R v Mercuri de Figueiredo

[2022] NSWDC 67

District Court

New South Wales

Medium Neutral Citation:

R v Mercuri de Figueiredo [2022] NSWDC 67

Hearing dates:

17 February 2022

Date of orders:

18 March 2022

Decision date:

18 March 2022

Jurisdiction:

Criminal

Before:

Mahony SC DCJ

Decision:

Full time custodial sentence. For orders see [84].

Catchwords:

CRIME – administer intoxicating substance with intent to commit indictable offence – sexual touching of another person without consent – attempted sexual intercourse without consent – principle of totality.

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Crimes Act 1900

Cases Cited:

Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41

R v Edwards (1996) 90 A Crim R 510

R v Grech [1999] NSWCCA 268

R v Holder; R v Johnstone (1983) 3 NSWLR 245

R v King [2009] NSWCCA 117

R v Van Ryn [2016] NSWCCA 1

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
Romolo Mercuri de Figueiredo (Offender)

Representation:

Counsel:
A. Hughes (Crown)
J. Ellis (Offender)

Solicitors:
H. McMillan (Crown)
B. Barnes (Offender)

File Number(s):

20/177851

Publication restriction:

Pursuant to s 578A of the Crimes Act 1900 it is an offence to publish any matter which identifies the complainant or any matter which is likely to lead to the identification of the victim.

REMARKS ON SENTENCE

1. On 20 August 2021 following a Judge alone trial, the offender was found guilty of the following three offences:

1. Count 1 – administer intoxicating substance with intent to commit indictable offence.

This is an offence pursuant to s 38(a) of the Crimes Act 1900. The maximum penalty prescribed is 25 years imprisonment.

2. Count 2 – sexual touching of another person without consent.

This is an offence pursuant to s 61KC(a) of the Crimes Act 1900. The maximum penalty prescribed is 5 years imprisonment.

3. Count 3 – attempted sexual intercourse without consent.

This is an offence pursuant to s 61I of the Crimes Act 1900. The maximum penalty prescribed is 14 years imprisonment and there is a standard non parole period prescribed of 7 years imprisonment.

2. The offences occurred between 25 and 26 April 2020. The offender was arrested on 15 June 2020 and remained in custody following his arrest until 17 September 2020, a total of 95 days. Since the verdict, he has spent 162 days in custody up until the sentence hearing, and it was agreed that any sentence should be backdated to commence on 22 May 2021.

The sentence hearing

3. The sentence hearing took place on 17 February 2022. The Crown Sentence Summary became Exhibit A and it included a copy of the Indictment, together with a copy of my judgment on verdict dated 20 August 2021. It also included the offender’s custodial record and a statement confirming that the offender had no criminal convictions in New South Wales.

4. The facts upon which the offender is to be sentenced are therefore to be derived from my judgment on verdict. These remarks should therefore be read with that judgment, and the following is an extract of my findings of fact in the trial:

“I find that it was the accused who made contact through Facebook with the complainant and once that contact was accepted on 13 April, the accused was the persistent driver of their communications, which became a barrage of messaging. It was the accused who initiated talk about sex in the first instance and the accused sent the complainant a message on 16 April 2020 with sexual connotations, namely, “I’m touching myself”.

…

I find that the complainant blocked the accused on Facebook on 22 April until 25 April 2020. I further find that the accused’s evidence that on 22 April 2020 the complainant called him and was talking about sex with him, during which call they engaged in mutual masturbation, was untruthful.

…

I find that it was the complainant who contacted the accused on 25 April 2020 asking whether he knew of a doctor as she was feeling unwell. That led to the arrangement for him to pick her up that evening and for her to forward to him the photo in Exhibit 4.

I do not accept the accused’s evidence that the complainant was carrying two bottles of beer and had a bottle of wine in her bag, which she consumed upon arrival at his apartment. Whilst the complainant may have been mistaken about the size of the bag she was carrying on that night, that does not establish the contents of the bag. Rather, I find that the accused overstated her consumption of alcohol both to the police and in his evidence so as to cast doubt on the complainant’s version of events.

I find that following arrival at the accused’s apartment in Waterloo, he provided her with a glass of wine which he re-filled when she went to the bathroom. I further find that the accused consumed alcohol combined with MDMA throughout the night, as he admitted in his evidence and as confirmed in his message to Mr Guilherme the next day, i.e. “lots of drugs yesterday.”

I also find that he provided her with a caipirinha at approximately 10pm that evening and that he himself had a caipirinha.

I find that the complainant became unwell and at some time before 2:25am, she went to the bathroom in the accused’s apartment and observed her eyes to be dilated. Following that, I find that the complainant confronted the accused and he admitted that he had placed MDMA in her drink. At 2:25am on 26 April 2020, the complainant responded to an earlier message she had received from Luis Rozas, during which she told Mr Rozas that she had been drugged on purpose, that the drug had been put in her wine, that she realised straight away and went to the toilet where her pupils had dilated. At 3:02am she told Mr Rozas that it was MDMA which she had been given. She later told Mr Rozas that the drug had been mixed with alcohol.

I find that the complainant passed out or lost consciousness in the early hours of the morning between 3:03am and approximately 4:00am on 26 April 2020 at the accused’s apartment. I further find that when she awoke the accused was on top of her and that her jeans and underwear had been pulled down to her thighs and her vagina was exposed. I also find that her top had been pulled up and her chest exposed. I further find that the accused was wearing jeans and the zipper was undone.

Later that day she had a further conversation by message with Mr Rozas in which he advised her to go to the hospital so she could be tested, to which she replied, “I want to, but I think it will be expensive for me.”

I find that the complainant engaged in the Facebook messages with the accused after 26 April for the purpose of getting him to admit in writing that he had put MDMA in her drink. At no time did he do so, rather, he deflected the assertion for various reasons. At no time did he suggest that the MDMA was placed in his own drink and that she accidentally consumed it.

I find the accused made admissions in the pretext call on 11 June 2020 as to the use of MDMA, and again at no time did he suggest that he had placed the drug in his own drink and that she had accidentally consumed it.

I find the complaints made by the complainant to Luis Rozas and, to a lesser extent, to Barbara Moyano, lend support to the complainant’s version as to what occurred at the accused’s apartment on 25 and 26 April 2020.

Having regard to the whole of the evidence, I find that the accused placed MDMA in the complainant’s drink on the evening of 25 April 2020. I find that the MDMA was placed in her glass of red wine after they arrived at the accused’s apartment, some time after 8:00pm. That is what the accused told the complainant in the early hours of the morning of 26 April, and that is what she reported to Luis Rozas that morning. I find that the accused’s evidence that he placed his MDMA in the caipirinha he prepared for himself, and subsequently left that caipirinha on the balcony with the complainant whilst he went inside and showered, and that she, having finished her own drink then consumed his, was implausible evidence fabricated to exculpate him from any wrongdoing. I therefore find it was not a reasonable explanation consistent with his innocence of the alleged offences. Moreover, I reject the submission made on behalf of the accused that he consistently denied the allegation in all of the communications he had with the complainant following the incident until 13 May 2020 and in the pretext phone call on 11 June 2020.

Whilst the accused may have had a reason for lying to police in order to avoid a criminal conviction resulting in deportation from Australia, I reject the submission made on his behalf that that was a valid reason to lie. Rather, the real reason for his lies to police was to avoid implication in the alleged offending. As outlined above, a number of those lies were relevant to the alleged offending, amounting to a complete denial thereof and I find were made because he feared that telling the truth would reveal his guilt in respect of the offences.

The act or acts relied on by the Crown to establish the offence in Count 3 are found in the evidence of the complainant, namely, that she woke to find the accused on top or in front of her and that he was pulling down her jeans and underwear which were halfway down her thighs. Her blouse was also pulled up and her chest was exposed. The Crown case is that those acts were immediately connected with the commission of a crime, namely, sexual intercourse without consent knowing that she was not consenting, and that they cannot be regarded as having any other purpose. I accept the complainant’s evidence that those acts occurred.”

5. Exhibit B was a Sentencing Assessment Report (‘SAR’) under the hand of Ms J. Priest dated 18 October 2021. That report noted that the offender, who was born on 21 August 1987 came to Australia in 2020 on a two year student visa. He studied project management for one year and then worked part time in the construction industry. Due to his family’s financial issues in Brazil, he would transfer any savings he accrued in Australia back to his family.

6. Under the heading “Attitudes”, the author noted that the offender categorically denied the offending conduct, claiming there was a “misunderstanding” between himself and the victim. He alleged that the victim lied to police and claimed that what occurred was in the context of a “date” and at no time did he engage in any sexual behaviour that was not consensual. He adhered to his defence at trial, namely, that he had put MDMA in his own drink and the victim had inadvertently consumed the drug by drinking from his glass while he was not in the room.

7. The offender told the author of the report that he was using drugs frequently, including on the evening of the offending conduct on 25 April 2020. He was assessed using the Static-99R actuarial assessment as being an average risk of sexual recidivism.

8. Under the heading “Insight into Impact of Offending”, the author noted that the offender did not articulate any impact on the victim, rather, he was adamant that the main victim of the offending was himself. The author took a mental health history in which the offender reported that he had been diagnosed with schizophrenia in Brazil, however, he had ceased his medication on his arrival in Australia. On 5 October 2021, he had attempted suicide and had been placed under the care of the Risk Intervention Team (‘RIT’) within Parklea Correctional Centre. On 9 October 2021, his condition stabilised and he was placed in the protection area of the gaol. He had expressed suicidal ideation on 12 October 2021 and was again placed under the auspices of the RIT for close observation. He was returned to the protection area of Parklea Correctional Centre on 18 October 2021.

9. The offender was assessed as a Medium Low risk of reoffending. Annexed to the SAR was a case note report from NSW Department of Corrective Services. That document set out the history of the offending, the offender’s risk assessment and a number of recommendations for management of his mental health and substance abuse issues.

The offender’s evidence

10. The offender relied on a report from Dr Paul Pusey dated 20 January 2022. Dr Pusey is a clinical psychologist who assessed the offender on 18 November 2021 via AVL. He had been qualified with a copy of the Indictment, the Crown Case Statement and the judgment on verdict. Dr Pusey noted that the offender denied his guilt in relation to the offences, stating that he was not guilty, that it was a misunderstanding and that the victim took the drug by accident and had used this as a weapon against him. He admitted that he was using drugs at the time “as usual”, but that they “were just on a date”.

11. Dr Pusey took a psychosocial history. The offender had grown up in Brazil and had left school halfway through secondary school when he was about 16 years old. Following his arrival in Australia, he enrolled in a project management course, but had not completed that course because he didn’t get the grades required to progress. He started using drugs but obtained employment in construction three days per week.

12. The offender told Dr Pusey that he was in a relationship which had commenced in May 2020. He had the support of his partner.

13. Dr Pusey took a history that at the time of the offending conduct, the offender was using ice, MDMA and alcohol and his use of substances fluctuated between daily use and use multiple times per week.

14. Under the heading “Medical and Psychiatric History”, Dr Pusey set out the offender’s progress since he was taken into custody. He had struggled due to the periods of quarantine, isolation and lockdowns caused by the COVID-19 pandemic and both his physical and psychological health had suffered. He disclosed that he tried to commit suicide on 4 July, following a bashing he received by his then cell mate. He reported the prisoner, but was subsequently placed in the same wing with that prisoner and believed that he was in a threatening environment and given no protection. He told Dr Pusey of a subsequent attempted suicide. Dr Pusey provided a diagnosis that at the time of the offending conduct, on the basis of the information he provided, the offender would have met the diagnosis of Substance Use Disorder and also a diagnosis of a mood disorder, “most likely one of a Major Depressive Disorder”, based upon the consideration that the Substance Use Pathology he reported experience of reflected a behavioural response to his mood pathology. Dr Pusey was of the opinion that he currently met the diagnostic criterion for a Major Depressive Disorder and for Post-Traumatic Stress Disorder. The basis for this was his incarceration, his involvement with the criminal justice system and his adherence to his denial of the offending, together with being assaulted during his incarceration.

15. Dr Pusey opined that the offender’s current risk of recidivism was low, however, “it is difficult to decouple any assessment of this risk from his continued denial of his guilt, in addition to the lack of engagement in treatment with respect to his substance use, or the factors which have contributed to its onset and maintenance”.

16. To address those matters, Dr Pusey set out an appropriate treatment pathway.

17. Exhibit 2 was a bundle of clinical records from Justice Health which set out his history of medical intervention whilst in custody. It confirmed the incidents of assault and suicide attempts referred to in Dr Pusey’s report.

18. Exhibit 3 was a translation of a letter received from the offender’s mother. She described him as growing up in a “religious, respectful family” and that both his parents have serious health issues. They had lost the monetary support he had provided to the family from Australia. She expressed certainty that he will not commit any type of offence again.

The offender’s oral evidence

19. The offender gave evidence that he was 35 years of age and this was his first time in custody. He had been transferred between four correctional facilities and had no physical visits. The offender confirmed that whilst at Silverwater Correctional Centre, he was the victim of an assault by his cell mate which he reported to Corrective Services. When asked to be placed under protection, that did not happen, and he was subsequently transferred to Parklea Correctional Centre where he was put in a wing with the same prisoner. He gave evidence of the injuries he received in the assault, and said that he had been assaulted on more than one occasion.

20. The offender gave evidence that he was on anti-depressant and anti-psychotic medication whilst in custody. Following his attempted suicide, he was transferred to a mental health facility, following which he was moved to protection. Whilst there, he was the victim of a sexual assault by another inmate, and had reported that assault to police. It was currently being investigated.

21. The offender gave evidence that he did not feel safe, even in protection. He had attempted suicide for the second time three weeks ago and was now in a special ward because of that attempt.

22. The offender gave evidence that whilst he was working in Australia, he sent money regularly to his family in Brazil. He wanted a better life for his family and would send anywhere between $500 and $2,000 a month to them.

23. The offender gave further evidence that in the period leading up to the offending conduct in April 2020, he had been using MDMA and he was depressed. At the time, he had separated from his ex-wife and had also lost his best friend, who had died about two months prior.

24. The offender gave evidence in relation to the offences, stating that he didn’t plan to put drugs in a glass of wine for the victim to drink. He had no intention of doing so at the time he picked her up from her home. He gave further evidence that he had already consumed MDMA and alcohol, and was “high already” when she “drank wine with the drug in it from my glass”.

25. In cross-examination, the offender agreed that by his last answer, he maintained the evidence he had given at trial, namely, that the victim had consumed the drug accidentally. It was put to him that he did not take any responsibility or acknowledge his criminal conduct, to which he replied, “I do. I am sorry for what happened.” He agreed, however, that he did not accept that he put the drug in the victim’s glass at all. There was no re-examination.

The Crown submissions

26. The Crown relied on a detailed written outline of submissions which set out well established principles of sentencing. The Crown submitted that the offence in Count 1 had the most significant penalty, reflecting the seriousness of the deliberate steps involved in incapacitating the victim in order to commit the offences in Counts 2 and 3. However, the standard non-parole period prescribed in relation to Count 3 also had a significant bearing on the appropriate penalty.

27. The Crown submitted that the offender embarked upon a deliberate course of conduct pursuing the complainant over a long period of time between 13 April and 25 April 2020. At the first opportunity, he had used drugs to overcome her resistance and attempted to sexually assault her. The Crown disputed the offender’s characterisation of the offending as “opportunistic”, as it was based on the account of the accused, which had been rejected by the court.

28. The Crown withdrew a submission that the offence was aggravated by the fact that it was committed in the home of the accused, pursuant to s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (‘CSPA’).

29. The Crown submitted that Counts 2 and 3 involve the use of a narcotic drug, which required consideration of s 21A(cb) of the CSPA. As this aspect of the offending was already covered by Count 1, it should not be used to aggravate Counts 2 and 3, lest there be double counting. It did, however, underscore the extent to which there should be some accumulation between the three counts on the Indictment, “in order to recognise the discrete aspects of the offending covered by the different counts”.

26. Notwithstanding that there was no Victim Impact Statement, the Crown submitted that the courts had recognised that sexual assault offences, of their very nature, cause significant harm, referring to R v King [2009] NSWCCA 117 at [41]. The victim here had given evidence at trial as to the impact of the offending on her.

27. The Crown submitted that the offender had shown no remorse and had continued to deny his offending conduct. Further, whilst he had suffered a Substance Use Disorder at the time of the offences, there was no evidence to suggest that this contributed to the commission of the offences in a material way.

28. With respect to the offender’s risk of reoffending, the Crown referred to Dr Pusey’s qualification of the assessment of this risk, noting the difficulty of decoupling any risk assessment from the offender’s denial of guilt.

29. The Crown accepted that the offender’s mental health conditions have a bearing upon the issue of special circumstances.

30. The Crown set out relevant principles relating to the application of the principle of totality, and in particular, referring to Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 per Howie J at [27], the Crown submitted that the offences were all committed during the course of a single evening. However, the administration of an intoxicating substance offence captured a distinct aspect of the offending which would otherwise be an aggravating feature of the other offences. The maximum penalty of that offence illustrated its significant gravity. Count 3 was also of similar gravity, given its maximum penalty and the standard non-parole period prescribed. The Crown submitted there should therefore be a substantial degree of accumulation between the counts on sentence.

31. In his oral submissions, the Crown confirmed the calculation of the offender’s time in custody of 257 days, which led to a commencement date of any sentence being 22 May 2021.

32. With respect to assessing the objective seriousness of the offending, the Crown rehearsed his submission that the offender had embarked on a deliberate course of conduct, pursuing the victim from the 13^th of April. It was significant that on the first occasion they met, the offender had used drugs to overcome the victim’s resistance to him. The Crown submitted this was not opportunistic, but involved a degree of planning. This was demonstrated by the communications that had taken place between them in which the offender had turned the subject matter towards that of a sexual encounter. The Crown submitted it could not be properly characterised as opportunistic, but was planned over a two week period and that increased the objective seriousness of the offending.

33. The Crown submitted that the offending in Counts 2 and 3 were not at the lowest end of the scale as submitted by the offender. In particular, in respect of Count 3, the offence of attempt sexual intercourse without consent was no less serious than the principal offence. Further, at no time had the offender desisted from his attempt, and it was only because the victim came to her senses that the offence was that of attempt. The Crown submitted that if she had remained unconscious, sexual intercourse would have occurred.

34. In respect of Count 2, the Crown conceded that the sexual touching involving kissing was towards the lower end of the range of objective seriousness for such an offence.

35. The Crown rehearsed its submissions as to the need for accumulation in sentence between the three counts, and that a finding of substantial harm should be made, given the sexual nature of the offending, relying on R v Grech [1999] NSWCCA 268.

36. The Crown referred to the offender’s oral evidence, which established his lack of remorse and lack of insight into his offending. It demonstrated that he sees himself as the victim.

37. The Crown referred to the opinion of Dr Pusey that the offender suffered a Substance Use Disorder and submitted that this did not contribute in any material way to the offending conduct. It did, however, bear on his attitude towards drug use and was not a mitigating factor. The Crown also referred to the limitations placed on the Static 99-R assessment of recidivism, which showed the offender as a medium risk.

The offender’s submissions

42. Counsel for the offender also relied on a detailed and thorough written outline of submissions. In assessing the objective seriousness of the offending in Count 1, counsel recounted the communications that took place between the offender and victim on Facebook in the two weeks prior to the offending and that the communications ceased after the offender sent the victim a message stating, “I’m touching myself”. However, it was the victim who re-contacted the offender on 25 April and agreed to meet with the offender that night to discuss alternative accommodation. It was submitted that the offender was led to believe that the victim was interested in him and that he was picking her up from her house to go “on a date” rather than to discuss accommodation. Counsel repeated a submission made at trial, namely, that the photo the victim sent the offender of herself on a balcony was clearly suggestive and led the offender to believe that the victim was agreeing to a romantic date, rather than a friendly encounter. It was submitted that this explained why the offender might have become “over-excited or reckless during the evening”.

43. It was submitted that the circumstances in which they consumed wine led the offender to consume alcohol and use MDMA for himself which, it was submitted, “in turn, led to impulsivity, lack of insight and poor decision making”.

44. It was submitted that the offending was not planned, but rather opportunistic and isolated. The kissing was spontaneous and at the very low end of objective seriousness.

45. Counsel submitted that administering the MDMA was not premeditated, stating, “The offender himself was using MDMA at the time when he put the drug in her glass, and was already intoxicated and under the influence of the drug.”

46. Counsel submitted that the offender at the time was in a vulnerable mental state in that he was going through a divorce and was a foreign national in the country. Further, the COVID-19 pandemic had made him “more lonely, vulnerable and desperate for social and/or romantic relationships.” It was submitted the offender’s state of mind would reduce his moral culpability and lessen the need for personal deterrence.

47. It was submitted that the court will not find the fact that the offence involved causing the victim to take the drug will aggravate the offence pursuant to s 21A(2)(cb), as that fact was an element of the offence under s 38(a). The offender thus agreed with the Crown submission to that effect.

48. It was submitted that the offences did not cause any substantial injury or loss to the victim. The physical and psychological effects of being drugged were no more than the effects ordinarily expected for an offence of that type.

49. In relation to Count 3, it was submitted the court would also find the offending opportunistic. It was submitted there was no violence or coercion and no evidence that the offender “touched” the chest or vagina of the victim. The acts were preparatory to the principal offence and it was submitted the offending was at the lowest end of the range of seriousness.

50. Counsel submitted that the objective seriousness in Count 1 was below the mid-range, and that Count 2 and 3 were at the lowest end of the spectrum for offences of these types. Further, the offences in Counts 2 and 3 did overlap with the offence in Count 1 in that the latter enabled the commission of the former two. Applying the principle of totality, there would be significant concurrency between the respective sentences.

51. The offender relied on the report prepared by Dr Pusey for the offender’s family and subjective background. It was submitted that he was a person of good character and that his risk of recidivism is low. The offender had been under strict and onerous bail conditions following his release from custody on bail, which he had never breached.

52. Counsel submitted that the court would make a finding of special circumstances under s 44(2) of the CSPA based on the fact that it was the offender’s first time in custody, the conditions of custody were more onerous as a result of COVID-19, including lockdowns and lack of visitation, and the offender’s physical and mental health made his incarceration particularly difficult. It was further submitted that the fact of his incarceration meant he could not work, which would cause some financial hardship to his family in Brazil.

53. The offender set out a list of sentencing judgments relating to offending under s 38(a) of the Crimes Act, as guidance for the sentencing of the offender.

54. In her oral submissions, counsel for the offender rehearsed her submissions as to the objective seriousness of the offending. In respect of Count 3, the offence of attempt to commit sexual intercourse without consent, the court would not accept the Crown submission that had the victim not come to her senses, the offending would have been more serious. It was submitted this was based on speculation and, in any event, it may have involved more serious offending or the offender being charged with a further offence.

55. It was submitted that the offending was not planned or premeditated and the evidence given by the offender was the only evidence to that effect, which had not been challenged in his cross-examination. Thus, there was no evidence that the offender’s behaviour was planned.

56. Whilst the Crown had relied on the communications that had taken place in the two weeks prior to the offending to submit that the offender had embarked on a deliberate course of conduct, those communications had actually stopped and were stopped by the victim after the offender had expressed sexual interest in her. Thereafter, it was the victim who contacted the offender about a doctor that led to the relationship continuing. It was submitted the Crown submission was not supported by evidence that, at the time of the offending, the offender had a sexual interest in the victim. Notwithstanding that, counsel submitted, “He told her from the outset he was sexually interested in her.” It was, however, only after she contacted him that they went on a date and thus the evidence did not support the Crown’s contention that the offending was premeditated.

57. Counsel submitted that it was not an aggravating factor that the offending occurred in the home of the offender.

58. Counsel further submitted that there was no evidence of substantial harm to the victim here. The Crown’s reliance on R v King (supra) was misconceived, as that was a case involving child sexual assault. Here, any harm to the victim did not exceed the harm ordinarily suffered by a victim as a result of this type of offence.

59. Counsel submitted there was a clear link between the offender’s state of mind, his substance use disorder and the offending conduct. The court would accept the evidence of the offender that he was suffering depression for two reasons, namely, the divorce from his wife and the death of his friend. He was using drugs to self-medicate. Further, the offending occurred at the start of the first lockdown due to the COVID-19 pandemic in Sydney. It was submitted that both the offender and victim were in a vulnerable state of mind. In the circumstances, the offender’s consumption of drugs and alcohol impaired his capacity for rational judgment.

60. Counsel submitted that whilst the offending in Count 1 was the most serious offence, immediately after it occurred he had admitted to the victim that she had consumed MDMA. Whilst he does not admit that he did it on purpose, this diminishes his moral culpability for the offending. Further, in respect of Count 3, there was no violence or coercion involved.

61. Finally, counsel submitted that on the basis of the offender’s subjective case, the court would make a finding of special circumstances.

Determination

62. Section 3A of the CSPA sets out the purposes of sentencing as follows:

“3A    The purposes for which a Court may impose a sentence on an offender are as follows:

(a)    To ensure that the offender is adequately punished for the offence,

(b)   To prevent crime by deterring the offender and other persons from committing similar offences,

(c)   To protect the community from the offender,

(d)   To promote the rehabilitation of the offender,

(e)   To make the offender accountable for his or her actions,

(f)   To denounce the conduct of the offender,

(g)   To recognise the harm done to the victim of the crime and the community.”

63. In assessing the objective seriousness of the offending in Count 1, notwithstanding that the offender pursued the victim during their Facebook communications from 13 April 2020, I do not accept the Crown submission that this involved a deliberate course of conduct resulting in the offending in Count 1. Rather, their communication had been interrupted at the behest of the victim until the victim recontacted the offender on 25 April 2020 and agreed to meet him that evening. The offending was borne of the offender’s own drug abuse, which I find led him to place MDMA in the victim’s wine. In assessing the objective seriousness of the offending, it is irrelevant, as was submitted on behalf of the offender, that he was led to believe that the victim was interested in him or that the victim had sent the offender a photo of herself on the balcony which was “clearly suggestive and led the offender to believe that the victim was agreeing to a romantic date, rather than a friendly encounter”. Placing a prohibited drug in the drink of the victim so as to render her unconscious was serious criminal conduct. Having regard to the whole of the circumstances, however, this conduct fell below the mid-range of an offence pursuant to s 38(a) of the Crimes Act, which section covers a wide range of offending involving administering an intoxicating substance to another person, with intent to commit a range of indictable offences of differing seriousness, indicated by the maximum penalties prescribed. The offending conduct here fell within the middle of the low range for such an offence, however it still constituted serious criminal conduct, and substantial moral culpability for the offending.

64. I am not satisfied that the offence was part of a planned or organised criminal activity, so as to aggravate the offending pursuant to s 21A(2)(n) of the CSPA. Rather, it was opportunistic offending, which arose from the offender’s own consumption of MDMA.

65. I find the objective seriousness of the offending in Count 2, namely, kissing the victim, was at the lower end of the scale of objective seriousness for an offence pursuant to s 61KC(a) of the Crimes Act. The evidence at trial established that the offender had grabbed the victim on the shoulder and kissed her on the mouth, that she pushed him away, and was feeling dizzy so she went to the bathroom. The offender’s evidence that the kissing was consensual was rejected on the basis that, as a result of her being drugged, her consent was not given freely and voluntarily.

66. The objective seriousness of the offending in Count 3, the offence of attempted sexual intercourse without consent, pursuant to s 61I of the Crimes Act 1900, was serious criminal conduct, whereby the offender drugged the victim to a state of unconsciousness and had removed her clothes to expose her chest and genitalia. I am, however, careful to ensure there is no double counting with respect to administering the MDMA. Section 61I covers a wide range of sexual assault without consent and having regard to the whole of the circumstances here, the offending fell below the mid-range for an offence pursuant to that section, and in the middle of the low range for that offence.

67. Given the offending in Count 1, I do not take into account the fact that the victim was affected by a narcotic drug as an aggravating factor pursuant to s 21A(2)(cb) of the CSPA, so as to avoid double counting.

68. I am unable to find that the offences in Counts 2 and 3 were premeditated. They both constituted opportunistic offending, which took place over a relatively short period of time.

69. I accept the Crown submission that an aggravating factor pursuant to s 21A(2)(g) was that the injury and emotional harm caused by the offending conduct was substantial. It has long been recognised that sexual offending can have deleterious psychological impacts on victims, which may last a lifetime. To accept the offender’s submission that any harm caused was no more than what one would expect to arise from offending of this type is to entirely depersonalise the impact of the offending conduct. I accept the evidence given at trial by the victim of the immediate physical impact of the offending conduct on her and further accept that any emotional harm was substantial.

70. Given his denial of offending conduct, the offender has shown no remorse.

71. General deterrence is important in sentencing for offences pursuant to s 38 of the Crimes Act and also for sexual offending such as those in Counts 2 and 3. The fact that Parliament has prescribed lengthy terms of imprisonment as maximum penalties for the offences in Counts 1 and 3 indicates this. A clear message must be sent to likeminded persons of the community that offences of this kind are unacceptable, and that the court will impose condign punishment in appropriate cases. I do not accept that the offender’s underlying depression materially contributed to his offending so as to warrant a diminution of the weight to be given to general deterrence or specific deterrence in the sentencing process here. I also reject the submission at [42] above, that by sending a photo of herself in a bikini the victim caused the offender to become “over-excited or reckless during the evening”.

72. I accept that the offender had a Substance Use Disorder and was depressed at the time of the offences. However, I am not persuaded that either of those conditions contributed to the commission of the three offences in any material way. Rather, they were borne out of and arose from his intoxication by way of alcohol and MDMA on the night in question. Pursuant to s 21A(5AA), such self-induced intoxication of an offender at the time of offending is not to be taken into account as a mitigating factor.

73. I do not accept the submission made on behalf of the offender that at the time of this offending at the start of the first lockdown due to the COVID-19 pandemic in Sydney, both the offender and victim were in a vulnerable state of mind.

74. I have had regard to the report of Dr Pusey in respect of the offender’s family and subjective background. I note that the offender had been diagnosed in Brazil as suffering schizophrenia, but was un-medicated following his arrival in Australia. I find there is no causal link between his mental health and the offending conduct. I accept, however, as a mitigating factor that he was previously a person of good character pursuant to s 21A(3)(f).

75. Given the offender’s denial of guilt, any assessment of his prospects for rehabilitation must be extremely guarded. I accept, however, that he is a medium low risk of reoffending.

76. The fact that the offender has been unable, since his incarceration, to send money back to his family in Brazil for their welfare does not amount to hardship on a third party so as to justify leniency in sentencing. Such hardship is the unavoidable consequence of the offender’s criminal conduct and could not be characterised as being “highly exceptional” so as to mitigate any sentence imposed – see R v Edwards (1996) 90 A Crim R 510 per Gleeson CJ at 515.

77. I have taken into account the maximum penalties prescribed by Parliament of 25 years imprisonment for Count 1, 5 years imprisonment for Count 2 and 14 years imprisonment with a standard non-parole period of 7 years imprisonment for Count 3 as guideposts in the sentencing process.

63. Having considered all possible alternatives, no penalty other than imprisonment is appropriate for the offending here. I propose to impose an aggregate sentence pursuant to s 53A of the CSPA. So as to provide transparency in the sentencing process, I provide the following indicative sentences for each of the individual offences:

1. Count 1 – offence pursuant to s 38(a) of the Crimes Act 1900 – four years imprisonment.

2. Count 2 – offence pursuant to s 61KC(a) of the Crimes Act 1900 – six months imprisonment.

3. Count 3 – offence pursuant to s 61I of the Crimes Act 1900 – two years imprisonment with a non-parole period of 18 months imprisonment.

79. I find special circumstances pursuant to s 44(2) of the CSPA having regard to the offender’s mental health issues and the fact that this is his first time in custody.

80. I have had also regard to the onerous conditions in custody caused by the COVID-19 pandemic. Also, the offender’s mental health issues mean that the custodial sentence will be more onerous for him than the rest of the prison population. His evidence at the sentence hearing demonstrates that he has already been subject to assaults, including a sexual assault, and is not coping well in the prison environment.

81. I have had regard to the principle of totality in sentencing. It is clear that in aggregating the sentence, the principle of totality applies, and there must be some accumulation of sentences. Any aggregate sentence must be “just and appropriate” to the totality of the offending behaviour. In R v Van Ryn [2016] NSWCCA 1, the Court of Criminal Appeal had regard to the following summary of the correct approach to the assessment of sentence for multiple offences, with proper regard to the totality of the criminality involved:

“[228] Street CJ described the principle of totality in sentencing in R v Holder; R v Johnstone (1983) 3 NSWLR 245 at 260 as follows:

The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently, a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation, a sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.”

82. The Court went on to emphasise the need to maintain public confidence in the administration of justice when sentencing for multiple offences, and also referred to the judgment of Howie J in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27]:

“There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

83. Applying those principles, there must be some accumulation on sentence for each of the offences here, notwithstanding that they arose from the same course of conduct. I intend to impose a sentence of four years and six months imprisonment, with a non-parole period of two years and three months, commencing on 22 May 2021.

Orders

84. I hereby make the following orders.

1. You are guilty of the following offences:

Count 1 – administer intoxicating substance with intent to commit indictable offence, pursuant to s 38(a) of the Crimes Act 1900.

Count 2 – sexual touching of another person without consent, pursuant to s 61KC(a) of the Crimes Act 1900.

Count 3 – attempted sexual intercourse without consent, pursuant to s 61I of the Crimes Act 1900.

2. I sentence you to an aggregate sentence pursuant to s 53A of the Crimes Sentencing Procedure Act 1999 of four years and six months imprisonment, with a non-parole period of two years and three months, to commence on 22 May 2021 and to expire on 21 August 2023.

3. The balance of term will be a period of two years and three months, expiring on 21 November 2025.

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Decision last updated: 21 March 2022