R v Nathan Sellers

[2024] NSWDC 524

District Court

New South Wales

Medium Neutral Citation:	R v Nathan Sellers [2024] NSWDC 524
Hearing dates:	4 October 2024
Decision date:	11 October 2024
Jurisdiction:	Criminal
Before:	Wass SC DCJ
Decision:	See [43] – [45]
Catchwords:	CRIME – Sentencing – Sexual intercourse without consent – Reckless as to whether victim consented – Eloquent expression of harm
Legislation Cited:	Crimes Act 1900 (NSW)
Category:	Principal judgment
Parties:	Rex (Crown) Nathan Sellers (Defendant)
Representation:	Counsel: C. Hodgemen (Crown) S. Rostron (Defendant) Solicitors: Office of the Director of Public Prosecutions (Crown) Drinkwater Criminal and Family Lawyers (Defendant)
File Number(s):	2023/328057
Publication restriction:	Pursuant to s 578A of the Crimes Act 1900 (NSW), there is to be no publication of any matter which identifies the complainant.

JUDGMENT

Offence

1. Mr Nathan Sellers faces sentence for an offence of sexual intercourse with AH without her consent and reckless as to whether or not she was consenting pursuant to s 61I of the Crimes Act 1900 (NSW). That offence carries a maximum penalty of fourteen years imprisonment with a standard non-parole period of seven years.

2. The penalty and the standard non-parole period serve as valuable legislative guideposts in the sentencing exercise.

Material

3. I have had regard to the following materials tendered on sentence:

1. The Crown sentence bundle;

2. The forensic psychological report from Ms Hare;

3. The letter from Ms Yarnold; and

4. The letter from Ms Bergun.

4. I have watched the CCTV footage which formed part of the agreed facts showing Mr Sellers and AH immediately before and after the offending and AH’s advanced state of intoxication.

5. I have had regard to the victim impact statement of AH delivered in court.

6. I have been assisted by the oral and written submissions provided by both parties, for which I am grateful.

Facts   

7. At the time of the offence Mr Sellers was thirty. AH was sixteen. Mr Sellers and AH had known each other for about four years.

8. On 14 October 2023, AH and her mother attended a fortieth birthday party. Throughout the course of the evening AH consumed about five cans of premixed spirits.

9. At about 7:45 pm, Mr Sellers and AH commenced playing a game of pool. Throughout the course of the pool game Mr Sellers showed an interest in AH, touching her hips and back from time to time. He also slapped her on the buttocks. AH did not say anything to Mr Sellers about this.

10. The CCTV footage shows that at about 9:17 pm, AH was lying on her back on the floor between the couches on the verandah. Mr Sellers assisted AH to stand and accompanied her to the bathroom. AH told Mr Sellers that she was fine. Mr Sellers later helped her up from the bathroom floor. At 9:24 pm, AH said to Mr Sellers, “Nathan, how many drinks have I had?” Mr Sellers and a fellow partygoer answered, “too many.”

11. At 9:31 pm, AH, followed by Mr Sellers, knelt on an adjacent couch before lying on her stomach and facing Mr Sellers. Mr Sellers then moved to the floor near AH, positioning himself directly in front of her face.

12. Mr Sellers put his penis in her mouth, hitting the back of her throat. He thrust his penis in and out of her mouth and guided her head towards his penis.

13. As a matter of context only and not the subject of any charge, Mr Sellers put his hand down the back of her jeans and inside her underwear and digitally penetrated her vagina.

14. Without ejaculating and after a few minutes, Mr Sellers stopped, pulled his pants up and again, as a matter of context only, he grabbed her hand and placed it over the top of his erect penis over his pants.

15. He kissed her on the face and said, “don’t tell anyone.” The CCTV footage captured Mr Sellers adjusting his shorts and t-shirt.

16. Mr Sellers was arrested on 16 October 2023. He participated in a police interview and made admissions that he knew AH was sixteen and that he believed that she was “probably not” in a sound state of mind when she nodded in response to his question regarding whether she could fellate him and he could finger her. Although he asked for her consent in that regard, he said, “being sixteen and intoxicated, I doubt that she would have been in her right mind.”

Objective Seriousness

17. In an assessment of the objective gravity of the offending, the following factors are relevant:

1. The age discrepancy between Mr Sellers and AH is significant;

2. Mr Sellers sought sexual gratification from AH when she was highly intoxicated and lying down. She was extremely vulnerable;

3. The fellatio was vigorous;

4. Mr Sellers did not ejaculate;

5. The intercourse lasted about six minutes, however, the relatively short duration of the event does not, in my view, mitigate the objective seriousness of the offending;

6. The offending was opportunistic; and

7. Mr Sellers was reckless as to whether AH was consenting to the sexual intercourse.

18. I find that the offence falls below the mid-range of objective seriousness, although not markedly so.

Plea of Guilty / Pre-Sentence Custody

19. Mr Sellers pleaded guilty in the Taree Local Court on 8 July 2024.

20. He will be afforded a 25% discount on the sentence by reason of the utilitarian value of that plea. The fact of the plea, his admissions to police and his evidence before me show that he is genuinely remorseful for his offending.

21. Mr Sellers has spent 98 days in custody. His sentence will date from 5 July 2024.

Criminal History

22. Mr Sellers has no criminal history and is otherwise a person of good character. He will be afforded leniency in that regard.

Subjective Case   

23. As a matter of history, Mr Sellers struggled to adjust to his parents’ acrimonious separation and characterised his upbringing as a “tough” one. Of course, that is a relative concept.

24. Mr Sellers maintains a great relationship with his mother, although a challenging relationship with his father, including by reason of the fact that Mr Sellers’ father often exposed him to drunken arguments growing up, causing Mr Sellers to be fearful and to avoid him.

25. Mr Sellers went through a period of rebellion during high school, smoking cannabis and avoiding school regularly.

26. Upon leaving school, Mr Sellers worked for Wingham Beef Exports before he was terminated after about four years, arising from absenteeism relating to a recurring shoulder injury from an accident. He then worked in metal fabrication, taking some time off in 2015 when his son was born. In 2018, he rejoined Wingham Beef Exports where he remained gainfully employed until he went into custody.

27. Mr Sellers first married in about 2013. His son was born in mid-2015. The pregnancy was unplanned, and the relationship deteriorated. Mr Sellers suffered anxiety arising from fatherhood. His son has congenital glaucoma, suffers seizures, and experiences developmental delay. The couple separated amicably in 2019. He last saw his son during Christmas in 2023 and, quite understandably, since this matter, his ex-wife has restricted in-person contact.

28. Mr Sellers met his current wife in 2020. They married shortly thereafter. Mr Sellers reported to Ms Hare that his viewing of online pornography ruined his expectation of sex, which ultimately negatively impacted intimacy within the marriage. Mr Sellers and his current wife are the parents of two daughters born in 2023 and 2024 respectively. The couple separated after Mr Sellers’ arrest. They have recently discussed reconciliation and intend exploring that in counselling upon Mr Sellers’ release from custody.

29. Mr Sellers was prescribed antidepressants medication in 2020 following the termination of his first marriage and he has recommenced taking antidepressant medication since being charged. It shows, in my view, a vulnerability to situational depression.

30. At the age of twenty, Mr Sellers’ alcohol use got out of control. However, he moderated that intake when he met his second wife in 2020 and he intends to remain alcohol free. He is willing to engage in alcohol and drug treatment.

31. Mr Sellers was diagnosed with ADHD in 2006 at the age of fourteen and was prescribed stimulant medication which he took unreliably until he was seventeen. He has not been medicated since. Relevant to his offending, Ms Hare opined that his neurodevelopment disorder is characterised by inattention, hyperactivity and, perhaps most relevantly, impulsivity. Mr Sellers reported long-term emotional regulation difficulties. He attempted to strangle himself at the age of fifteen. Mr Sellers experiences elevated anxiety, particularly in social situations, and associated fears of being rejected.

32. Mr Sellers likely meets the clinically diagnostic criteria for generalised anxiety disorder. He also exhibits symptoms of autism spectrum disorder.

33. Ms Hare opines that Mr Sellers is susceptible to conflict with inmates within the custodial setting due to his impaired ability to comprehend social cues and, indeed, that has already occurred. He also has underdeveloped social skills and suboptimal emotional regulation, making his time in custody, in my view, significantly more onerous than the average inmate.

Remorse

34. Mr Sellers is genuinely sorry for his offending. He cried whilst AH read her victim impact statement. I have no doubt that he cried for her, rather than for himself. He has accepted full responsibility for his offending. He has good insight into the harm he has caused her, and he is understandably “absolutely disgusted” with his actions.

Prospects of Rehabilitation

35. Mr Sellers has, in my view, good prospects of rehabilitation. As well as his genuine remorse and understanding of what he has done, he has no criminal record, he has complied at all times with his bail, he has thoughtfully pursued the positive lifestyle program in custody, he has the security of employment with Wingham Beef Exports on release and the support of his family, and he is motivated to engage in counselling and treatment to manage any risks of reoffending.

Harm to the Victim

36. Any sentence must pay due regard to the disgraceful conduct and for the harm done to AH.

37. I hesitate in calling any person “a victim”. They may not see themselves that way, now or in the future, and it is not my place to put labels on them.

38. AH eloquently read her victim impact statement in open court. In short, it detailed that her world has been completely shattered. Her sense of safety has been compromised. She experiences undeserved feelings of shame and blame. She suffers from panic attacks and has flashbacks and nightmares. She is of an age where she was no doubt exploring her own sexuality and where she should be enjoying her freedom, but she can barely, at this time at least, leave the house.

39. Unfortunately, this is the harm that is done by this kind of offending. That is why it is considered so seriously and that it is in part why only a full-time term of imprisonment is appropriate.

40. It is consoling that she felt empowered by giving her statement in court and that she intends to take back the power that Mr Sellers so criminally took away from her by this offending.

General Deterrence

41. Reckless and knowing sexual assaults of young people whilst they are intoxicated is notoriously hard to prosecute and is all too common. Any sentence must send a message that, if convicted, any person will face meaningful penalties. However, in my view, Mr Sellers is a less appropriate vehicle for general deterrence due to those neurodiversity and mental health issues that I have described.

Special Circumstances

42. I make a generous finding of special circumstances by fact of the following matters:

1. It is Mr Sellers’ first time in custody;

2. Mr Sellers’ time in custody has been and will be more onerous by reason of the matters I have set out concerning his mental health issues and neurodiversity and also the high level of lockdowns that are occurring in the State’s prisons at this time and likely into the future; and

3. The need for Mr Sellers to have an extended period of supervision in the community.

Sentence

43. Mr Sellers, you are convicted.

44. I sentence you to a term of imprisonment of two years and six months to date from 5 July 2024 and expiring on 4 January 2027. I set a non-parole period of 16 months.

45. You are to be released to parole on 4 November 2025.

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Decision last updated: 07 November 2024