R v MK

[2022] NSWDC 566

District Court

New South Wales

Medium Neutral Citation:

R v MK [2022] NSWDC 566

Hearing dates:

Wednesday 3 August 2022

Date of orders:

Monday 8 August 2022

Decision date:

08 August 2022

Jurisdiction:

Criminal

Before:

Tupman DCJ

Decision:

The offender is convicted.
He is sentenced to a non-parole period of 2 years with parole thereafter of 2 years giving rise to an overall term of imprisonment of 4 years.

Catchwords:

CRIME — Sexual offences — Aggravated sexual assault — In company — Maximum sentence of 20 years — Found guilty by a jury on one count — penile vaginal intercourse — Victim was either 16 or 17 years old at the time the offence was committed — Co-offender is the sister of the victim and was the partner of the offender — Co-offender gave evidence at trial — Objective criminality falls below the mid-range — Offender does not demonstrate remorse or contrition — Offender maintains his innocence — Victim Impact Statement provided and taken into account.

Legislation Cited:

Bail Act 2013 (NSW): s 22B;

Crimes Act 1900 (NSW): s 61J;

Crimes (Sentencing Procedure) Act 1999 (NSW): s 3A;

Evidence Act 1995 (NSW): ss 66, 108(3).

Cases Cited:

Manojlovic v R; R v Manojlovic [2020] NSWCCA 315

Category:

Sentence

Parties:

Regina (The Crown)
MK (The Offender)

Representation:

Counsel:
Ms. N. Keay (The Crown)
Mr. S. Corish (The Offender)

Solicitors:
Mr. D. Rideaux (The Offender)
Mr. G. Gaynor (The Crown)

File Number(s):

2019/0017447

Publication restriction:

Section 578A of the Crimes Act 1900 (NSW) applies: There is to be no publication of anything which may identify the complainant in this matter.

Judgment

1. HER HONOUR: This is the sentence judgment in the matter of MK. The offender is before the Court for sentence after being found guilty by a jury on 23 June 2020 on count 1 in an indictment dated 27 July 2021. Count 1 is a charge contrary to s 61J of the Crimes Act 1900 (NSW) namely that between 1 June 2006 and 1 February 2007 at Cooma he had sexual intercourse with the named complainant without her consent in circumstances of aggravation, namely being in company with the named co-offender. The named co-offender is the victim’s sister. The offence carries a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years.
    

2. The offender stood trial before a jury at the District Court in Queanbeyan in June 2022 on four counts in total and was acquitted on counts 2, 3 and 4. Counts 2 and 3 were also offences of aggravated sexual intercourse involving the same complainant and alleging that he was in company with the same co offender and committed in the same premises but on two different dates. Count 4 was a count of sexual intercourse without consent contrary to s 61I of the Crimes Act, 1900 alleged to have occurred about the same time as count 3 involving the same complainant.
    

3. He thus comes for sentence before me on count 1. He was initially refused bail when the verdicts were delivered after the Crown made a detention application and the Court was informed that this was a show cause offence. His counsel frankly conceded that there was little, if any, evidence which could be advanced in support of that. This was at about 3.15pm on 23 June 2022. An extremely unfortunate set of circumstances then unfolded when it emerged that Corrective Services staff had left Queanbeyan Courthouse without notice to the Court and there was no one to take the offender into custody. He was eventually taken into police custody after the Court was informed that Corrective Services staff were returning. They did not. The offender spent the night in police cells at Queanbeyan Courthouse and the following day, 24 June, the parties informed the Court that there had been an error made and that in fact an offence contrary to s 61J is not a show cause offence.
    

4. It should be noted that s 22B of the Bail Act 2013 (NSW) had not yet been enacted. The detention application was not granted, and the offender was released to bail on 24 June on the pre-existing conditions which had been in place for the preceding 3 years together with a surety condition in the sum of $10,000.
    

5. The offender was initially arrested for these offences on 4 June 2019 and granted police bail after one day in custody. On 3 August 2022 when the matter was initially before me for sentence, the Court was informed that the offender’s surety was seeking to be released from her undertaking and the offender was not seeking continuation of his bail. The sentence went over for judgment ultimately to today, 8 August 2022 and he was remanded in custody, bail not applied for and refused from 3 August. He has thus spent eight days in pre-sentence custody and the sentence will be backdated to commence on 31 July to take this into account.
    

6. Turning to the issue of objective criminality; it must first be noted that any offence of aggravated sexual intercourse without consent is a serious criminal offence. The maximum penalty of 20 years with a standard non-parole period of 10 years makes this clear and I take those penalties into account when determining the appropriate sentence here. Sentences contrary to s 61J cover a very broad range of both legal and factual circumstances. The statutory circumstances of aggravation are numerous, and some are more serious than others. They include the infliction of actual bodily harm on a victim, threats to inflict actual bodily harm with the use of an offensive weapon, threats to inflict grievous bodily harm or to wound a victim, the fact that the victim is under 16, that the victim is under the authority of the offender, that the victim has a physical disability or cognitive impairment, that the offender broke into premises with the intention of committing the sexual intercourse offence and that the offender deprived the victim of her liberty.
    

7. The circumstance of aggravation here is that the offender was in the company of another person. That of itself is in my view one of the less serious statutory circumstances of aggravation and the fact that an offender is in company with another person or persons can, in the particular circumstances, be factually more or less serious. More often than not, the fact that someone commits an offence of this nature in company with another person occurs where the presence of the other person increases the level of physical threat so that the mere presence, usually of more than one man, increases the level of threat and fear. Here, the fact that the offender committed the offence in company with the complainant’s sister meant that the victim was overborne by her sister’s presence and assistance to the offender to commit the physical act of sexual intercourse but did not, at least not on the evidence before me, mean that she had any increased fear or that there was any increased level of physical threat.
    

8. Her sister’s presence in company with the offender and her assistance to him meant that the victim’s ability to resist was overborne. This is thus a circumstance of aggravation of a lower level than many of the other statutory circumstances of aggravation and here on the facts which will be discussed soon, even then factually at a lower level than other cases in which this offence is committed in company with another person or persons.
    

9. There are some difficulties in determining the actual objective criminality for this offence on a finding of relevant facts following the jury’s decision to acquit the offender of counts 2, 3 and 4. Whilst the time period for all counts was the same, the offences were alleged to have been committed on three separate occasions within that period with counts 3 and 4 alleged to have been committed at about the same time and where all of the offences were alleged to have been committed in the same premises involving the same three people.
    

10. The Crown case to convict the offender on all counts required the jury’s acceptance of the complainant as a witness of truth beyond reasonable doubt. For all counts the Crown also relied on the co-offender, her sister’s evidence, in support of the complainant. There were a number of inconsistencies between those two witnesses about the surrounding circumstances for all four offences, some of which appeared more significant than others. Clearly enough that combination of evidence, namely the complainant supported by the evidence of the co-offender, did not convince the jury of the offender’s guilt for counts 2, 3 and 4. Except for two particular factual issues relevant for count 1, it is not necessary to resolve most of those inconsistencies that arose in relation to count 1 in order to determine its objective criminality. They jury’s verdict of guilty for count 1 meant that they were satisfied that the evidence called in the Crown case established the elements necessary to prove that offence and in the way this trial was run, the only real issue in dispute was whether or not the Crown could prove that the event occurred at all.
     

11. In the way this trial was run, the jury was directed that there was in addition to the complainant and her evidence, some evidence of complaint relevant for count 1, although it may be that there were some errors in relation to that to which I will refer soon. There was also some more detail in the evidence of both the complainant and her sister given for count 1 than for any of the other counts but there were also quite a number of inconsistencies between them in relation to some of those details. It is not necessary to make any determination about most of those inconsistencies because, as I have said, the verdict means that the jury was satisfied beyond reasonable doubt of the elements.
     

12. On the evidence of the complainant relevant to those elements and some other general evidence at trial, I accept that at the time of the offending the victim was aged either 16 or 17 and was in year 11 at high school. She lived with her parents in a remote rural location near Bombala. Her sister, the co-offender, and the offender had met and were in a defacto relationship from about early 2006 and lived in Cooma at the time of the offending. They subsequently married in 2009. During the charge period the co offender was pregnant with the couple’s first child who was born in February 2007.
     

13. I accept from evidence that the victim was sent by her parents to help out her sister with housework at the couple’s house in Cooma because she was pregnant and that was the reason why the victim was at the house at the time this offence occurred. I accept that on one day during the charge period the offender had come home from work in the afternoon and the victim heard him talking to her sister, the co-offender, in the kitchen of the house asking her for sex. I accept that her sister refused and more probably than not told him that she did not want to have sex with him because she had fears for the safety of her unborn child. I accept that this is the reason her sister gave the offender that day and this is what the victim overheard because she was in another room. Whether or not this was a genuine fear on the part of the co offender is far from clear on the basis of other evidence that she gave at trial admitting that she continued to have sex with the offender until very close to the birth of the child. However, that is a matter about which I do not have to make a finding. I accept that this is what she told the offender that day, that is what they argued about and that is what was heard by the victim.
     

14. The victim gave evidence that she heard this argument and then saw her sister, the co-offender, pulling a knife on the offender during the course of this argument. I accept that this evidence is true and note in particular that when the co offender was sentenced for her role in this offence, this was part of the facts on which she was sentenced, namely that in response to a request for sex that she did not want and during an argument, she pulled out a knife. I accept more probably than not, the offender following this left the house and stayed away for about three hours. The victim apparently continued to fold washing in the couple’s bedroom for this time. The offender came back to the house and continued to ask her sister for sex.
     

15. It is not necessary to make findings about how the next part of the offence unfolded and indeed there are inconsistencies between the complainant and her sister about this, but I accept that after the offender returned, more probably than not, he and the co-offender smoked cannabis in another part of the house or in an area immediately outside the house and he continued to ask the co-offender for sex. The co-offender denied that they were smoking cannabis but her evidence about this, in my view, was unconvincing and unreliable.
     

16. She continued to refuse to have sex with the offender and then the co offender either asked or told the victim to have sex with the offender, in her words, to get him off her back. The victim refused and at one point, more probably than not, I accept the offender said to the co-offender something along the lines that if she would not have sex with him then he would have sex with her sister, a proposition with which the co-offender apparently acquiesced. It would appear that the victim heard this conversation apparently whilst she was still in the couple’s bedroom folding washing.
     

17. There were inconsistencies between the victim and her sister about the circumstances in relation to what next occurred but at some stage shortly after this all three found themselves in the main bedroom of the house, the bedroom usually shared by the offender and the co-offender. The co-offender was lying on her side on the outside of the bed. The victim was laying on the bed on her side in the middle facing her sister. The offender then lay down behind the victim. The co-offender, the victim’s sister, told the victim to lie on her back so it would not hurt and she did. The victim kept saying no and clearly indicating that she did not want to engage in this sexual activity and gave evidence which I accept the jury must have accepted, that she was crying and screaming out. The offender removed his pants and her pants and had penile vaginal intercourse with the victim over her protests and continued statements indicating lack of consent. The co-offender, her sister, held her hand during this and told her that it would be okay and that it would be over soon. The sexual intercourse lasted about 30 minutes with the offender ejaculating inside the victim. He did not use a condom. These are the basic facts which I accept are proved from the evidence of the complainant ,consistent with the jury’s verdict.
     

18. The co-offender’s evidence in relation to these basic facts was similar to a large extent but there were considerable inconsistencies between the victim and the co-offender about many of the surrounding details, some of which are more significant than others including how it was, according to the co-offender, that the victim came to be in the bedroom at all. It is, however, not a matter about which I am required to make a determination.
     

19. There was one additional piece of evidence called in the Crown case relevant for count 1, namely evidence of complaint made by the victim to her partner in 2011, so something like four to five years after the offence. It was admitted only pursuant to s 108(3) of the Evidence Act 1995 (NSW) capable of being used as an assessment of the victim’s credibility but not admitted as evidence of the truth pursuant to s 66 of the Evidence Act 1995. The Crown sought to rely on it on both bases but it was limited for use only as evidence going to credibility. The Crown sought to rely on it only in relation to count 1 because of the terms of the complaint. I ruled that the jury was entitled to take it into account when assessing the complainant’s credibility in relation to count 1 but declined to direct the jury that it was available as some additional evidence of the truth of the allegations made by the complainant pursuant to s 66 of the Evidence Act 1995.
     

20. There are some additional issues in relation to that complaint evidence not canvassed at the time of the application which now become apparent because of the terms of the complaint evidence. The complaint witness was the victim’s partner who gave evidence that in 2011, about 6 months after they had started their relationship, the victim made a complaint to him about being raped by the offender. He said that this occurred in circumstances where he had sought some explanation from her about why she was not prepared to engage in greater intimacy with him. This witness’s evidence was that she told him in those circumstances that she had been raped by her brother-in-law and that her sister had been involved. This witness gave evidence that she said to him that the offender had held her down whilst her sister held her hand and he raped her.
     

21. There was no evidence given by the complainant or her sister at trial that she was held down by the accused in relation to either counts 1 or 2. As I have said, factually for count 1 her evidence was that at her sister’s direction she turned on to her back, the offender removed both his and her clothing and had penile vaginal intercourse with her without her consent whilst her sister was laying alongside holding her hand assisting the offender to commit the act of sexual intercourse. The only event for which the complainant alleged that the offender held her down was count 3, in which she said that he pulled her down when she tried to get up off the lounge, held her down on the lounge and had penile vaginal intercourse with her whilst her sister was alongside holding her hand out for comfort should it be required while she, the victim, was crying. The offender was acquitted on that count.
     

22. The Crown’s decision to rely on complaint evidence only for count 1 would appear to have been because of the evidence given by the victim’s partner that part of this complaint was an allegation that the co-offender was holding the victim’s hand during the offence. Count 1 is the only count for which this was relevant. In any event, as I have said, that evidence of complaint from the complainant and her partner was admitted in relation to count 1 only on the application of the Crown but only pursuant to s 108(3) available for an assessment of the complainant’s credibility.
     

23. There is other evidence in this general category of complaint alleged to have been made by the complainant herself but not relied on at trial as complaint evidence by the Crown but which bears on an assessment of the complainant’s reliability which is something I am required to do for this sentence because of the Crown’s submission that there are two factual matters not encompassed by the jury’s verdict about which I need to make a finding of fact and which the Crown argues would amount to aggravating circumstances if found. In order to make that finding I need to make a determination for myself about the credibility and overall reliability of the complainant and her sister in support.
     

24. It is argued on behalf of the offender that I could not accept the evidence of the complainant and her sister beyond reasonable doubt in relation to these argued aggravating circumstances even though it is clear that despite these issues the jury was satisfied about her reliability in relation to the elements, at least, for count 1.
     

25. Into this category of evidence falls evidence given by the complainant that she made a more or less contemporaneous complaint to her general practitioner, Dr Howard, in May 2007. Her evidence was that at that time she told her GP that the offender had been having unprotected sex with her. Dr Howard was called by the Crown to give evidence. She had access to her notes of the victim’s visit around that time because Dr Howard had no independent memory at that stage. Dr Howard’s evidence overall was that she denied that any such complaint had ever been made. Dr Howard’s evidence was cogent and reliable, and I accept that in fact that complaint had never been made.
     

1. The complainant’s evidence at trial about this was more than just a general assertion of such a complaint and went into further detail, all of which was denied by Dr Howard, with reliable unacceptable explanations for why that detail could not be true. I do not accept that the complainant’s evidence about this was either truthful or reliable. Given the detail involved I do not accept that this was just an error of recollection. The complainant, I accept, was not truthful in relation to this evidence and to an extent at the very least had a false memory about the events surrounding her visit to Dr Howard and possibly it was the case that some of her evidence in relation to it amounted to a fabrication.
    

2. The complainant also gave evidence that she had complained to her mother in 2010 that the offender had been having unprotected sex with her and that her sister was involved which was a reason she did not want to visit and that she did not want to fall pregnant to the offender. That evidence was not supported by her mother, but her mother was not a good witness, and I would have difficulty accepting her overall as a reliable witness. I do not give that evidence, either of the complainant or her mother, any weight in relation to assessing the asserted aggravating circumstances.
    

3. There was further evidence given by the complainant that she had made a complaint to her cousin and there was a statement admitted from him as an unavailable witness and read on to the record. That person denied that any such complaint had ever been made and gave a reason as to why, if it had, he would have remembered it. The evidence given by the complainant was that she had not only complained that the offender had had sexual intercourse with her but had also complained to him that her sister had been involved. This witness’s reasons for rejecting the assertion that such a complaint had been made to him appeared reasonable and I accept that the complainant’s evidence in relation to this was neither reliable nor truthful.
    

4. These findings are relevant for the Crown’s argument that I would find two other pieces of evidence given by the complainant as being proved and that in the circumstances, if so, they would amount to circumstances of factual aggravation. One was evidence given by both the complainant and her sister, that after the sexual intercourse had occurred the offender said words to the victim that included calling her a “slut”. The versions of what was said were somewhat different but they both gave evidence that he used that word. This would amount to a circumstance of factual aggravation because it is demeaning and belittling of the victim and of course is somewhat ironic in the circumstances that the sexual intercourse was not in fact consensual, as found by the jury.
    

5. I would, however, have to be satisfied beyond reasonable doubt that this was said to find that it was an aggravating circumstance. They jury’s verdict in relation to count 1 does not assist me in that regard. I could only do so if I accept the evidence of the complainant as supported by the co-offender as the truth beyond reasonable doubt on that issue. After some consideration I have determined that I do not accept that evidence as having been proved as the truth beyond reasonable doubt. Even if I did, however, it seems to me that it does not amount to so significant a circumstance of aggravation that it would have much, if any, impact on the appropriate sentence.
    

6. The reasons for rejection of this evidence are as canvassed earlier in particular in relation to the complainant’s asserted complaints to Dr Howard and her cousin which, on my finding, are demonstrably untrue. The co-offender’s evidence, I accept, was in many respects unreliable and of course tainted by the fact that she received a significant discount following her undertaking to give evidence in the trial of the offender. The jury also clearly did not accept her as a truthful and reliable witness supporting the complainant for counts 2, 3 and 4 for whatever reason. I do not accept her either as a witness whose evidence can be accepted as reliable in relation to the first of the aggravating circumstances argued by the Crown.
    

7. The other piece of evidence relied on by the Crown as an aggravating factor, about which I must make a finding, is the evidence given by the complainant that after the sexual intercourse the offender told her that she should not tell anybody about it because if she did he would shoot her or kill her. As to this latter piece of evidence, again I would have to be satisfied about that beyond reasonable doubt, but on the basis of the complainant’s evidence alone. Whilst it would appear that if any such thing were said it is likely to have been said in circumstances where it was heard by the co offender, she did not give any evidence of having heard that.
    

8. As I have already found, I accept that the complainant’s evidence, at least in relation to those complaints made to Dr Howard and her cousin raise issues limiting an acceptance of her credibility. The facts of the trial, it seems to me, are also inconsistent with her having any genuine fear as a result of anything of that type being said. She continued to visit, albeit at the request of her parents. She continued to have contact with the offender, including allowing the offender to assist her and her partner to move house several years later, more probably than not in 2014. There are clearly enough reasons why victims of sexual assault continue to have contact with those who sexually assaulted them, and it is not always the case that the fact that they continue to engage means that their assertions are not true, but it is a fact that I can take into account in determining whether or not this asserted aggravating circumstance is capable of being proved beyond reasonable doubt. I do not accept that it is.
    

9. Therefore, the objective criminality in this case it seems to me is informed by the following circumstances.
    

1. The victim was taken advantage of by her brother-in-law whilst she was present at the house of him and her sister, only there at the request of her parents to assist his pregnant partner her sister.
    

2. The sexual intercourse involved full penile vaginal penetration without the use of a condom and in circumstances where he ejaculated. This of course carries with it the increased risk of pregnancy and disease.
    

3. The offender had actual knowledge that she was not consenting. She protested several times, including saying that it was hurting her.
    

4. The sexual intercourse lasted for about 30 minutes according to the evidence called.
    

35. These are all factors which somewhat increase the objective criminality. Others factors relevant to assessing objective criminality are the following:
     

1. It was however a one-off offence, not a course of conduct.
    

2. There is no evidence of any physical force or violence used to commit this offence over and above that which is inherent in any offence of sexual assault.
    

3. Whilst the Crown alleges some planning, I do not accept that to be the case. It is true that the offenders obviously spoke, and it was known between them beforehand that the offender was planning to have sexual intercourse with the victim. It happened that day. There is no suggestion that they had discussed it beforehand. It was more or less spontaneous and following an argument between them. There is no evidence of planning on my finding.
    

36. So, this is a serious offence, but in my view an instance of this offence a little below the mid-range in terms of objective seriousness for offences of this type, both because of the actual circumstances surrounding this offence and because of the statutory circumstance of aggravation being at the less serious end compared to the other statutory circumstances of aggravation which can be charged.
     

37. I have also read and taken into account the victim impact statement tendered. I accept that the victim of this offence has been adversely affected as a result of this offence. It is to be hoped that with the ultimate finalisation of this matter it will mean that she has a sense of closure and will start to regard herself as a survivor of sexual assault and not a victim. Whilst acknowledging the impacts that this has had on the victim, including issues surrounding her relationship with her parents and her own children, there is nothing which would amount to a circumstance of aggravation and that is not argued on behalf of the Crown.
     

38. I now turn to the subjective circumstances surrounding the offender. He is now 39. He has a criminal record which thus disentitles him to the leniency which would flow if he were a person with no prior criminal history. It does not in this case however amount to a circumstance of aggravation and is not so serious a criminal record that it would not allow some leniency, particularly as nothing in his record indicates any sexual offence or anything even remotely as serious as the matter before me.
     

39. All of the entries on his criminal record are for relatively minor offences of larceny or larceny type offences committed between 2002 and 2005. He was sentenced to one month in prison in February 2004 for offences of larceny and property damage. I have no details of those offences, but they would appear to have been relatively minor. A sentence of imprisonment for them in the light of his very minor history previously is a very harsh sentence. In any event he served one month in prison.
     

40. There then follow other larceny type offences committed in December 2003 and then following in October 2004 and June 2005. The offences in December 2003 gave rise to s 9 bonds for three years. They were offences of larceny and property damage committed on 21 December 2003. The bond commenced on 14 September 2004 so was current at the time of this offending. His offending is thus rendered more seriously as a result of his having committed the offence whilst subject to a form of conditional liberty.
     

41. However, the facts for that offence are tendered. They involved the offender together with two others, one of whom was as juvenile, stealing petrol from cars parked at Merimbula Airport, breaking off a car aerial to use to unblock a hose that was being used to syphon it off, and then this offender putting it into his own car to use to take a mate to Tura Beach to visit a girlfriend. That is a very long bond for two relatively minor offences.
     

42. As I have said however it does increase the seriousness of his offending. However, there is nothing before me in relation to his response to any supervision, if there were any, and it is also clear that he committed two further larceny type offences shortly afterwards, one in 2004 and one in 2005 and it is apparent that these bonds were not called up and he was not re-sentenced in relation to these breaches. I do not place much if any weight on the fact that he was on this form of conditional liberty at the time.
     

43. The relatively minor nature of the offences and the fact that the bond expired 15 years ago and was never called up and that he has not committed any criminal offence since June 2005, it seems to me, makes this a relatively insignificant consideration in determining the appropriate sentence here.
     

44. As I have said he has not committed any criminal offence since June 2005 and even then they were offences of goods in custody, custody of a knife in a public place and shoplifting for which he was fined small amounts. This offending before me is by far and away the most serious of any offences that he has committed. It would also appear to be significantly out of character for him.
     

45. He does not have demonstrated or expressed contrition and remorse because it continues to deny his guilt for this offence. He is entitled to do so. The fact that he does so however does not mean that his sentence is increased. He is also not entitled to any discount as a result of a plea of guilty. Again, that does not mean that his sentence is increased because he has not pleaded guilty.
     

46. I accept that before the offender went into custody on 3 August, he lived in a house owned by his parents in Bega. He is one of two children and appears to have an ongoing positive relationship with his parents. He attended school in Bega but appears to have not done particularly well and was bullied. He left school in year 8. His relationship with the victim’s sister, which involved their being married in January 2008, produced two children, their son who was born in February 2007 and with whom the co-offender was pregnant at the time of the offence. That son is now 15. They then had a daughter in January 2009 who is now 13. They separated in 2014. He had an ongoing relationship with both of his children after separation for a lengthy period, including his son moving to live with him fulltime in 2020 for about a year. His contact with his children on that basis ended in early 2021 and before he went into custody, he only saw them after school. He cares for his children however and hopes to have an ongoing relationship with them whilst he remains in custody and certainly after he is released.
     

47. After leaving school the offender worked for the council in Bega for a year, then in Thredbo as a garbage collector and then doing domestic fencing in Cooma. Most of his work has been in dairy farms but he has been unemployed for the last two years at least. During this period whilst being unemployed he has been making furniture out of pine pallets as a hobby and selling them when he could.
     

48. There is before the Court tendered on his behalf a psychological report done by Professor Stevens. I accept that the offender suffers from two mental health conditions including generalised anxiety disorder and a major recurrent depressive disorder. He had been a regular user of cannabis from the age of about 21 and was using about 50 grams a day until he gave up using cannabis altogether in about February 2022. He does not use any other drugs and has never been a significant user of alcohol.
     

49. Before he went into custody, he was taking prescribed antidepressant and antipsychotic medication, but I accept the report of Professor Stevens that whilst he reported some symptoms consistent with psychosis and mania in the past, these symptoms were likely the result of heavy cannabis use and that this condition has improved since he stopped smoking cannabis. He does however suffer from depression and generalised anxiety disorder.
     

50. I note the information provided by Professor Stevens that the psychological assessment undertaken of the offender would indicate the highest reading for either of his two psychiatric conditions was suicidal ideation and that in fact in 2021 he had a psychiatric admission in Goulburn for three days because of suicidal ideation.
     

51. He has been seeing a counsellor recently and there is report from the social worker at that practice. He has gone to four sessions since May 2022 and had been for earlier sessions in January 2022 and March 2021. That included a time at which he was admitted to hospital following suicidal ideation. He continued to access those counselling services and I accept Professor Stevens’ opinion that he has benefited from access to those counselling services. I also accept Professor Stevens’ opinion that his generalised anxiety disorder and depressive disorder will likely be aggravated during his period of incarceration and to that extent he will experience his period of imprisonment in a somewhat more onerous fashion because of the exacerbation of these two mental health conditions.
     

52. There is some history to support that opinion from Professor Stevens. When the offender was incarcerated in 2004, he experienced considerable anxiety and fear and no doubt despite his recent expression that as an older person with more experience he has a greater ability to handle the situation, it is likely I accept that he will experience some exacerbation in fear at least for part of the time during this period of incarceration.
     

53. His general prospects of rehabilitation in my view are good. As I have said he has not committed any offence since 2005. He has never committed a sexual offence before. He has been on bail for over three years without any apparent transgression. Further I accept Professor Stevens’ opinions that he has a number of strengths in his life that assist his prospects of rehabilitation, including a stable family who are prepared to support him and an absence of any dysfunctional aspects of his family life. He does have also a reasonable work history, albeit not in the recent past. I accept Professor Stevens’ opinion that there are no obvious antisocial themes in the presentation he made to him.
     

54. He presents to me as a relatively lonely person. He has had other relationships since his marriage ended but none seem to have lasted. He is fortunate to have the ongoing support of his parents, including their willingness to become sureties for his continued bail from the time of the jury’s verdict. There is nothing in the evidence to indicate that he will offend in any similar way in the future and for that matter given the very long period that he has gone without any criminal offending at all, nothing to suggest that he will commit any criminal offences at all.
     

55. Whilst this is a sex offence, it is a one-off isolated act and there is nothing in the evidence to indicate that he presents a risk to the community as a sex offender or at all.
     

56. Delay is an issue which I take into account when determining the appropriate sentence here. There are two aspects. The first is that to an extent this is now a stale offence and that is a relevant factor to take into account, particularly when issues of punishment and retribution are concerned. Those two aspects are important aspects of sentencing, but they are punishment and retribution for an offence that occurred 16 years ago. The other aspect of course is that the delay has enabled the offender to demonstrate his real prospects of rehabilitation. That delay is not of his making. The victim here did not report the offence to authorities until March 2017 when she went to Eden Police Station and reported the sexual assault by the offender and also the involvement of her sister. Notes were taken by a police officer. The police took a formal statement from her for the first time on 11 May 2017. There was apparently no further action taken until 7 February 2018 when police took a statement from her sister. This statement was available during the trial. It is clear that the offender’s sister did not believe at the time that she was at risk of any criminal prosecution when she made that statement to the police, and she gave that evidence during the trial.
     

57. In that statement she provided evidence which to an extent supported the version given by the complainant to police in May 2017. Still nothing was done. Police took a second statement from the complainant on 8 August 2018. On 30 November 2018 they again had contact with her sister and she signed a statement to give evidence against the offender, but it seems nothing was done to follow that up. The offender and the victim’s sister were charged, in relation to the offender, or had a future court attendance notice issued, in relation to the co-offender, not until 4 June 2019. They were ultimately committed to stand trial jointly or to stand trial on a joint indictment. The offender’s sister did not plead guilty until 8 March 2021, the day the joint trial was due to commence.
     

58. There is no explanation for those delays leading up to the charging of the offender and the co-offender in June 2019, and in particular no explanation for the delay between the sister’s initial agreement to give evidence against the offender and the formal matters which ultimately led to her pleading guilty, being sentenced, giving a formal undertaking to give evidence and receiving a significant discount and a very lenient sentence. Whatever the reason for it was, none of it was the fault of the offender. As I have said he has been on bail since 3 June 2019.
     

36. He has been waiting for this trial to complete and has had this hanging over his head since then. He has been able to prove his prospects of rehabilitation, at least to the extent that he has not committed any further offences from 2005 onwards. As I have said these also are stale offence which is a relevant consideration when determining the extent to which concepts such as punishment and retribution are important.
     

37. Clearly enough general deterrence is important, and the delay does not impact on the importance of general deterrence for this sentence. The sentence should send a message to the community that there is no hiding from issues of unwanted sexual intercourse and that those who engage in sexual intercourse without consent in circumstances of aggravation can be expected to be dealt with by the Court with a period of imprisonment.
     

38. I now turn to the issue of parity. The co-offender, the victim’s sister as is known, was sentenced by way of Community Corrections Orders for all three offences which she faced. This was in my view an extremely lenient sentence, given not only the seriousness of the offences, but also the fact that she was being sentenced for three separate offences of aggravated sexual intercourse. She pleaded to these offences, but late, and received a limited discount of 10% to recognise the utilitarian value of that plea. She of course received a significant discount for the assistance she provided. She was however being sentenced for three offences and I am to sentence the offender for only one. He was acquitted of the other two in relation to which the co-offender pleaded guilty. The sentencing Judge found exceptional circumstances and it would be reasonable to say that it would only be in exceptional circumstances that such an outcome involving anything other than fulltime custody would be likely.
     

39. The statistics published by the Judicial Commission for sentences under this section show that the sentence for the co-offender is the only case where anything other than fulltime custody has been the sentence imposed for offences pursuant to this section. There are thus parity issues to be considered.
     

40. It is clear that there were very positive findings made by the sentencing Judge in relation to the co-offender, in relation to which the evidence for them is not before me and was not before me at the trial of the offender. To an extent, some of them do not accord with my observations of the co-offender and her evidence. In particular I find it difficult to accept that which was apparently before His Honour that the offender used coercive behaviour towards the co-offender in circumstances where I accept that her response to his request for sex from her was to pull a knife on him. Further, the history given to the psychologist seems to suggest that he has no real explanation for why their marriage ended and he gave the impression, at least in the present, of being a somewhat hopeless person.
     

41. The co-offender further accepted that she had persuaded her sister to make a complaint to police and she did so with an eye to a possible custody dispute between her and the offender. This is not consistent with a person whose moral culpability for her offending is low because of coercive behaviour by the offender towards her. However of course I acknowledge that I do not have the evidence before me that was before the sentencing Judge, and whilst in my view the sentence imposed on her would appear to be very lenient, it was on the basis of evidence then before His Honour which is not before me.
     

42. There can be, and has been, no suggestion that anything other than a custodial penalty is appropriate here. The threshold for imprisonment is clearly crossed and in the circumstances of this offending and this offence, there is nothing other than fulltime custody available. The legislature has determined that it is not appropriate that any term of imprisonment for these offences, even if otherwise available, be served in the community. Be that as it may it is always important however for there to be relativity between sentences imposed on offenders in relation to the same offence.
     

43. The Crown here argues that he sentence for this offender should amount to a significant increase in the penalty imposed on the co-offender because of the reasons found by the sentencing Judge which gave rise to the finding of exceptional circumstances. I accept that clearly enough the sentence imposed on this offender must be more than that of the co-offender in those circumstances and particularly so as it was he who was the person who actually committed the act of sexual intercourse. Nevertheless, the sentence cannot be one which lacks a degree of relativity.
     

44. He is being sentenced for only one of the offences for which the co offender was sentenced. The concept of justifiable sense of grievance is in relation to any sentence imposed on any co-offender. But in my view, it should also take into account the reasons for that sentence contrary to the argument advanced on behalf of the offender. This offender, for example, could not have a justifiable sense of grievance that he, unlike the co-offender, will not be receiving a Community Corrections order by way of sentence and it has not been argued on his behalf that he has any such expectation. That is because of the reason for that sentence on the co-offender, including a discount for a plea of guilty, a large discount for assistance to authorities and some of the subjective factors relevant for her, that are not relevant for this offender.
     

45. However, even though I do not accept that the reason for the sentence is not relevant in determining whether or not any co-offender would have a justifiable sense of grievance, I do accept the submission made on behalf of the offender that there is a tension between these two aspects which has the effect of pulling any sentence of imprisonment to the lower end of the notionally available range.
     

46. I have looked at the statistics publish by the Judicial Commission for sentences under this section. It is a very, very broad range of sentences which almost certainly reflects the broad range of factual circumstances capable of being charged. There are no real comparable cases that I can see. Most of those for which reported judgments have been noted involve, in particular, more serious statutory circumstances of aggravation and perhaps somewhat different subjective circumstances.
     

47. I do note however one decision involving multiple offences being a decision of the Court of Criminal Appeal in Manojlovic v R; R v Manojlovic [2020] NSWCCA 315 where there had been an aggregate sentence of 5 years and 6 months imposed with an aggregate non-parole period of 3 years, but with indicative sentences for the s 61J offences of 3 years and relevant non-parole periods. That was a plea of not guilty and was an aggregate sentence with indicative sentences, and would appear to have had, at least arguably, a somewhat more serious circumstance of statutory aggravation, namely a deprivation of liberty. However, I do not take it into account strictly as a strictly comparable case. It is a case however to which I have had regard. There is as I have said however no real comparable case that I can locate and nothing to which I have been referred by either of the parties, and for those published by the Judicial Commission they involved on the whole more serious offences, a multiplicity of offences and in particular a more serious statutory circumstance of aggravation.
     

48. Determining the appropriate sentence requires me to take into account all of the factors referred to in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). This not only covers issues of punishment, retribution, holding the offender to account for his criminality, but also it takes into account the need to promote rehabilitation where appropriate.
     

49. Taking all of those matters into account and also the issues of delay and relativity or parity to which I have referred, I have ultimately concluded that an overall sentence of 4 years imprisonment is appropriate. There are special circumstances:
     

1. Whilst it is not strictly his first time in custody, in reality it is, his other period having been for one month only for a minor offence of larceny many years go.
    

2. The fact that he will experience his period of custody more onerously than others because of his diagnosed mental illness of depression and generalised anxiety disorder.
    

3. The need for a longer than normal period of supervision in the community to deal with his psychological issues and also hopefully vocational guidance.
    

73. I will be setting a non-parole period of 2 years to take those special circumstances into account.
     

74. For those reasons then I make the following formal orders:
     

1. The offender is convicted.
    

2. He is sentenced to a non-parole period of 2 years commencing 31 July 2022 and expiring 30 July 2024, with parole thereafter of 2 years commencing 31 July 2024 and expiring 30 July 2026, giving rise to an overall term of imprisonment of 4 years commencing 31 July 2022 and expiring 30 July 2026.
    

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Decision last updated: 18 November 2022