - SEXUAL INTERCOURSE WITHOUT CONSENT

30 November 2020

26. The accused sent a text at 7.30pm asking “Where are you?”. He then called the complainant at 7.31pm and said he was going to come back to watch a movie. He said, “Is that okay with you?”. The complainant said, “I don’t have a choice, do I?”. The accused responded “No” and hung up. He came to the house some 20 minutes later and sat on the lounge with the complainant and their children. He put his arm around the complainant. She asked why he was doing this, that is, pretending they are a happy family when they are not. He responded that he loved her.

27. They watched a movie. During the movie, the accused hit the complainant and would taunt her, telling her to “Shut the fuck up”. The complainant said she wanted to put the kids to bed.

28. The accused followed the complainant into the room and kept her phone away from her. The complainant put a movie on in the main bedroom. Both children were in the bedroom. A1 was watching the movie on one side of the bed, and the baby was asleep in the middle.

29. The accused got on to the bed on the other side of the baby. He pulled his pants down; he pulled down the complainant’s pyjamas while she tried to pull them back up and he ripped her underwear off. He made her lay on the bed and got on top of her. He then had penile vaginal intercourse with the complainant without her consent. The complainant said “No, don’t do this to me. Please stop”. “No, not in front of our little girl. Let me put the kids to sleep”.

30. A1 was in the bed whilst the intercourse was occurring. A1 kept looking at the complainant, and the complainant was trying to hold A1, who said “Don’t do that, Daddy,” as the bed kept rocking.

31. The complainant said, “Why are you doing this to me?”. The accused said, “I love it, that’s why I’m doing it”. He continued for about ten minutes before stopping when the baby woke up and started crying. He did not ejaculate during the act of intercourse.

32. The accused got angry and went outside and had a cigarette. He then returned with a red jerry can and placed it at the end of the bed in the main bedroom. The complainant tried to get the accused to talk things out. Seeing the jerry can, she asked the accused, “Are you going to kill me?”, and the accused said words to the effect of, “You’re going to burn, bitch”. The complainant tried to stay with the kids because she thought the accused would not hurt her if she were near them.

COUNT 6 - SEXUAL INTERCOURSE WITHOUT CONSENT

30 November 2020

33. As the complainant suggested they talk, the accused told her to come into the lounge room. The accused would not allow the complainant to put her pants on. The accused asked the complainant to give him oral sex. The complainant said “No” and “I don’t want to do it” repeatedly. He hit her with the cushions. The accused stood over the complainant and forced his head over the complainant’s head to intimidate the complainant. Seeing the fury in his eyes, she complied and performed fellatio for a few minutes.

COUNT 7 - SEXUAL INTERCOURSE WITHOUT CONSENT

30 November 2020

34. The accused made the complainant go to the lounge and bend over the back of the lounge. The accused then had penile vaginal intercourse without her consent. The complainant was crying. She felt she had to have intercourse with the accused because he was so strong she could not stop him. The accused ejaculated during this intercourse. The semen dripped down the complainant’s leg.

35. They went back into the bedroom and went to bed with the kids. The complainant asked if he was going home. He said he was staying as he wants to spend the night with the family in case he goes to gaol the following day.

36. During the night, the jerry can was beside the bed next to the accused, the lighter was on the bedside table next to the accused. The complainant was scared, thinking that he might pour it over her.

37. At 1.34am the complainant took a photo of the red jerry can and the lighter which was next to the accused on the bed. The photo turned out very blurry as the complainant was shaking in fear and tried to be very discreet so she did not wake him.

38. At 1.37am she sent a message to GN asking her to organise a random breath test for the accused on the following morning.

39. Throughout the evening the accused did not allow the complainant to walk to the kitchen. The accused said, “Get out of here, the lights are on, they can all see you. You’re trying to alert the neighbours”. He kept closing the windows. Again, the complainant felt during the night she was unable to leave the house safely with her children.

COUNT 8 - SEXUAL INTERCOURSE WITHOUT CONSENT

1 December 2020

40. The accused went to the toilet approximately 6.30am in the morning. He returned to the bedroom with no pants on. The accused then attempted to take the complainant’s underwear off. The complainant started to cry and said, “Please no. Don’t. Please don’t do this again”. The accused replied, “Just shut the fuck up”.

41. The accused said, “It’s happening, I will rip them again”. The accused was on his knees holding the complainant’s legs. He inserted his penis into her genitalia. The complainant said stop because he was hurting her, and she did not want to wake the kids.

42. At some stage he told her to climb on top of him and pretend she is cuddling him so A1 who had woken up would not know what was happening. However, he laid next to the complainant and touched her genital area. He then got on top of her again and reinserted his penis in her genitalia and continued having sex with her while touching her genitalia with his hand as well.

43. Both kids woke up and were looking at the complainant whilst the intercourse was occurring. The complainant said to the children, “It’s okay”. The accused ejaculated. The accused was angry, blaming the complainant for waking the children, and left the room.

44. The accused returned to the main bedroom and told them to say goodbyes as the complainant was going somewhere warm. The accused made threats and said that the complainant was a bitch, the complainant’s mum is a bitch, the complainant’s sister-in-law is a bitch, and he was going to kill all the complainant’s family. The accused continued and said that the complainant had two options, leave the kids with him, or “one of us has to die, and it’s going to be you”. The complainant believed he was capable of carrying out these threats.

COUNT 9 - DAMAGE PROPERTY BY FIRE

COUNT 10 - LARCENY, PLEA OF GUILTY.

COUNT 11 - FRAUD, PLEA OF GUILTY.

COUNT 12 - FRAUD, PLEA OF GUILTY.

1 December 2020

45. The accused picked up the complainant’s ripped underwear and walked outside. Then he came back into the bedroom. The accused then said to A1 that the complainant’s niece and nephew are not going to have a mum and dad because he was going to kill the complainant’s brother and sister-in-law. A1 responded, “Don’t do that”. He threatened to kill the complainant’s parents as well. He then said, “Start saying your goodbyes because this is the end of your family”.

46. The accused asked the complainant where her purse and money were. The complainant responded, “I don’t have any money”. Scared of the accused, the complainant eventually told the accused her purse was in her car. He went to the car and got the purse.

47. He went through the wallet and took a $20 note. He then took the complainant’s bank cards, licence, and other cards in her name. He then demanded her PIN number.

48. The complainant provided the accused with her PIN number as she was fearful for her life at this point. She asked, “Why are you doing this to me?” The accused responded, “I want you to know what it’s like to have nothing.” He left with her cards and money.

49. The accused took the jerry can and leaf blower to his vehicle. He then came back into the house and said to the complainant, “Your garage is on fire”. The complainant ran to the garage and saw a small fire next to her car in the garage. The accused said to the complainant, “Get inside. Don’t let anyone see you.” He then left the premises, telling her not to be late.

50. The complainant followed his direction. Once the accused had left, however, the complainant checked on the fire to find that it was now out. Later, the complainant identified that it was her underwear which was burnt. (The underwear which the accused had ripped off her from the night of 1 December). The burnt underwear was subsequently examined and found to contain petrol and had been severely damaged by the fire.

51. The accused called the complainant twice at 8.15am. Both calls were answered. He then sent a text saying, “Liar”. This prompted the complainant to check her internet banking account on her phone, which showed that the accused withdrew $50 followed by $950 at 8.08am and 8.09am. He was captured on the CCTV footage at the ATM, as was his vehicle in the near vicinity. The complainant had forgotten that she received her Centrelink payment on Tuesdays.

52. The complainant did not owe the accused any money, nor did she provide consent to the accused to withdraw $1,000 from her account. The accused and the complainant have separate bank accounts.

CCTV FOOTAGE

53. The Westpac ATM captured the accused withdrawing the money, and parking his Mitsubishi Triton in Horton Street, Port Macquarie.

54. The footage also showed the offender withdrawing the two amounts at 8:08:47 and 8:09:42 from the ATM, having received a receipt on each occasion, and was observed to put something into his wallet on the two occasions.

55. CCTV stills reflect the accused purchasing a case of Great Northern at Ritchies IGA Port Macquarie at 8.17am for $50. He was also captured on CCTV footage at the tobacconist shop in Hayward Street, Port Macquarie purchasing cigarettes and a lighter. The accused matched the description available from the CCTV footage.

56. The accused’s flatmate located an ATM receipt at the accused’s premises which showed a withdrawal of $950 at 9.09am on 1 December 2020. He handed it to police.

COMPLAINT

57. Meanwhile, the complainant sent a message to GN at 7.37am asking her to come, and another message at 8.01am saying, “He just left, I need you”.

58. GN arrived shortly after. The complainant informed her that the offender had strangled her, and that she had dropped the baby while he was doing so, and also that he wanted her to set fire to herself, and that he had slept with a can of petrol next to himself, as well as starting the fire in the garage, and that he had raped her in front of their daughter.

59. GN at the time observed the complainant to be extremely distraught, fearful and to keep looking through the window.

60. GN called the police at 8.04am and at 8.12am. She had previously called them at 6.43am when she saw the complainant’s message about organising a random breath test.

POLICE ATTENDANCE AND ARREST

61. Police arrived shortly after gn’s last call and spoke to the complainant, GN and a neighbour who had seen the accused’s car parked at the premises when he left at around 7am and had later observed the accused driving erratically around town at about 8.15am.

62. In some of the conversations captured on the body-worn video, the complainant was visibly upset and shaking. She was holding her phone in her hand, and said she was meant to pick the accused up and take him to court, and that she was fearful for her life.

63. Police conducted checks on the accused’s car to locate him, and the complainant informed them from a message she had received that he had just been to Westpac.

64. Police organised to take a DVEC. The complainant was evidently fearful at that prospect, but said she had to do something as he would kill her and her family.

65. The accused kept calling the complainant resulting in numerous missed calls until he arrived at the home premises at 9.15am. He was then placed under arrest.

66. In his pocket was $270, two bank cards in the complainant’s name, as well as two driver’s licences of hers, and several of her personal cards.

67. He was conveyed to the police station where he participated in an ERISP.

HOSPITAL RECORDS

68. The complainant was examined by Dr Webster at the Port Macquarie Base Hospital, and he observed a purple bruise on the left angle of her jaw, and a linear abrasion on the right side of her neck. He interpreted those results as being consistent with being gripped around the neck and strangled. There was also some pink and purple bruising to the right, below the kneecaps, and the middle aspect of the left ankle. His report referred to the SAIK and a finding of dot-like bruises to the fossa navicularis being indicative of recent sexual activity involving penetration of the genitalia. The victim also had bruising to her knees.

FORENSIC EVIDENCE

69. The accused consented to a DNA buccal swab procedure, and a DNA match to the accused was found on the high vaginal swab, and on the low vaginal smears semen was detected, as well as on the vulval area.

70. At the residential premises, a tall glass was observed in the sink consistent with the description the complainant gave of the glass the accused used to contain the petrol from the leaf blower.

71. The partially burnt black underwear was found on the garage floor, on which petrol was subsequently detected.

72. A leaf blower and a red jerry can were located on the accused’s utility.

73. The accused consulted with a solicitor before agreeing to participate in an ERISP. In short, the offender denied committing any of the offences, and claimed that any act of sexual intercourse was with consent, SJ cooperating in the process.

74. He claimed that the children were asleep for all instances of sexual intercourse and said that he had withdrawn $250 from her account because she had lent that to him so he could pay rent. He said she had thrown her wallet at him and insisted he take the money, although he kept refusing. The cards had fallen out during the process, and that is why he had them in his pocket when arrested. He also said there was only one transaction for $250.

75. He also later claimed that he did not know her PIN, and the withdrawal was through a cashless withdrawal. When asked to explain it, he said that he could not.

76. He denied the choking incident. He said that during one act of consensual intercourse he had pushed her, resulting in the complainant hitting her head. Although there was an argument about the TV in the morning, the complainant was telling him to take it. He claimed there were only two incidents of intercourse, which were both consensual, and he denied any acts of violence or threats, or threatening her with the jerry can, or flicking fuel at her, or setting her underwear on fire.

77. He claimed that he had told her he loved her and wanted to be together with her, but that she was violent and abusive towards him, suggesting the complainant required a psych assessment.

13. It is clear from the evidence that the offender subjected the victim to an outrageous course of violence and intimidating behaviour in order to demean her and allow himself to obtain sexual gratification and gratification from dominating her. It was, in short, a horrendous course of conduct occurring between approximately 11.30am on 30 November 2020 to 2.30pm when he first left. He returned at approximately 7.30pm, and the offending continued from that time through to approximately 7.30 - 7am, when he left the following morning, on 1 December 2020. Counts 1, 2, and 3 occurred during the first period referred to on 30 November 2020, and Counts 4, 5, 6, 7, 8, 9, 10, 11, and 12 all occurred in the second period, just referred to.

14. The maximum penalty for an offence represents the legislator’s assessment of the seriousness of the offence, and for this reason, provides a sentencing yard stick, Elias v R [2013] 248 CLR 483. In that regard, the plurality in Markarian v R [2005] 228 CLR 357 said, at 31:

“...careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly because they invite comparison between the worst possible case and the case before the court at the time; thirdly, because in that regard they do provide, taken and balanced with all other relevant factors, a yard stick.”

15. The court is required to refer to the objective seriousness of each individual offence. I note that Counts 1 to 9 are objectively very serious, with Counts 1, 3, and 4 being serious matters of domestic violence and Counts 2, 5, 6, 7, 8, and 9 also being very serious sexual assault offences, which indicates that general deterrence, specific deterrence, denunciation and the protection of the community must be significant considerations in determining the sentence in respect of this matter. Other matters that can be taken into account include, obviously, the degree of force or violence and the physical presence of the parties’ children at any time during the offending.

16. Counts 1 to 9 are each serious matters of domestic violence. As to Count 1, being strangulation of the victim by the accused’s arm, it was a sudden and unexpected attack from behind, at a time when the complainant was holding her youngest child. He caused her to be unable to breathe or speak while she resisted him, clawing at him. She was forced to drop her son onto the lounge, which was fortuitous, before falling to the ground with the offender. She saw stars and was very scared. She was left with a sore throat for some period, as well as some bruises and a linear abrasion on the right side of her neck. There was some bruising to the right of and below kneecaps of both legs.

17. The fact that the victim was holding a very young child also aggravates the offence, although not in the sense that the child was capable of understanding what was happening, the child having been born in May of 2020. Although there was a degree of violence, there was not, in the circumstances, any significant injury. In my view, the matter - in terms of objective seriousness - approaches the middle range of objective seriousness. The fact that the victim was forced to drop the child, Ali, of course is an aggravating feature in the sense that it would have increased the trauma to the complainant, but not a statutory aggravating factor. In addition, of course, the offence occurred in the complainant’s home, which is a statutory aggravating factor.

18. I note that I do not intend to refer to that throughout these reasons, but with the exception of Counts 11 and 12, all of the offences occurred in the complainant’s home. It was no longer the accused’s home.

19. I find that the objective seriousness of this offence falls within the middle range of objective gravity for such an offence.

20. As to Count 2, the victim had rebuffed his sexual advances, which did not deter him from continuing to rub her genital area and endeavouring to remove her pants, as she resisted. Having removed her pants, he held her legs up and had penile-vaginal sexual intercourse. All of this occurred while the child, A2, commenced crying, and the accused moved A2 to a position where the complainant could breastfeed him while he continued to have sexual intercourse without her consent. Again, she told him on multiple occasions to stop, and physically resisted the removal of her clothes and the intercourse.

21. In relation to this offence the circumstances were demeaning of the victim. The offender knew that the complainant was not consenting. It falls above the mid-range of objective seriousness, again noting, of course, that while A2 was there, he was not of such an age as it is likely he understood what was happening or would remember what happened. Count 2 is above the mid-range of objective seriousness.

22. Count 3, which is the offence of intimidation. In particular, in that regard, the Crown relied on the multiple verbal threats of physical harm to her, as well as harm to her property by fire. He screamed at her, asking her to set herself on fire, and his threats were accompanied by tools to augment the reality and eminence of the threats, such as the petrol in the glass, and the lighter. He actually flicked petrol onto her. The level of fear in the complainant must, in the circumstances, have been high, and not simply in relation to herself but in relation to her children, who were then present in the house.

23. The conduct was not brief, and it continued even though she asked him to stop, offering to give him what he wanted. Even after he left at around 2 to 2.30pm that day, he continued to send menacing and threatening text messages, evidencing the continuation of controlling behaviour, and including, “Oh, you’ll be there. I make the rules now.” Again, a considerable degree of fear was caused to the complainant. In my view of the matter, the offending in this case falls towards - in the middle range of objective gravity.

24. As to Count 4, which is a further charge of intimidation, considering the duration of the period being from 7.30pm on 30 November through to 7.37am on 1 December 2020, it constitutes a significant period of continuous conduct, creating an atmosphere of fear and coercion, particularly placing the jerrycan next to the bed, together with a lighter, making the complainant fear that she might be set alight during the night, and of course also an implicit threat to the children then residing in the house, particularly in the circumstances where he had previously made threats of burning her and or the house in the earlier part of the day, and when leaving the jerry can and the lighter in the bedroom, saying, “You’re going to burn bitch”. The threat of fear and violence persisted throughout the night, and the offending in my view falls above the middle range of objective gravity in the circumstances.

25. As to Count 5, the conduct involved following the complainant into the bedroom where the children were. A2 was asleep and A1 was awake watching a movie. The offender pulled the complainant’s pants down as she struggled to keep them up, he ripped her underwear off and then had penile vaginal sexual intercourse with her whilst she asked him to stop and to not do this in front of the children. He persisted even when his daughter, A1, asked him to stop and he stated “I love it” when asked why he did it. The penile vaginal intercourse lasted for about ten minutes. Clearly, the circumstances show that he was aware that she was not consenting, and in my view the offence falls above the mid-range. The aggravating factor of it being in the presence of a child also applies as A1 was clearly aware of the offence, saying, “Don’t do it, daddy”. And again of course, as with the other offences, this occurred in the complainant’s residential home.

26. As to Count 6, the offender repeatedly sought that the complainant perform oral sex on him, which she refused to do. There was a degree of force employed by throwing various cushions at her and forcing her head onto his penis. She protested repeatedly. The offence itself only lasted for a few minutes. The fact that it was fellatio does not make it any less serious than an act of sexual intercourse. The legislation makes no distinction between the various acts that may constitute an offence of sexual intercourse without consent. The offence was not brief, and no doubt relied on the intimidation and threats that the victim had previously suffered. In my view, it falls into the middle range of objective seriousness.

27. As to Count 7, it closely followed Count 6. The offender made the complainant go into the lounge and bend over the back of the lounge. She was crying. He then had penile vaginal sexual intercourse with her and on this occasion ejaculated. As I have said in relation to the other matters, he again knew that she was not consenting. In my view it falls within the middle range of objective gravity.

15. As to Count 8, which concerned an act of penile vaginal sexual intercourse without consent in the bedroom in the morning, the offender again started to take the complainant’s underwear off; she started to cry and asked him not to, but he told her to “Shut the fuck up” and threatened to damage her underwear before having penile vaginal sexual intercourse with her. She told him to stop because it was hurting her and she did not want to wake up the children, but the offence continued in a different position before the offender ultimately ejaculated. It occurred in the bedroom where both the children were, but there is no evidence that either of them was aware of what had happened. The offence was not brief, and it involved two forms of penile vaginal sexual intercourse and there was some force used in the removal of the underwear, threats to damage her underwear and pain caused the complainant by the initial penetration. She protested and cried during the course of the offence. In my view this matter falls above the mid-range of objective gravity.

16. Count 9, this is the offence that involved the offender taking the complainant’s underwear to the garage and burning it. There is no evidence as to the value of the underwear, but it is unlikely to be significant. He burned it using an accelerant. In my view, having heard all of the evidence in the trial, he was doing it as a means of intimidating her and making her think that he would carry out the threats that he had previously made, and wanted her to think that he had been endeavouring to set fire to her motor vehicle in the garage. Considering the value of the property and the fact that he had apparently not used it to try and set fire to the vehicle, I find that the offending falls, not at the bottom of the low range, but at least somewhere towards the low range of objective seriousness.

17. In respect of Count 10, being an offence involving the theft of $20 from her wallet and her personal cards. While the amount of money is low, there is a lot of personal importance to a person of having their driver’s licence and bank cards. It is always of concern to citizens when they no longer have possession of their bank cards and licences. However, they were recovered, and in those circumstances, I would find the offending falls into the low range.

18. Counts 11 and 12 can be considered together as they are related to the offender having obtained the victim’s PIN number, attending the bank and withdrawing from the ATM the sum of $50, at which time he obviously found out that she had significantly more money in the account, she having told him in effect that she had no money in the account. He then withdrew a further $950, which had recently been deposited as part of her Centrelink benefit, and no doubt paid as a benefit to an unemployed mother supporting two young children. The $50 is perhaps not particularly significant, but when he also removed from her the moneys which she could expect to use to support herself and the children in the next perhaps fortnight, it was clearly a matter of significance to her, and again in my view was designed by him to be part of an ongoing course of intimidation, if not what he perceived as revenge.

19. As I have previously indicated, it is only in respect of Count 5 that the statutory circumstances provided by s 21A(2)(ea) is an aggravating circumstance A1 being capable of appreciating what was happening . That the offences, Counts 1 to 10 inclusive, all occurred in the complainant’s home is of course a statutory circumstance of aggravation as provided by s 21A(2)(eb). As I previously indicated, the fact that throughout the period covered by the offender’s two occasions of presence at the home on 30 November and 1 December 2020, the victim must have been significantly distressed by the possibility that the offender would carry out at least his threats to burn her and/or the house, in the circumstances where the children were then present in the house, had to have had a very serious impact on her, and in my view that was exactly what the accused set out to achieve.

20. I note that the victim provided to the Court a Victim Impact Statement which she requested the Court read to itself rather than read it out herself. She refers to herself as having been 45 kilograms, which is significantly smaller than the offender, and he was requiring her to submit out of pure fear and using that fear to continue his torment.

“He gave me a very real sense of impending doom … he took away my right to make my own choices, he took away my right to be non-consenting, he made me powerless to protect myself, but the trauma of being powerless to protect my babies has created an all-consuming shame, it presents itself in many aspects of my life. My life has changed irrevocably. It has changed the way I parent. I now parent with a sense of fear and protections instead of freedom and growth. I am incredibly fearful of the offender, and I don’t believe I will ever be free of that. The level of danger I was in terrifies me.

… The potential lethality of at least one of the crimes DM committed replays on a loop in my brain and is a regular feature of my nightmares.

… Fortunately, my daughter who inevitably became a tiny, scared little girl and exhibited definite signs of trauma, has appeared to have returned to her radiant self with the benefit of time, lots of love and a very tight nest of security.

… I am uncertain of what ongoing effects these crimes will have on our lives in the future, for my children and for me as a mother, or potential partner, or just the continual path of healing my confidence and mental health.

… The mental anguish and nervous energy right through this entire Court process has been intense, and I am very ready to move forward.”

34. The Victim Impact Statement eloquently sets out the significance that offending of this nature is likely to have on a victim, particularly over such a significant course of time. It will, in my view, continue to affect her adversely for many years, if not for the remainder of her life. It will significantly affect her ability to form new relationships with males.

35. However, these are the types of adverse effects that can be reasonably expected to ensue to a victim as a result of such an horrendous and continuing course of serious offending. I would doubt that she will ever really recover from what was occasioned on 30 November and 1 December 2020. However, the statutory aggravating feature is not engaged. As to subjective matters, before the Court is the following:

1. The sentencing assessment report, under the hand of Tamieka Moss, Community Corrections Officer, dated
   14 November 2023;

2. A NSW Department of Corrective Services Sentencing Assessment Consultation Report, under the hand of Chetana Saranu, psychologist;

3. The offender’s criminal history as of 11 September 2023;

4. A NSW Department of Corrective Services Conviction, Sentence and Appeals Report, as of 11 September 2023;

5. Psychological report under the hand of Dr Dornan dated
   11 July 2022;

6. Report of Dr Roberts, psychiatrist, dated 11 January 2023; and

7. Report of Dr Martin, psychiatrist, dated 20 March 2023.

Subjective matters have been sourced from that material.

36. I note that the offender was born as the middle child of three children to the union of his natural parents, who separated when he was still an infant. He has one older brother, two years his senior, and one sister, five years his junior. He also has two stepbrothers as a result of his mother’s subsequent relationship. He lived with his mother after their parents separated, and for a period of time, until he was approximately ten years of age, or between the ages of two and ten. He would see his biological father every school holidays. He reports that on those occasions, his father was never home, and so, he in fact spent his paternal access with his paternal grandparents. He ceased contact with his father about the age of ten and did not see him again until he was about 18, when his father attended his 18th birthday party, at which time, he understood that his father “wanted nothing more to do with the offender”.

37. His mother was apparently a hairdresser and not around a lot during his childhood and adolescence, as she worked late, and spent time drinking and smoking with his stepfather and her friends after work. His maternal grandmother then substituted for his mother, and he had a “great relationship” with her. He states that his mother did not show a lot of affection towards him, and she spent little of her meagre income on him rather than on herself, while the family struggled financially.

38. She formed a liaison with another male when the offender was approximately two years of age, and he refers to his stepfather as being a “selfish and abusive man” who never treated the offender as one of the family. The offender disliked his stepfather as a result, and for other reasons as well, those being that he was physically abusive of the offender, his mother, and his then siblings on a frequent and consistent basis, his mother apparently having little recognition of the effect of the violence and being unable to provide any protection from it.

39. He refers to one occasion when he was approximately ten years of age: that following an abusive incident, his father removed him from his mother’s bed, then raped his mother in circumstances where he could hear everything from the next room, including his mother screaming and crying, which indicates to me that he should have had more appreciation of the potential effects that his offending on 30 November and 1 December 2020 could have had on his children.

40. He described his childhood and adolescence in negative terms, describing himself as angry and isolated and being “the worst kid possible”, as he would lie, cheat, and steal. He never felt like he fitted in and was confused about the direction of his life. He was insecure and directionless even as a small child and did not feel he had any family support or love. By the time he reached his adolescence, he decided he “would just do whatever he wanted”; that is stealing money, drugs, and alcohol from his stepfather and going out of his way to antagonise him.

41. After ongoing conflict with his mother and stepfather, he moved in with his stepfather’s ex‑wife and stepbrothers at the age of 16, where life was better than at home. But by that point in his life, he had already become invested in the drug‑using lifestyle. At 18, he became independent after he moved in with his older brother on the Central Coast for a few years before staying for a period with his paternal grandmother in Sydney. He is said to have made a challenging transition to formal schooling, never wanting to learn, and referred to himself as being “just a little prick”.

42. He felt disconnected and struggled academically. His academic failure and low socioeconomic status made him a target for bullying at school, which increased his anxiety, and made him angry and irritable. He was apparently suspended from primary school after being caught smoking cannabis on school grounds. In secondary school, he was again suspended in Year 7 following truancy and fighting. He was expelled towards the end of Year 8 after assaulting a teacher, which resulted after some sexual activity alleged between the teacher, the accused, and an older female student, with the teacher sexually assaulting the offender, and the offender responding by punching the teacher in the face.

43. As a result, he left school, and began working as a builder’s labourer. However, although he did derive some satisfaction from that, he only lasted for a year before the contract came to an end and the employment finished. He then began working for a demolition company before moving to the Central Coast, where he secured employment at a carwash where the pay was poor, and he supplemented that by selling drugs.

44. In his early 20s, he worked for a refrigeration and air conditioning company for several years but as a result of chronic back pain, ceased, and at age 27, he began working for an electrician, doing preparation work up until 2020, when he refers to his mental health as being in significant decline, and his drug use out of control. He was then living in his car and selling drugs to survive. As to his use of alcohol and other drugs, he commenced using alcohol at about the age of 11 and stealing alcohol from his mother and stepfather.

45. He commenced cannabis use at about 11 years of age, access being easy as his mother and stepfather grew their own. He had a habit of smoking approximately a quarter of an ounce per day, which he has maintained over the years until his current period of incarceration. He was first exposed to crystal methamphetamine at the age of 15, and his drug use escalated to the point of dependence. He was smoking on a daily basis up to his present incarceration and was consuming approximately one gram on a daily basis. He also used ecstasy, cocaine, and amphetamines whenever available.

46. He ceased cocaine use approximately two years ago, and he would also buy heroin to smoke with the cannabis. He had only a small group of prosocial peers, and claims that most of his peer group were antisocial in nature, and all endorsed high levels of drug use. He preferred the company of these people over his prosocial peers as he “loves drugs” and sees nothing wrong with his use of illicit drugs.

47. He has had three significant relationships in his life. The first was in his early 20s. It lasted for a few years, and they even got engaged and planned to be married but did not marry. The result of the relationship was three male children who would now be aged 15, 18, and 19. His partner apparently became fed up with his drug use, and he left because he felt like a failure. The separation was acrimonious, and she moved away with the children and denied him any access. He has not seen the children since. He met his next partner at about the age of 30, and they moved in together shortly after. The relationship was turbulent, and domestic violence was commonplace, being mutual and instigated by both.

48. They had two children together, but the relationship broke down due to domestic violence and Mr Medlin’s ongoing drug use and gambling behaviours. As the relationship broke down, his partner took out an Apprehended Violence Order and denied him access to the children. He has not seen the two sons of that relationship since. They are now aged approximately ten and 11.

49. At age 34, he met the victim of these offences. They moved in together after some six months of meeting at a local club and within the year, they had bought the house together where the offences occurred, and his partner became pregnant. He had apparently previously informed her that as a result of the fact that he had five pre‑existing children he didn’t want any more, and claims that she manipulated him into having the further two children. He said that because of their birth, he tried to be responsible and reliable and was able to reduce his drug use but not stop it, and that he had to hide it from her and the children. While his partner had high expectations from him, all he wanted was “drugs and partying”. Eventually, he had had enough, and he walked out.

50. A difficulty with the psychologist’s and psychiatric reports is the fact that the offender, contrary to what his then‑barrister’s expectation was, having spoken to him shortly before he appeared in Court to be arraigned, entered pleas of guilty to all charges, contrary to the barrister’s expectation. That caused Mr McKenzie to eventually withdraw in the circumstances, particularly when the matter came before me, and the psychological reports then indicated that he was still claiming that he had not committed the offences.

51. A number of the reports, particularly those of Drs Roberts and Martin, were prepared for the purpose of the traversal of the plea and for consideration of such matters as fitness to plead. They dealt with his psychological or psychiatric state at the time of pleading guilty. The report by Dr Dornan of 11 July 2022 predated the traversal of the plea and was prepared for sentence before the traversal application.

52. The report of Dr John Roberts of 11 January 2023 addressed in part some of the subjective background on the entry of the pleas, but it was prepared for the purpose of the plea traversal. The third report, being a Crown report by Dr Martin, was dated 20 February 23 and addressed the subjective background and the entry of the pleas and was again prepared for the purpose of the plea traversal. Since that time, the Court has had made available to it the Sentence Assessment Report and the New South Wales Department of Corrective Services Case Note Report designed to assist in the prediction of sexual recidivism and treatment.

53. As to the Sentencing Assessment Report, there is a substantial part which is worthy of being referred to in these reasons on sentence. Under “Family and Social Circumstances”:

“He denied any close family or social supports in the community, claiming all prior connections have ceased contact with him since his offending.

CSNSW records dated 18 November 2022 indicate that Mr Medlin requested of Custodial staff his family be prevented from contacting him, following his mother advising him of a family member passing.

He reported to maintain limited community connections and is largely socially isolated.”

54. As to education and employment, it refers to him having been employed as an electrician for approximately 15 years - which appears to me to be a more extensive period than is otherwise referred to in other reports - however that he had not worked in the six weeks prior to his arrest.

“He attributed the perceived stressors within his relationship with the victim to his inability to work during that period of time.”

55. As to his history of antisocial behaviour, the report states:

“Mr Medlin has a history of driving, drug‑related, stealing, public indecency, firearm possession, and domestic violence offences.

Whilst his offence background includes serious events, the index offences appear to demonstrate an escalation in seriousness.

CSNSW records confirm on 1 November 22, Mr Medlin was found to have within his cell two gaol‑made weapons.”

56. Under “Attitudes” is the following:

“Mr Medlin demonstrated little insight into his own responsibility for his offending by claiming the offences were either fabricated or were perpetrated by the victim against him.

He stated his perception of the offences were consensual, and that each incident was ‘make-up sex’ given he claimed each offence occurred after arguments with the victim.

Although he had acknowledged he had been struggling financially as a result of residing separate to the victim and the decrease in his working hours, Mr Medlin denied coercing the victim to provide her PIN or that he had stolen her money.

Mr Medlin appeared preoccupied with his own feelings of victimisation, being unwilling to explore antecedents for his behaviour in the index offence.”

57. Under “Violence and aggression”, the following is recorded:

“Mr Medlin denied being an angry or an aggressive person and denied having ever been physically or sexually aggressive towards the victim. Mr Medlin’s history of convictions is suggestive that he has engaged in past problematic behaviour, contradicting his claims that he is not an aggressive person.

Mr Medlin referenced that the perception of his behaviour being violent as other people’s misconception.

Although he acknowledged he “may have been” verbally aggressive toward the victim, he attributed the victim’s behaviour towards him as a catalyst for any frustration he had demonstrated towards her.

The index offence exhibited threats of significant harm towards the victim, accompanied by intimidation, control, and violence over a prolonged period. Though Mr Medlin described his actions as ‘reactive’, they appear more instrumental.”

He was assessed as an above average risk of reoffending. It also states in the assessment of the specific risks to individuals - “The victim appears to have been the primary target with the risk of harm to children witnesses seemingly disregarded” - and that he “continues to harbour significant animosity towards her, as evidenced in the interviews.”

Justice Health records indicate that he has received a prior diagnosis of major depressive disorder and, as to his insight of the impact of offending, he denied any adverse impact on the victim as he purported the sexual offences to be consensual (and demonstrated little insight into the impact on his children by denying his own responsibility within the offending and attributing the victim’s own actions to the impact on the children).

Throughout the assessment process for sentencing, Mr Medlin primarily focused on the negative impact the arrest and subsequent legal matters have had on his own wellbeing, including being held in a custodial environment.

58. The end result in terms of the risk assessment was that he was said to have a medium-high risk of re-offending, according to the LSI-R.

The report also notes that he was last supervised by Community Corrections in 2004 and, as part of that program, he was to undertake the Sober Driver Program, which did not occur, once he had obtained full employment. The Community Service work order at the time was revoked, as the offender did not complete any required hours.

59. Throughout the assessment process carried out by Ms Moss, she states that his engagement with Community Corrections appeared to be borderline, particularly as he appeared resistant to acknowledging his own responsibilities for his offending and that, when elevated, he did on occasion present as aggressive and intimidating. All of that is consistent with how he has appeared in Court on various occasions.

60. I note that on 17 May 2024 when Mr Doyle was due to appear for him on sentence, the hearing commenced with Mr Doyle indicating that he sought to withdraw from the matter because he had seen the offender in the cells shortly before and he had been abused and threatened by the offender.

61. I am, of course, not sentencing Mr Medlin for abusing Mr Doyle or threatening him, but Mr Doyle was so concerned that he wished not to be in court when the offender was brought up. However, I required him to remain, and he was given leave to withdraw shortly after the offender came up. I note that, despite Mr Doyle’s fears as to what would happen when the offender was brought up to court, the offender, in fact, verbalised an apology for his earlier conduct.

62. By that stage, the offender was then unrepresented, Mr Doyle and his instructing solicitor also having been granted leave to withdraw. There then ensued a process of trying to convince Mr Medlin not to insist on being punished then and there for the offences for which he had been convicted. Fortunately - and I thank Legal Aid - they were able to step in on the day, see him in the cells and make arrangements for Mr Conwell to eventually appear for him on sentence.

63. I thank Mr Conwell for having taken on that task in what must have been difficult circumstances, considering that he had not appeared in the trial. I note that Mr Conwell provided submissions to the Court which are admirably concise and accurate, and of significant utility.

64. I note that the Crown stated in its submissions:

“Clearly, the offender has had a deprived background and, just as clearly, that background needs to be given full weight in his sentence in respect of his moral culpability. His psychological report discloses an unstable background of abandonment, alcohol and drug abuse, sexual abuse, an absent father figure, and exposure to offending behaviours like alcohol/drug use, domestic violence.”

65. I note that, from the psychological and/or psychiatric reports, it can be concluded that the offender suffers from a major depressive disorder as well as post-traumatic stress disorder. Mr Conwell relies on the Crown submission that I have just referred to.

66. I have read all of the psychiatric and/or psychological reports. There is nothing in those reports from which it could be concluded that his psychological or psychiatric condition was causative in relation to the offending. However, it is clear that his background brings into play, to some extent, the factors referred to in Bugmy, and that some amelioration of his moral culpability is available.

67. I note that Dr Roberts found that the offender suffered from post-traumatic stress disorder arising as a result of the sexual assaults that I previously referred to when he was at school, and also major depressive disorder which may be seen either as a component of PTSD or a distinct entity; a substance use disorder involving the drugs to which the doctor had made previous reference; and, potentially, a neurocognitive disorder not otherwise specified arising as a result of brain damage secondary to the substance use, and possibly a cardiac disorder as a consequence of substance use.

68. Dr Martin, who conducted the consultation on behalf of the DPP, referred to the history as given to Drs Dornan and Roberts as being generally consistent with the lifetime trajectory of instability, psychosocial deprivation, experience of abuse, neglect, early substance abuse, disrupted education and early behavioural disturbance. This is a presentation that is commonly seen among people in contact with the criminal justice system.

69. In my view, Mr Medlin gives a history consistent with complex post-traumatic stress disorder, substance use disorder, and the overall impression of a man with personality disordered traits: a negative world view, low self-esteem, a tendency to impulsivity, and emotional dysregulation.

70. There is, in the circumstances, in relation to those matters which went before the Court as defended, no evidence of remorse or contrition. As to those offences in respect of which there was a plea of guilty, being Counts 3, 4, 10, 11 and 12, in my view, they were pleas of guilty in the circumstances of acknowledging an almost inevitable result, particularly regarding Counts 10, 11 and 12, being the theft of the victim’s bank cards, et cetera, and his removing money from her account.

71. Counts 3 and 4, being the offences of intimidation, particularly in relation to his threat to burn the victim, splashing petrol around, flicking a lighter on and off, and otherwise putting a jerry can of fuel and a lighter next to the bed overnight, of which she had taken photographs, were also likely to be seen by the offender as inevitably matters that he would be convicted of.

72. It is a shame that he did not bite the bullet, as it might be said, in relation to the other offending, where, in my view, the Crown case was extremely strong, assisted also by the fact of the pleas of guilty that he did enter.

73. As to the question of rehabilitation, it is clear that, in order to reflect the purposes of sentencing as well as the serious nature of the offending, a substantial sentence must be imposed to reflect those matters.

74. As to the prospect of rehabilitation, in my view, that must be a very guarded prospect in the light of the material that has been supplied, and particularly in the light of the content of the psychological and/or psychiatric reports, and the fact that the offender continues to claim that he is not guilty.

75. Rehabilitation will only commence when the offender is able to acknowledge what he has done and the effect that it has no doubt had on his ex-partner and children. However, I accept that it cannot be said there is no prospect, considering that a substantial term of imprisonment must be imposed, and the likely period of parole may well assist in achieving some rehabilitation.

76. It is plain, from the conduct of this matter and its progress through the Court, that the offender has an unstable personality, and he will require assistance in the future to try and deal with that problem, as well as his drug addiction; although apparently in abeyance while in custody.

77. Despite the fact that he has now spent almost four years in custody I note that, in February 2023, he was found in possession of a drug; in December 2022, he was found to be preparing or manufacturing alcohol; and in November 2022, he was in possession of prohibited goods and, on the same occasion, in possession of an offensive weapon - referred to as two weapons in the Sentence Assessment Report.

78. I suppose one might say that, as he has been in custody for almost four years, that is not bad going if he has limited his breaches of the Department of Corrective Services regulations to so few; but, the possess drugs and the possess offensive weapon are matters that do not argue well for the future, particularly in the light of his comments in the psychiatric reports about preferring the friendships of his drug using friends.

79. I have taken all of those matters into account including, of course, the question of totality, concurrence and accumulation. There can be no discount in respect of the defended matters. In respect of the matters that he pleaded guilty to on the first day of the trial, the parties are in agreement that a 5% discount is appropriate, and I will apply that discount. Although I referred to the fact that the matters that he pleaded guilty to were left before the Court at trial on the basis that there was some dispute as to the facts, indeed, I note that during the course of the trial, there was in fact no dispute to the evidence given in relation to those matters and that Mr Doyle, appearing after trial when the matter first came back for sentence, accepted that there was no dispute in relation to those matters.

80. There was no actual dispute as to those facts. Accordingly, the 5% discount is appropriate. Section 25F(4) - (5) does not apply. I also note that it has been accepted by Mr Conwell that as submitted by the Crown, DPP (Cth) v De La Rosa [2010] 79 NSWLR 1 does not operate in relation to this matter to reduce his moral culpability or significantly reduce the weight attributed to general deterrence. I accept that considering in particular what I would simply describe as his difficult personality, his time in custody is more likely to weigh heavily on him than perhaps other more stable prisoners. I will deal with that by way of finding special circumstances. The offender’s various conditions, including the background of his previous drug use, have in my view had some indirect contextual contribution to the offending.

81. No particular evidence was placed before me in relation to the effect of COVID on the offender while in custody, but he was in custody throughout the period that COVID was raging in the community. It is inevitable that he has suffered some lockdowns within the custodial circumstances, and I will take that into account in terms of establishing an appropriate sentence even despite the lack of specific evidence. While I will find special circumstances as later expressed in order to make a variation between the non‑parole period and the balance of term, I will do so in the absence of any real evidence that any such variation is likely to lead to any particular form of rehabilitation considering what I have previously referred to.

82. I note in respect of Counts 10, 11 and 12 that the Crown’s basic submission is that they do not warrant full time imprisonment. As referred to earlier today, I do not accept that, particularly in respect of Count 12, which related to more than $900 being taken out of the complainant’s account ,being her government benefit. The offender was taken into custody on 1 December 2020 and any sentence to be imposed must start from that date. The prosecution provided a large bundle of cases of relevance. I have perused all of them. The prosecution also supplied the relevant JIRS statistics. I have not only perused those statistics; I have perused them directly on JusticeLink itself. I have found it a difficult matter in relation to which to determine an appropriate sentence, and I do propose to proceed by way of an aggregate sentence with some exception.

83. I will first of all provide the indicative sentences and indicative non‑parole periods where there is a standard non‑parole period relevant to the offence. The aggregate sentence to be imposed will cover all of the charges with the exception of Count 11 and Count 12 as previously discussed this morning. First of all, the indicative sentence in respect of Count 1, intentionally choke without consent - and sorry, I will just make it plainly obvious that in relation to all of the offences of violence against the complainant including the sexual assaults, in my view, there can be no conclusion other than that they were all in circumstances where the offender knew she was not consenting. I know I have said that in relation to some of them, but there has been a lot to cover.

84. As to Count 1, intentionally choke without consent, s 37(1A), the indicative sentence is one and a half years' imprisonment. As to Count 2, sexual intercourse without consent, s 61I, the indicative sentence is eight years with an indicative non‑parole period of five years. As to Count 5, sexual intercourse without consent, s 61I, the indicative sentence is again eight years with a non‑parole period of five years. As to Count 6, sexual intercourse without consent again, s 61I, the indicative sentence is seven years with a non‑parole period of four and a half years. In respect of Count 7, again sexual intercourse without consent, s 61I, the indicative sentence is again seven years with an indicative non‑parole period of four and a half years. As to Count 8, again sexual intercourse without consent, s 61I, the indicative sentence is eight years with an indicative non‑parole period of five years. In relation to Count 9, intentionally damage property by means of fire, s 195(1)(b), the indicative sentence is six months.

85. In relation to those matters that he entered pleas of guilty to, allowing for the 5% discount for the plea, Count 3, intimidate with intent to cause fear of physical or mental harm, s 13(1) of the Crimes (Domestic and Personal Violence) Act, the indicative sentence is two and a half years. In relation to Count 4, intimidate with intent to cause fear of physical/mental harm, again s 13(1) of the Crimes (Domestic and Personal Violence) Act, the indicative sentence is three years. In relation to Count 10, being larceny contrary to s 117 of the Crimes Act, the indicative sentence is five months imprisonment. In relation to Count 11, dishonestly obtain financial advantage by deception contrary to s 192E(1)(b), he is convicted, and I impose no further penalty. In respect of Count 12, dishonestly obtain financial advantage by deception contrary to s 192E(1)(b), the sentence is five months imprisonment to date from 1 December 2020 and expires on 30 April 2021. As to the offence contained on the s 166 certificate, contravene prohibition restriction in an AVO contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act, the indicative is one year of imprisonment.

86. As to the aggregate sentence, allowing for all of the matters that I have just referred to with the exception of Counts 11 and 12, the aggregate sentence is a term of imprisonment of 12 years with a non‑parole period of eight years. Accordingly, there is a parole period of four years. The sentence will commence on 1 December 2020. The non‑parole period of eight years indicates that he will be first eligible for parole on 30 November 2028. The balance of term is four years expiring on 30 November 2032. I have found special circumstances on the basis of it being his first substantial period of custody and the need, in my view, for him to receive, in the community, ongoing supervision in relation to his mental health and to assist him with rehabilitation. I have also taken into account the fact that for part of his period in custody, he has been affected inevitably by COVID.

87. I have also taken into account the concept of totality as referred to in Pearce and to an extent, the delay in this matter. However, the delay has been in general caused by the offender’s waxing and waning in relation to the course he wished to take and of course, the need for further reports to be obtained during the time that he was in custody, all of which was made much harder by the fact that COVID was delaying everything. That is, the ability of legal practitioners to consult their clients in custody and the ability of psychologists and psychiatrists to be able to consult with them as well, but the substantial part of the delay was really caused by the offender’s waxing and waning in relation to the pleas.

88. Now, is there anything significant that I have omitted, either Mr Conwell or Ms Winborne? I suppose, Ms Winborne, you may not be particularly in a position to comment ,since, to my memory, you haven’t been involved in this matter before.

WINBORNE: That’s correct, your Honour. I have little to add, unfortunately.

HIS HONOUR: All right, thank you. Mr Conwell?

CONWELL: Nothing from my part. Thank you, your Honour.

HIS HONOUR: All right. Thank you, Mr Conwell. I will say that I have frequently said that a good plea is a short plea and your written submissions, I found, were helpful particularly because they were concise and hit the relevant points accurately. I thank you, and also, I thank you for stepping in, in the circumstances where Mr Medlin was acting in his own worst interests, particularly in relation to Mr Doyle’s need to withdraw. Mr Medlin, do you need those dates repeated at all?

OFFENDER: No.

HIS HONOUR: All right, thank you.

MEDLIN SCHEDULE OF CHARGES (50492, docx)

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Decision last updated: 07 February 2025