R v Pout

[2020] NSWDC 751

District Court

New South Wales

Medium Neutral Citation:

R v POUT [2020] NSWDC 751

Hearing dates:

12 November 2020

Date of orders:

15 December 2020

Decision date:

15 December 2020

Jurisdiction:

Criminal

Before:

Lerve DCJ

Decision:

Aggregate sentence - see paragraphs [145-149]

Catchwords:

CRIME - Property offences - Break and enter dwelling house and commit serious indictable offence

CRIME - Public justice offences - Threatening or intimidating victims or witnesses

CRIME - Sexual offences — Sexual assault

SENTENCING - Sentencing procedure - Aggregate sentences - Reasons for sentence

SENTENCING - Relevant factors on sentence - Deterrence - Form 1 offences - Moral culpability - Multiple offences

SENTENCING - Subjective considerations on sentence - Age of offender

SENTENCING - Aggravating factors - Home of victim or any other person – presence of child

Legislation Cited:

Crimes (Sentencing Procedure) Act, 1999

Crimes Act, 1900

Cases Cited:

Aslan v R [2014] NSWCCA 114

Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 (2002) 56 NSWLR 146.

Black v R [2013] NSWCCA 265

Brown v R [2014] NSWCCA 215

Bugmy v The Queen [2013] HCA 37

Bullock v R [2016] NSWCCA 131

Cole v R [2010] NSWCCA 227;

Currie v R [2013] NSWCCA 267

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; 205 Crim R 1; [2010] NSWCCA 194

Dungay v R [2020] NSWCCA 209

Gore v R; Hunter v R (2010) 208 A Crim R 353

Herbert v R [2015] NSWCCA 172

Higgins v R [2020] NSWCCA 169

Hili & Jones v The Queen [2010] HCA 45

Hunter v R [2011] NSWCCA 141

Jolly v R [2013] NSWCCA 76

Keeley v R [2014] NSWCCA 139

Locke v R (2010) 207 A Crim R 34

McCullough v R [2009] NSWCCA 94

Muldrock v The Queen [2011] HCA 39

Ngati v The Queen [2014] NSWCCA 125

Piscitelli v R [2013] NSWCCA 8

R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434

R v Ellis (1986) 6 NSWLR 603

R v Elyard [2006] NSWCCA 43

R v Mitchell & Gallagher (2007) 177 A Crim R 94

R v Omar [2015] NSWCCA 67

Simmons v R [2019] NSWCCA 20

Simon v R [2013] NSWCCA 328

SS v R [2016] NSWCCA 197

Stephens v R [2010] NSWCCA 93

Tepania v R [2018] NSWCCA 247

Veen v The Queen (No. 2) (1988) 164 CLR 465

Zreika v R (2012) 223 A Crim R 460

Category:

Sentence

Parties:

Regina
Edward POUT

Representation:

Counsel:
Mr M King (for the offender)
Solicitors:
Ms L Hanshaw, ODPP (for the Crown)

File Number(s):

2018/254272, 2020/149616

Publication restriction:

NO PUBLICATION of the name of the complainant or anything that would tend to identify them.

REMARKS ON SENTENCE

1. The offender appeared before a Magistrate at the Wagga Wagga Local Court on 13 May 2020 and entered pleas of guilty to the following:

H68356623 Sequence 1:

That (he) on 17 August 2018 in Wagga Wagga in the State of New South Wales, did break and enter the dwelling house, namely a single level brick unit property of DJ situated at [redacted], Wagga Wagga and did commit a serious indictable offence therein, namely assault occasioning actual bodily harm, in circumstances of aggravation namely he knew there were persons present in the place where the offence was committed, contrary to s 112(2) of the Crimes Act, 1900; and

Sequence 5:

That (he) on 17 August 2018 in Wagga Wagga in the State of New South Wales did have sexual intercourse with XM, without the consent of XM knowing that she was not consenting, and at the time of the commission of the offence, did recklessly inflict actual bodily harm on XM, contrary to s 61J(1) of the Crimes Act; and

Sequence 2:

That (he) on 17 August 2018 in Wagga Wagga in the State of New South Wales did have sexual intercourse with XM, without the consent of XM in circumstances of aggravation namely the said Edward Pout broke and entered the dwelling house of XM with the intention of committing the offence therein, contrary to s 61J(1) of the Crimes Act, and

Sequence 6:

That (he) on 17 August 2018 in Wagga Wagga in the State of New South Wales did have sexual intercourse with XM, without the consent of XM in circumstances of aggravation namely the said Edward Pout broke and entered the dwelling house of XM with the intention of committing the offence therein, contrary to s 61J(1) of the Crimes Act.

2. On 22 October 2020 the offender appeared before a Magistrate and pleaded guilty to one further matter, namely

H145799012 Sequence 1:

That he on 17 March 2020 at Junee in the State of New South Wales did assault Brodie McLuckie occasioning actual bodily harm to him, contrary to s 59(1) of the Crimes Act.

3. This last matter is an offence committed within the Junee Correctional Centre. The Prosecution elected to have that matter dealt with on indictment no doubt because of s 58 of the Crimes (Sentencing Procedure) Act, 1999.

4. The offender adhered to the pleas of guilty in all matters at the sentence hearing at the Wagga Wagga District Court on 30 October 2020 and accordingly he is entitled to the full 25% discount for the utilitarian value of the pleas of guilty. The offender’s legal representatives wished to ensure that the offender was fit to be tried. I do not perceive that this impacts on the issue of the utilitarian value of the plea noting that those pleas were entered in the Local Court and adhered to in the District Court.

5. The maximum penalty for the offence of Aggravated Break Enter and Commit Serious Indictable Offence is 20 years imprisonment. Parliament has specified a standard non-parole period of 5 years in respect of that offence. The maximum penalty for each of the three charges contrary to s 61J of the Crimes Act is 20 years imprisonment. Parliament has specified a standard non-parole period of 10 years in respect of those offences. The maximum penalty for the Assault Occasioning Actual Bodily Harm is 5 years imprisonment. There is no standard non-parole period in respect of that offence.

6. In addition, when passing sentence on the charge of Aggravated Sexual Intercourse Without Consent where the aggravation relied upon is the reckless infliction of actual bodily harm, the offender asks that I take into account one count of Threaten Injury With Intent to Influence a Witness contrary to s 315A(1) of the Crimes Act. In dealing with that matter I will need to ensure that I apply the principles enunciated in The Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 otherwise known as the Guideline Judgment on Form 1 matters reported (2002) 56 NSWLR 146.

7. If dealt with separately the offence contrary to s 315A(1) of the Crimes Act carries a maximum penalty of 7 years imprisonment. Given the nature of the offending this matter must have some (but not significant) impact on the sentence to be imposed.

Facts

8. The facts in all matters are before the court by way of Agreed Facts. The facts relating to the offending on 17 August 2018 are at tab 2 of Exhibit A the Crown tender bundle. The facts relating to the offending on 17 March 2020 are at tab 5 of that same bundle.

Offending on 17 August 2018

9. The offender resided at a unit in Wagga Wagga immediately next to the unit of the victim. The offender lived with his brother, brother’s partner and children and his mother. The victim lived with her husband and infant daughter. At the sentence hearing I inquired of the age of the infant daughter and was told in effect that the infant was quite young.

10. During the afternoon of 17 August 2018 the victim was home with her child, her husband being at work. She was at the clothes line at the rear of the complex. The victim’s daughter was lying on a mat while the victim was hanging out washing. The offender was not working that day as he had a medical certificate. The offender approached the victim at the clothes line and attempted to engage her in conversation. He inquired as to whether her husband was home or at work.

11. The victim recognised the offender as a next door neighbour, being aware that he had moved in about six months previously. The victim finished hanging out her washing and went back inside closing the door behind her. The victim was uncomfortable with the conversation with the offender.

12. Soon after going back inside her unit the victim commenced a video call with her father, the call commencing at 4.33pm. The victim was holding her child at the time of the call. Not long after commencing the call the victim heard a knock on the door and when she answered the door the offender was standing there. The offender was holding a piece of green garden hose and asked the victim if she owned the hose. The victim said she was unsure and closed the door.

13. About a minute later the offender again knocked on the door. The offender opened the screen door and was waiting at the wooden door. When the victim answered the door the offender asked if she had any tea or coffee and the victim said that she did not. He then asked her for sugar. The victim felt scared and did not know how to refuse him sugar as she felt that everyone had sugar.

14. The facts then go to Sequence 1, i.e. the offence of Aggravated Break and Enter (knowing persons therein) and Committing Serious Indictable Offence namely Assault Occasioning Actual Bodily Harm. The victim shut the door, obtained some sugar and returned to the door in order to give it to the offender. She was still nursing her baby. She attempted to close the front door however the offender prevented this from happening and used force to push the door open back on to the victim, which caused a graze to the temple of the baby.

15. The offender stepped into the unit and closed the door behind him. The victim attempted to move away from the offender to protect her baby and she turned her back on him. The offender then grabbed the victim from behind by placing his forearm around her neck and placing a hand over her mouth and nose. The victim found it difficult to breathe and thought that she would die. The offender said to her, “If you don’t do what I want I will kill you and your baby”.

16. The offender dragged the victim to the sofa nearest the door still having hold of her from behind. At some point the victim’s glasses were knocked to the ground. Once the offender got the victim to the sofa he removed his arm from her neck however he kept his hand over her mouth and nose area and continued to threaten her.

17. The offender attempted to take down the victim’s pants but was unable to do so. He told the victim to take off her pants or he would kill her and her baby. The victim complied out of fear.

18. The facts then go to Sequence 2, i.e. Aggravated Sexual Intercourse without Consent where the aggravation relied upon is the breaking into the house.

19. The offender pushed the victim until she was kneeling into the sofa and commenced having penile/vaginal intercourse without her consent and knowing that she was not consenting. The victim said that this lasted for about one minute. The offender then pulled the victim to another sofa and removed the victim’s clothing and lay on the floor pulling the victim onto the top of him. The baby was screaming while this was occurring.

20. The victim recalls sighting the offender’s blue baseball cap and jeans. The offender again forced his penis in and out of the victim’s vagina without her consent for about one minute.

21. The facts then go to Sequence 5, a charge of Sexual Intercourse Without Consent in Circumstance of Aggravation where the circumstance of aggravation relied upon is the occasioning of actual bodily harm to the victim.

22. The offender said words to the effect of, “use your mouth” while holding the victim’s hair. He forced the victim’s face down to his penis and pushed his penis into her mouth while he was holding very tightly to the victim’s hair.

23. The offender kept “interchanging” (using the word used in the facts) about four or five times between forcing his penis into her mouth and then into her vagina, each time lasting about a minute. The offender said words to the effect of, “swear you will not tell the cops or I will kill your husband and your baby”. It is this threat to which the charge of Threaten Witness contrary to s 315A of the Crimes Act on the Form 1 document relates. The victim told the offender that she swore that she will not tell anyone.

24. At some point while the offender was forcing the victim to perform fellatio on him the victim vomited, some of the vomitus going to the back of her throat. At some point the offender pulled the victim’s face down for a kiss which was so rough that it caused her lip to become swollen with a blue bruise along it. This is the injury relied upon for the actual bodily harm.

25. At one point the offender pulled the victim towards him and licked both her nipples before again forcing his penis into her mouth. The offender ejaculated in the victim’s mouth. As this was occurring the victim heard the car from the next door unit pulling into the back of the units.

26. The facts then go to Sequence 6 which is a charge of Sexual Intercourse Without Consent in Circumstance of Aggravation namely that the offender broke into the house with intent to commit the offence therein.

27. While the offender was forcing the victim to perform fellatio on him he was digitally penetrating her vagina.

28. After he ejaculated the offender jumped up, pulled up his pants and left via the front door. The victim spat the ejaculate into a tissue which she “scrunched” into a ball and left on the table. The victim pulled on some pyjamas, picked up her baby and drove to her husband’s work. The baby was very distressed and crying.

29. The victim rang her husband and he went out to the car. The victim disclosed the sexual assaults. Her husband told his supervisor who encouraged them to contact the police. When they expressed fears about returning to the unit, which was next door to the offender the supervisor accompanied them and waited in the car with them for the police.

30. Police attended and the victim went to the hospital. The victim and her baby were understandably very upset. The victim explained that the baby was exclusively breast fed but she felt that she could not feed her until she had cleaned as the offender had licked her nipples. She could not clean until the SAIK and medical examination had been completed.

31. The victim and her husband expressed fears returning to their unit given the threats by the offender who lived next door with members of his family.

32. The offender was arrested and clothing consistent with that described by the victim was located during a search of the premises. The victim identified the offender from a photograph array. A DNA profile matching that of the offender was found in the semen from the tissue. Further, a DNA profile consistent with that of the offender was found from an oral swab of the victim. A DNA profile consistent with that of the offender was also detected on the wet swab of the security door handle of the victim’s residence and a DNA profile consistent with the offender was located on the front timber door handle of the victim’s residence.

Assessment

33. All offences committed on 17 August 2018 were committed in the home of the victim and accordingly the factor of statutory aggravation provided for by s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act is made out.

34. The Crown appropriately does not rely on the presence of the child as a factor of aggravation with the offence of Aggravated Break Enter and Commit Serious Indictable Offence (Assault Occasioning Actual Bodily Harm) as the child was the victim in that matter.

35. However, the Crown does submit that the presence of the child is a matter of statutory aggravation that applies to the sexual assault matters. Counsel for the offender does not concede that s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act applies. Mr King refers to the decision of Gore v R; Hunter v R (2010) 208 A Crim R 353 at [104] where Howie J said:

“The common law did not specifically identify as an aggravating factor that an offence was committed in the presence of a child, so no guidance is given to how the section should be interpreted from that source. However, it is not difficult to appreciate that the provision in s 21A(2)(ea) is principally aimed at the deleterious effect that the commission of a crime, particularly one of violence, might have on the emotional wellbeing of a child. The commission of the offence may also be deleterious to the child's moral values. It does not matter whether the offender is a parent of the child or not, although if it is a parent this will be particularly aggravating. I accept that generally the supply of drugs in the presence of a child would be a factor of aggravation. Again whether such a factor is aggravating in a particular case and how aggravating it is, will depend upon the nature of the offence charged and the likelihood that the child will be affected by it, having regard to all the circumstances including the child's age. No regard seems to have been given to such considerations in this case either by the parties or the court.”

36. I am not informed of the age of the child although as Mr King, counsel for the offender observes given that the child is described as a “baby” and that it was being exclusively breast fed it is almost certain that the child would have been less than 12 months old. Mercifully, given the child’s age the offending (i.e. the sexual assaults) would not have been comprehended by the child.

37. For this reason I am not prepared to find beyond reasonable doubt that the factor of statutory aggravation pursuant to s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act is made out. Be that as it may, the fact that the victim was holding her infant child would have been distressing in the extreme for the victim. The fact that the victim was holding her infant child while those sexual assaults occurred is a highly relevant factor in determining the objective seriousness of those matters. If the fact of holding the child is taken into account in determining the seriousness of the matter it would be double counting to then also take it into account as a factor of statutory aggravation.

38. As with many factors of statutory aggravation provided for by s 21A(2) of the Crimes (Sentencing Procedure) Act great care will need to be taken to ensure that the matters are not double counted – see for e.g. R v Elyard [2006] NSWCCA 43 at [38]-[45] per Howie J, especially at [39]-[40].

39. The Crown submits (paragraph 24, written submissions, MFI 1) that, “There is no need for the Court to refer to the objective seriousness by reference to where it sits within a range of objective seriousness. The Crown then refers to the decision of Higgins v R [2020] NSWCCA 169 at [79]-[81] per Wilson J, (Johnson and Wright JJ agreeing). However, I note what was said by Johnson J (Payne JA, Simpson AJA agreeing) in Tepania v R [2018] NSWCCA 247 at 112 namely:

“In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at 324-325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at 55-56 [171]-[172] (Callinan J).”

40. The Crown also refers to the decision of Tepania at paragraph 27 of the written submissions.

41. I agree with the submissions of Mr King for the offender that the Wagga Wagga offending, i.e. the sexual offending of 17 August 2018, occurred as part of the one ongoing course of conduct. However, care needs to be taken with noting precisely what occurred. For example paragraph 22 of the agreed facts note that the “offender kept interchanging between forcing his penis into her mouth, then into her vagina. This occurred approximately 4 or 5 times...” There are multiple acts of penile/vaginal intercourse and fellatio.

40. The three counts of sexual offending involve penile/vaginal intercourse, fellatio and digital penetration. Simpson J (as her Honour then was) said in R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 at [24]:

“It is not possible to create some kind of hierarchy of the seriousness of the various kinds of sexual intercourse contemplated by s 66A and defined by s 61H. It is the facts and circumstances of each case including the nature of the intercourse that makes the proper evaluation of objective seriousness”.

43. Although the decision from which I have just cited relates to s 66A of the Crimes Act it seems to me that the general principle that it is “not possible to create some kind of hierarchy of the seriousness of various kinds of sexual intercourse” has a wider application.

44. In Jolly v R [2013] NSWCCA 76 Bellew J (Hoeben CJ at CL, Slattery J agreeing) said at [72]:

“…The nature of the sexual intercourse which occurs in offending of this nature should not be considered in isolation, and then ranked in some form of hierarchy (see R v King [2009] NSWCCA 117 at [36] per McClellan CJ at CL).”

45. Mr King submits that the counts relating to the sexual offending are below mid-range. The Crown’s representative submits (paragraph 26 MFI 1 on sentence) that the court would assess the objective seriousness of each of the offences relating to the sexual assaults in the victim’s home as being “objectively extremely serious examples of serious offences”.

46. The offences occurred in the victim’s home while she was holding her infant child and in circumstances where there had clearly been some premeditation, but not “substantial planning”. The offending was far from spontaneous, noting the approach by the offender to the victim outside and then the calling at the door asking for sugar. Clearly enough, the offender broke into the premises with the intention of having sexual intercourse. I note however that the aggravation relied upon in sequences 2 and 6 is that the offender broke in with the intent to commit the offences. The offender ejaculated into the victim’s mouth. The fact of ejaculation into the victim’s mouth makes that count marginally more serious than the others. The offending occurred over some time. The offender physically took hold of the victim by holding her around the neck. He also licked her nipples which had the effect of her being concerned over breast feeding the child.

47. The offence involving the threat which is on the Form 1 document was committed during the time the offender was having sexual intercourse with the victim. As this is a separate offence it is simply part of the factual background to the sexual offending but does not of itself aggravate the seriousness of the sexual offending as it is a separate offence. However, it must have some impact (but not significant impact) on the sentence to be imposed on the matter to which it attaches.

48. The Crown submits that the sexual offences are extremely serious examples of very serious offences. In all of the circumstances it is difficult to disagree with that submission. Noting the circumstances as I have, I am of the opinion that each of the sexual offences are slightly above mid-range. That however, is not to make light of the matter; the victim must have been absolutely terrified throughout the whole of the ordeal.

49. There are two reports from very eminent Psychiatrists, namely exhibit 1 a report prepared at the instructions of the solicitors from Dr Olav Nielssen for the accused and exhibit 2 a report from Professor Greenberg. There are some redactions from the report of Professor Greenberg.

50. Dr Nielssen opines (p 6) that the psychiatric diagnoses are probable schizophrenic illness in remission and substance use disorder also in remission. Professor Greenberg’s report was prepared in respect of an issue of Fitness to be Tried. Professor Greenberg opines (p 20) that “clinically he is probably in the borderline intellectual functional range but only with formal intellectual function testing can his IQ be more accurately determined. At p 23 Professor Greenberg further opines that there are significant questions (at the time of the report, i.e. June 2019) with regard to the offender having a schizophrenic disorder but that he agreed with the treating psychiatrists in taking a more cautious approach. The offender was then being treated for a possible psychotic or schizophrenic disorder.

51. Neither psychiatrist suggests there is a causal connection between the mental condition of the offender and the offending that occurred in August 2018 nor for that matter the assault in the gaol. The mental condition is part of the subjective mix only and to my mind cannot be factored into an assessment of the objective seriousness of any of the offending. However the very significant mental health issues suffered by the offender are clearly a significant part of the subjective case.

52. I have dealt with some of the material from the psychiatrists at this point of these reasons because of what was said by Johnson J in Tepania v R at [112].

53. Specifically in respect of sequence 1, i.e. Aggravated Break Enter and Commit Serious Indictable Offence (Assault Occasioning Actual Bodily Harm), the victim was very young but the injuries were minor and were limited to a graze on the temple of the baby. The injury was occasioned in the course of the offender breaking into the premises. The authorities such as R v Mitchell & Gallagher (2007) 177 A Crim R 94 at [27] per Howie J and McCullough v R [2009] NSWCCA 94 at [37] per Howie J are relevant to an extent noting that the serious indictable offence is Assault Occasioning Actual Bodily Harm. There is also the decision of Hunter v R [2011] NSWCCA 141 at [52] per Adams J in assessing what is a “mid range” offence contrary to s 112(2) of the Crimes Act. Assault Occasioning Actual Bodily Harm like larceny is at the cusp of being a serious indictable offence.

54. Undoubtedly the whole events would have been absolutely terrifying for the baby’s mother who was the victim of the sexual assaults. However, noting the nature of the assault, the manner of the break and enter and the extent of the injuries, including the age of the victim, the matter as an Aggravated Break and Enter and Commit Serious Indictable Offence is at moderately below mid-range.

Facts – Assault Occasioning Actual Bodily Harm at Junee Correctional Centre

55. The facts that relate to this offence are at tab 5 of the Crown tender bundle, exhibit A on sentence. The offender and the victim, Brodie McLuckie, were both inmates at the Junee Correctional Centre. They had previously met at the Bathurst Correctional Centre. There was originally no animosity between them but the relationship “soured” once they were both accommodated at Junee.

56. At about 10.45 am on 17 March 2020 the victim was in the upper level of A‑1 A block outside his cell. The victim heard a commotion and looked to see the offender walking up the stairs towards him. The offender said words to the effect of, “There’s no one with me now” as he moved towards the victim with a clenched fist. Fearing he was about to be assaulted the victim attempted to pick up the offender and put him off balance. This caused the offender’s back to strike the cell door.

57. The offender then started swinging at the victim with both hands. The victim recalls being hit repeatedly. The victim fell to the ground. CCTV footage on the incident shows the offender kick the victim once to the head while he is on the ground. The fight ended as a result of the offender walking away. The victim received a cut above his right eye which required gluing, two broken teeth and some bruising. He felt pain. Clearly, as the facts state, the injuries amount to actual bodily harm. Given the fact that the offender kicked the victim in the head, it is fortunate that more serious injuries were not sustained. The offender is to be sentenced in respect of what occurred, not what might have occurred.

58. Mr King puts in his submissions (paragraph 39) that the injuries sustained were not particularly serious and the offence is well below mid-range if such a description is required. As has been established by the various authorities to which I have already referred although crimes of violence are generally result offences the nature and circumstances of the assault are still relevant.

59. As Mr King submits, the fight was not all one way. The offender did however kick the victim in the head. I cannot find beyond reasonable doubt that the victim suffers any ongoing issues or sequelae as a result of the assault. The matter is below mid-range but not significantly so.

Criminal History

60. The offender was born on 19 January 2000 and accordingly is 20 years of age and was 18 years of age at the time of the offending. He has a significant history in the Children’s Court. It was accepted at the sentence hearing that the decision of Dungay v R [2020] NSWCCA 209 especially at [91]-[97] does not apply in this matter as there has not been a gap of two years in the offending. The Children’s Court matters include Aggravated Break Enter and Steal in 2016 in respect of which a Control Order was imposed. Likewise, Control Orders were imposed in respect of a multiple counts of assault police and intimidate police in 2017. He also has other matters of violence including Assault Occasioning Actual Bodily Harm on his record.

61. The Crown submits that the offender’s record is one that does not entitle him to any particular leniency. Despite the offender’s relatively young age I agree that the record is one that does not entitle the offender to any particular leniency.

Youth

62. The offender was 18 and 7 months at the time of the offending. I note and take into account the review of authorities undertaken by Hulme J (Simpson & Hoeben JJ (as their Honours then were) agreeing) in Locke v R (2010) 207 A Crim R 34 at [41]-[49]. At [49] Hulme J concluded:

“In my view the youthfulness of the applicant was relevant to the setting of not only the non-parole periods but also the overall terms of the sentences.”

63. Mr King in his comprehensive written submissions refers to the judgment of Rothman J in Bullock v R [2016] NSWCCA 131 at [68]-[75]. That decision involved an offender who was 18 years of age and was being sentenced for a sexual assault. Rothman J at [72]-[75] said:

“In dealing with a young person, whether or not of majority, it is unnecessary for the sentencing judge to set out the principles for sentencing young persons at any great length. Nevertheless, it is necessary for the sentencing judge to pay regard, not only to the youth of the Applicant as such, but to the effect of that youth.

The sentencing judge refers to the Applicant being young and to the Applicant’s immaturity. He does not refer to the effect of the youth and immaturity on the Applicant for the purposes of sentencing.

Rather, the sentencing judge refers to deterrence, general and specific, in a way which suggests that deterrence is the most important element. For youth acting immaturely, rehabilitation plays a far more significant role and retribution and deterrence play a less significant role.”

64. These are all matters that are included in the process of instinctive synthesis determining the appropriate sentence in the matter. I note and have regard to the manner in which the Court of Criminal Appeal dealt with the issue of youth in Simmons v R [2019] NSWCCA 20, especially at [23]ff.

Subjective Case

65. There was no oral evidence called from or on behalf of the offender. The subjective material is contained in the reports of Dr Nielssen and Professor Greenberg. Mr King on behalf of the offender submits (paragraph 44 of MFI 3), “Professor Greenberg was skilfully able to take from the offender a history that revealed a significantly deprived childhood, which stands in contrast to the understated and airbrushed history obtained by Dr Nielssen”.

66. However, this should not be taken as any criticism of Dr Nielssen who as Mr King concedes was only able to interview the offender by audio visual link because of restrictions connected with the pandemic.

67. Dr Neilssen at p 3 reports, “Mr Pout reported a good childhood and said that he was well looked after. He said that his parents separated when he was a teenager, but he did not report being affected by the separation or see any link between his parents’ separation and his conduct problems as a teenager”.

68. It is within my experiences (both in the District and Local Courts) that offenders to whom the “Bugmy Principles” apply often enough sanitise details of their background to authors of reports. One explanation may well be that the offender simply presumes that their upbringing was “normal”.

69. However, Professor Greenberg was able to obtain far more information from the offender. At p 5 of his report Professor Greenberg sets out the offender’s father abused alcohol and would physically “bash” the offender when the offender was a child. He lived with his father for three years until 11 years of age when his father “kicked him out of home because he had a new partner and family”. The offender’s mother was in gaol when he was 11. His mother also abused alcohol and was “always drunk”.

70. Further on this issue Professor Greenberg sets out at p 6 of the report that the offender reported to him that he was raised in a “chaotic turbulent family background where the family constantly moved from town to town and where there was ongoing alcohol abuse and domestic violence”. Later at p 7 of the report Professor Greenberg noted that the offender stated that he was physically and emotionally abused by both his parents during childhood.

71. Mr King on behalf of the offender annexed to his written submissions (MFI 3 on sentence) extracts from the New South Wales Public Defenders Bugmy Bar Book Project. Clearly, given the material from Professor Greenberg, the principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37 are enlivened reducing the offender’s moral culpability.

72. The other factor that also goes to reduce the offender’s moral culpability to at least some extent is the myriad of mental health issues from which the offender suffers. These are set out in some detail in Professor Greenberg’s report at pp. 18-22.

73. The offender was diagnosed as having a conduct disorder during his adolescence. Professor Greenberg notes at p 18 that on 30 May 2018 Dr Davies, psychiatrist, notes his diagnostic impression was the offender had an antisocial personality disorder.

74. At p 19 Professor Greenberg notes the offender reported that he began to sniff petrol and solvents between ages 11 and 12 and began to smoke cannabis at 14. He also binged on alcohol and began using methamphetamine intravenously at the age of 16. It is not surprising with this information that Professor Greenberg opines that the offender also has a substance use disorder.

75. At p 20 Professor Greenberg says, “Unfortunately Mr Pout has not undergone any cognitive assessment or assessment of his intellectual functional according to the provided documentation. Clinically he is probably in the borderline intellectual functional range but only with formal intellectual function testing can his IQ be more accurately determined.” However, Professor Greenberg goes on to say, “In my opinion because of his reported level of adaptive functioning in the community, it is unlikely that he has an intellectual disability”.

76. Professor Greenberg then goes on to discuss the psychotic disorder symptoms and/or mood disorder suffered by the offender. At p 22-23 the professor opines:

“In summary, I’m of the opinion that Mr Pout’s reported psychotic symptoms are likely influenced by his chaotic and abusive family background and traumatic childhood. His persistent ongoing and chronic use of illicit substances and alcohol is also a feature in his clinical presentation. My cross-sectional psychiatric assessment and his presentation of identifying as having psychotic symptoms should in my view warrant ongoing psychiatric follow-up and ongoing psychiatric treatment. At this time [report dated 24 June 2019] I think there are significant questions with regard to him having a Schizophrenic Disorder but clinically at this time I agree with the treating psychiatrists that should take a more cautious approach, give him the benefit of the doubt. He is therefore currently being treated as having a possible psychotic or Schizophrenic Disorder”

77. Dr Nielssen diagnosed (p 6 of his report) that the offender was suffering from probable schizophrenic illness in remission and substance use disorder also in remission. Dr Nielssen went on to say there were no objective features of mental illness but then said that the offender had been receiving treatment with high doses of quetiapine and that maybe the apparent remission from signs and symptoms of schizophrenia was due to consistent treatment with an adequate dose of anti-psychotic medication.

78. So far as the offender’s prospects of rehabilitation are concerned Dr Nielssen noted (p 7) that it was not possible to offer any meaningful prediction about the course of his psychiatric disorders or his eventual rehabilitation.

79. I am simply unable on the material before me to make a finding that the offender has good prospects of rehabilitation.

80. Mr King on behalf of the offender argues in MFI 3 on sentence that given the multiple diagnoses of mental conditions the offender does not present as a good vehicle for general deterrence. The Crown argues (MFI 1 on sentence at paragraph 78) that nowhere in the report of Dr Nielssen is it suggested that there is a causal connection between the probable diagnosis of schizophrenia and the commission of the offences. The Crown goes on to argue (para 80, MFI 1 on sentence) that there is nothing in the evidence before the Court to support a finding that the offender is not an appropriate vehicle for general deterrence.

81. McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; 205 A Crim R 1; [2010] NSWCCA 194 said at [177]-[178]:

“Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40] - [48]; Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 at [43] - [51]; R v Harb [2001] NSWCCA 249 at [35] - [45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33] - [36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]-[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner:

● Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28].

● It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 - 51; Israil at [22]; Pearson at [42]; Henry at [28].

● It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28].

● It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].

● Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24].

[178] I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence: R v Skura [2004] VSCA 53; R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at [5].”

82. In Muldrock v The Queen [2011] HCA 39 the court said at [54]:

“The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.”

83. In Aslan v R [2014] NSWCCA 114 Simpson J (as her Honour then was) in giving the judgment of the court at [33] said:

“This Court has frequently had to grapple with the effect on sentencing (especially with respect to serious or violent crimes) of mental illness, intellectual handicap or other mental or emotional impairment or disability. The compassion and sympathy that such a condition engenders collide with the need for sentences to reflect the objective gravity of the offence in question, the community's interest in general deterrence, and that criminal conduct must be met with appropriate denunciation and retribution. Over the years, the applicable principles have evolved. They were most recently re-stated by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177].”

84. Her Honour then extracted that part of the judgment of McClellan CJ at CL at [177] in De La Rosa that I have extracted above. Her Honour went on to say at [34]:

“It will be observed that none of these principles is stated as absolute. What is recognised is the potential effect, in any given case, of a mental disability. It does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced (principle 1); nor that he or she is an inappropriate vehicle for general deterrence (principle 2); nor that a custodial sentence will weigh more heavily upon him or her (principle 3); nor that the significance of specific deterrence is reduced or eliminated (principle 4). Nor, on the other hand, does it follow that a person with mental impairment is a danger to the community, indicating a need for community protection (principle 5). Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for.”

85. Beech-Jones J in giving the leading judgment in Ngati v The Queen [2014] NSWCCA 125 said at [46] said:

“Nevertheless the approach stated in Muldrock is only expressed to be apposite to “most cases” of an offender with impaired intellectual functioning. It does not necessarily apply to all. The task still remains to consider the evidence of the intellectual retardation and the facts of the particular offence. In this case, his Honour noted the degree of planning that was involved by the applicant in the commission of the offences. His Honour concluded that the application was “fully aware” that his conduct was “seriously wrong”. Considered in this context the finding that he was “fully aware” was clearly a reference to the applicant having a deep understanding of its wrongful nature and consequences”

86. Beech-Jones J in Ngati was of course dealing with an offender with an intellectual impairment rather than an offender who was suffering from mental illness or mental conditions. The Crown is correct in the submission that there is no evidence of any causal connection. Professor Greenberg opines that given the level of adaptive functioning in the community it is unlikely that the offender has an intellectual disability. There is no evidence of intelligence testing. Given the mental conditions I am prepared to find that the moral culpability of the offender is reduced to some extent.

87. On the issue of custody being more onerous for the offender, Mr King on behalf of the offender submits (para 55, MFI 3 on sentence) that the offender has “obviously had difficulty in settling into a routine and remains disrupted and somewhat disruptive, which no doubt is partially a function of his mental illness and personality disorder”. He has limited contact with his family. The offender is currently serving his sentence in protection and this will probably continue. Again, I am prepared to allow some, but not significant, consideration on the aspect of custody being onerous for the offender.

88. Given the state of the evidence as to the offender’s mental condition I am not of the opinion that the need for general or specific deterrence is eliminated. In fact I am of the opinion that there is some meaningful work for general deterrence in this sentencing exercise.

89. There is nothing in the material before me that would justify a finding on balance that the offender is remorseful. Given the offender’s record I could not find on balance that the offender is unlikely to re-offend.

90. Both parties have provided an abundance of material relating to the statistics and what are said to be comparable cases. Going initially to the JIRS statistics annexed to Mr King’s written submissions the “pre-reform” (i.e. until September 2018) statistics reveal that of a sample of 311 cases the total sentence (including aggregate sentences) for offences contrary to s 61J vary between 12 months and 20 years. Of a sample of 77 cases the non-parole periods vary between 12 months and 18 years. Of a sample of 18 cases where the offender was aged 18-20 years the total sentence varies between 30 months and 12 years.

91. The post reform statistics contain a sample of 77 cases. The total or aggregate sentence for offending contrary to s 61J of the Crimes Act varies between 30 months and 20 years. The non-parole period vary from 12 months to 18 years. Where the offenders were aged between 18 and 20 years the sample is 3 and therefore of very limited utility.

92. I have carefully considered the statistics however I warn myself about the use of those statistics conformably with cases such as Hili & Jones v The Queen [2010] HCA 45 and Brown v R [2014] NSWCCA 215 at [81] per Garling J. I also note the comments by the Chief Justice in SS v R [2016] NSWCCA 197 at [61]ff.

Other cases

93. Both parties have provided a table of what are said to be “comparable cases”. The extract from the Public Defender’s material is part of Mr King’s written submissions, MFI 3 on sentence. The Crown’s representative has prepared her own table from the series of cases which are contained within the folder of Crown material on sentence.

94. The decisions to which the Crown has referred me are in the order in which they appear in the folder:

Stephens v R [2010] NSWCCA 93;

Cole v R [2010] NSWCCA 227;

Piscitelli v R [2013] NSWCCA 8;

Black v R [2013] NSWCCA 265;

Currie v R [2013] NSWCCA 267;

Simon v R [2013] NSWCCA 328;

Keeley v R [2014] NSWCCA 139;

R v Omar [2015] NSWCCA 67 (a Crown Appeal);

Herbert v R [2015] NSWCCA 172; and

Simmons v R [2019] NSWCCA 20.

95. A number of these cases have similarities to the offending in this matter but there are also significant differences. The decision in Stephens v R involved an offender who was 18 years of age, as is this offender. The offences for which he was sentenced included three counts contrary to s 61J and also an Aggravated Kidnapping charge contrary to s 86(2)(b) of the Crimes Act. There were a number of offences on a Form 1 document. The offender took the victim’s keys, unlocked her vehicle, returned the keys then returned to the vehicle and secreted himself in the boot. After the victim began driving home the offender forced his way into the vehicle and forced her to a side street after placing a hand over her mouth and a plastic fork to her head. The victim made unsuccessful attempts to call triple-0 and to escape. The offender demanded that the victim perform fellatio on him under threat of being taken to a park and being further physically and sexually assaulted. The victim masturbated the offender under threat of harm and he removed her clothing while calling her various degrading names. Despite the victim’s pleas the offender had forcible penile/anal intercourse with the victim that resulted in the victim crying and screaming in pain. The offender then repeatedly inserted two fingers into the victim’s anus after which he inserted them into her mouth while laughing. The offender then pulled the victim towards him and repeatedly penetrated her vagina with his penis, which was one of the form 1 matters. He then placed his whole weight on top of the victim as she fellated him. During this part of the incident the victim’s breathing was compromised. The offender then engaged in forcible digital penetration extending to him attempting to insert his entire fist into the victim’s vagina. He then penetrated the victim’s anus with his penis and ejaculated over her face. The victim escaped and was taken by a passing motorist to a police station.

96. The offender’s subjective details appear at [30]-[32] of the judgment. The offender was 18 years and 9 months at the time of offending and had a minor record as a juvenile. The offender had a troubled family life. The sentencing judge found that there were good prospects of rehabilitation. He was diagnosed as having substance use disorder, essentially from self-reporting. There was a plea of guilty attracting 25% discount.

97. In Stephens the offender was sentenced at first instance to a total sentence of 20 years with a non-parole period of 14 years which was reduced on appeal to a total sentence of 18 years with a non-parole period of 12 years.

98. The offending in Stephens is more serious than the offending in the present matter. There was an aggravated kidnapping charge in Stephens but there is the offence contrary to s 112(2) in the present matter. The offender in the present matter was 18 at the time of offending and has a more serious record than Stephens.

99. Cole involved a 39 year old offender who pleaded guilty and was sentenced to a total effective sentence of 16 years with a non-parole period of 12 years in respect of one count of Aggravated Sexual Intercourse Without Consent contrary to s 61J of the Crimes Act and one count of Kidnapping contrary to s 86(1) of the Crimes Act. The appeal was dismissed.

100. Latham J set out the summary of the facts at [43]ff. The offender forced his way into the home of a recently widowed 44 year old mother of two young children who were present in the house. The offender after breaking in went to the children’s bedroom. The victim was tied up with several scarfs and also blindfolded. The children and the victim were threatened with serious physical harm. The victim was also sprayed with bleach. The offender forced the victim to fellate him ejaculating in her mouth. The offender talked to the victim for some hours after which he directed her to drive him to an address. After the offender left the vehicle she went to a nearby police station and reported the matter. The offender was later arrested and made full admissions in the record of interview.

101. Subjectively, there was evidence indicating a causal connection between the mental illness of the offender and the offending. At [67] Latham J (with whom Basten JA and Hall J agreed, both with additional comments) said that, “…the applicant’s contention that the judge ought to have taken the applicant’s mental illness into account when determining the objective gravity of the offence lacks force…” I note what Johnson J said at [112] in Tepania v R in this regard. The judge at first instance in Cole found that the criminal history of the offender enlivened the principles enunciated in Veen v The Queen (No. 2) (1988) 164 CLR 465.

102. The kidnapping offence in Cole was a serious example of that offence. The children were threatened in their own home. There was one count of offending contrary to s 61J. The sexual offending in isolation is more serious in the matter presently under consideration. However, the kidnapping charge and the facts relating to that charge mean that the sexual offending cannot really be taken in isolation. This decision is not particularly helpful in the matter presently under consideration.

103. The offender in Piscitelli was also allowed a 25% discount for the utilitarian value the pleas of guilty. He was sentenced to a total effective sentence of 16 years 6 months with a non-parole period of 11 years 6 months in respect of two counts contrary to s 61J of the Crimes Act, one count contrary to s 112(3) of the Crimes Act and one count contrary to s 61L of the Crimes Act.

104. The offender was 23 at the time of offending. The matter related to him breaking into the home of an 83 year old lady where she lived alone. The victim went to the rear of the premises to use the toilet at which time the offender entered the premises. The offender took the victim from the bathroom to the bedroom where he ordered her to undress, which she did. The victim pleaded with the offender. The offender attempted to penetrate the victim’s vagina and she felt his penis press against her anus. He made a number of attempts to penetrate her before engaging in digital penetration of the victim’s vagina. He then penetrated the victim’s vagina with his penis, with which he persisted to ejaculation. He later violently banged her head against an internal brick wall on a number of occasions which occasioned a wound, to which the s 112(3) charge relates. The offender left and the victim eventually summoned help from a neighbour. The victim remained in hospital for 11 days. She had lacerations one on which to the temple required suturing. She also had injuries to her genitals.

105. Button J at [6] after recounting the facts said:

“The profound gravity of the criminality encompassed by the offences committed by the applicant requires no elaboration by me. His Honour found that the offences were ‘just below worst case’”.

106. There was no psychiatric or psychological material before the sentencing judge but the offender gave evidence, as did his mother. The offender was diagnosed with ADHD as a child and was exposed to illicit substances at the age of 10. He had a record that did not assist him but he had never been sentenced to prison before. The sentencing judge found that the prospects of rehabilitation were “extremely guarded” and that there was a real danger that the offender would re-offend. It was accepted that the offender was remorseful.

107. The age of the victim and the physical harm occasioned to the victim as well as the offending occurring under cover of darkness distinguishes the matter of Piscitelli from the matter presently under consideration. That decision is again, not of particular assistance.

108. The offender in Black was convicted after trial and accordingly there was no discount or consideration for pleas of guilty. He was sentenced to a total effective sentence of 14 years with a non-parole period of 9 years and 6 months in respect of a total of four offences contrary to s 61J of the Crimes Act, two contrary to s 61L and one contrary to s 61N (indecent assaults and incite act of indecency). The offender was 40 and the victim 45. The victim and offender were known to each other.

109. The offender went to the victim’s house and waited in the bedroom. He put a knife to her throat and then engaged in digital penetration. He then inserted his penis into the victim’s vagina. Then he roughly grabbed the victim’s breast before biting it. The offender then further threatened the victim with the knife before anally penetrating her with his penis, while holding his hand over her mouth and pushing her head into a pillow to stop her from crying out. The offender then demanded of the victim that she “put your hand down there” and she then placed her hand on his penis. He again penetrated the victim’s vagina with his penis and instructed her to put a finger in her vagina at the same time. The offender found a vibrator which the victim had purchased some time before and “shoved” it between her legs, she not being sure whether it penetrated her vagina. The offender left threatening to kill the victim if she called the police.

110. One of the grounds of appeal was a purported “Muldrock” error. Subjectively the offender lost his job (which it seems to me would have occurred as an automatic consequence of the inevitable imposition of a prison sentence upon conviction) and lost his home as a result of being declared bankrupt. The offender suffered depression and attempted suicide. The sentencing judge found that he was unlikely to re-offend.

111. In the matter of Black the use of the knife is one distinguishing feature from the matter presently under consideration. The age of the offender and the subjective case is another.

112. Currie v R also involved an appeal because of Muldrock error, which in that matter was conceded. The offender was convicted of two counts contrary to s 61J of the Crimes Act and one count contrary to s 61L. A total effective sentence of 13 years 4 months with a non-parole period of 10 years was imposed. The offender was 42 and the victim 24. The offending occurred in 2005. The offender had a significant criminal history which included eight counts of sexual intercourse without consent and 47 counts of breaking and entering or property offences.

113. The victim was a backpacker who accepted the offer of a lift from the offender. About 40 minutes into the journey they both used cannabis after which the offender drove to a remote property saying that it was quicker route. He threatened the victim with a knife and had her fellate him, which made her retch. He then took her to a makeshift table and had penile/vaginal intercourse with the victim until he ejaculated.

114. Subjectively it appears from [42]ff of the decision that the offender had significant “Bugmy” issues. In this regard I note [84] of the judgment. Dr Westmore had provided a report to the effect that on balance the offender was suffering from a relapse of a mental illness and that mental illness was present to some extent at the time of the offending. There was no expression of remorse. Although the error was conceded the Court concluded (see [98]) that leave to grant an extension of time should not be granted and that if leave had been granted it was determined that no lesser sentence was warranted.

115. Simon v R involved a multiplicity of offending of which the offender was convicted after trial. The offending included 12 counts of aggravated sexual intercourse without consent, a charge of robbery contrary to s 97 of the Crimes Act and a charge of kidnapping contrary to s 86(1) of the Crimes Act. A total effective sentence of 22 years with a non-parole period of 16 years was imposed.

116. The offender followed the victim home on the train and it would seem was able to enter her premises. He threatened the victim with a knife and (see [7]):

“…repeatedly sexually assaulted the complainant over a number of hours. The assaults were accompanied by threats of violence…causing her to be in a state of extreme terror. In addition to penile/vaginal intercourse the assaults included penile/oral penetration and attempts by the applicant to have anal intercourse”.

117. The offender was convicted after trial. One of the grounds of appeal related to the trial judge not distinguishing between the criminality of the various counts. Macfarlan JA (Latham & Hulme JJ agreeing) said at [91]:

“In my view, the present case was a case in which the type of sexual penetration involved in the different offences assumed less important than the other factors to which the sentencing judge referred in his assessment of the objective seriousness. Thus in my view it was, as the sentencing judge recognised of prime importance in the assessment of the objective seriousness in this case that the various forms of sexual assault occurred after the applicant’s unauthorised entry into the complainant’s home and were perpetrated over a lengthy period during which the applicant subjected the complainant to extreme terror by repeatedly threatening her with a knife”.

118. The offending in the matter presently under consideration was less serious than in Simon, however what I have extracted immediately above has some application as the matter presently under consideration involved a number of acts of sexual penetration as part of the one ongoing episode of offending where the offender had entered the victim’s premises by forcing his way into those premises.

119. In Simon the sentencing judge found that the offender was a “recidivist sex and property offender”. The offender was found to be above average intelligence. He had been smoking cannabis since his early teenage years.

120. Going to the decision of Keeley v R, the offender pleaded guilty to three counts of sexual intercourse without consent, and one count of robbery contrary to s 95 of the Crimes Act. There was a further s 61J charge and an indecent assault on a Form 1 document. The offender was sentenced at first instance to a total sentence of 15 years with a non-parole period of 12 years. The appeal was dismissed.

121. The facts in Keeley included that the victim was accosted in the street by the offender and forced her into an alley at knifepoint. He put his right hand holding the knife between the victim’s legs and cut her skirt, underpants and stockings and removed them. He then engaged in digital intercourse. The victim put her hands near the waist of the offender in an attempt to push him off. However, she touched his penis which she noticed was small and soft. The victim masturbated the offender to avoid fellating him. The offender then had forcible penile/vaginal intercourse with the victim. There was also an indecent assault and an act of digital penetration with there being no charge relating to the digital penetration. The offender pulled up his pants and left. The victim obtained assistance from nearby. The victim was robbed of her wallet.

122. The offender was 29 at the time of offending and had a record for property, driving and firearm offences but not sexual offences. A report from a psychiatrist indicated that the offender met the diagnostic criteria for polysubstance abuse and Cluster B personality disorder. It was not submitted that the “Bugmy” principles applied. Johnson J said Ward JA agreeing with additional comments, RS Hulme AJ dissenting) at [130]:

“General deterrence is a most significant factor on sentence for offences of sexual violence committed against women, and in particular where offences are committed against a complete stranger selected by the offender in a public street. Specific deterrence was also important here.”

123. In the matter presently under consideration the victim was not a complete stranger selected by the offender in a public street. The victim was in her own home holding her infant child. I have dealt with the issue of the offender’s mental condition and have concluded that general deterrence still has a role to play in this sentencing exercise.

124. R v Omar was a Crown appeal that was dismissed with the Court concluding (see [76] per Bellew J (Simpson J (as her Honour then was), Rothman J agreeing) that the sentence was not unreasonable or unjust). The offender pleaded guilty. The offender was sentenced to a total effective sentence of 6 years 10 months with a non-parole period of 3 years 11 months. The offending included three counts contrary to s 61J and one count contrary to s 98 of the Crimes Act which was unrelated to the incident in which the sexual offences were committed. The offending occurred in 2004 and there was a significant delay. The victim was 39 years of age and was dragged into a school yard by the offender and subjected to physical violence and a number of threats to kill. The sexual intercourse included fellatio, penile/vaginal and penile/anal intercourse.

125. Subjectively the offender was 33 years of age and migrated to Australia from the Middle East. The offender was using illicit drugs on a daily basis at the time of offending. The sentencing judge found that the offender was remorseful and that he had been completely rehabilitated. The sentencing judge also found that the offender had mental problems and that the principles enunciated at [177] of DPP (Cth) v De La Rosa were enlivened moderating the impact of general deterrence (see for e.g. at [57]).

126. The offender in Herbert v R also pleaded guilty and received the 25% discount for the utilitarian value of the plea. The sentence imposed at first instance was a total sentence of 10 years with a non-parole period of 7, which was reduced on appeal to a total sentence of 9 years with a non-parole period of 6 years 3 months. The offender received on appeal additional consideration in accordance with the decision of R v Ellis (1986) 6 NSWLR 603. Under consideration were three offences contrary to s 61J of the Crimes Act.

127. The victim was a 55 year old woman who was accosted by the offender while walking along a beach on the south coast of New South Wales. The offender dragged the victim into the bushes while holding a hand over her mouth. He removed her pants and digitally penetrated her before licking and sucking her genital area. He put his hand around her throat applying pressure to the point where she lost consciousness. The victim smelt alcohol on the offender

128. The offender voluntarily attended a police station and essentially confessed. He had been using alcohol and codeine the day of the offending as well as “ice”. The offender was 30 at the time of hearing of the appeal. The criminal history was “of no present significance” (see [14] per Hulme J). He had an unremarkable upbringing.

129. That leaves the decision in Simmons v R. The sentencing judge observed (see [10] of the decision of the Court of Criminal Appeal) that, “I have…drawn from my 36 years’ experience practicing exclusively in the criminal law in two states. Simply put, this is one of the worse sexual assaults on a random female victim who has not been subsequently murdered, that I have encountered”. Given the facts it is not difficult to determine why his Honour made that comment. Accepting without question that the offending in Simmons was more serious than the matter presently under consideration I could make similar observations about this matter.

130. The victim was 22 and the offender was 18 at the time of offending. The victim was a stranger to the offender. The victim was accosted in a deserted street in a country town at about 6pm on a Saturday evening. The offender seized the victim with a hold around the neck and dragged her backwards toward the embankment of a river. She struggled but the offender overpowered her. She was thrown to the ground and held face down. She was told to shut up and stop crying. He sat on the back of her neck and used his feet in an effort to force down her pants and underpants. He squeezed the victim’s throat. He forced his hand down her pants and punched her vagina five or six times. She escaped but was caught and then punched repeatedly in the head. He then forced the victim to fellate him after which while holding the victim’s head to the ground forced two fingers into the victim’s anus and moved them in and out causing extreme pain. The offender then forcibly penetrated the victim’s vagina with his penis. He sat on her face with his anus near her mouth and repeated the word “tongue”. He forced his fingers into her vagina and attempted to force in his entire hand causing vaginal tearing. He lifted her legs in the air and again forced his fingers into her vagina. He then forced his fingers into the victim’s vagina causing “unbearable” pain. He then pulled his fingers out of her anus and forced them into her mouth a number of times. He then had forcible penile/anal intercourse with the victim and while doing so ripped out some of her hair with his teeth. There was a further instance of forced penile/vaginal intercourse after which there was a further instance of forced digital penetration. The events lasted over an hour.

131. The victim suffered numerous abrasions, bruises and swelling to various areas of the face and the left eye lids could not open. There were also injuries to the vagina and bruising to the anal verge with a bleeding laceration extending from the anus to the anal verge.

132. The offender was sentenced at first instance to an aggregate sentence of 18 years with a non-parole period of 12 years, which was reduced on appeal to an aggregate sentence of 15 years with a non-parole period of 10 years.

133. Subjectively it is clear from the Court of Criminal Appeal decision at [11]-[16] that the “Bugmy” factors were enlivened to a considerable extent. The offender clearly had a very dysfunctional upbringing. He regularly used cannabis and alcohol from his early teenage years. His mother had very minor contact with him. His father was in conflict with the criminal law.

134. The Court of Criminal Appeal rejected the submission that the judge at first instance had given insufficient weight to the subjective matters which included those already mentioned plus youth and previous good record. The Court (Hulme, Wright and Fagan JJ) concluded at [34]:

“These offences committed one after the other over more than an hour combined to constitute an outrage well beyond the gravity of a mere series of repeated acts. What was done to this young woman was shocking in a degree which the community would expect to be punished in a manner sufficient to convey unequivocal denunciation and deterrence. However whilst we do not regard any of the indicative sentences as excessive and indeed would not arrive at any different conclusion on them individually, we consider that implicit accumulation has resulted in an aggregate which is manifestly excessive…”

135. I have also carefully perused the Public Defender’s table of cases provided by Mr King as an annexure to his written submissions. I am not going to analyse each of the cases referred to in that table. The table includes details of cases decided between 2004 and 2020. The table includes the cases provided by the Crown and which I have summarised above.

136. The table provided by Mr King and the cases provided by the Crown are of some assistance. None of the cases referred to are particularly close factually to the matter presently under consideration. The cases and the sentences imposed both at first instance and on appeal demonstrate what Garling J said about the use of statistics in Brown v R at [80]-[81] and what has been said on a number of occasions by the Court of Criminal Appeal on the use of past decisions. It is not particularly easy, at least at face value to reconcile the results in all of the cases.

137. Be that as it may, the decision in Simmons has caused me to stop and reconsider the sentence to be imposed in this matter. I admit to initially contemplating a sterner sentence than the sentence upon which I have ultimately determined to be appropriate. The offending in Simmons is far more serious than the offending in the matter presently under consideration. There are a number of subjective factors such as youth and dysfunctional background present in Simmons and the present matter.

General remarks

138. Clearly, this is an appropriate matter for s 53A of the Crimes (Sentencing Procedure) Act to be invoked and an aggregate sentence imposed. The offending of 17 August 2018 occurred in the one ongoing episode. However, if separate sentences were imposed in respect of the offending of 17 August 2018 at Wagga Wagga, it would still be appropriate for there to be some level of partial accumulation of sentences to recognise the different offending. The level of accumulation would not need to be significant. There would also need to be some level of partial accumulation in respect of the offending that occurred at the Junee Correctional Centre to recognise the different offending and the different victim. It will of course be necessary for me to indicate what sentence would have been imposed in respect of each charge had separate sentences been imposed.

139. The offence of Assault Occasioning Actual Bodily Harm is routinely dealt with to finality in the Local Court. Given the more serious offending and s. 58 of the Crimes (Sentencing Procedure) Act it is entirely appropriate that the matter relating to the assault at the Junee Correctional Centre be dealt with on indictment. This is not one of the rare and exceptional cases where the offender should receive some consideration because the matter could have been dealt with in the Local Court – see for e.g. Zreika v R (2012) 223 A Crim R 460

140. Mr King argues that there should be a substantial finding of special circumstances in this matter. The factors set out at paragraph 60 of Mr King’s written submissions that justify such a finding are the youth of the offender, the mental condition of the offender, that this is the offender’s first time in adult custody, the need for a lengthy period of supervision and the partial accumulation of sentences. Care will need to be taken to ensure that there is no double counting.

141. However, I am firmly of the opinion that there should be a finding of special circumstances in this case. The age of the offender, the fact that this is his first time in adult custody, the need for an extended period of supervision including to ensure that the offender is adequately and appropriately reintegrated into the community and the fact of partial accumulation all justifies a finding of special circumstances.

142. I must give proper regard and effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act, 1999. Section 3A sets out the purposes of punishment, namely:

1. to ensure that the offender is adequately punished for the offence,

2. to prevent crime by deterring the offender and other persons from committing similar offences,

3. to protect the community from the offender,

4. to promote the rehabilitation of the offender,

5. to make the offender accountable for his or her actions,

6. to denounce the conduct of the offender, and

7. to recognise the harm done to the victim of the crime and the community.

143. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the maximum penalties that apply, the standard non-parole period, the nature of offending and the need for general deterrence clearly there must be a sentence of imprisonment. There was no contrary submission. Likewise noting those same issues the sentence must be a sentence of full time imprisonment.

144. The sentences that would have been imposed had separate sentences been imposed are as follows:

H68356623 – offending of 17 August 2018

Seq No.	Offence	Description	Maximum Penalty and SNPP if appropriate	Indicative sentence
1	Aggravated Break Enter and Commit Serious Indictable Offence namely assault occasioning actual bodily harm	Breaking in and causing the minor injury to the infant child	20 years SNPP 5 years	NPP 1 year 8 months with balance of term 11 months - total sentence 2 Years 7 months (starting point 3.5 years)
5	Aggravated Sexual Assault inflicting actual bodily harm	Fellatio during which injury was caused to victim’s lip – paragraphs [21 ] – [25] of the facts	20 years SNPP 10 years	Taking into account the Form 1 matter (s. 315A(1) Crimes Act) NPP 5 years 2 months with balance of term of 3 years 1 months– total sentence 8 years 3 months (starting point 11 years)
2	Aggravated Sexual Assault - having broken in with intent to commit the offence	Penile/vaginal intercourse paragraphs [18] – [20] of the facts	20 years SNPP 10 years	NPP 4 years 8 months with balance of term 2 year 10 months - total sentence 7.5 years (S/P 10 years)
6	Aggravated Sexual Assault - having broken in with intent to commit the offence	Digital penetration while forcing the victim to perform fellatio – paragraph 26 of the facts	20 years SNPP 10 years	As above

H14599102 – offending (AOABH) on 17 March 2020

1 Assault Occasioning Actual Bodily Harm Assault on fellow inmate at Junee Correctional Centre 5 years No SNPP 1 year 10 months with a starting point of 2.5 years

ORDERS

145. In respect of the matters to which the offender has pleaded guilty he is convicted.

146. The offender is sentenced to an aggregate sentence of 13 years with a non-parole period of 8 years and 3 months.

147. The non-parole period will date from 19 August 2018 and will expire on 18 November 2026. The balance of term of 4 years 9 months will commence on 19 November 2026 and will expire on 18 August 2031.

148. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.

149. The sentence indicates a finding of special circumstances, the reasons for which have been set out earlier in these reasons. The non-parole period is approximately 63% of the total sentence.

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Decision last updated: 15 December 2020