R v Sim

[2020] NSWDC 743

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v SIM [2020] NSWDC 743

Hearing dates:

7 December 2020

Date of orders:

10 December 2020

Decision date:

10 December 2020

Jurisdiction:

Criminal

Before:

Priestley SC, DCJ

Decision:

See [79]

Catchwords:

CRIME — Sexual offences —sexual intercourse without consent.

Legislation Cited:

Crimes Act 1900 (NSW)

Criminal Appeal Act 1912 (NSW)

Crime (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

R v AJP [2004] NSWCCA 434

Bonett v R [2013] NSWCCA 234

R v HJS [2020] NSWDC 480

Cowling v R [2015] NSWCCA 213

The Queen v Hewitt [2020] NSWDC 566

DPP v Burton [2020] NSW CCA 54

Shortland [2018] NSWCCA 34

R v Hibberd [2009] NSWCCA 20

Ibbs v The Queen (1987) 163 CLR 447

Category:

Sentence

Parties:

Regina (Crown)
SIM (Offender)

Representation:

Counsel:
Smith Crown Prosecutor
Kluss Counsel for the Offender

File Number(s):

2019/00083475

Publication restriction:

Section 578A Crimes Act provides a person shall not publish any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant.

Judgment

1. The offender, S.I.M. (whose name and the names of others have been anonymised to ensure no breach of s578A of the Crimes Act) appears for sentence having been found guilty by a jury of one count of sexual intercourse without consent in contravention of section 61I of the Crimes Act.

2. The maximum penalty for the offence is 14 years imprisonment and there is a standard non-parole period of seven years imprisonment.

3. The offender was arrested on 15 March 2019 and held in custody from that date until 5 June 2019 a total period of two months and 21 days.

4. Both the Crown and counsel for the offender provided helpful written submissions. The parties were also able to agree a statement of facts. At the sentencing hearing it was conceded by the Crown that it could not be established beyond reasonable doubt that the offending occurred as set out in the agreed facts to the extent that the agreed facts refer to the offenders fingers (plural) being in the victim’s vagina. The evidence at trial of the victim was that she was not sure whether there was one finger or more in her vagina and I proceed on the basis that it has been proved beyond reasonable doubt that there was one finger used to penetrate the victim’s vagina.

5. There were no matters to be taken into account by way of the form one procedure.

The facts

6. The offender was born on 1 May 1990 and so is now 30 years old. The offending occurred on 17 February 2019 so that he was 28 years old at that time. The victim was known to the offender for some eight or nine years at the time of the offence and was a close friend of the offender’s partner (de facto wife). The offending occurred at the home of the victim.

7. The circumstances were of a group of friends attending a wedding. The offender and his partner, with others, left the reception and went to the home of the victim. It had been planned that the offender and his partner would stay at the home of the victim overnight. The group drank alcohol and took drugs. The victim and the offender’s partner went to bed in separate bedrooms. The offender stayed up talking to one of the other guests, BL. They drank, smoked and talked and listened to music for some time, estimated by BL to be at least two hours. During this time BL said the offender went inside maybe 3 times for a few minutes at a time, and he commented “are you on patrol or something”.

8. BL left at about 4.15-4.30 am, and was at his own nearby home asleep by 4.45am. The offender left the premises for a swim at about 5.51 am and returned about 6.21 am and left the unit at between 7-7.30 am with his partner.

9. Sometime between the victim going to sleep in her bed and the offender leaving the house, the victim woke and saw the offender on the window side of her bed with his hands under the sheets, in her pants and his finger in her vagina. She was stunned, "scooted" to the other side of the bed, and the offender left, closing the ajar door behind him. The offender later returned to the room and the victim said get out and he left and closed the door.

10. On 15 March 2019 the offender was arrested. He agreed to an interview and denied the allegation.

The subjective case

11. There is little issue in this case concerning subjective matters and it is convenient to deal with them now.

12. The offender relied upon 11 testimonials marked exhibits 1 to 11 inclusive. Marked as Exhibit 12 were five documents attesting to matters relating to his employment and skills.

13. A sentencing assessment report formed part of exhibit A. It recorded that presently the offender and his partner and their three children live with his mother. The offender has been in a relationship with his partner for over 10 years. The offender completed his school certificate at high school and is currently employed as a boilermaker. The sentencing assessment report says that he has a minimal history of criminal behaviour and ventures the view that his record suggests he has experienced some issues with substance abuse. I do not accept that adverse to the offender. His record shows an occasion where he was convicted of negligent driving and with a high range PCA, that is it was the one event, and another occasion where he was found in possession of a small amount of a prohibited plant for which he received a $100 fine. Those facts do not in my view justify a finding that he has issues with substance abuse though I do note that part of his subjective case is that he has since his arrest “significantly reduced his alcohol intake” and “there has been an absence of drugs”; see testimonial of the offender’s partner, exhibit 1.

14. I will return to the sentencing assessment report once the offender’s background has been further set out. According to the offender’s partner (per exhibit 1) she has been in a de facto relationship with the offender for the last 10 years. Their three children are aged 8, 6 and 4. The offender’s partner describes the offender as being positively involved with the children. She notes that he has complied with his bail conditions of reporting three times a week and complying with the curfew hours of 9 PM to 4 AM. I note those conditions were imposed on 5 June 2019. The offender's partner makes a comment that the offender has answered the doorbell at unpredictable times of night which is a reference to the police attending to ensure the bail conditions are being complied with. The offender has done this whilst working 10 to 12 hour days six days per week. Understandably the offender's partner has described the period since arrest as being one of anxiety and worry for the offender. She also describes her concern of the difficulties that will be in place to visit the offender should he face a further period of custody and the difficulty this would pose not only for her but also the children. This is due to Covid and the distance she expects the gaol to be from their home.

15. Exhibit 2 was a reference for the offender from his mother. She tells how he left school and immediately began work and when old enough gained an apprenticeship. She tells how he was a nervous wreck on exiting custody. She purchased a larger home I infer to assist with accommodating both herself and the offender’s family in an affordable way. Unsurprisingly she speaks well of him in respect of his own family and generally.

16. Exhibit 3 was a reference from the offender’s grandmother consistent with the views of other family members. Exhibit 4 is from the offender’s sister to the same effect. Exhibit 5 is from the offenders partner’s father who described him as honest and trustworthy with a strong work ethic. He is supportive of his daughter and the offender. Exhibit 6 is from the offender's partner’s uncle which confirms the views of his brother. Perhaps more persuasive is the testimonial of AL (ex 7) who has known the offender for 10 years. She attests to his dedication to the children and respect for others. Exhibit 8 is from another female aged 29 who has known the offender for four years. She too describes him as a family orientated man and kind and caring. Exhibit 9 is a reference from an employer as is Exhibit 11 and describes the offender as dependable, conscientious and punctual. Exhibit 10 is from a coworker describing him as loyal and hard-working.

17. The offender’s criminal history which forms part of exhibit A shows that in 2016 he was charged with driving negligently and with high range PCA and in 2018 received a small fine for possessing a prohibited plant. My view is that this record does not deny him leniency. Taken with the subjective case set out above I consider the offender to be a man of good character prior to this offending.

18. Returning to the sentencing assessment report there are matters adverse to the offender, most notably his attitude in that he denies any responsibility in respect of the offending behaviour. The offender maintains his innocence in the face of the jury verdict. It follows he has indicated no insight into the offending. Apart from this not insignificant aspect other matters are favourable. He is willing to undertake intervention and comply with any directions. He is suitable to undertake community service work. He was assessed as a low risk of reoffending according to the level of service inventory-revised. The other subjective features already outlined support this conclusion.

19. Forming part of the sentencing assessment report was a structured case note. It purported to assess the offender’s risk of sexual reoffending. I say purported because it is in fact an actuarial risk assessment known as STATIC - 99R which the case note itself states “has moderate predictive accuracy”. It seeks to arrive at a score based on certain risk factors and that score in turn equates to a level of risk. Here the two factors giving S.I.M. a score of two were his age and that he offended against an unrelated victim. This equates to an average risk. The note goes on to say the rate of sexual recidivism for offenders within the STATIC - 99R are routine normative samples with the same score as the offender, is estimated to be the same as a typical sex offender. A report of this nature was commented upon by Leaming JA in Cowling v R [2015] NSWCCA 213, eg at [42], and not in the most favourable way. His Honour there noted that it is difficult to make much use of such a report when it refers to a “typical” sex offender without identifying what the characteristics are of such a person. Furthermore basing something simply on their age and lack of relationship to the victim seems to me to be a very frugal amount of information on which to base the assessment. The person carrying out the assessment does not interview the offender. The report goes on to say that following sentencing there should be a further assessment of dynamic risk factors which would then be combined with the actuarial assessment to provide an estimation of recidivism risk. In other words only one part of the process to give a full estimation of recidivism risk has yet been carried out. The report further states that due to the current score the offender is unlikely to be considered suitable for custodial sex offender specific treatment interventions. Just why this is so is not made clear but would appear to be because the score is not such as to place the offender in the group most needing such treatment.

20. In my view the sentencing assessment report and the sex offending assessment do not dissuade me from my view expressed below that S.I.M. is a low prospect of reoffending, sexually or otherwise.

21. Adverse to the offender is that he is not entitled to any discount given his not guilty plea. Nor as noted above does he gain any benefit from any expression of remorse. The offender could however properly be referred to as a person of good character and in my view a person unlikely to reoffend. I base this on his background and the family and work supports that he has including that he is now drinking reduced amounts of alcohol so that to the extent that could be said to have created an environment for the offending it is less likely to occur into the future. The same positive view can be expressed as to his prospects of rehabilitation though plainly a period of supervision to seek to ensure that his continuing low alcohol intake and no drug intake habits continue is appropriate.

22. The victim read a victim impact statement to the court. The victim outlined the dramatic effect the offending had on her sense of safety and confidence and was plainly distressed in the process of reading the statement to the court. The offender has no insight into the impact of his offending. As permitted by section 30E of the Crimes (Sentenceing Procedure) Act ("CSPA") I have considered that statement.

23. Overall I consider the subjective case of the offender to be a good one. It has the two significant negatives of a total lack of remorse and no available discount for a plea. However this is a man who since the age of 15 has worked full-time in gainful employment. He has a steady relationship and three young children. He has significant family community and employment support. The offender has been and is likely to continue to be a worthwhile and contributing member of the community.

24. In assessing the purposes of sentencing these characteristics are relevant in determining what the appropriate sentence should be but that determination cannot be made on subjective factors alone. It remains to consider the objective aspects of this case which is where the argument largely lies. I note that as the offence is a prescribed sexual offence an Intensive Correction Order cannot be imposed.

The issue and the authorities

25. Although the sentencing hearing was relatively brief due to there being no oral evidence apart from the reading of a victim impact statement, and due to the comprehensive written submissions, the sentencing considerations are not altogether straightforward. The contest between the parties is whether or not this is a case where “no penalty other than imprisonment is appropriate”. This has resulted in reference to numerous authorities largely addressing the manner of assessment of objective seriousness. On one view this would seem a little superfluous in this case as the Crown assesses the objective seriousness as being below the mid range and the offender argues for an assessment in the low range. The debate really descends to whether the assessment should be in the “low low range” or in the “high low range”. As will be seen below the Crown very fairly has recognised some of the favourable aspects of the subjective case of the offender and has been reasonably critical of some other aspects of that case. What the debate highlights is that the vast majority of cases of offending under section 61I result in terms of imprisonment. What is important to recognise is that whilst that may statistically be true that does not render the starting point for consideration of the appropriate sentence as being that outcome and with the offender being required to show why that should be deviated from.

26. In regards to statistics, both parties provided statistics prepared by the Judicial Commission concerning section 61I offending. One set of statistics showed that in the period of 14 months ending on 31 December 2019, out of 104 recorded sentences, 99 were custodial sentences. Another set of statistics showed no case of a non custodial sentence where the plea was not guilty, though the sample was of only 4 cases, and plainly did not include Hewitt, discussed below. A different set of statistics provided by the offender showed different figures, but the heavy emphasis on a custodial sentence was reflected. Those figures also showed sentences in the nearly 11 year period ending December 2018 in 11.1% of cases of no priors and a not guilty plea (a sample of only 27) having non parole periods of up to 12 months (and the figures are rounded up, so a 7 month non parole period is recorded as 12 months). It would appear this reflects 3 cases, and one is recorded as having a 6 month non parole period, which could be any period up to 6 months given the rounding up policy applied. I have taken note of these statistics, but as is often stated, without knowing the detail of the cases, they are at best a very broad indicator.

27. It assists in determining the appropriate sentence to make reference to some of the authorities referred to by the parties with a view to discerning the more relevant principles for this particular case.

28. The offender relied upon the case of The Queen v Hewitt [2020] NSWDC 566, a recent decision of Wilson DCJ of this Court.

29. In Hewitt the offender was 25 years of age at the time of sentence in respect of offending which occurred when he was 21. The charge was the same as in the present case that is of sexual intercourse without consent in contravention of section 61I. The offender and complainant had been friends since year eight of high school. There had been an earlier occasion of digital intercourse by the offender on the complainant according to the complainant which formed no part of the charges, and was not said to be without consent. The offending occurred approximately three years later at another social event. On the occasion in question the complainant fell asleep with her legs over the offender’s lap. They were asleep on the lounge together. The complainant woke up and realised that the offender had his fingers in her vagina. When the offender was told of this he looked shocked and said that maybe he should go and apologise. He then texted a heartfelt apology to the complainant three days later. In a subsequent recorded telephone conversation the offender said he thought the complainant was keen and he misread the situation and was again remorseful.

30. The sentence imposed in Hewitt was a community correction order following a finding that the section 5 threshold had not been crossed. In reaching that conclusion Wilson DCJ found the offender to be of very good character, that the risk of reoffending was as close as may reasonably be to zero, the prospects of rehabilitation were excellent, and made a finding of regret on behalf of the offender. There was also an issue in Hewitt relating to the state of mental health of the offender which does not arise in the present case. The issue did not go to reduce moral culpability, but was a matter relied on to found the view that imprisonment would weigh more heavily upon the offender. Implicitly Wilson DCJ adopted the submissions of the offender. These were that the objective seriousness was at the very bottom end of the range; the effect of the mental health state of the offender was as just noted; that the harm suffered was not substantial; the offence was not planned; there was an absence of any significant criminal record; the offender was of good character; there was a low likelihood of reoffending; there were good prospects of rehabilitation and that the offending occurred 3 ½ years before sentence.

31. In finding that the offending was in the low category of objective seriousness Wilson DCJ took into account all the circumstances surrounding the offending, and the nature of the intercourse and that the act was opportunistic, not planned, not predatory, and without violence or threat and without any physical injury as a consequence.

32. In Hewitt a recent decision of New South Wales Court of Criminal Appeal was relied on of DPP v Burton [2020] NSW CCA 54. At first instance in that case the sentence imposed was a community correction order. On appeal there was a conceded error in that the sentencing judge had taken into account the intoxication of the offender contrary to the provisions of section 21A(5AA) CSPA. The main point on the appeal was whether or not the court should exercise its discretion under section 5D of the Criminal Appeal Act. Significantly for the present case in considering whether or not to exercise the discretion the court referred to the sentence as being lenient but did not consider it to be manifestly inadequate. The factors relied upon to exercise the discretion as argued by the Director were three. The first was marked by clear error. Basten JA observed that that was only sufficient to engage the first limb of the statutory task and did not of itself establish the need to intervene. Secondly the Director argued the sentence was plainly unjust as being inadequate to demonstrate the need for strong denunciation of sexual abuse offences and general deterrence. Importantly at [37] Basten JA noted that counsel for the Director did not dismiss the possibility of a non-custodial sentence. He further noted the sentencing judge expressly recognised that the sentence was exceptionally lenient but it was also merciful. Reference was made to the personal circumstances of the offender which were not set out in great detail in the appeal judgment.

25. Thirdly the Director argued the case was an opportunity to give guidance on when the section 5 threshold would be crossed in respect of section 61I offences. The court did not consider it should take up that issue. In respect of our present case this is important as such a submission clearly recognises that the offending in contravention of section 61I may not cross the section 5 threshold.

26. Basten JA then referred to the various additional conditions that may be imposed under section 89 when the court proceeds by way of a community corrections order. This includes a curfew, the need to perform community service work, and the need to submit to supervision by a community corrections officer. I note the term of the CCO was three years.

27. I also note that at [45] Basten JA said that it was appropriate for the trial judge to have regard to the psychological effects of the offending conduct and the shame and destruction of his family life which followed as being factors warranting some amelioration of the usual sentencing practice with respect to such offences. The subjective matters allowed for a non-custodial outcome which would not otherwise be justified by the objective circumstances of the offending. His Honour concluded that although the judge approached the sentencing exercise on a legally erroneous basis (in respect of section 21A(5AA)) it was not a case where the Court of Criminal Appeal should intervene to re-sentence. Rothman and Cavanagh JJ joined in the orders made by Justice Basten.

28. The offender placed emphasis on the decision of Shortland [2018] NSWCCA 34. That was a case decided before the 2018 sentencing amendments and the sentencing judge sentenced the offender to 2 years imprisonment on each of three counts of sexual intercourse without consent which were to be served wholly concurrently and in respect of which the sentences were suspended. In that case the court did exercise its residual discretion and although there was some variation in the reasoning the new sentence was the same as the first but without being suspended, and with instead a 15 month non-parole period and balance of term of nine months in respect of each offence.

29. The facts of Shortland were markedly different to both Hewitt and Burton and I would add the present case. The offender (referred to as respondent in the judgment) pleaded not guilty and the matter proceeded to trial. In short the complainant and offender were out celebrating with others the offender’s partner’s birthday. The complainant and offender had known each other for a number of years. The complainant and the offender’s partner arrived at the offender’s home after the offender. The offender’s partner went to bed and shortly after the complainant used the bathroom. There the offender grabbed her and she slapped him in the face. There followed a first count of penile / vaginal intercourse. The offender then forced his penis into the complainant’s mouth, count 2. There then followed as count three a second event of penile / vaginal intercourse. Although one would need to consider the whole of the objective and subjective circumstances before making a considered comment on that case, that brief description shows the case to be markedly different to the two cases just discussed and to this case. With respect the offender does not rely on this case as a factual comparison but rather for the references by Justice Basten to various principles. At [26] Basten JA said the case raised four points of principle which were as follows:

1. Whether or not to suspend a sentence of imprisonment is not a decision to be addressed by isolating the cases where that happened and looking for points of similarity. The exercise must be viewed more generally. In my view the same can be said in determining whether, in the post-suspended sentence regime, to impose a CCO.

2. Conduct constituting section 61I offences may vary greatly in terms of objective seriousness. Justice Basten acknowledged that but went on to say “cases of actual penile penetration, whether anal oral or vaginal, will rarely fall at the low end of the spectrum. Such non consensual activity has a significant inherent element of coercion and will generally be degrading from the perspective of the victim”. The offender relies on this statement as supporting the view that a non-custodial outcome in a section 61I sentencing is more likely in a case of digital penetration. At the same time the offender recognised that there is no hierarchy of sexual offending or intercourse.

3. For a sentence to be wholly concurrent means there is no additional penalty for multiple offences and such a result requires justification which was not provided. Our present case is a single offence so that this does not factor in this determination.

4. Fourthly, there would need to be a powerful basis for suspending a sentence involving penile penetration in circumstances where there is no real evidence of remorse. In itself this allows for the possibility of a case of penile penetration having a non-custodial outcome. Adverse to the offender however is that there is absolutely no evidence of remorse in our present case.

38. I note the ultimate outcome in Shortland was a resentence with a 15 month non-parole period. Additionally the court ordered that the sentence date from the commencement of the suspended sentence which was 4 ½ months from the date of the appeal orders. In other words the non-parole period was 10 ½ months of custody.

39. Apart from the principles that I will need to consider as just outlined I would also note that the result in Shortland in respect of three rather confronting acts of sexual intercourse without consent as described above would suggest that in a case such as the present, also without remorse, and where there is only one event to be punished of an objectively, in my view, far less serious character, must mean the non-custodial outcome requires serious consideration.

40. In Shortland the trial judge assessed the objective seriousness as being at the low end. The Court of Criminal Appeal considered that this “significantly understated the objective seriousness of the offending”. That judgment did not then go on to otherwise assess the objective seriousness but the fresh sentence suggests that it is at least above the low range.

41. In Shortland, Hidden J discussed the “short duration” of the offending. Hidden J expressed the view that it is not an error to make mention of this as a circumstance of the offending, but in isolation it will not be a matter that generally will bear upon objective seriousness, but it cannot be said that it never does. He also noted that in adult sexual offending the age difference does not bear upon objective seriousness. I note in this regard that Price J in Hibbert at [56] included the duration of the offence as a matter relevant to objective seriousness.

42. At [94] Hidden J stated that in adult offending the absence of violence is one factor in assessing gravity of offending, but not determinative.

43. Ultimately Hidden J agreed that the outcome of the trial judge was manifestly inadequate. In Hidden J’s a view this was because of the decision to suspend the sentences. Where his Honour differed from Basten JA and Hulme J was that he did not consider justice required the imprisonment of the respondent and that for the purposes of a section 5D appeal in giving guidance to sentencing courts that purpose would be served by the pronouncement that the sentences were manifestly inadequate.

44. The case is therefore useful for setting down various principles as set out above but actually the result is made up of three different views. The view of Basten JA was that the sentences could be concurrent but needed to have a non-parole period, that is they should not be suspended; Hulme J was of the view that the decision should not be wholly concurrent but in the result joined with Basten JA; and the view of Hidden J was as just stated.

45. The decision of Hidden J at [149] echoes the present case to some extent. In that paragraph he states that the assessment of the offending as in the lower range of objective gravity may well have been open, a view not shared by Basten JA nor I would infer Hulme J, and Hidden J then notes the question of the respondent’s state of mind remained undetermined. The paragraph then states what could also be said of the present case namely “the respondent presented a powerful subjective case, demonstrating general good character, a productive and responsible lifestyle, and strong familial ties and support. On the other hand he did not have the benefit of having pleaded guilty and there was no acceptable evidence of remorse”. In the following paragraph Hidden J expressed the view that considerations of denunciation and general deterrence called for a period of full-time custody having just noted the charges of one act of oral penetration and two acts of vaginal penetration, leaving the complainant with enduring psychological problems.

46. R v Cowling was a case where the offender touched the victim’s vagina under her underpants, then pulled the pants down to the victims mid thigh and pulled her underpants to the side and licked the victim’s vagina. The offender then pulled the pants further down and continued to lick the victim’s vagina. The offender then lifted the victim’s top and bra and sucked her breast. This was assessed in the circumstances of that case by the trial judge as being at the lower end of the range of objective seriousness. The circumstances were of two people known to each other staying the night at a friend’s place. The victim was on the lounge and the complainant assaulted her there once she had fallen asleep before then going to a spare bedroom. In the Court of Criminal Appeal in the judgment of Leeming JA the acts of cunnilingus were said to be “towards the lower end of the large range of conduct defined in section 61H to amount to sexual intercourse”. His Honour also noted that the event being of short duration would not ordinarily be regarded as a factor which reduced objective seriousness. It was noted that there was no violence or coercion or threat or intimidation. The appeal as to severity was upheld so that the sentence of an aggregate term of three years and six months with a non-parole period of two years and five months was quashed and in lieu thereof an aggregate sentence of two years and four months with an 18 month non-parole period was imposed.

47. I was also referred to R v Hibberd [2009] NSWCCA 20. That case contains a useful discussion as to how sentencing judges are to treat the different forms of sexual intercourse falling within section 61I. That judgment refers to Ibbs v The Queen (1987) 163 CLR 447. As set out at [7] of the judgment of Tobias JA in Hibberd the High Court rejected the proposition that “divorced from the circumstances” each kind of sexual penetration as defined by the section is neither more nor less heinous than another. The High Court said:

That proposition cannot be accepted. The maximum penalty prescribed for the offence of sexual assault is reserved for the worst type of case falling within s 324D [equivalent to s 61I] ... The maximum penalty is not prescribed as an appropriate penalty for the worst type of case falling in each of the respective categories of sexual penetration described in s 342F.”

48. The High Court went on to say, and with the emphasis being added by Tobias JA at [8]:

“The inclusion of several categories of sexual penetration within the offence described as sexual assault carries no implication that each category of sexual penetration is as heinous as another if done without consent. When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case. In a case of sexual assault, a sentencing judge has to consider whether the facts of the particular case lie in a spectrum at one end of which lies the worst case of sexual assault perpetrated by any act which constitutes sexual penetration as defined.” (emphasis added)

49. His Honour then referred to the judgement of Simpson JA in R v AJP [2004] NSWCCA 434 where her Honour said:

“24 It might be true, as senior counsel suggested, that penile/vaginal intercourse would, in the circumstances, have amounted to a more serious offence. But does that avail the respondent? Let it be supposed that his Honour had not excluded as irrelevant the nature of the sexual activity in question. It is difficult to think that that of itself would have led him to the conclusion that the offence was of something less than mid range gravity. It is not possible to create some kind of hierarchy of the seriousness of the various kinds of sexual intercourse contemplated by s66A (and defined in s61H). It is the facts and circumstances of each case, including the nature of the intercourse, that enables the proper evaluation of objective seriousness. While penile/vaginal penetration might be taken to be more serious than enforced fellatio, that does not mean that enforced fellatio necessarily falls somewhere below the mid point of objective seriousness. There are many instances of conduct that come within the definition of sexual intercourse that would be significantly less serious than enforced fellatio. …

50. The second passage from the High Court judgment makes it plain that what is determinative is the facts of the particular case. The point of Ibbs is to make clear that it is not simply a matter of looking at the way the intercourse occurred in order to determine objective seriousness. This is what Simpson J expresses by saying there is no “hierarchy of seriousness” of the kinds of sexual intercourse.

Principles

51. Relevantly to the present case the principles that emerge from the foregoing include the following.

1. In determining the appropriate sentence for a s61I offence, general sentencing principles apply. Without being trite, each case turns on its own facts and circumstances.

2. There is no presumed starting point of a custodial sentence.

3. There is no hierarchy of the seriousness of the various kinds of sexual intercourse contemplated by s61I.

4. It is the facts and circumstances of each case, including the nature of the intercourse, that enables the proper evaluation of objective seriousness.

5. The duration of the offence may be relevant; Hidden J in Shortland expressed the view that it is not an error to make mention of this as a circumstance of the offending, but in isolation it will not be a matter that generally will bear upon objective seriousness, but it cannot be said that it never does. Hidden J also noted that in adult sexual offending the age difference does not bear upon objective seriousness. Leeming JA in Cowling said duration would not ordinarily be a matter that reduces objective seriousness. I note in this regard that Price J in Hibbert at [56] included the duration of the offence as a matter relevant to objective seriousness.

6. Conduct constituting section 61I offences may vary greatly in terms of objective seriousness. As a general proposition, “cases of actual penile penetration, whether anal, oral or vaginal, will rarely fall at the low end of the spectrum. Such non consensual activity has a significant inherent element of coercion and will generally be degrading from the perspective of the victim”; per Basten JA in Shortland.

7. Again, in general terms, in a case involving penile penetration in circumstances where there is no real evidence of remorse there would need to be a “powerful basis” for there to not be a custodial sentence.

8. In cases of adult offending the absence of violence is one factor in assessing gravity of offending, but not determinative.

9. Lastly, it is relevant to note the guidance of Basten JA given in respect of when to impose a suspended sentence, but which has general application, namely that the determination of whether or not a custodial sentence is imposed is not addressed by isolating the cases where that happened and looking for points of similarity. The exercise must be viewed more generally and determined by the application of principle.

Objective seriousness

52. In this case there was no force or coercion or violence or threats. The offending occurred in what appears to be an unplanned way, save that sometime before offending the offender must have made the decision to do so. At what particular time he decided to commit the offence cannot be said with precision. The actual offending is made up of conduct that barely exceeds what is required to commit the offence. It is not known for how long the intercourse took place before the victim woke up. The likelihood must be that the victim woke not long after it commenced, and no other view could be adopted adverse to the offender on the evidence. Immediately upon waking and realising what she was feeling the victim “scooted” away. This short duration in itself is not considered to be a mitigating factor but nevertheless is part of the facts of the circumstances of the offending. To illustrate this by example, it is certainly a less serious example of the offending than if it was established an offender thrust his finger in and out of a woman’s vagina for a period of minutes. The conduct here was not rough and no injury was caused of a physical kind. I find that only one finger was within the victim’s vagina. It is true that he returned but as stated above it would be speculation to accept the Crown’s submission that was a reflection of an emboldened offender ready to offend again.

53. What counts against the offender is that it was necessary to seek out the victim. This is not a case where there had been some proximity between the victim and the offender which in some way led to the offending. This is a case of an unsuspecting sleeping woman in her own bed in her own home being subjected to sexual intercourse without her consent with the offender knowing she was not consenting and who had come into that room in the middle of the night having not had any degree of intimacy passing between them beforehand.

54. Such behaviour is a gross violation of the rights and person of the victim.

55. That remark however can be made in respect of all cases of sexual intercourse without consent. Save for the fact of the offence being in the home of the victim, and of the offender seeking her out, what has occurred does not extend beyond what is necessary to constitute the offence. I therefore conclude the objective seriousness of the offending is low, and more in line with the assessment argued for by the offender than the Crown.

Sentencing considerations

56. Relevant to the present sentencing process I am conscious of the observation of Basten JA that it is not the appropriate course to go hunting for a decision in which a non-custodial outcome was achieved and then seek to find a sufficient number of comparable characteristics to justify the same finding. The benefit or the guidance offered by precedent is broader than that and involves the extraction and application of principles.

57. I have found that in this case the objective seriousness of the offence is low. I have found that the offender has a good subjective case. The above discussion shows that in such circumstances a non custodial sentence is a possible outcome.

58. The offender is quite right to draw strong parallels between the case of Hewitt and the present. Much of what is recounted at [30]-[31] above could be said to be the case here. Significantly the matter of Hewitt proceeded to trial and there was a verdict of not guilty on counts one and three but not on the sexual intercourse without consent charge which was count two. Whilst there were expressions of regret by the offender, his case was that the offending act did not occur. Wilson DCJ found the basis of knowledge was recklessness, in contrast to our present case where I find the basis was of actually knowing, based on the evidence of the victim being asleep.

56. Another, and notable, distinction is that there is no remorse whatsoever on the part of S.I.M. Inevitably also the facts are different. Hewitt was a case of a 21-year-old who had previously been intimate with the complainant in a consensual way (or at least I infer that to be the case given the absence of any charge, and I did not read the facts to suggest that evidence was tendency evidence) sleeping together on a couch after a party. That circumstance is in my view markedly different from entering into the bedroom of a friend of your partner and placing your hands under the sheets and digitally penetrating her whilst she is asleep. Hewitt demonstrates how it is open for the courts to arrive at a non-custodial conclusion for offending of this type. So much was not in dispute. What is in dispute is whether this case in all its own facts and circumstances both objective and subjective is able to be justly dealt with by the same result.

57. A difficulty for the offender in achieving this outcome is his total lack of remorse. That lack of remorse is less of a barrier to a non custodial sentence where the objective seriousness is at the low end of the spectrum. This is a reflection of the competing factors involved in any sentence where the result is arrived at through the process of instinctive synthesis.

58. If the facts of the cases of Hewitt, Burton and Shortland are viewed against the facts of the present case it can be seen that there is far greater similarity with Hewitt and Burton than there is with Shortland. On the principled approach Shortland stands out as a markedly different case of greater seriousness objectively. Shortland appears to have been a difficult sentencing case due to the inconsistencies of the complainant’s evidence which the jury was able to reason around. Hewitt was a case of a not guilty plea as here but with a markedly greater indication of remorse by the offender. Burton was a case of a plea with great remorse being expressed from almost the time of the offending.

59. With respect there is about the Crown’s submission a hint of an approach that may be analogous to the rule of Clarke’s case formerly adopted in respect of drug offending. In terms of sentencing principle to adopt a starting point that a person committing sexual intercourse without consent must receive a custodial sentence would in my view be incorrect. It might soon become apparent that a custodial sentence is necessary in the vast majority of cases of sexual intercourse without consent but the starting point has to be an open mind and not some predisposition to a custodial sentence.

60. The essence of the Crown’s argument for a custodial sentence is that whilst the offending is below the midrange it is not at the lowest and not so low as to justify not imposing a custodial sentence (see par 22). The basis for that submission was said to be because the offender knew the victim was not consenting and that it was committed in the home of the victim and that the offender later returned to her room. On these three points there was nothing said against the first point of the basis of knowledge and I accept the offender knew the victim was not consenting because she was asleep. It is also true that the offence is aggravated by being committed in the victim’s home. I do not accept the submission that this offending is made worse by the offender later returning to the room because it is not known why he returned to the room. In oral submissions it was put that he was emboldened but he did less on his second time in the room than the first. In my view it would be speculation to guess at why he was back in the room, so this point does not advance the Crown’s argument. The other two points do.

61. The Crown submissions then set out in a fair way the mitigating circumstances of the offenders subjective position. This includes his criminal history which in my view is of no moment, and the fact there was no planning involved. There is also the evidence that the offender has the benefits of a supportive family and employment. The Crown relied on the sentencing assessment report to suggest in terms of sex offending the offender is an average risk rather than low as was stated in the sentencing assessment report generally. In this regard I accept the submission of the offender that these assessments are very general and actuarial in their basis. Based on all the subjective material and the past record of the offender and his family situation I would consider him to be a low risk of reoffending in a sexual manner or otherwise.

62. In the Crown’s submissions addressing the offenders time on bail it is recognised that it may go towards some mitigation of sentence. I note in Bonett v R [2013] NSWCCA 234 at [50] it was said:

50. Whether restrictions outside of gaol amount to quasi-custody is a question of fact: see for example R v Cartwright (1989) 17 NSWLR 243 at 258 per Hunt and Badgery-Parker JJ and R v Serratore [2000] NSWSC 696 per Kirby J at [31]-[35]. The weight to be given to any such quasi-custody in reducing the sentence imposed is a matter for the discretion of the sentencing judge. Although quasi-custody may be a relevant consideration it is not a mandatory relevant consideration. However, in circumstances where there is an evidentiary foundation for its being taken into account, the sentencing judge may be obliged, in some circumstances, to have regard to it even when not specifically asked to.

66. The offender was released on bail on 5 June 2019 on bail conditions that included a condition that he not be absent from his premises between the hours of 9pm to 4am. That condition has been in place save for the period of the trial. It impacts therefore on his freedom of movement. On one view the curtailing of his movement in those hours may not be too onerous. Yet it means not only is his social life curtailed, in all the circumstances not an onerous imposition, but it also means he cannot travel anywhere, or have a night away from that location. That in my view is a significant restriction on the liberty of the offender. I propose taking it into account as quasi custody so that any sentence will be backdated by some amount as a result.

67. On balance the Crown seems to accept a number of the subjective and favourable features of the offender’s case. What it comes down to in my view is the total lack of remorse, the fact that there is no discount for a guilty plea and the Crown’s view that the objective seriousness is such that it does not justify a non-custodial sentence.

68. I have assessed the objective seriousness of this offence above.

69. Subjectively we have a now 30-year-old man with three young children, a long-term partner who was the mother of those three children, in steady employment and who has a criminal history and supporting subjective material showing him to be a worthwhile member of society.

70. I note the purposes of sentencing set out in section 3A CSPA. In my view there is only a low chance of any reoffending. There is thus little need for any sentence to reflect much by way of protection of the community or of specific deterrence. There is a need for general deterrence. There is a need for denunciation and to make the offender accountable for his behaviour, and to recognise the harm done to the victim and the community, and in this regard I note [53]-[54] above. The sentence should also seek to promote the rehabilitation of the offender. With those considerations in mind the question becomes the question posed by section 5 and whether “No penalty other than imprisonment is appropriate”.

71. In considering what the appropriate outcome is in this case it cannot escape one’s attention that the offender in Shortland for three distinct acts of sexual intercourse without consent, each of which in my view is plainly more objectively serious than the event presently being considered, ultimately was required to serve in custody a non-parole period of 10 ½ months, as of the 15 month non-parole period the court gave credit for 4 ½ months of the suspended sentence which had been served. In the present case the offender has served almost 3 months or to be precise two months and 21 days in custody. The subjective case of Mr Shortland was certainly no better in my view than the subjective case of the offender in the present case and arguably it was worse. Treating them as equal for the present consideration this means that the added degree of criminality of the conduct of Mr Shortland in carrying out three offences of sexual intercourse without consent results in a sentence of an additional period to that already served in this case, and without including the effect of quasi custody, of just less than eight months. In my view if guidance is sought in terms of the minimal period of custody required by certain offending then based on Shortland there is a good argument that no further time in custody is required in the present case. It should be remembered that Shortland was a case of sentence following a jury verdict and that there was effectively no evidence of remorse. The evidence of remorse relied upon by the judge was a letter from the offender’s mother which was conceded as being no evidence of remorse by the offender in submissions.

72. In the Crown submissions the case of Hewitt was sought to be distinguished. The most significant point of distinction is the significant remorse expressed in Hewitt albeit that he then pleaded not guilty. There were also concerns in Hewitt that custody would be damaging to his future life and he would find custody onerous because of his mental health situation. Yet in Hewitt there was no causal nexus in that regard. The Crown also makes the point that in Hewitt the offender was 21 at the time and a university student and contrasted that with the current offender being aged 28 with a partner and three young children. Whilst the respective positions of the offenders are different I do not see how that is a point against the offender in our current case.

The appropriate sentence

73. The standout point of distinction between this case and both of Hewitt and Burton is the lack of remorse. In Hewitt despite the not guilty plea the evidence showed a very empathetic and insightful offender. In Burton no sooner had the offending stopped than the apologies commenced.

74. I have referred to the purposes of sentencing above. I am persuaded that there is no sentence that is appropriate other than a full-time custodial sentence. I have come to this conclusion influenced by the offender’s lack of remorse, and the manner in which the offending occurred. I am also aware of the significant impact this style of offending is recognised to have on victims in a general way, and in this case in a particular way as shown by the victim impact statement. A custodial sentence is warranted on the facts of this case to reflect these aspects. My view is that by proceeding by way of a custodial sentence the offending conduct is appropriately denounced and retribution has been achieved, as has general deterrence.

75. In considering the length of the sentence, I note as discussed above that in Shortland a far more serious offence saw the offender spend only eight months more in custody than the offender presently has spent in custody. I note also that the offender referred to the decision of R v HJS [2020] NSWDC 480, where I sentenced a 60-year-old man in respect of two counts of sexual intercourse without consent. One of those counts was digital penetration of a type not far removed from the present and in respect of which the indicated non-parole period was four months with an indicated head sentence of 6 months, after a discount of 5%.

76. This will be the first time in custody for the offender (other than that upon his initial arrest) and in my view for that reason special circumstances have been established. I also consider that there should be a longer period of supervision to oversee and encourage the offender to continue his now more abstemious lifestyle. While I found that his record did not establish substance abuse issues beyond reasonable doubt, the offending did involve both drugs and alcohol, suggesting their absence will make re offending even less likely than I have assessed it to be. I note there was some suggestion hardship to others of incarceration of the offender should play some role in the sentencing considerations. I do not consider this is a case to which the principles of Edwards would apply so as to avoid a period of incarceration.

77. Taking into account all of the above matters I consider that the appropriate term of imprisonment is 12 months. There will be a non parole period of 4 months. The period of the balance of the term is well outside the statutory ratio, but in my view is appropriate. In terms of months this is 5 months less custody than allowed for by the statutory ratio, and only 2 months less time in custody if a 50% ratio (or 100% depending on how it is viewed) was adopted, which is not infrequently seen. The date of commencement of the sentence will account for the 2 months and 21 days in custody, as well as a period reflecting the quasi custody discussed above. For those reasons the sentence will date from 11 August 2020, so that the non parole period expires today. I consider this result could also be justified when it is considered that to return the offender to custody now would negatively impact on his rehabilitation. It would prohibit him from continuing to fully contribute to his family and to society. The focus should not of course be solely on the offender’s circumstances; they are just one of the range of factors s3A requires to be considered. My view is that the other purposes are properly addressed for the reasons stated above without requiring the offender to return to custody. The approach I have taken could also arguably be further supported on the basis of the reasoning of Basten JA referred to at [35] above, whilst of course acknowledging the facts are different. Further the offender remains under supervision on parole for a further 8 months. The word “further” is chosen deliberately for he has since March 2019 been under supervision and has had his life significantly impacted. By the proposed orders the offender would have been subject to restraint on his liberty for a period of some 2 years and 9 months, commencing on the day of his arrest. I consider that the period in custody required by these orders to be the “minimum period the offender must spend in gaol, having regard to all the elements of punishment, including the objective seriousness of the crime, deterrence and subjective circumstances”, see R v MA [2004] NSWCCA 92 at para 33.

78. I note that the non parole period differs from the standard non parole period. This is because the matter falls below the middle of the range of seriousness, and due to the subjective features of the offender discussed above.

79. Accordingly I make the following orders:

1. I confirm the conviction.

2. The offender is sentenced to a term of imprisonment with a non parole period of 4 months to date from 11 August 2020 and expiring today, 10 December 2020, and with a balance of term of 8 months expiring on 10 August 2021.

Footnote:  In preparing this judgment for publishing it was realised the reference to 2 years and 9 months at [77] is an error and should be 2 years and 5 months.  

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Amendments

09 September 2022 - coversheet - corrections to case name and party fields

Decision last updated: 09 September 2022