R v Robert Keith King

[2007] NSWDC 306

CITATION:	R v Robert Keith King [2007] NSWDC 306
HEARING DATE(S):	16/07/07, 25/07/07, 08/08/07
JUDGMENT DATE:	8 August 2007
EX TEMPORE JUDGMENT DATE:	28 February 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Norrish QC DCJ
DECISION:	The offender is sentenced to a term of imprisonment by way of non-parole period of 4 years and 3 months. That will commence on 01/03/2006 and will expire on 30/05/2010. The balance of the sentence is 1 year and 7 months. The expiration date of that sentence will be 30/12/2012.
CATCHWORDS:	Criminal law - Sentence - sexual assault without consent
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Way [2004] NSWCCA 131 Pearce v The Queen (1998) 194 CLR 610 Ibbs v The Queen (1987) 163 CLR 447 Thomson and Houlton [2000] NSWCCA 309
PARTIES:	Regina Robert Keith King
FILE NUMBER(S):	06/51/0134
COUNSEL:	Ms Bailey - Crown Ms Cusack - Offender

SENTENCE

1 HIS HONOUR: The sentence I propose to impose on you is a sentence of five years and ten months imprisonment which will comprise a non-parole period of four years and three months which will commence on 1 March 2006 and expire on 30 May 2010 and a balance of sentence which will be one year and seven months. In fixing that non-parole period I have taken into account the six months that you got for the larceny.

2 Robert Keith Matthew King appears today for sentence in relation to an offence to which he pleaded guilty at the Lismore District Court on 16 July 2007. The offence alleges that he on 1 September 2005 at Ballina in the State of New South Wales did have sexual intercourse with SF without the consent of that woman knowing that she was not consenting. The name of the victim of this offence is not for publication. This plea of guilty was accepted by the Crown in discharge of an indictment alleging in addition a further count of sexual intercourse without consent. The plea of guilty is to an offence brought pursuant to s 61I Crimes Act 1900. The Crimes (Sentencing Procedure) Act at Div 1(A) of P 4 provides that the standard non-parole period for an offence brought pursuant to s 61I Crimes Act 1900 shall be seven years. The Court of Criminal Appeal in the decision of Way held, as had subsequent decisions, that consideration of the matters that arise in relation to that Division concerning relevant offences only is to be had when sentencing occurs after trial. As this prisoner pleaded guilty to the relevant offence I do not have to make the analysis that is required under that Division but I note, as the Court of Criminal Appeal said in the decision of Way, that the standard non-parole period still remains as a guide post or an indication or a general guide as to the seriousness in which these offences or offences of this type are to be viewed, albeit that I am not required to consider the fixing of a standard non-parole period in accordance with the relevant Division.

3 The facts of the matter are set out in an Agreed Statement of Facts. The victim who was thirty years of age had met the prisoner prior to this day, that is 1 September 2005, but did not know him well. She attended upon a house at Goonellabah near Lismore and after a period of time, she and others with the prisoner travelled to Ballina. There the group of people that the prisoner and the victim comprised part spent some hours consuming alcohol. Eventually the victim fell asleep in the back of the vehicle in which the group had travelled from Goonellabah to Ballina. At about 1pm the prisoner drove SF back towards Lismore. The car apparently broke down or ran out of petrol at Ballina. The prisoner went off to get assistance in relation to the matter. The victim sat in the car when the prisoner returned and attempted to restart the vehicle. The prisoner, the victim and the service station attendant who provided assistance then walked back to the service station. SF, for a period of time, sat in a park near the service station and the prisoner joined her a short time later. The pair remained in the park until approximately 4.30pm. At about this time the victim walked to a nearby public toilet and entered one of two cubicles in the female section. She was there attending to personal concerns when the prisoner entered the cubicle and approached her. He placed his fingers into her vagina as she was trying to get her jeans and underpants up. The penetration of her vagina with his fingers constitutes the offence. She told him to stop what he was doing. There was a struggle and the victim fell to the floor hitting the back of her head as she fell. The prisoner left the toilet as did the complainant. Both of them were affected by alcohol. The facts say that they had both consumed “a considerable quantity of alcohol.” At about 4.45pm the prisoner and the victim were seen by the service station manager to be walking in the direction of the car. The prisoner was walking behind her. They appeared to be arguing. SF then attended the service station and was upset and crying. She was approached by the service station manager, was asked if she was all right and she alleged that she had been “raped.” Police were called and they spoke to the complainant. The prisoner sought further assistance in relation to the car. Police came upon the prisoner and the motor vehicle. He was arrested. He was taken to the Lismore Police Station and charged. DNA profiling was undertaken of the clothing that he was wearing. The victim was taken for medical examination. Various photographs were taken of the scene. There were some other forensic examinations taken that I need not dwell upon.

4 The prisoner has remained in custody bail refused in relation to this matter since his arrest on 1 September 2005. The offence is a serious one. It is a serious one not only because of the fact that there was the penetration of the complainant’s vagina by the prisoner’s fingers without her consent, but because also the offence involved a violation of her privacy beyond those matters. The victim was in a public toilet when the prisoner violated her entitlement to peace and privacy whilst there. The offence involved a considerable amount of belligerence on the part of the prisoner, involving as it did a struggle, which caused the victim to fall to the ground. Of course, it is not part of the Crown case that the prisoner deliberately pushed the victim to the ground. However, the struggle reflects upon the resistance that the victim put up to the prisoner’s unwanted advances. Counsel for Mr King sought to submit in relation to the objective facts that there was some misreading or misunderstanding of the situation by the prisoner. I cannot see how that could be so in the circumstances of this offence. Although the agreed facts are clearly limited, and I am not entitled to speculate beyond what is set out in the agreed facts, there maybe said to be an inference drawn from the fact that the prisoner and the victim were together for a period of time, that the prisoner may have felt that there was some attraction to him, albeit an unjustified feeling held by the victim. That having been said, however, that was no justification for him, in effect, to storm into a public toilet and to sexually assault the victim as he did. It could not be said in any way shape or form that the actual circumstances of the commission of the offence involves some misreading of the situation. This was not a case of a couple involved in some sort of consensual foreplay leading to an act on the part of an accused person beyond that agreed to between the parties. It was clear that the victim was in the toilet for her own personal purposes and not in any way to lure the prisoner to assault her.

5 The prisoner was born on 13 January 1972, thus at the time of the commission of the offence he was thirty-three years of age. He is now thirty-five years of age. He has a very lengthy criminal history commencing in the Children’s Court and extending through many appearances in the Local Court and some appearances in the District Court. His early offending is of a relatively modest character. I ignore the first offence proved against him of carnal knowledge. A contemporary Probation and Parole Service report suggests it was consensual sexual activity when the prisoner was a teenager with another young lady somewhat younger than him in company with some male friends of the prisoner and the young lady.

6 However, over a period of time the offender developed subsequently a lengthy record of offending, mainly for offences of dishonesty but some offences of violence and obscene exposure as well as some street offences. He has a finding of guilt for assault in 1989 and further findings of obscene exposure and offensive manner in the Local Court when he had become an adult. His first terms of imprisonment, as I understand his record, after he had been given many opportunities by way of probation and the like was imposed in 1991 for stealing offences.

7 In 1992 he was convicted in the Local Court of entering buildings with intent presumably to steal and other related dishonesty offences for which he received six months imprisonment. He had subsequently findings of guilt for further street offences and assault police offences.

8 In 1994 he was given the benefit of community service orders for a number of offences and then in April 1995 having been charged in January 1995, he was convicted of a robbery in company and sentenced to a total of four years imprisonment with a minimum term of two years. A number of matters on a schedule or Form 2 apparently as it then was, were taken into account. They were offences of dishonesty. It would appear from the record that he was charged whilst in custody in relation to two assault matters that I can only assume predate his arrest in relation to the robbery matter. The date of the charging seems to coincide with the time he was in custody. But be that as it may, he was sentenced to small terms of imprisonment for those offences. After his release from custody he continued to offend.

9 In 1999 he was sentenced to twelve months imprisonment with a minimum term of nine months for breaking entering and stealing from a dwelling house. He appealed against the severity of that penalty as well the severity of a penalty for intimidating a police officer and the penalties imposed were changed, at least in relation to the break enter and steal matter, by the non-parole period being adjusted downwards to five months, the balance of the term of imprisonment being seven months. Thus special circumstances were found.

10 On his release from custody he again continued to offend initially with minor offending, but again serious offences were committed in April 2000 when he was convicted of, amongst other things, assault occasioning actual bodily harm for which he was sentenced to six months imprisonment, contravening an apprehended domestic violence order on two occasions, for which he received two months imprisonment and intimidating a police officer, again receiving six months imprisonment.

11 He was subsequently, on release from prison, convicted again of assault occasioning actual bodily harm and common assault in the Local Court. He did not appear on those occasions and warrants were issued for his arrest and in January 2002 he was, as I understand it, in relation to those various matters, sentenced to terms of imprisonment of up to four months. At the same time he was convicted of anther offence of breaking and entering and stealing for which he was sentenced to eighteen months imprisonment with a non-parole period of four months. This sentence was to commence on 28 December 2001.

12 The Crown has tendered a number of Probation and Parole Service reports prepared in relation to his potential release to parole or subsequent conduct on parole as well as a report tendered in relation to a matter for which he was convicted in 2006. There are no current reports available to me, a matter that is not any impediment for sentencing the offender. The report prepared by the Probation and Parole Service in June 2002, on his release for parole, tells me that he was released to parole on 27 April 2002.

13 Some other records tendered by the defence show that initially he continued reasonably well with the programs that were set up for him by the Probation and Parole Service, however, by June 2002 the offender was abusing alcohol, smoking cannabis, in fact, presented himself to the Probation and Parole Service on 26 June 2002 in an “agitated and distressed state.” He had suffered a psychotic episode in relation to recent cannabis smoking and he was taken to receive some treatment. Ultimately, because of his failures to report and continuing concerns about his drug usage, including the use of amphetamines, his parole was revoked.

14 Subsequent to release from custody in relation to that matter he had other findings of guilt most relevantly at Wollongong in January 2003. Again he was convicted of contravening an apprehended domestic violence order. Again he received a sentence involving a finding of special circumstances. That sentence of nine months with a non-parole period of three months, commencing from the time he came into custody in November 2002, was a sentence conditional upon him receiving treatment and counselling in relation to alcohol and drug issues, specifically a requirement that he report to Oolong House at Nowra for such treatment.

15 In relation to that parole I have a report tendered by the Crown which shows that the offender initially showed some positive signs, however, after being at Oolong House for a week, there was a bereavement in the family. The offender returned to Lismore, which was understandable in all the circumstances, but made no effort to return to Oolong House. The evidence reveals to me that ultimately, in circumstances where the prisoner showed no inclination or intention to cooperate with parole authorities, the offender’s parole was revoked and he was taken back into custody to serve such part of his sentence as the Parole Board thought appropriate.

16 On his release from that sentence he was convicted of an offence of assaulting a police officer in the execution of his duty, being armed with intent to commit an indictable offence and maliciously damaging property. In relation to each of these offences he was sentenced to twelve months imprisonment with a non-parole period of nine months. In relation to that very limited parole period the evidence before me through the material produced by the Crown shows that he was to be released to parole on 20 November 2004. He was required to report to the Probation and Parole Service on 24 November 2004. He failed to report. Home visits were undertaken, warning letters were sent. He offered no explanation or even a response to the approaches of the Probation and Parole Service and ultimately because of his failure to report on 24 November 2004 his parole was revoked.

17 Thus it came to pass that he was arrested in relation to this matter. He was at the time of his arrest in relation to this matter, as I understand his record, the subject of a warrant for failing to appear at the Lismore Local Court on 17 January 2005 in respect of an offence of larceny. Obviously that warrant was executed after 1 September 2005. He appeared at the Lismore Local Court on 25 January 2006. He was convicted and sentenced to six months imprisonment commencing from 1 September 2005.

18 I bear in mind in relation to that sentence, that of course the learned Magistrate in sentencing him to that term of imprisonment, albeit that the Magistrate would not have been able to extend any leniency because of his record, no doubt took into account that the prisoner was in custody in relation to this matter and the likelihood of him being released from custody in the near future seemed slight. Particularly at that stage the prisoner was either maintaining a plea of not guilty or was looking forward to a committal for trial.

19 Be that as it may, the Probation and Parole Service report prepared for that Local Court appearance noted that periods of supervision have usually been characterised by non-compliance and a lack of positive application. The evidence in relation to that is overwhelming, from the material presented by the both the Crown and the defence. It noted the previous breach action and noted aspects of his background to which I will refer in a moment. It said in relation to the suitability for supervision that, Mr King’s history of non-compliance to date is such, that it is unlikely, it is said, that he “will gain any benefit from further supervision by this Service.” However, if the court saw fit to fix a non-parole period for some other form of supervision, it was recommended that he receive counselling in relation to drug and alcohol and mental health issues and undertake what is called the “Rekindling the Spirit Program.”

20 I have taken into account all the reports that have been prepared by the Probation and Parole Service produced by the Crown and the defence. It is said, on behalf of the accused in relation to parole supervision, that the prisoner has in the past, as evidenced in some notes, shown some positive signs but after a period of time has lapsed. In one sense that is strictly true but on at least two occasions, revealed in the material to me, when the prisoner was released to parole, the lapse occurred literally within weeks and the lapse that occurred in 2002 occurred within months. I might also point out nobody sought a full Probation and Parole Service report to bring me, if I could use the expression, up to date. But I do not believe it is suggested that I am in any different position with the material I have, than I would be if a more up to date report had been obtained.

21 Some of the material provided to me has a use simply beyond dealing with the issue of the prisoner’s history of supervision. One of the early reports prepared in relation of the carnal knowledge matter gives me information as to that offence, to show that it has no significance at all in this sentencing exercise. But it does also set out some very interesting details about the prisoner’s background. I heard evidence from the prisoner’s mother, which evidence I will refer to in a moment, which assisted me and I also have some evidence from a past partner of the prisoner, Ms Kelly.

22 In relation to this early report it notes the prisoner is one of what are described as six children. The prisoner apparently has either four or five siblings still alive. One of his siblings unfortunately was severely physically and intellectually disabled. That child, born in 1970, is the subject of considerable comment in the report and the comment is very favourable of the prisoner’s family, showing them to be a close knit family who strongly supported their sadly disabled daughter, notwithstanding the geographical difficulties of attending upon the institution where she was held.

23 The prisoner was born in Sydney moving to Lismore in 1983. He had positive reports at school and his progress at a High School was good for a period of time. However, through associations with other less talented children as I understand it, he ended up being suspended from school. He ultimately left school in circumstances where he felt aggrieved by his treatment and felt disillusioned by the experience. The school itself had been very impressed with his mother’s efforts to care for her children and provide support for the children whilst at school. The mother had actively worked to try and free her son Robert from the clutches of other persons exerting a poor influence upon him.

24 Ultimately, when he was charged with the carnal knowledge matter, he was also charged with a large number of other offences. His parents endeavoured to keep him a home but their ability to control a teenager was limited and by the time of the preparation of the report, from which I am quoting at the moment, in March 1987, the prisoner had left school. Then he embarked upon a life of little employment, alcohol abuse, later drug abuse including methamphetamine abuse and occasional use of heroin and, of course, the regular offending to which I have referred, including offences involving violence, particularly towards women.

25 In that regard the notes of the Probation and Parole Service that were tendered by the defence, whilst they show some of the positive matters referred to, they show, apart from the lack of cooperation, concerns that have been had over a period of time by Ms Kelly about her welfare at times when the offender has been free in the community. It could be fairly said that whilst he does not have offences of a sexual nature of any relevance and whilst it could not be said his record suggests that he is a person who is at a high risk of reoffending in relation to sexual offences, he has a consistent record of violence towards others, particularly women. This offence, although it involves a sexual connotation, has characteristics of violence towards women in a general sense.

26 In regard to the evidence that was given by his mother and Ms Kelly, it is clear that his mother maintains an abiding affection and love for him. She recognises his problems with alcohol. She has endeavoured to assist him and she believes that his attitude recently has changed in relation to the abuse of alcohol. She feels that he will be a changed person on his release from custody. She referred to his skill as an artist and I had other material presented from the defence showing a very beautiful painting that he painted, showing considerable skill and potential, for which he received a prize of $1000 from a local gallery.

27 Clearly, he has abilities and potentials which executed appropriately could assist him to avoid offending in the future. But I also note in regard to that matter that the offence with which I am concerned, a serious offence as it is, was committed after the recognition he received in relation to the particular painting, the photograph of which was displayed to me. The mother is prepared to support him on his release and she freely acknowledged that in the past, programs that he had undertaken had not been undertaken successfully.

28 Ms Kelly is the mother of a child from the prisoner and she has two other children. She lived with the prisoner over a five to six year period. On the chronology she gave that must have been punctuated by terms of custody. She left the relationship, it was quite clear on her own evidence and from the record, because of his violence. Since 2002 she has expressed to the Probation and Parole Service on a number of occasions, her concern about her welfare when he has been at large. As I have said which does not reflect favourably upon him.

29 On the other hand however, there has been a reconciliation whilst he has been in custody. The prisoner has been denied an opportunity of seeing his son since 2002 I am told. I would imagine largely because of his own misbehaviour. However, be that as it may, he is anxious to establish a relationship with his son which I accept. Ms Kelly is prepared to have him back on his release from custody and I trust that this will occur. The only matter that needs to be addressed on the part of the prisoner is that he will very much have to change his attitude both to Ms Kelly and to people in general. He is not a law unto himself and given her capacity to bring his misfeasances to the knowledge of the authorities, I have no doubt that if he slips again, she will take the appropriate steps to protect herself and the children.

30 That having been said, I take into account in his favour there is, either through his immediate family or through Ms Kelly, the opportunity for a relative stable domestic situation to be provided to him on his release. The ball is really in his court for him to take up and he will have no one to blame but himself if he fails to do so. I have in relation to this matter two other reports. One is a victim impact statement, which I have taken into account as required by the law, particularly by s 28 Crimes (Sentencing Procedure) Act, in the sentencing process and a report from Dr Nelson being a report relating to the prisoner.

31 If I might just briefly deal with the victim impact statement. I have expressed to the Crown my concern that the author of the statement who is not the victim but a social worker, has sort to express opinions about matters that clearly are beyond her expertise. The author may be sincere, the report may be prepared in good faith, but in my view a sexual assault counsellor should not be if not qualified, expressing opinions about medical matters. The report, if it expresses opinions beyond the expertise of the author, has more the characteristics of a piece of advocacy, rather than being an impact statement in the way in which that is understood by the legislation and the courts.

32 Be that as it may, I accept as a general proposition that the victim is affected by the crime of the offender. She was seen to be distressed immediately afterwards and it is correct to say that such an attack, in such circumstances, would leave long standing effects upon any person. One of the problems of the victim impact statement I point out, as I did in the course of argument, is that it expresses opinions about the effect upon the victim in the narrow compass of the circumstances of this offence, without informing the court of other matters that may or may not be relevant to assessing matters about which the counsellor expresses opinions, some within her expertise of course, some clearly outside her expertise.

33 With regard to Dr Nelson’s report, it is a very detailed report. I have not had the pleasure of reading Dr Nelson’s reports until I had come to Lismore and each of his reports show a scientific and a detailed analysis of matters within his expertise. In fairness to his report, he was prepared to concede some suggestion of the offender exaggerating his psychopathology and he made some reflections upon the prisoner’s testing, that might suggest that the prisoner may not necessarily be a genuine interviewee. Ultimately however, the doctor was of the view that the general tests applied and their results were reasonably reliable.

34 He said that the prisoner had evidence of two severe personality disorders, described as borderline and paranoid. He said these patterns are indicative of a highly disordered person who is profoundly unstable in his relationships and moods as well as been suspicious of others and defensive while maintaining delusional beliefs of superiority. It seems to me, with respect, that that opinion is supported by a number of matters that have occurred both in court and in the material available to me. There is some evidence of depression, the prisoner, however, shows no evidence of any psychopathic symptomatology at the present time.

35 He said that on the scoring that he had undertaken, notwithstanding the fact that he is a psychologist and a psychiatrist, he believes there is a prominent peak, or presence, of anxiety in the test results and high scoring on tests designed to identify the presence of a major depression. The prisoner of course is a man who has not had, notwithstanding a loving family, the best of advantages. He is an aboriginal man and the courts well know that many aboriginal people grow up and live in circumstances of social and economic disadvantage. Whilst his father and mother, as I understand it were industrious, loving, law abiding people, their circumstances would have been dictated by events beyond their control over a long period of time.

36 The prisoner’s history of continuous drug and alcohol abuse is a sorry picture and very sadly reflective of the circumstances of many young aboriginal men of his age. The prisoner claims sexual abuse as a child and is very assertive about the way it has affected him over his life and the loss of opportunities because of it. I have taken what he has said about this to the psychologist into account. This matter, as it is relevant to this case, is one which arises for consideration in assessing the current psychological state of the prisoner. It does not appear however to have any causal connection with the commission of this particular offence.

37 The prisoner complained to the psychologist that he had difficulty with the women in his life although he spoke fondly of Ms Kelly. He also said to Dr Nelson that he had enough of gaol. It is a shame that that attitude, if it be true, had not been adopted by the prisoner years ago, perhaps even at the time in 1995 when he received a sentence of four years. Ultimately, the conclusion of Dr Nelson is that the prisoner has a disordered personality with borderline paranoid depressive and dependent features. He has a high level of anxiety; there is some provisional diagnosis of post-traumatic stress disorder. Again, that is a diagnosis that would need further examination before it could be adopted with confidence by the court.

38 The relevance of the post-traumatic stress disorder to his background is to be found in the claim of prior sexual assault. He has an ongoing substance abuse disorder which is self evident from the evidence available to me. Dr Nelson claims that the prisoner “appears to now be willing to change direction in his life.” But Dr Nelson fairly notes that without treatment for his personality disorder and proper drug and alcohol rehabilitation, this will be difficult for him to do. It notes his motivation to change as I have said. I have taken into account Dr Nelson’s opinions. As I have said on a previous occasion the report is very helpful. Of course, it is quite relevant to this question of whether there are special circumstances, other than any special circumstances arising out of any accumulation of sentence.

39 Ultimately, the case for special circumstances being found under s 44 of the Act is a weak one and that was essentially conceded in the submissions from counsel for the prisoner. The issue was raised but not pressed, notwithstanding the fact that there are many matters relating to the prisoner’s background and current circumstances that will require professional intervention in the future. The bottom line is that his recent history of parole supervision gives no confidence that the prisoner will take advantage of an extended period of parole supervision.

40 Ordinarily with problems of substance abuse, claims of sexual assault in one’s childhood, some symptoms of depression, or even post-traumatic stress disorder, these matters would dictate a need for an extended period of parole supervision. Furthermore, there is the issue of assisting the prisoner to adjust to community living.

41 I have taken all these matters into account but very regrettably, in light of the material in the Probation and Parole Service reports, I do not believe at this point there is a practical utility for this particular prisoner having an extended period of supervision because, notwithstanding what the prisoner has said to Dr Nelson, I see no concrete matters that would warrant confidence that the prisoner would take advantage of that extended period of supervision that is necessary here to require a finding of “special circumstances” pursuant to s.44 of the Act.

42 However, the prisoner did receive a sentence of six months for a separate offence as I said, that sentence may of course have been longer than the facts required. I do not know, as nobody has produced the facts in relation to the larceny matter before me to make any judgment in relation to the matter. I have to respect of course the sentence of the Court below and I have to assume that ultimately the Court below approached the matter as dictated by decisions such as Pearce v The Queen (1998) 194 CLR 610.

43 That having been said and noting the submission from the defence that I should start the sentence at the conclusion of the other sentence, I am of the view that I should take the other sentence into account in assessing the non-parole period. Thus there will be a slight adjustment of the sentence to recognise the special circumstance that arises from the fact that the sentence I impose will be cumulative upon the sentence imposed by the magistrate. I foreshadowed that to the prisoner.

44 Of course, I am required to take into account s 3A Crimes (Sentencing Procedure) Act (“the Act”). The Crown quite properly points out that an offence of this character, involving the intrusion into the privacy of the victim and the forced penetration of the victim’s vagina with his fingers, is one that requires elements of both general deterrence and that because of matters relating to the prisoner’s background and the character of the offence, personal deterrence. As to protecting the community from the offender. I do not believe there is a need to protect the community from the offender committing further sexual offences, but there is a need to bear in mind that the offender has the potential to be violent towards others. I am also required to have regard to promoting his rehabilitation and I do not believe that he is beyond rehabilitation. But his ability to rehabilitate himself is very much dependent upon his attitude, not anything I or the Probation and Parole Service will do. I have to make him accountable for his actions, a matter about which I see some difficulty, but also I denounce his conduct and recognise the harm done to the victim from the crime.

45 In relation to the provisions of s 21A of the Act, I am also required to have regard to aggravating and mitigating circumstances that can be identified and are known to the court. I bear in mind of course, that the fact that any relevant aggravating or mitigating factor is relevant and known to the court, does not require the court to increase or reduce the sentence for the offence. I have dealt with the objective circumstances of the matter.

46 I should point out in passing, as I did in the course of submissions, that Ibbs v The Queen, the decision of the High Court from a West Australian decision, made the point that not all acts covered by the same provision with the same maximum penalty are to be regarded, if I might paraphrase the more elegant words of the High Court, as equally heinous. In this particular case there are a range of methods for penetration of a victim, some recognised by the law in the appropriate case as varying in their seriousness. Of course, every case needs to be decided on its facts.

47 I can conjure up, in fact, I have had recent experience of a case of digital penetration, which could be regarded with as much seriousness as penile penetration of the vagina. That having been said, the fact of digital penetration in the circumstances where there is no evidence of any physical injury might be seen of itself as of less seriousness, in an objective sense, than penile penetration of the vagina or the anus or the mouth.

48 However, in this particular matter, as I said earlier, it was not a simple case of digital penetration, it was accompanied by the prisoner forcing his way into the women’s toilet. The invasion of the victim’s privacy and the engagement by the prisoner when the victim’s struggle inner struggle that caused the victim to fall to the ground. Thus the offence can be seen as not at the low end of the range of objective seriousness as was submitted by the prisoner’s counsel.

49 In relation to relevant aggravating factors pursuant to s.21A of the Act, in my view, given the state of the victim and given what would be the natural effect upon the victim of these events, notwithstanding the fact that she was well affected by alcohol at that time, I believe I can infer that the emotional harm caused to the victim was substantial. In other words was of substance. I also note that the prisoner was subject to a warrant for his failure to appear at court. I am unaware as to whether he had been on bail but that is a form of conditional liberty, albeit committing this offence subject to that conditional liberty, may not in one sense be viewed as seriously as a breach of parole or a breach of probation. It should be said however, that the prisoner had earlier failed to appear in court in relation to an offence to which he was subsequently gaoled.

50 In relation to the vulnerability of the victim, I have determined, ultimately, that the victim could not be categorised as vulnerable per se. This event was committed in daylight and the prisoner was known to the woman who was a mature adult. She was affected by alcohol, as was he, and while she was isolated in the toilet, I do not believe the victim had the characteristics of a person who could be described as vulnerable.

51 With regard to mitigating factors there are a few. However the physical injuries caused to the victim were not substantial. The offence was not part of a planned or organised criminal activity. In fact, I agree with what was put and conceded by the Crown that the offence was an opportunistic offence. The prisoner has pleaded guilty but that is a matter required to be taken into account, not only as mitigating factor as provided for in s 22 Crimes (Sentencing Procedure) Act, but also as a matter that requires a discrete discount.

52 As to his prospects of rehabilitation of course, they are problematic. That very much depends upon the prisoner himself. With regard to the plea of guilty I have determined that I should give the prisoner a discount of one-sixth upon the appropriate sentence to recognise the utilitarian benefit of the plea of guilty, in accordance with the guideline judgment of Thomson and Houlton. There was some discussion about this in the submissions.

53 The plea of guilty was entered on the day that the matter was to come to trial. Then again the plea of guilty was not to all charges on the indictment but one. The matter had been previously listed for trial. It had been considerably delayed. However, on the other hand, it was put by counsel that perhaps the prisoner did not have opportunity and a tactical sense to plead guilty to this one count, in the hope of discharging the entire indictment. I also note that the plea of guilty saved the victim having to attend upon court to give evidence and I accept as a fundamental matter, that the victim impact statement shows the victim has been affected by what has occurred.

54 The plea of guilty was entered almost two years after the relevant event. A plea of guilty to a charge of this type could have been offered or entered at a much earlier time and the victim was left in suspense until such time as that plea of guilty was accepted by the Crown. That last aspect, of course, is something over which the accused has no personal control. But the victim ultimately was left to wait a long time before the matter was resolved.

55 I feel however, that the utilitarian benefit of the plea of guilty is worth more than the 10%, that ordinarily would be given to a plea of guilty entered on the first day of trial. There are, if I could call them, the tactical forensic considerations raised by Ms Cusack very skilfully in her address. There are also the matters acknowledged by the Crown, particularly the benefit of not causing the victim to give evidence. I believe a discount of a sixth, or slightly more than 15%, is in all the circumstances, is reasonable. One other factor that always lies as sub silentio in these matters is the extent to which a particular accused may have been, using the expression very loosely, captive to legal advice. I am not suggesting he received any poor advice at all from Ms Cusack. I do not know how long she was in the case but sometimes the timing of a plea may, to some extent be dictated by matters beyond the complete control of the prisoner.

56 I believe that I have dealt with all matters that have been raised by the parties and their addresses both either directly or implicitly. I have certainly taken into account all the matters that have been put very skilfully on behalf of the Crown and the accused.

57 Thus, in my view, the orders should be as follows. In respect of the offence to which you pleaded guilty you are convicted. You are sentenced to a term of imprisonment by way of non-parole period of four years and three months. That will commence on 1 March 2006 and that will expire on 30 May 2010. I have made an allowance for the fact that the month may be thirty days rather than thirty one days Madam Crown, I know that May has thirty one days in it. The balance of the sentence is one year and seven months. The expiration date of that sentence will be 30 December 2012. There is a finding of special circumstances inherent in that order, in that I have adjusted the non-parole period to make allowance for the fact that there is six months of imprisonment that you have served whilst awaiting trial in relation to this matter for another offence which is in my view relevant to the fixing of a non-parole period.

58 Now any technical matters Madam Crown?

59 BAILEY: In relation to the non-parole period, your Honour said four years and three months. Does that take us to 30 June?

60 HIS HONOUR: No. It is 1st March 2006 but the three months technically finishes on 1 June. You are right but we always make the expiry date the day before the three month period and because it is a thirty one day month, I have made the expiry date 30 May.

61 BAILEY: Yes sorry.

62 HIS HONOUR: I have actually fixed a date like the 31 May and I have been told by the Sentence Administration, the computer will not accept that date and they had given me another date, so I have made it 30 May. Any other matters Madam Crown?

63 BAILEY: No your Honour.

64 HIS HONOUR: Any other matters Ms Cusack?

65 CUSACK: No your Honour.

66 HIS HONOUR: Mr King whether you are released to parole will be a matter for the parole authorities. I cannot direct that you be released to parole.

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