R v Palmer

[2018] NSWDC 50

District Court

New South Wales

Medium Neutral Citation:

R v Palmer [2018] NSWDC 50

Hearing dates:

Sentence Hearing (3 November 2017, 24 November 2017, 14 December 2017 and 13 February 2018)

Date of orders:

13 February 2018

Decision date:

13 February 2018

Jurisdiction:

Criminal

Before:

Hatzistergos DCJ

Decision:

1. On Count 2 on the indictment to which the offender was found guilty, the offender is convicted and sentenced to a term of 3 years imprisonment to date from today’s date, expiring on 12 February 2021.
2. Pursuant to section 44 of the 1999 Act, I set a non-parole period of eighteen months to commence from today, expiring on 12 August 2019, and a balance of term of eighteen months thereafter to expire on 12 February 2021.
3. Pursuant to s 50(1) of the 1999 Act, I direct the release of the offender at the expiration of the non-parole period to serve the remainder of his sentence on parole.
4. The earliest release date is 12 August 2019.

Catchwords:

CRIMINAL LAW – SENTENCE – One Count of Sexual Intercourse without Consent – objective seriousness – victim impact statement – sentencing statistics of limited utility – De Simoni principle

 

SENTENCING – Mitigating factors – Good character – no previous record of convictions – good character – good prospects of rehabilitation – Adjustment Disorder with mixed anxiety and depressed mood

  SENTENCING – Subjective considerations on sentence – Special circumstances

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5(1), 12, 16, 21A, 28, 44(2), 50(1)
Crimes Act 1900 (NSW) ss 61I, 66L

Cases Cited:

R v De Simoni (1981) 147 CLR 383
Artery v R [2017] NSWCCA 259
R v Hibberd [2009] NSWCCA 20
Baines v R [2016] NSWCCA 132
R v Hartikainen (unreported, NSWCCA, 8 June 1993, 60095 of 1993)
R v Qin [2008] NSWCCA 189
Salmond v R [2010] NSWCCA 141
Jiang v R [2010] NSWCCA 277
MC v R [2017] NSWCCA 316

Category:

Sentence

Parties:

Mr G Palmer (accused)
Regina (Crown)

Representation:

Ms F Sullivan (accused)
Mr D Randle (Crown)

File Number(s):

2015/00314482

Publication restriction:

Pursuant to s 578A Crimes Act 1900, nothing may be published that identifies the complainant except where authorised in accordance with the Section.The complainant is referred to in these remarks as GL.

Remarks on Sentence

1. The Offender, George Michael Palmer was tried between 26 September 2017 and 11 October 2017 in relation two counts of indecent assault contrary to s 61L of the Crimes Act 1900 (NSW) and one Count of Sexual Intercourse without Consent contrary to s 61I. All three charges related to events on 20 September 2015 at Seven Hills against GL

2. On 11 October 2017, the jury found the Offender Not Guilty of Counts 1 and 3, being charges of Indecent Assault, but Guilty of Count 2, being that:-

“On the 20th day of September 2015 in Seven Hills in the State of New South Wales that George Michael Palmer did have sexual intercourse with GL without consent of GL knowing she was not consenting, contrary to s 61I of the Crimes Act 1900 (NSW).”

3. On 3 November 2017 and 24 November 2017, I heard sentence submissions in this matter.

4. The Crown submitted that the facts that should be found to accord with GL’s evidence at trial as recorded in MFI A.

5. The Defence conceded that those facts corresponded with GL’s evidence but argued that I should carefully consider GL’s evidence in relation to Count 2 in circumstances where the jury entered verdicts of Not Guilty in respect of Count 1 and 1 Count 3. The Defence argued that the level of detail in the describing Count 2 as opposed to the level of detail in the key complaint evidence was such that in light of the verdicts of Not Guilty, something more was required to make findings beyond reasonable doubt. The Defence drew attention to the description in the Facebook messages sent by GL to her friend on 20 September 2015 relating to Count 2, where she recorded:-

I said ‘stop and go away and went to walk off. He grabbed me from behind again and pulled me in, saying ‘that didn’t sound very convincing’

He put his hand up my shirt again and groped me. Then he put his arm around my throat and put his hand down my pants. Over the underwear at first and then under the underwear.

6. The Defence submission was that there is difficulty and risk in making a finding beyond reasonable doubt that goes far beyond the bare elements of the offence given that in the complaint evidence; the critical element of sexual intercourse, can only be inferred from the words “under the underwear” and there was nothing else in that complaint evidence that establishes the act of sexual intercourse which is the act for which the Offender is to be sentenced.

7. It was argued that I should embark upon the exercise with a considerable degree of caution, particularly given the principle in R v De Simoni [1] not only goes to the question of ensuring that the Offender is not sentenced for conduct that would justify a finding of guilt for a more serious offence but also that the Offender is not to be sentenced for offences that he is not been convicted of. Nevertheless it was conceded that the Offender should be sentenced for the act of sexual intercourse without consent in its context as found to have occurred beyond reasonable doubt.

   1. (1981) 147 CLR 383

8. The Crown for its part opposed the Defence submission that the Court could only find beyond reasonable doubt the bare elements of the offence. The Crown conceded that it did not know why the jury didn’t convict on Counts 1 and 3 but argued that it was not a basis to find facts only in accordance with GL’s evidence as confirmed to her friend.

9. In Artery v R, Adamson J stated:-[2]

[36] That a jury reaches a different verdict with respect to different counts does not lead to any assumption of inconsistency. Where an accused is acquitted of a charge of sexual offence, it ought not be assumed that the jury did not find the complainant credible, particularly where a Guilty verdict has been returned on another count. In MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, Gleeson CJ, Hayne and Callinan JJ said at [34]:

“In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of Not Guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others.”[3]

2. [2017] NSWCCA 259

3. [2017] NSWCCA 259

10. I propose to approach the fact finding process with this in mind.

11. In doing so, I note the context in which the Facebook message; referred to, was given. I do not accept however, that it sets the barriers of the facts consistent with the jury’s verdict. Nevertheless, it is necessary to examine the detail of GL’s account.

FACTS

12. The Offender was the property manager in respect of a house that GL, GL was renting. GL commenced renting the property from the Offender in Monash Road, Blacktown in approximately September 2000. She was a single mother who lived with her two young daughters.

13. Around 2012-2013, the Offender lived in the property behind the property that GL was renting for approximately 6 months. They had regular conversations during that time and the relationship between them developed beyond that of property manager and tenant. There was evidence that; which I accept, which indicated the Offender would make comments to GL of a sexual nature and these would sometimes be reciprocated by GL, including making jokes at times she felt comfortable doing so.

14. The relationship included some physical contact, including an occasion where; just before Christmas of 2012, the complainant sat on the Offender’s lap. There was also evidence that in the winter of 2013 when GL lost her keys, the Offender came over to assist her in finding them. To use GL’s words, “patted me, around my bottom and my thighs,” and said, “you don’t have them in your pocket?”

15. Further evidence about an incident in February 2014, when she was going to a job interview, the Offender tried to kiss her on the mouth. GL’s evidence was subsequently expressed that this incident involved mouth to mouth contact although she couldn’t provide information except that she felt sick.

16. The Offender also facilitated GL purchasing a car from his ex-wife and drew up a contract for the repayments. The car remained registered in the name of the Offender’s former wife during the period GL was making repayments to her. The Offender also loaned his car to GL for a short period, when he was overseas. In all the circumstances, was no issue that the relationship between the Offender and GL extended beyond that of a property manager and tenant.

17. In November 2004, GL had come to be in relationship with another male. Around the time of the offence, GL had been living with her boyfriend although at the time of the offence he had gone away be with his children from a previous relationship.

18. At one point GL became aware that the Offender was renovating a property at 21 Jonas St, Seven Hills. On occasions, the Offender made comments to GL suggesting that they would live there. On one occasion, GL reminded him that she was with her boyfriend, and also told him that she did not want to live in Seven Hills. On other occasions, she did not say anything else to him asserting she was anxious about not upsetting the Offender.

19. On 19 September 2015, the Offender asked GL via Facebook to have lunch with him the following day. GL responded that she was unable to attend lunch but asked to have breakfast instead. The Offender agreed and the following day, he took her to a café in the Norwest Business Industrial Area.

20. After breakfast, the Offender drove GL to the property he was renovating at, Seven Hills. He told her that he wanted her opinion on some things that were around the house.

21. GL was wearing tights and two mid-length shirts.

22. The offence occurred after an earlier interaction between the Offender and GL which the jury found the Offender Not Guilty of indecent assault.

23. Count 1 was left to the jury on the basis that there was no issue that the Offender had touched GL’s breast, the issues being whether GL consented and the Offender knew she was not consenting. At the time she was touched, GL gave evidence that she said “Stop, Stop I am with someone” several times before taking steps towards the door. [4] In her Facebook message to her friend sent after she returned home GL recorded saying “It’s wrong” and “I shouldn’t do it, its not fair for me to expect someone else I’m not to do this stuff and I shouldn’t either” and subsequently “It’s not fair for me to expect someone I’m with not to do this and then do it myself. I shouldn’t do this.” [5] In cross examination, it was put to GL that at the point the Offender touched her breasts briefly she didn’t say anything at that point. GL disagreed saying “At the point where he touched my breasts I stepped back from him and began saying “Stop this is wrong, I can’t do this words to that effect.” [6] She was then asked whether the words used were “I can’t do this, I have a boyfriend.” before responding “Something to that effect.” [7] During her evidence GL could not recall whether she kissed the Offender on the chair although she reported to her friend that she had. [8]

    4. T 54.05-.36

    5. Exhibit D

    6. T 162.16

    7. T162.16

    8. T 162.32-.163.05

24. GL’s evidence was that Offender then came and stood in front of GL and put his arms on her arms. GL described in as being in a firm but not painful or rough way and the Offender was trying to be affectionate towards her. GL said she was turning away as the Offender was holding her arms and she told he stop it go away before trying to again walk away by stepping back breaking contact and then walking around him.

25. GL’s account was that the Offender thereafter put his right arm around her throat and bent her over his stomach stating “that didn’t sound very convincing.” She said that the Offender’s forearm and elbow were around her throat and she thought that the Offender touched her breasts and again outside her shirt and then moved his left hand down and touched her vagina outside her pants and moved his hand in between her pants and her under pants and was touching her vagina through her underpants. He then directly touched her vagina. She stated that he first spread the outside lips of the her vagina and then used his middle finger to spread the inner lips, labia minora and then was rubbing her clitoris with one of his of his fingers. She described two fingers on the side of the middle finger touching the clitoris and one finger on the other side. The other fingers were touching the outside of the vagina

26. GL described being shocked and stated that she stood there not knowing what to do and recalled putting her arms out like a mannequin doll, just frozen. She remembered that the Offender did not like her smoking so she took out a cigarette and started looking for a lighter. At the time she said that she probably could have moved her head if she tried. When asked as to the degree of force being applied on the clitoris and vagina, no verbal reply is recorded. GL stated that during the act, she was trying to take steps towards the front door, although she said it was difficult because of where the Offender’s arm was. At one point, she stated that she was not successful in trying to walk to the door until the Offender saw that she was putting a cigarette in her mouth and he then let go of her. Later she stated that at the time she was held around the throat she was able to move a couple of steps towards the front door and when the Offender let her go. she described herself as close to the front door.

27. On the question of the duration of the intercourse GL’s evidence was;

Q. Do you recall how long it was that he had his finger inside your vagina?

A. I would say about 10 or 15 seconds.

Q. Do you recall specifically how long he was touching your clitoris?

A. Only a few seconds. 5

Q. And was that few seconds in addition to the time you’ve just told us about or included in that time?

A. In addition to.

Q. And the touching of your vagina over your pants, that happened before he put his hand into your pants and directly onto you, how long did that take?

A. That was probably five seconds per layer, per layer of clothing.

Q. Can you just tell us what you mean by that also, about per layer of clothing?

A. So I would say that he groped me for maybe five seconds before - on the outside of my pants before he moved his hand and then put his hand in between my pants and my underwear and that may have been an extra five seconds and then there may have been an extra five seconds after he removed his hand from between my pants and my underwear and he put it back in under my underwear before he then spread the lips of my vagina and started rubbing my clitoris.

28. On her return to her home GL, sent the Facebook message, referred to earlier to her friend describing what had occurred in terms above described. [9] In GL’s account to her friend on Facebook, she states at 1:21pm:

”He had put his hand up my shirt and groped me. Then he put his arm around my throat and put his hand down my pants. Over the underwear at first and then under the underwear.

I got outside and realised that I had no way out ant that he had my keys in his car.

He had driven me there after breakfast and then misled me about what he wanted to do there.

I felt sick, and angry at myself for being stupid enough to leave my fucking key in his car.

I lit a cigarette and sat down where I was visible from the street.

9. Exhibit D, p 8

29. GL also notified her former partner and father of her two children, as well as her partner at the time.

30. Afterwards she gave evidence of sitting outside and having a conversation with the Offender whilst smoking.

31. Following the conversation; at around 12:30pm to 1:00pm, the two left in the car.

32. GL stated that she did not recall the specific discussion in the car but was sitting in the front passenger seat with her legs crossed and head turned. She stated that as they turned into Newton Road, the Offender started getting more physical and started moving his hand across the vagina and proceeded to touch it rubbing one finger on the outside of the vagina whilst still wearing pants. GL gave evidence that the Offender stated “you’re such a naughty girl and she responded by jerking away every now and again and telling him to stop multiple times. She stated that this continued until she got home. In cross-examination, it was put to the complainant that the Offender only touched her right leg momentarily and did not touch her on the vagina. GL disagreed.

33. In GL’s Facebook message to her friend, she stated at 13:25:

“He talked to me for ages before he unlocked the car and drove me home, still reaching over to feel me up.”

34. There was no reference to this incident, the subject of Count 3, in either the immediate contact with GL’s partner or former partner.

35. At 1:29pm, the Offender sent GL a message which read, “Thank you for been you. beautiful inside and out.” [10]

    10. Exhibit G

36. GL’s account as to what occurred in the car was the basis of Count 3. The jury by its verdict was not satisfied beyond reasonable doubt as to the occurrence of the incident as asserted by GL, the subject of Count 3.

37. Late, on 20 September 2015, GL reported to Police.

OBJECTIVE SERIOUSNESS

Crown Submissions

38. The Crown argued that the Count 2 fell at or around the middle range of objective seriousness, bearing in mind, in particular the force that was used as described above. It draws attention to the influence that the Offender had over GL; in particular, in arranging accommodation and transport.

39. The Crown accepted that there are no aggravating factors pursuant to s 21A(2) of the 1999 Act. In assessing the objective seriousness, the Crown submitted that relevant in this case was the fact that:

• the penetration was digital, which is not of itself less serious than other forms of sexual intercourse;

• the Offender used one finger to touch the clitoris and also touched GL’s vagina with another three fingers at the time. [11]

  11. T 59.35-60.04

• the fact that the Offender had restrained GL around her neck and throat area so that his forearm and elbow were around her neck and throat for the duration of the offending conduct. It was acknowledged however, that GL did have the capacity to move. [12]

• The relative size and strength of the Offender and GL. [13]

• The effect of the crime on GL as outlined in her victim impact statement. [14]

• The fact that the Offender was in a position of much influence in the complainant’s life being her property manager with much influence over her car arrangements. Additionally, the Offender had taken GL to the house alone where he she had no access to transport she knew that there was no one else in the house and there was noone else in the vicinity. [15]

• The fact Offender had clear knowledge that GL was not consenting. [16]

12. T 60.22-.33

13. T 10.26

14. T 11.01-.07

15. T 11.05 and 15.08-.19

16. T 16.01-.48

Defence Submissions

40. During the course of argument, the Defence drew attention to the case of R v Qin. [17]

    17. [2008] NSWCCA 189

41. Two District Court cases were drawn to attention as examples of cases falling within the low range of offending, being R v Kumar and R v Kay.

42. The Defence argued that the facts in R v Qin [18] were more objectively serious in the context of a breach of trust and accompanied by other offending. The Crown submitted that even though that case involved a breach of trust the facts of the instant case fell above R v Qin in terms of objective seriousness. [19]

    18. [2008] NSWCCA 189

    19. T 15.01-.18

43. The Defence acknowledged that comparisons are difficult and that the authorities recognised that. [20] Those limitations were specifically recognised in R v Qin and Jiang v R; [21] cases I will come to shortly.

    20. T 20.30

    21. [2010] NSWCCA 277 at [78]; [2008] NSWCCA 189

44. The Defence submitted that the offence was not part of a planned or organised criminal activity, but was an isolated incident that was opportunistic and not premeditated. [22]

    22. Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(3)(e) (hereinafter referred to as the “1999 Act”)

Assessment

45. In R v Hibberd, [23] Price J held:-

[56] Relevant considerations in determining where on the scale of seriousness an offence contrary to s 61I of the Crimes Act lies include “the degree of violence, the physical hurt inflicted, the form of forced intercourse and the circumstances of humiliation...” See Regina v Gebrail (Court of Criminal Appeal, 18 November 1994, unreported) per Mahoney JA at 10-11. To those matters I would add the duration of the offence. Non-consensual sexual intercourse by digital penetration has generally been considered to be less serious than an offence of penile penetration: see, for example, Regina v Santos Da Silva (Court of Criminal Appeal, 30 November 1995, unreported) per Grove J at 3, but each case will depend on its own facts. There is no canon of law which mandates a finding that digital penetration must be considered less serious than other non-consensual acts of sexual intercourse. Whilst the form of the forced intercourse is an important factor it is not to be regarded as the sole consideration.

23. [2009] NSWCCA 20 at [56] (Price J, with whom James J agreed)

46. This offence was preceded by another incident that the jury were not satisfied amounted to indecent assault.

47. In the circumstances of the jury’s verdict, I cannot be satisfied beyond reasonable doubt as to any words said by GL leading to the cessation of the conduct; the subject of Count 1, although I am satisfied that it was GL who moved away from the Offender in the back room and made her way to the door.

48. Count 2 was left to the jury on the basis of the Offender having actual knowledge of the absence of GL’s consent. As such, the jury‘s finding makes the Offender’s moral culpability greater than would be the case if knowledge was founded on another basis under s 61 HA of the 1900 Act.

49. The offence occurred in circumstances where GL had been taken to the property of the Offender alone and with his transport. There was no evidence as to whether there were other persons nearby outside the house at the time. Nor am I not satisfied beyond reasonable doubt that the Offender took GL to the house with the intention of engaging in the conduct in question. I accept that the offence was not part of a planned or organised criminal activity. However in its context it also cannot be described as involving a completely spontaneous lapse of judgment.

50. I accept that the actual offending; the subject of the charge, was of short duration and involved some level of force both in the offence itself and the application of restraint to hold GL. This is consistent with GLs’ evidence that she was frozen but able to move in the way she described. I cannot determine so far as the Offender is concerned whether the action ceased on his part ceased by reason of GL’s act of accessing a cigarette or other circumstances however I am satisfied that it did cease. The effect on GL, I will come to.

51. I am satisfied beyond reasonable doubt, that the Offender did touch GL’s vagina through her clothing before the act of sexual intercourse as she described. I am not satisfied in this instance, that the Offender touched GL’s breast; her evidence being that she thought the Offender touched it. Whilst I accept that the Offender is to be sentenced on the basis only of the offence for which he has been convicted, I must take into account the surrounding circumstances consistent with what was said in Baines v R. [24]

    24. [2016] NSWCCA 132

52. There, Basten JA stated:-

[5] … It would, of course, be wrong in sentencing an Offender for a specific offence to increase the penalty on account of other misconduct, whether separately charged or not. However, it is not an error to assess the seriousness of the specific offence by reference to surrounding circumstances, including other offending which is established beyond reasonable doubt.

[6] There is a sense in which it is possible to characterise that use of other misconduct as denying leniency for an isolated instance of offending. However, it is not correct to say, as the applicant submitted, that other offending “cannot be taken into account on sentence unless the Offender admits them or in order to rebut the Offender’s submission that the offence was an isolated incident”. Nor are the statements of Spigelman CJ in R v JCW[1] inconsistent with that proposition. The contrary suggestion depends on reading a statement in the judgment out of context. Thus, at [55], Spigelman CJ stated:

“The effect of the judgment of the Court of Appeal is that, absent an admission, the Court should not take into account commission of other offences when sentencing for particular offences charged. The position is otherwise, it appears, in the case of an admission.”

[7] To suggest that this proposition is inconsistent with taking into account matters proved beyond reasonable doubt at a trial involves reading a statement made in a particular factual context as if it contained a general principle applicable in other contexts when, as a matter of principle, that could not be right. [25]

25. Baines v R [2016] NSWCCA 132 at [5]-[7] (with whom, Rothman J at [57] and Fagan J at [127] agreed)

53. Whilst there is evidence as to reliance by GL on the Offender at points in the relationship, I am not satisfied that this factor adds any significance to the objective seriousness. Nor am I satisfied that the relationship between the parties up until that point mitigated the Offender’s conduct, in light of the jury’s verdict including a finding of actual knowledge The intercourse is to be considered in the context in which it occurs including GL retreating from physical contact and the Offender persisting in his advances.

54. Overall I am satisfied the matter falls within the lower range of objective seriousness, but not at the lowest end.

Victim Impact Statement

55. GL has made a written victim impact statement which she read in Court. The contents of which, referenced the impact that this offence has had upon her.

56. GL records:-

My panic attacks at this time were frequent, and triggered by almost anything and sometimes nothing at all. I was afraid to say in my house. To this day it is a rare occurrence for me to get the grocery shopping done without a panic attack. During this period of time that I remained at 7 Monash Rd and again during the trial process, I have had exceptional difficulty relaxing enough to sleep properly. I initially told my daughters that we had to move because the house was too old and broken but I couldn’t explain why I was crying all the time. I have since had to field questions from my daughters about why they had to stay with family instead of staying with me through the recent school holidays, the fact that I had no choice but to go to court and why I was going to court. These conversations were far from easy, and I would not wish them upon any mother.

This sexual assault has changed who I am and how I interact with the people around me. I can no longer accept a compliment from a man without panicking and wondering how early on, and how brutally, I need to tell this man that I am not interested in a sexual relationship with him before people will accept that I have a right not to have my genital penetrated against my wishes.

57. A victim impact statement is defined in s 16 of the 1999 Act to contain particulars of “any personal harm suffered by GL as a direct result of the offence.” Personal harm is defined to mean, actual physical bodily harm or psychological or psychiatric harm. It does not refer to other consequences.

58. No submission was made as to the application of s 21A(g) of the 1999 Act in any respect. Further the Crown accepted that the impact on GL did not fall outside of what one would ordinarily expect in an offence of this nature.

59. It is important nonetheless that the Court be reminded of the impact of such offending. To that extent, the statement is a matter to be taken into account in the way provided by s 28 of the 1999 Act.

MITIGATING FACTORS

Background

60. The Offender was born in Sydney. According to a report tendered on his behalf by Dr Christopher Cocks, dated 20 October 2017, the Offender reported a loving and supportive family home until he was 9 years of age, when his parent’s relationship broke down. At age 11, he was sent to boarding school and up until the age of 13, he described his early high school year, as traumatising and intimidating. At age 14, he moved back to live with his mother and step-father in Sydney. Thereafter, the Offender described having a “normal high school experience.” He thereafter moved to live with his father, to complete Year 12. He matriculated and studied a Bachelor of Commerce with a Major in Economics at the Newcastle University. He also obtained a Diploma in Education. Following university, he taught Economics, Geography and acted as a Career Advisor. He worked as a teacher between 1978 and 1995. During this period, he also lived in Switzerland for a 5 year period and worked as the Head of Accounting at Banker’s Trust in Zurich. According to Dr Cocks’ report, the Offender enjoyed a stable career pathway. After 1995, he started to develop a property portfolio which included ownership of some 20 residences, over the last 22 years. [26]

    26. Exhibit 2

61. The Offender has twice been previously married. His last marriage resulted in a separation 3 years ago.

Previous record of convictions [27]

27. Exhibit A

62. The Offender has no record of previous convictions; a matter I take into account by way of mitigation.

Previous Good Character[28]

28. s 21A(3)(f) of the 1999 Act

63. Tendered in the Offender’s case was a character reference dated 2 November 2017 from Mr Alan and Mrs Joan Craymer who have provide a bail surety. In their reference they indicate that they have known the Offender in excess of twenty years because of mutual interest in property investments. They describe developing a firm friendship with the Offender spending time in the family home. In the reference they state:- [29]

We have always found Mr Palmer to be extremely generous, helpful, courteous and honest in all his dealings with us.

……

Notwithstanding the seriousness of the allegations we have no hesitation in providing this letter of support and consider Mr Palmer as a man who has made an extremely positive impact on the lives of our family, We are also aware of many other people who have come into contact with Mr Palmer and had similar experiences.

29. Exhibit 1

64. The Crown submitted that there is limited evidence that the Offender is of good character with the only evidence being a reference tendered by Mr and Mrs Craymer which was limited in its scope.

65. During the trial, the Offender’s character was not in issue and he had the benefit of a good character direction

66. Bearing this in mind, the absence of previous convictions and the evidence before the court, I am satisfied that the Offender has established prior good character and I take this into account by way of mitigation.

Likelihood of Reoffending and Rehabilitation

67. The Crown submitted that there is no evidence as to prospects of rehabilitation and likelihood of reoffending. It concedes that the offending behaviour occurred in 2015 but added that is not to say he would not offend again. [30] It was further submitted that caution is to be had as to approaching the prospects of reoffending as it would not follow that he would not reoffend and prospects of rehabilitation require a weighing up of various factors including that the offence; in its substance, fell within the middle range of objective seriousness

    30. T 5.01-.04

68. The Defence submitted that the Offender had good prospects of rehabilitation bearing I mind his age and background as recorded in Dr Cock’s report [31] and the evidence of Mr and Mrs Craymer. [32]

    31. Exhibit 2

    32. Exhibit 1

69. So far as the likelihood of reoffending is concerned, attention was drawn to the unique nature of the relationship with GL which was described as including uncertainty (at least so far as the Offender was concerned) as to the possibility of future cohabitation and two way sexual innuendo. This submission was based on the evidence given at trial by GL.

70. Whilst I am cautious in accepting untested material, I accept the account the Offender gave, as recorded by Dr Cocks that he has a good social support network and that he is sexually conservative in his relationships. Such is consistent with the detail provided in the report by way of background and what I accept is the Offender’s prior good character and absence of any prior convictions.

71. There is nothing in the report to suggest sexual deviancy with Dr Cocks recording there was no display of disorder of thought form or thought content that would indicate psychotic illness nor any perceptual disturbances. The Offender did not report any drug and alcohol problems and indicated that he had not abused illicit substances.

72. Dr Cocks did obtain a history that the Offender at age 9 struggled after his parents separated in the context of a volatile relationship. He was then sent to boarding school despite his wishes and alleged that he was sexually abused by the boarding master and relentlessly bullied at school. At age 14, he transferred schools lived with his mother and stepmother and had what was described as a” normal high school experience.”

73. Despite this, Dr Cocks records that the Offender has no formal past psychiatric history and has not been diagnosed with mental illness. Notwithstanding, he has a genetic predisposition to mental illness evidenced through family members’ experience. He has previously seen a psychologist during early adolescence due to being unhappy in his school environment. He has also had counselling in relation to past relationship breakdowns.

74. Dr Cocks opined that the Offender did not display any disorder of thought or thought content that would point to psychotic illness and did not display any perceptual disturbances. Dr Cocks’ report notes the Offender’s serious concern for the impact that that this will have on him.

75. Overall, Dr Cocks finds that the Offender shows insight into his mental health related problems and a willingness to engage in treatment

76. Dr Cocks did not assess the likelihood of offending directly. However in the circumstances and despite the absence of remorse, I am satisfied that the circumstances of the offence involving a unique relationship and his otherwise good character; the likelihood of reoffending is low.

77. There is limited evidence of insight into the impact of his conduct on GL, recognising that the Offender continues to deny committing the offence in question.

78. Nevertheless, I would assess his prospects of rehabilitation overall as good.

Age and Health

79. The Offender is aged 64.

80. Dr Cocks opines that Mr Palmer fulfilled the criteria for adjustment disorder with mixed anxiety and depressed mood. He states that:- [33]

“Mr Palmer has developed emotional and behavioural symptoms in response to an identifiable stressor, being the court case and the recent conviction of sexual assault. He is currently experiencing a constellation of biological and psychological symptoms of depression and anxiety that have emerged in the context of his current conviction. He reports marked distress and anxiety. He is catastrophizing about his incarceration. His sleep patterns are disturbed. There are impairments in appetite and eating patterns. His energy states have diminished. He reported irritability of mood. He described being in a disillusioned and overwhelmed state, this has caused significant impairment for Mr Palmer. His social and occupational functioning has diminished.

Mr Palmer does not show evidence of any other mental illness.. In the event that Mr Palmer’s stressor’s and their consequences are resolved I suspect that his symptoms of anxiety and depression will remit.

33. Exhibit 2, p 6

81. Dr Cocks noted that the Offender described a sense of shock, fear, anger and disillusion. He stated in that report, that the Offender stated that, “I fear that I will now lose everything.” [34] He was particularly concerned of the implications that his conviction will have upon his 10 year old son. He is concerned that his ex-wife wife will now take him to Russia. Should this happen, the Offender expressed the view that he would be at a high-risk of suicide. He denied however, any current suicidal thoughts and there was no indication of self-harm behaviours. Concerns were expressed that he would not cope in goal, that he was claustrophobic and that he would be vulnerable to manipulation and abuse from other inmates.

    34. Exhibit 2, p 2

82. Dr Cocks states that the Offender would benefit from psychological therapy with a supportive approach and a cognitive behaviour therapy approach. He states this will be immensely beneficial in helping Mr Palmer rationalise the stressors that he is currently facing. He opines that he should see a clinical psychologist on a fortnightly basis over a minimum period of three months. Further, Dr Cocks opines that in the event the Offender is incarcerated then he has concerns that his mental health will deteriorate and he will be at risk of developing a Major Depressive Disorder and his risk of suicide will increase. To this end, he states that the custodial environment will be immensely challenging for the Offender and he will need close support and supervision.

83. Whilst Dr Cocks states that in a custodial environment, the Offender will not have access to consistent psychological support, he later adds that in the event of incarceration upon the provision of his report to Justice health:- [35]

“Justice Health will be in a position to monitor Mr Palmer’s mental health and provide appropriate treatment in the event that his mental health deteriorates.”

35. Exhibit 2, p 7

84. Apart from the matters referred to arising from Dr Cocks’ assessment, the report also notes that Mr Palmer suffers from type 2 Diabetes, Hypertension, Obesity and Obstructive Sleep-Apnoea, that requires a continuous positive airway pressure machine to optimise his sleep patterns.

SENTENCE

85. The offence carries a maximum penalty of 14 years imprisonment and a standard non-parole period of 7 years for an offence in the middle range of objective seriousness. I take this into account in the process of instinctive synthesis.

86. Both parties accepted that no penalty other than imprisonment is appropriate. [36]

    36. s 5(1) of the 1999 Act

87. The Crown submitted that fulltime imprisonment was appropriate. The Defence conceded that all offences of sexual assault are plainly of a very serious nature, [37] but nevertheless contended that the term would be less than two years and enable the court to consider suspending the sentence under s 12 of the 1999 Act

    37. T 9.34 See R v Hartikainen (unreported, NSWCCA, 8 June 1993, 60095 of 1993) Gleeson CJ at [3] (Meagher JA and Newman J agreeing)

85. Before considering how any sentence is to be served, I must be satisfied that the term of imprisonment is one that enables suspension to be considered

86. I have earlier referred to the parties’ submissions in respect of the decision cited for comparison, being R v Qin. [38]

    38. [2008] NSWCCA 189 (McClellan CJ at CL and Blanch J agreeing)

87. In R v Qin, [39] the victim attended a Chinese Acupuncture massage clinic pursuant to an appointment. During the course of the massage the sentencing judge found that the Offender moved his hands upwards on the victim’s body so that the tips of his finger passed between the vaginal labia and over the clitoris coming to rest on the buttock. There was no penetration of the vaginal canal. The victim asked the Offender to stop which he did and soon after the victim left the clinic. There was another offence arising from the touching of the anus which was separate to the offence under s 61I. The offending was described by the judge as ‘almost at the extreme lowest level of seriousness. On appeal, Grove J said that the evidence did not demonstrate that the finding was wrong and it was within the ambit of sound exercise of discretion. In R v Qin, Grove J it was held that a suspended sentence of 10 months for the offence of sexual intercourse without consent pursuant to s 61I of the Crimes Act 1900 (NSW) was not inadequate:-

[46] Counsel for the appellant has pointed to the brevity of the incident, the lack of violence or force, the limited degree of penetration and the nature of it, the level of gravity in the breach of trust, the cessation of behaviour when the complainant resisted. These were needed to be balanced against the elemental conduct involved in the offences and the consequences upon the victim together with matters such as specific and general deterrence.

39. Ibid

91. Salmond v R [40] concerned an appeal against sentence for one Count of indecent assault and one Count of sexual intercourse without consent against the same victim in the course of providing massage therapy. The case involved the Offender’s hand brushing against the clitoris and subsequently the Offender sliding his hand between the victim’s legs and inserting his finger in the vagina “a few times.” After a finding that the offences fell below the mid-range of offending the Offender was sentenced to a fixed two years imprisonment for the offence of indecent assault and 4 and a half years for the offence of sexual intercourse without consent, with two years non-parole. In dismissing the appeal, Simpson J pointed out that R v Qin [41] involved a Crown appeal asserting manifest inadequacy in sentence. In referring to Qin, Her Honour added:-

[97] The sentencing judge expressly found that the seriousness of the conduct was almost at the extreme lowest level of gravity;… this conclusion was… within the ambit of the sound exercise of the sentencing judge's function. The sentencing judge had also spoken of “minimal degree of physical interference involved”.

[98] McClellan CJ at CL, who agreed with Grove J, said that a more severe penalty could have been appropriate but that which was imposed was not one in which the Court should intervene, having regard to the principles then applicable to a Crown appeal

40. [2010] NSWCCA 141 at [95] –[98] (with whom McClellan CJ at CL and Fullerton J agreed)

41. [2008] NSWCCA 189

92. In Jiang v R, [42] the Offender was convicted of one Count of indecent assault contrary to 61L of the 1900 Act and two Counts of sexual assault without consent contrary to s 61 I of the Crimes Act 1900. The Offender having pleaded Guilty and was sentenced to a fixed term of six months for the charge of indecent assault, which was consumed by concurrent sentences for each of the sexual assault Counts of two years with eighteen months non-parole for the two Counts of sexual assault without consent. The circumstances also involved a masseur who in the first instance spread the victim’s legs and started with one finger to touch the clitoris whilst sucking on the victim’s right nipple. After pushing the Offender away, the Offender continued to massage as if nothing had happened before he again put one finger at the entrance to the vagina. Once again the victim pushed the Offender away.

    42. [2010] NSWCCA 277 at [75] – [80] (with whom Simpson J and Hoeben J agreed)

93. In dismissing the appeal against sentence, R A Hulme J accepted that the facts of the case bore a number of similarities to those in Qin. Nevertheless His Honour stated:-

[75]   Qin was a Crown appeal. The leading judgment was given by Grove J who held that the sentences imposed were within the judge’s sentencing discretion and proposed that the appeal be dismissed. McClellan CJ at CL agreed, adding that:-

[49] ... Although a more severe penalty may have been appropriate the sentence which his Honour imposed is not such that I am persuaded, having regard to the principles relevant to a Crown appeal, this Court should intervene. 76   Blanch J agreed with the remarks of Grove J and with the further remarks of McClellan CJ at CL.

[77] No other authorities, principles or sentencing statistics were relied upon by the applicant. Reference to a single case does not provide a reason to conclude that the sentence in the present case was manifestly excessive. In R v Li [2010] NSWCCA 125, Barr AJ, with the agreement of Allsop P, Basten JA, McClellan CJ at CL and Simpson J, said:-

[40] ... Moreover, unless there are co-Offenders, one may not look at the facts and result of a single case in order to show that the case under consideration is within or outside a proper range of sentencing discretion: R v George [2004] NSWCCA 247 per the Court at [48] – [49].

[78] As to the suggestion that the judge “ought to have” made the same assessment of the objective seriousness of the sexual intercourse offences as that made in Qin, it is appropriate to refer to the judgment of Spigelman CJ in Mulato v R [2006] NSWCCA 282 in which, with the “emphatic” agreement of Simpson J, he said:-

[37] Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour.

[79] The Judicial Commission sentencing statistics, acknowledging all of the limitations in the utility of having recourse to them, indicate that the vast majority of Offenders sentenced in a 6 year period to June 2009 for an offence against s 61I of the Crimes Act received a full-time custodial sentence and, of those, the vast majority received sentences in excess of 2 years. In short, the statistics do not support a proposition that the sentences imposed upon the applicant were other than in the low range of sentences imposed for such offences. Moreover, the non-parole periods of 18 months represented a substantial departure from the standard non-parole period of 7 years.

Other Decisions

94. On 3 November 2017 submissions on sentence were adjourned to 24 November 2017. In the interim, the Defence issued a subpoena on the Office of the Director of Public Prosecutions to obtain agreed facts statements of various cases where suspended sentences for offences were imposed in for offences under s 61I of the 1900 Act in the District Court, which had not been appealed. On the Crown’s motion and for reasons given on 14 December 2017, I set aside that subpoena pursuant to s 227 of the Criminal Procedure Act 1986. Nevertheless, I gave the parties access to two of the decisions referred to in the subpoena, to which I was able to obtain access. By agreement, a timetable for supplementary submissions in writing was provided.

95. I have borne in mind the parties’ submissions in respect of two cases in this Court.

96. R v Kay, involved two couples sharing an apartment on a social weekend away. Early in the morning, the Offender approached the victim who was his friend’s partner whilst she was asleep. The Offender stroked her with his hands around the thigh area and then lowered her underpants and performed cunnilingus on her. Whilst he was performing that act, the victim woke and saw the Offender. Conlon SC DCJ found the act as opportunistic not involving any threat or forceful conduct and of short duration causing the victim to wake up and the Offender immediately discontinued the act. He noted the lack of consent arising from the victim being asleep. His Honour found in those circumstances that the offence was momentary and fell within the lower end of the scale. R v Kay involved a plea of Guilty justifying a discount of 20% and expression of extreme remorse and regret soon after the event. Taking account of what his Honour described as a powerful subjective case, the Offender was sentenced to 15 months imprisonment suspended under s 12.

97. R v Kumar, involved one Count under s 61I and one Count under s 61L, where the jury found the Offender Guilty. In this case, the victim was intoxicated whilst attending a party hosted by the Offender’s son and was placed in a bed where the Offender resided in a granny flat at the back of the property. The victim awoke feeling someone suck his penis and realised that the Offender was doing so after kneeling beside the bed. The victim pushed the Offender’s head away and the Offender immediately stood up and walked out of the room. Subsequently the Offender sent the victim a text message apologising for his conduct. He also told police that he rubbed the victim’s penis both outside clothing and after pulling the victim’s pants down. He told police that he believed the victim was consenting. In assessing, the objective gravity the Crown did not argue with the proposition that the offence fell within the low end of objective seriousness for offences of this kind. Marien SC ADCJ found the offence to fall within the very low end, considering that it involved non-penetrative intercourse and the offence was a momentary offence that did not involve force beyond that involved in the commission of the offence.

98. There were also powerful subjective circumstances advanced. In particular, the fact that a fulltime custodial sentence would require the Offender’s son to cease work to care for the Offender’s ex-wife and stepdaughter. His Honour found the circumstances highly exceptional warranting a suspension, although even if wrong in this regard, in light of the considerations referred to by Kirby J in Dinsdale v R and the need for community-based treatment justified suspending the sentence.

99. For the offence under s 61I, the Offender was sentenced to imprisonment for two years suspended under s 12. For the offence of indecent assault the Offender was sentenced to serve a s 9 bond on otherwise identical terms.

100. Both Kay and Kumar and turned on their facts. Whilst I accept there are similarities to some of the facts in R v Qin, there are limits to which that case can provide guidance. To the extent the Offender sought to compare the Offender’s circumstances based on what Dr Cock’s report referred to a concern that the Offender had about his son being taken to Russia and his parenting role, the Court was provided with limited untested information. [43]

     43. Brief supplementary submission for the Offender dated 22 December 2017 at [10]

101. The Offender’s submissions acknowledge that comparison with other sentences are but one aspect of the matrix of relevant sentencing considerations and there are limitations in their utility. [44]

     44. Brief supplementary submission for the Offender dated 22 December 2017 at [2]

Statistics

102. Defence further drew attention to the sentencing statistics on the Judicial Commission database, which it showed that for the offence in question:-

1. 11% of Offenders received suspended sentences;

2. 29% of Offenders aged over 50 years received suspended sentences;

3. One third of Offenders aged over 50 years with no priors received suspended sentences. [45]

   45. T 17.48-18.16. The latest statistics show figures of 25 % in respect of (2) above in a sample of 12 and 38% in respect of (3) a sample of 5.

103. Leaving aside the relatively small size of the number of sentences, the figures above include cases where there were pleas of Guilty and Not Guilty.

104. Overall, I am satisfied that the statistics are of limited utility; a fact acknowledged by the Offender’s counsel in submissions. [46]

     46. T 2.12-.17 and 18.18-.32

105. In this case, the Offender’s guilt was determined at trial in circumstances where the Offender is not entitled to an early plea discount.

Sentence

106. Whilst I have assessed the offence to be in the lower range of objective seriousness, the conduct needs to be denounced and the Offender made accountable, in the context of a proportionate sentence. I am satisfied that there is a low likelihood of reoffending and good prospects of rehabilitation.

107. In light of his previous good character, absence of prior convictions and based on Dr Cock’ report I am satisfied that the Offender has been specifically deterred although general deterrence remains an important consideration as does the recognition of harm to the victim.

108. In considering the question of general deterrence, I bear in mind the comments of Hamill J In MC v R:-[47]

[57] ... There are some circumstances in which it has been held that a particular kind of Offender may be an “inappropriate vehicle” for sentences containing a large component of general deterrence. That includes children and young Offenders and Offenders who suffer from an intellectual disability or mental illness of some kind. Such a principle might also be invoked, albeit rarely these days, when offences are committed “on the spur of the moment, either in hot blood or in drink or both”. However the fact that an Offender is elderly and infirm, along with the other subjective and mitigating circumstances that were established on the applicant’s behalf, are not matters that generally lead to a diminution of the role of general deterrence.

47. [2017] NSWCCA 316 at [57] (with whom Simpson JA and Rothman J agreed)

109. The Crown nevertheless conceded that the Offender’s health was a relevant matter going to any finding of special circumstances. [48]

     48. T 5.38-.40

110. In all the circumstances, I am satisfied that the purposes of sentencing require custodial penalty and the circumstances for suspension do not arise.

111. By reasons of the fact that this is the Offender’s first time in custody, his health my finding as to low likelihood of reoffending and good prospects of rehabilitation, I am satisfied that it is appropriate to find special circumstances in accordance with s 44(2) of the 1999 Act.

ORDERS

112. On Count 2 on the indictment to which the Offender was found Guilty, the Offender is convicted and sentenced to a term of 3 years imprisonment to date from today’s date, expiring on 12 February 2021.

113. Pursuant to section 44 of the 1999 Act, I set a non-parole period of eighteen months to commence from today, expiring on 12 August 2019, and a balance of term of eighteen months thereafter to expire on 12 February 2021.

114. Pursuant to s 50(1) of the 1999 Act, I direct the release of the Offender at the expiration of the non-parole period to serve the remainder of his sentence on parole.

115. The earliest release date is 12 August 2019.

Endnotes

Decision last updated: 16 March 2018