R v Singh

[2025] NSWDC 52

District Court

New South Wales

Medium Neutral Citation:

R v SINGH [2025] NSWDC 52

Hearing dates:

19 February 2025

Date of orders:

27 March 2025

Decision date:

27 March 2025

Jurisdiction:

Criminal

Before:

Lerve DCJ

Decision:

Sentenced to an aggregate sentence – see paras [78] to [84]

Catchwords:

CRIMES – Aggravated Sexual Intercourse Without Consent – Assault Occasioning Actual Bodily Harm - Common assault – domestic violence related – Pervert the Course of Justice - Use Offensive Weapon to Commit Indictable Offence

SENTENCE – plea of guilty - form 1 offences – cognitive impairment – causal connection - subject to the ICO at the time of the offending – likely to reoffend

Legislation Cited:

Crimes Act, 1900

Crimes (Sentencing Procedure) Act, 1999

Cases Cited:

Bugmy v The Queen [2013] HCA 37

Cherry V R [2017 NSWCCA 150

DPP (Cth) v De La Rosa (2010) NSWLR 1

Muldrock v The Queen [2011] HCA 39

R v Eckermann [2013] NSWCCA 188

R v Hamid [2006] NSWCCA 302

R v Tuala [2015] NSWCCA 8

Tepania v R [2018] NSWCCA 247

The Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No 1 of 2002 (2002) 156 NSWLR 146

Category:

Sentence

Parties:

The King
Shyarlm SINGH

Representation:

Counsel:
Mr P Kerr for the Crown
Mr M Davies for the Offender

Solicitors:
Office of the Director of Public Prosecutions
Legal Aid Commission of NSW

File Number(s):

2023/00023982, 2024/00040020

Publication restriction:

There is to be no publication of the name of the complainant nor anything that may tend to identify them.

JUDGMENT

1. The offender appears for sentence in respect of three substantive offences, two of which are on an Indictment and the third of which is a charge in respect of which the offender was committed for sentence.

2. Count 1 on the indictment avers that the offender:

On or about 19 January 2023 at Ashmont in the State of New South Wales, did have sexual intercourse with KL without her consent and knowing that she was not consenting to the sexual intercourse, in circumstances of aggravation, (namely) that at the time of the offence Shyarlm Singh did recklessly inflict actual bodily harm to KL, contrary to s 61J(1) of the Crimes Act, 1900.

3. Count 4 on the indictment avers that the offender:

On 20 January 2023 at Ashmont in the State of New South Wales did assault KL thereby occasioning actual bodily harm to her, contrary to s 59(1) of the Crimes Act.

4. The offender appeared before a Magistrate at the Wagga Wagga Local Court on 23 October 2024 and entered a plea of guilty which was adhered to at the sentence hearing to a charge that he:

On 25 January 2023 in Junee in the State of New South Wales, did an act, namely did contact his mother Bernice Harrison asking her to contact the victim KL in an attempt to get KL to go to the police and drop the charges, or to change her statement, intending thereby to pervert the course of justice, contrary to s 319 of the Crimes Act.

5. In respect of the committal for sentence matter (Pervert the Course of Justice) the offender is entitled to the full 25% discount for the utilitarian value of the plea of guilty.

6. In respect of the matters on the indictment the offender was committed for trial on 4 October 2023. The offender was arraigned at the District Court on 10 November 2023 and pleaded not guilty. The matter was listed for trial on 20 May 2024, which date was vacated and a fresh trial date of 11 November 2024 was set. On 25 October 2024 the offender pleaded guilty to the two counts on the indictment.

7. In these circumstances the offender is entitled to a discount of 10% for the utilitarian value of the pleas of guilty.

8. I note that what were originally counts 2 and 3 on the indictment are now attached to the Form 1 document. The offender is to be sentenced in respect of counts 1 and 4 on the original indictment. Pleas of guilty were originally entered to all counts on the indictment. It is accepted that was in error. There was no issue that the offender should be permitted to withdraw his pleas of guilty to counts 2 and 3 on the original indictment.

9. The maximum penalty for the offence of Aggravated Sexual Intercourse Without Consent is 20 years imprisonment. Parliament has specified a standard non-parole period of 10 years in respect of that offence. The maximum penalty for the offence of Assault Occasioning Actual Bodily Harm is 5 years imprisonment with no standard non-parole period.

10. The maximum penalty for the offence in respect of which the offender was committed for sentence (Pervert the Course of Justice) is 14 years imprisonment.

11. In addition, when I am passing sentence on the Aggravated Sexual Intercourse Without Consent matter, the offender asks that I take into account two matters on a Form 1 document, namely offences of Common Assault contrary to s 61 of the Crimes Act and an offence of Use Offensive Weapon to Commit Indictable Offence contrary to s 33B(1)(b) of the Crimes Act.

12. In passing sentence I will need to give proper effect to the principles enunciated in The Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No 1 of 2002 otherwise known as the Guideline Judgment on Form 1 Matters reported at (2002) 56 NSWLR 146.

13. Given the nature of the offending in the Form 1 matters the Form 1 will have some impact on the ultimate sentence to be imposed.

Facts

14. The facts in all matters are before the court by way of separate sets of Agreed Facts. I will initially go to the matters on the indictment.

15. The victim and the offender were both born in 1999 and had known each other for several years. They commenced an intimate relationship five weeks before the offending.

16. The victim and the offender had been staying at a friend’s residence in Ashmont, a suburb of Wagga Wagga. On 19 January 2023 the offender returned from Albury and went into the spare bedroom where the victim was playing games on her phone. At this time the other two occupants of the house were asleep in the main bedroom at the house.    

17. When the offender entered the bedroom, he hit the victim on the right-hand side of the mouth with his fist which caused the victim to bite the inside of her mouth. The offender then punched the victim to her ribs, stomach and chest. When he stopped, he said to the victim, “Who the fuck you got in here?” He then pulled open a cupboard and said, “Where the fuck is Tyler?” You got Tyler hiding in here”. The victim said, “What the Fuck? I haven’t been near Tyler. I have been here the whole time”. The offender said, “Don’t fucking lie to me slut, I know you let Tyler run a train on you”. The victim said, “What the fuck? Tyler hasn’t even been here,” to which the offender said, “If you are going to let Tyler run a train on you then let me thrash your pussy”. The victim told the offender not to talk to her like that.

18. The offender walked over to the bed and grabbed the victim by her wrists and lay across the top half of her body pinning her arms above her head. The offender then bit the victim on her neck, causing tenderness and bruising. The victim screamed from the pain of the bite.

19. The offender again said, “Let me thrash your pussy”. The victim said, “Seriously Shyarlm, stop talking to me like that, it’s fucking putrid”. The offender again hit the victim in the chest area. The victim tried to push him off but could not. She kept saying to him, “Stop fucking hurting me, stop fucking hurting me, stop hitting me”.

20. The offender then said, “I’m going to fuck you slut” to which the victim replied, “No, you’re not”. The offender pulled down the victim’s track pants and underwear and put his penis inside her vagina and thrusted his penis in an out of her vagina. The victim tried to push the offender away and said, “Stop, stop, I don’t want to have sex with you.” The offender continued to thrust his penis in and out of the victim’s vagina until he ejaculated inside her vagina.

21. The sexual intercourse lasted for 10 to 15 minutes during which time the victim continually tried to push the offender off her and kept saying, “Just fucking stop, stop. I don’t want to have sex, can you just stop, I don’t want you to do this.”

22. After the offender ejaculated, he stopped then rolled off the victim and said “I’m sorry” and went to sleep. The victim lay next to the offender crying for several hours.

23. The facts then go into the matters attaching to the Form 1 document. In respect of the charge of Common Assault, the following morning the offender woke up next to the victim and started hitting her on the right side of her face into the left side of her jaw. When the victim confronted him about the sexual assault the offender accused her of raping him. The victim left the premises and went to see her son and returned to the residence sometime later in the day.

24. The facts then go to the other matter on the Form 1 (s 33B charge) and the other count on the indictment (Assault Occasioning Actual Bodily Harm). Later in the day the victim was lying next to the offender in bed on a mattress on the floor of the bedroom. The offender was hugging the victim then shortly afterwards starting accusing her of having sex with other men. The offender grabbed a knife and started waving it in front of the victim. The offender inflicted an abrasion to the victim’s upper right thigh, then used the tip of the knife to inflict small abrasions on her right shin.

25. The victim screamed, “Please stop hitting me, stop hitting me, I need to go and see my son, stop hitting me.” The offender kept hitting the victim. The offender said he likes it when the victim begs him to stop, the more the victim begged him to stop, the more the offender hit the victim. He continued to wave the knife and inflict small abrasions to her upper right outer thigh. The offender punched the victim in the stomach and the victim kicked the offender.

26. The offender grabbed the victim by the neck with his thumb and fingers and held her up against the wall in the bedroom and squeezed her neck and then dragged her and threw her down on the bed. The offender got on top of her and started punching her in the side of the face causing bruising behind her left ear and swelling to the left side of her neck. The victim was unable to move while she was being hit in the face. The offender also hit the victim over the left ankle with a broom handle which left bruising. He continued to wave the knife around in front of her.

27. The offender went to the bathroom and the victim fled from the house and ran to her cousin’s house. The victim and her cousin then called her mother, who then called the police. The victim went to the Wagga Wagga Base Hospital where she was treated for her injuries.

28. Upon medical examination on 24 January 2023 the victim was found to have bruising on the left side of the neck, bruising on her left ear, abrasions on the left abdomen, abrasions on her right shin, grazing and bruising to her right back forearm, abrasions to her right thigh and bruising on her left thigh, calf and ankle.

29. I now turn to the facts in respect of the offence of Pervert the Course of Justice. The offender was refused bail for the above offending on 24 January 2023 and was held at the Junee Correctional Centre on remand.

30. On 25 January 2023 the victim reported being contacted by the offender’s mother, Bernice Harrison, to drop the charges. The contact was made through Facebook messenger. The message sent to the victim by Harrison said: “Hey Shyarlm said can you go police station n drop them charges he said u no its not true”.

31. Police obtained the jail calls made between the offender and Harrison in which he arranged for her to contact the victim in an attempt to have the charges against him withdrawn.

32. On 25 January the offender made two phone calls from Junee Correctional Centre to Harrison’s landline. The conversation between the offender and Harrison involved the following:

1. The offender told Harrison to tell the victim that she is supposed love him and told Harrison “… Just say to her why the fuck would she fucking charging me with sexual assault. I didn’t do that, I may assaulted her, bashed the bitch fucking bad, but I didn’t do that other shit”. [sic as set out in the facts]

2. The offender told Harrison, “Tell her, tell her to go down the police station and drop the fucking charge or write a statement to get me out of it because that’s the only reason I’m locked up. Otherwise I wouldn’t be in here. Or I’m gonna fucking kill her. I am gonna get her killed on the outside”.

33. The following exchange then occurred:

Offender:   “Tell her the sexual assault charge. That’s the one I’m talking about. I don’t give a fuck she can charge me with the assault and shit but I, the other cunt, I don’t wanna, I’m already, I’m already going to court for fucking shit like that. I don’t need this shit, otherwise what the fuck man? The mother fuckers definitely won’t let me out now. Getting another charge like this. What the fuck? Is she fucking crazy or something? That’s why I want you to go on my Facebook ‘cause I’m already friends with her and you can she can see if she’s online or not and message her off that”.

Harrison:   “No because if the cops look at that you will get in trouble dickhead.”

Offender:   “No I won’t.”

Harrison:   “Yes you will on fucking talking to a witness or whatever, whatever the fuck, the victim, whatever they call the cunt.”

Offender:   “Oh Yeah.”

Harrison:   “Make it worse looking for you.”

Offender:   “Fucking hell. Well just go on my Facebook and call her. And do the loudspeaker so I can hear, so I can talk to her so then they got no, they got no messages. She was talking to me 20 minutes before I got locked up. She was supposed to come see me. Next minute, I got locked up.”

Assessment

34. Before going to the features of the matter I note the decision of Tepania v R [2018] NSWCCA 247, especially the judgment of Johnson J at [112] and [119]. I note that within exhibit 2, the updated report of Dr Sidhu, forensic psychologist, the author opines at paragraph 72 of the report that there is a causal connection between the offending and the offender’s cognitive impairment. The cognitive impairment accordingly will have some impact on the finding as to the seriousness of the matters. I have taken that impairment into account in the following assessments made of the seriousness of each of the matters.

35. I turn first of all to the offence of Aggravated Sexual Intercourse Without Consent. The sexual intercourse was penile/vaginal with ejaculation into the victim’s vagina. The offending occurred in the victim’s home, or at least where she was staying. The actual bodily harm (bruising to the neck) relevant to this charge is very much towards the lower end of what is contemplated by “actual bodily harm”. The offender said a number of utterly degrading and insulting things to the victim. Given the agreed facts as to what the victim said to the offender (namely, “Stop, stop, I don’t want to have sex with you”) it must be the case that the offender had actual knowledge that the victim was not consenting. The motivation for the offending was jealousy and the offender’s perception that the victim was involved in infidelity. The Crown submits (written submissions MFI 1 on sentence) that the offending is above mid-range. Mr Davies on behalf of the offender submits that the offending is within the mid range.

36. In all of the circumstances, there could be no reasonable criticism of the Crown making the submission that the matter is above mid-range. However, the issue of the cognitive impairment must be factored into the assessment in accordance with Tepania. I also note the extent of the actual bodily harm. I assess the matter as being within the mid-range of seriousness.

37. Going to the matters on the Form 1, the Common Assault is a serious example of a common assault, noting the number of blows and the persistence of the conduct. The charge contrary to s 33B of the Crimes Act involved the use of a knife to intimidate the victim. Without deprecating the seriousness of the offender’s conduct given what is contemplated by s 33B, the matter on the Form 1 is below mid-range.

38. Count 4 on the indictment is an example of serious domestic violence. It also occurred where the victim was staying and entitled to feel safe. I must proceed on the basis that I cannot be satisfied beyond reasonable doubt that the victim has any lasting effects from the physical injuries. The assault was sustained and involved the use of weapons. Mr Davies submits that the matter is a “moderate” example of Assault Occasioning Actual Bodily Harm. The matter is slightly below mid-range.

39. The public justice offence involves the offender contacting his mother and asking her to contact the victim. There is nothing to suggest that the offender’s mother ever did contact the victim. Indeed, the offender’s mother it would seem was less than enthusiastic. As counsel for the offender puts in written submissions the attempt was unsuccessful and had no impact on the course of the matter. The matter is below mid-range.

Victim Impact Statement

40. Part of the Crown tender bundle is a victim impact statement. I have read and carefully considered the contents of that victim impact statement. The VIS eloquently sets out as those documents often do the short and long term harm done to the victim.

41. However, I do not understand the Crown to submit that the contents of the VIS grounds a finding of any circumstance of aggravation. In that regard I note and have regard to the decision in R v Tuala [2015] NSWCCA 8.

42. The harm done to the victim is taken into account in the instinctive synthesis process by virtue of s 3A of the Crimes (Sentencing Procedure) Act 1999.

Criminal History

43. The offender was born on 26 September 1999 and accordingly is 26 years of age at the time of sentence and was 23 at the time offending. In 2020 he was convicted on Indictment and sentenced to an aggregate sentence of 3 years to be served by way of Intensive Correction Order in respect of Robbery and Dishonesty offences. In 2022 he was convicted and sentenced to a fixed term of one month for Custody of a Knife.

44. Although not particularly extensive, the record however is one that does not entitle the offender to any particular leniency.

45. The offender was subject to the ICO at the time of the offending. Accordingly, the factor of statutory aggravation of committing further offences while subject to conditional liberty provided for by s 21A(2)(j) of the Crimes (Sentencing Procedure) Act is enlivened.

General Deterrence – Domestic Violence

46. The Aggravated Sexual Assault matter is a very serious example of domestic violence. The violence matters are also examples of domestic violence. The Court of Criminal Appeal, going back to at least the decision in R v Hamid [2006] NSWCCA 302 and in a number of cases since, e.g. R v Eckermann [2013] NSWCCA 188 and Cherry v R [2017] NSWCCA 150, has emphasised the need for general deterrence when sentencing offenders for domestic violence. In this matter however, I note the opinion of Dr Sidhu, forensic psychologist, who opines that there is a causal connection between that impairment and the offending. I will deal with the subjective case shortly, but that opinion means that the impact on general and specific deterrence on the sentence is ameliorated. Nevertheless, general and specific deterrence are not eliminated entirely.

Subjective Case

47. No oral evidence was called by or on behalf of the offender however Mr Davies, counsel for the offender, read an affidavit from the offender’s mother. A significant part of the subjective case is the report of Dr Sidhu. There were two reports from Dr Sidhu. The principal difference between those two reports is that in the second report Dr Sidhu opines that there is a causal relationship between the offender’s cognitive impairment and the offending.

48. At paragraph 10 of the report, Dr Sidhu notes that the offender gave a history of growing up in housing commission accommodation with exposure to drug use, crime and violence in his community. However, despite this, the offender expressed that he felt safe due to his family stability. He denied domestic violence or aggression between his parents. The offender told the author of the report that he expressed his childhood was positive. The offender denied any involvement with child protection services but he was placed in juvenile detention for a few months at 14 years of age.

47. The offender reported that he was sexually assaulted in juvenile detention by an officer. The abuse involved anal rape. This was not disclosed until relatively recently and I note part of the subjective case is material from the solicitors acting for the offender in a civil claim against the State. A deed of settlement was signed on 29 August 2024. The terms of the settlement are set out in the correspondence which I will not repeat here as usually deeds have a clause that the terms of settlement not be disclosed. I note also the offender gave a history of being bullied at school.

48. Although not the usual case, given what happened to the offender in custody, taken with the bullying and the exposure to drug use crime and violence in the broader community, the principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37 are enlivened to an extent, thereby reducing the offender’s moral culpability.

49. The offender had a limited formal education. No doubt intellectual impairment impacted on the offender’s education. He has not had any regular employment in adulthood and his work experience is minimal.

50. The report sets out (paragraph 21) the offender commenced using cannabis from 18 years of age and he later became addicted to methyl amphetamine or “ice”. The offender told the author of the report that “ice” was his problematic substance use but he has been abstinent for 12 months before the date of the report. He’s commenced the Buvidal depot which he reports has been effective in managing cravings for drugs. The offender was affected by methyl amphetamine at the time of the offending – see paragraph 24.

51. Under the heading “Mental Health”, Dr Sidhu sets out the offender gave a history of self-harm as a child when he attempted suicide at 15 years of age. He also attempted suicide as a young adult. The offender expressed historical difficulties with over-thinking, hypervigilance, dissociation, anxiety and nightmares. The offender has not engaged in trauma-focused treatment. The offender had previously been admitted to a psychiatric ward in relation to suicide risk and psychotic symptoms. He described auditory hallucinations that are still present. However, it seems the offender is medicated and he has expressed an intention to continue adhering to the treatment program.

52. At the time of the offending the offender was not compliant with his medication and was not engaging with the local community mental health team. The offender acknowledged the connection between poor mental health, increased drug use to manage his symptoms and subsequent offending behaviour. However, the offender also reported offending when he was not psychotic.

53. The offender expressed that his “best option” on release was to live with his parents as they are a stabilising influence in his life.

54. Dr Sidhu opines (paragraph 40) that the offender showed a good understanding of the basic concepts of consent. However a little later in the report (paragraph 42) the doctor notes that from the offender’s account he struggles to connect emotionally and sexually to his partners but also remains a sexually immature man with limited healthy sexual experience and limited healthy social templates for him to model. Dr Sidhu notes: “However, he continues to deny the sexual offending. It is unclear if this is because he is concealing more deviant sexual attitudes and cognitions. This distinction and better understanding of the drivers of his sexual offending will be ascertained as his insight improves.”

55. At paragraph 45 of the report the doctor notes that the offender “strongly denied” the sexual violence towards the victim. However, the offender regretted his violence towards the victim stating, “I wish I’d never hit her too, I wasn’t brought up like that.”

56. Dr Sidhu, relying on previous reports, notes a “borderline intellectual disability”. He goes on to say (paragraph 55) “Collectively, Mr Singh’s previous psychiatric and psychological reports highlight his long-standing psychotic symptoms in childhood, strong family history of psychiatric illness and his substance use disorder. He also appears to be a man of borderline intellectual ability, in line with this his functioning is also limited. These psychiatric intellectual functioning vulnerabilities undoubtedly impact on his day-to-day functioning and will require more support than his peers who did not have these vulnerabilities.”

57. At paragraph 61 of the report Dr Sidhu says “Mr Singh has entrenched violent attitudes that are pervasive across his lifespan and were also a significant feature in the driver for his current violent offending. His thought processes appeared to rely on justification of the violence as he felt wronged”. Not surprisingly, the doctor goes on to say that these attitudes are areas of risk and require appropriate intervention.

58. The offender is assessed as being in the well above average risk category for reoffending. It is the professional opinion of Dr Sidhu that the offender is at a high risk of sexual reoffending.

59. Given the assessment and the opinion of Dr Sidhu, I am simply unable to make a finding that the offender is unlikely to reoffend. I note that no such submission is advanced on behalf of the offender.

60. At paragraph 74 of the report Dr Sidhu again notes that the offender continues to deny any sexual offending. Although there is an expression of regret so far as the physical violence is concerned, noting the continued denial of the sexual offending, I am simply unable to make any finding on balance that the offender is remorseful. Again, I note that no such submission is advanced on behalf of the offender.

61. Dr Sidhu in the concluding paragraph of his report says, “There is an opportunity to provide effective intervention to reduce further escalation of Mr Singh’s offending behaviour by completing offence-focused treatment and developing healthier adaptive skills. However, Mr Singh continues to deny any sexual offending which means his risk remained untreated.”

62. Although there are some positive signs, given what appears in the paragraph immediately above I must be quite circumspect about the offender’s prospects of rehabilitation. However, he does have good family support and is able to live with his family upon his eventual release. I note Dr Sidhu also recommends supervision by Community Corrections and “step-down treatment”.

63. I return to the causal connection between the cognitive impairment and the offending. Dr Sidhu at paragraph 72 of the updated report says, “It is my clinical opinion that his cognitive impairment impacts his broader offending in that he struggles with consequential thinking skills, reasoning and judgement skills. This is compounded by his protracted drug use. However, his victim empathy deficits, in my opinion, are more in relation to his anti-social attitudes, propensity for violence, relationship immaturity and interpersonal style. He maintains his denial of the sexual offence, which makes it difficult for him to express empathy.”

64. Mr Davies submitted and I agree that the contents of paragraph 72 of Dr Sidhu’s report provides a causal connection between the cognitive impairment and the offending. That therefore enlivens the principles enunciated by the plurality of the High Court in Muldrock v The Queen [2011] HCA 39 at [54], namely:

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

67. I also note and have regard to the decision of DPP (Cth) v De La Rosa 79 (2010) NSWLR 1 at [177]-[178] per McClellan CJ at CL. Clearly, given the offender’s cognitive impairment, the impact of general and specific deterrence is ameliorated. The offender’s moral culpability is reduced. At [177] of the decision His Honour said:

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

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

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

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

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

● Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24]. In the matter presently under consideration I could not find on the material available to me that the offender presents a danger to the community.”

68. However, Dr Sidhu opines at paragraph 77 of his report that the offender “is an isolated and complex individual who will likely require lengthy carefully sequenced intervention, both group and individualised to manage his presentation…He will require a skilled clinician such as a clinical or forensic psychologist to manage this trauma work”.

69. The need for the lengthy supervision justifies together with other factors a finding of special circumstances, which given the issues in this matter should be more generous than might otherwise be justified. Apart from the treatment recommended by Dr Sidhu, the offender will need careful and extensive supervision to ensure his proper reintegration into the community.

70. It is appropriate to direct that a copy of the very comprehensive report by Dr Sidhu be forwarded to the Department of Corrective Services.

71. The short affidavit by Bernice Harrison, the offender’s mother, sets out she supports her son, that he is able to live with her upon release and that she has a strict policy of no drugs or alcohol in the house. She also sets out in the affidavit that the offender has been abstinent from drugs and alcohol when he has lived with her in the past. The offender has family support and a place to live upon release. That is some positive aspects to the offender’s prospects of rehabilitation.

General Remarks

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

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

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

3. to protect the community from the offender,

4. to promote the rehabilitation of the offender,

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

6. to denounce the conduct of the offender, and

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

73. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the maximum penalty, the standard non-parole period prescribed for the Aggravated Sexual Assault and the offending, I am firmly of the opinion that the threshold within s 5 of the Sentencing Act is crossed. No contrary submission was advanced on behalf of the offender.

74. I have carefully read and considered the Crown’s written submissions. I have dealt with the issue of the seriousness of the matter. The Crown appropriately sets out the detail of the breaches of conditional liberty. The Crown concludes the written submissions by putting that the Crown was not in possession of any material that would justify a finding of special circumstances. I have made findings and given reasons for a finding of special circumstances in this case.

75. It was my understanding at the sentence hearing that neither party takes issue with the sentence commencing on 16 April 2023. Independently, I agree that that is the appropriate sentence date taking into account the issue of totality. The partial accumulation of sentence (i.e. revocation of the intensive correction order) is a further justification for a finding of special circumstances.

76. This is an appropriate matter for the imposition of an aggregate sentence. If separate sentences were imposed there would need to be some partial accumulation to recognise the different offending. Noting the nature of the offending of the public justice offence, any partial accumulation would be very modest bordering on nominal.

77. It will be necessary to set out the sentences that would have been imposed had separate sentences been imposed. Those are:

Count 1: Aggravated Sexual Intercourse Without Consent, contrary to s 61J of the Crimes Act – a non-parole period of 3 years with a balance of term of 18 months making a total sentence of 4 years 6 months indicating a starting point of 5 years;

Count 4:   Assault Occasioning Actual Bodily Harm – a total sentence of 1 year 6 months indicating a starting point of 1 year 8 months

Attempt to Pervert the Course of Justice: A total sentence of 6 months indicating a starting point of 9 months with some rounding down.

Orders

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

79. The offender is sentenced to an aggregate sentence of 5 years 3 months with a non-parole period of 3 years 5 months.

80. The non-parole period is to date from 16 April 2023 and will expire on 15 September 2026. The balance of term on parole of 1 year 10 months is to commence on 16 September 2026 and will expire on 15 July 2028.

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

82. The sentence indicates a finding of special circumstances, the reasons for which were given earlier in these reasons. The non-parole period is approximately 65% of the total sentence.

83. The offender has been in continual custody since 23 January 2023. With the sentence just imposed the total effective sentence will be (in round figures) 5 years and 6 months (66 months). The time in actual custody, provided the offender is released at the expiration of the non-parole period specified today is (again in round figures) 3 years 8 months (44 months). The time in actual custody is therefore 66.6% or two-thirds of the total sentence.

84. I recommend in the strongest of terms that any release to parole be subject to intensive supervision in accordance with the recommendations of Dr Sidhu. I direct that a copy of exhibit 2 on sentence, i.e. the updated report of Dr Sidhu, be forwarded to the Department of Corrective Services.

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Decision last updated: 09 April 2025