R v Starke (a pseudonym)

[2023] NSWDC 377

District Court

New South Wales

Medium Neutral Citation:

R v Starke (a pseudonym) [2023] NSWDC 377

Hearing dates:

1 September 2023

Date of orders:

15 September 2023

Decision date:

15 September 2023

Jurisdiction:

Criminal

Before:

Priestley SC DCJ

Decision:

See [54 - 56]

Catchwords:

CRIME — Sexual offences — Aggravated sexual assault — Inflicts actual bodily harm

CRIME — Domestic violence — Stalking or intimidation – Intend fear of physical harm

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Domestic and Personal Violence) Act 2007

Crimes (Sentencing Procedure) Act 1999

Crimes (High-Risk Offenders) Act 2006

Cases Cited:

Muldrock (2011) 244 CLR 120

Texts Cited:

NA

Category:

Sentence

Parties:

Rex (The Crown)
Starke (a pseudonym for The Offender)

Representation:

Counsel:
Franklin for The Crown
Davies for The Offender

Solicitors:
Parmenter for The Office of the Director of Public Prosecutions
Coombes for The Offender

File Number(s):

2021/00068019, 2021/00122912

Publication restriction:

Section 578A Crimes Act applies

Reasons on Sentence

1. On 25 October 2022, the offender was found guilty by a jury of two of three offences alleged in an indictment dated 17 October 2022. One of the offences of which he was found guilty was sexual intercourse without consent knowing the victim was not consenting, a prescribed sexual offence, so that in accordance with section 578A of the Crimes Act these reasons will be anonymised, and the name of these reasons will be a pseudonym.

2. The offender was found guilty of the following counts:

1. That on or about 2 February 2018 at XX in New South Wales he did have sexual intercourse with the complainant without her consent knowing she was not consenting and did so in circumstances of aggravation namely that immediately after the offence the offender did intentionally inflict actual bodily harm to the complainant. This is an offence in contravention of section 61J(1) and has a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years.

2. That on or about 6 March 2021 at XX in New South Wales the offender intimidated the complainant with the intention of causing her to fear physical or mental harm. This is in contravention of section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 and has a maximum sentence of five years imprisonment. There is no standard parole period.

3. The jury returned a verdict of not guilty in respect of a further charge under section 13(1) alleged to have occurred on 7 March 2021.

4. In relation to the maximum sentences and, in respect of the section 61J offence, the standard non-parole period, those matters are taken into account as legislative guideposts to assist in arriving at the appropriate sentence. In relation to the standard non-parole period I note that in Muldrock (2011) 244 CLR 120 at [29] the High Court made clear that it has application even when the offending is not considered to be in the “middle of the range of seriousness” as that term is used in section 54A of the Crimes (Sentencing Procedure) Act (“CSPA”). The standard non-parole period, and the maximum sentences, are an indication of the legislative view of the seriousness of the offence to assist in arriving at the appropriate sentence.

The facts

5. At the sentencing hearing the Crown tendered a document which the parties had agreed upon as being the agreed facts upon which the offender should be sentenced. I have considered those agreed facts and agree that they should be the basis for sentencing. They set out some uncontroversial history as to the background of the victim and the offender and also reflect so far as the actual conduct constituting the offences is concerned the case as put by the Crown which the jury plainly accepted. I will adopt those agreed facts in their entirety and they are as follows:

6. Count 1:

1. The victim was the younger, biological sister of the offender by almost two years. She is also cognitively impaired and gave evidence with the assistance of a Witness Intermediary.

2. The offender was the eldest of the seven children who resided with their parents at a rural property in XX. The offender separately resided in a caravan positioned on the property rather than within the main residence with the victim.

3. The sexual offence occurred the day after the victim's 18th birthday, in 2018. Around 8am that morning their father was driving all the children into town. The victim communicated that she was sick and staying home, after which the offender decided to stay home too.

4. The offender came inside, closed and locked the door, went into several rooms of the house switching the lights off and then switched off the main power to the house.

5. The victim, who had just started watching television in the lounge (likely SpongeBob Square-pants), became scared and tried to escape, but tripped over.

6. The offender grabbed her. He pulled her hair and shirt at the same time, throwing her to the ground. The victim landed on her back, hitting the back of her head on the tiles and becoming dizzy.

7. The offender positioned his knees either side of the victim's body. He ripped her new shirt and necklace from her neck to shoulder, laughing when her necklace broke in the process (T15-19). He also ripped her shorts beyond her zipper.

8. The offender pinned the victim's arms above her head in a crossed position with one hand, but when she kept 'squealing' and moving he 'got angry' and moved her hands under his knees instead.

9. During the above, and against the victim's shouts for help, the offender penetrated the victim's vagina with his penis. When she continued to resist, he punched her 'really hard' in the nose, causing it to bleed and feeling to her like it had re-broken.

10. During the intercourse the offender threatened to slice the victim's throat. Afterwards, both at the time and frequently in the time following, (everyday he was home and didn't go anywhere (T45-5)) he threatened his sister that he would get bikie gangs to rape and murder her, and would dump her body in the dam of their father's property.

11. The victim believes the offender ejaculated inside her, as she saw white gooey stuff in her vagina when she subsequently showered.

12. Following the offending, the victim ran into her bedroom and cried. Her nose continued to bleed, down into her mouth; (T63.38).

13. After later showering, the victim could see her nose was red and swollen. She burnt all the clothes she had been wearing in a drum in the backyard to avoid the reminder of what had occurred. She later found her broken necklace under the couch, near to where the offending occurred.

14. The victim had, prior to the offending, been a virgin. The following day she was bleeding from her vagina, which was also very sore. She had a lump on her head from hitting the ground (T61 - 12).

7. Count 2:

1. The victim disclosed the above offending to her father almost exactly three years later, after fearing her brother was about to repeat his conduct. Her father's reaction to this information was to evict the offender from his property. Amongst other things, the offender was told "You're not my son and she's not your sister".

2. The offender did not take the confrontation/eviction well and expressed animosity to the entire family (calling them all 'dog cunts').

3. Some weeks following, the offender drove by the remote, rural property with his girlfriend as a passenger in his car. He did burnouts half off the road at a nearby intersection to where the victim was gardening. He did so for about 5- 10 mins.

4. The offender and his girlfriend separately yelled out threats to the victim from the car that the girlfriend's Aunt and Uncle would come to 'fuck her up'.

5. The victim was in fact intimidated, taking that as a threat to kill her.

6. The offender then drove away.

Objective seriousness

8. Count 1 is an offence of aggravated sexual assault with the ground of aggravation being the infliction of actual bodily harm on the victim. That actual bodily harm was the injury suffered when the offender punched the victim really hard in the nose causing her to bleed and feel as if it had rebroken. In terms of actual bodily harm this is not a trifling matter but at the same time more serious matters of actual bodily harm can readily come to mind.

9. That said there are other circumstances of aggravation beyond that relied upon by the Crown present in the agreed facts and which need to be taken into account in assessing objective seriousness. These are that the victim was a cognitively impaired person, that the offender during intercourse threatened to slice her throat and also at that time threatened the victim that he would have bikie gangs rape and murder her and dump her body. Further this offence occurred in the victim’s home, a place where she is entitled to feel safe. I also take into account that this offence occurred the day after the victim’s 18th birthday. There is little if any evidence as to the degree of celebration of an event which marks her chronologically becoming an adult but there is I find a real maliciousness to this offending by a brother upon a sister in the way the offence was carried out; the force that was used was significant, the offender had secured the door, though it cannot be said it was incapable of being opened, and in the way he ripped her new shirt and necklace and was laughing when the necklace broke, whilst at the same time making the threats just outlined. There was no evidence that the shirt and necklace were birthday presents and I do not deal with them in that way, but the evidence is clear that they were new.

10. In addition to this I accept as established beyond reasonable doubt that the offender ejaculated inside the victim given the agreed facts that she saw white “gooey” stuff in her vagina when she subsequently showered. I also take into account prior to the offending the victim had been a virgin and that in addition to the injuries caused relied upon for the manner of aggravation there were the other injuries suffered when she hit her head on the tiles and also the injury suffered to her genitals as she was bleeding from her vagina the following day.

11. The offender concedes in his written submissions that the emotional harm to the victim was substantial and I take that into account also. That was a concession properly made in light of the matters just recounted. The Crown’s submissions refer to the victim impact statement and also the demeanour of the victim in giving her evidence. I accept those submissions and have taken into consideration the victim impact statement.

12. The fact the offender abused a position of trust is also conceded. I have taken that into account; above the reference has been to brother and sister but the abuse of trust point arises by reason of the fact that the relationship is of older brother and younger sister.

13. In my view the matter is not made more serious by the degree of premeditation or planning. I accept the Crown’s reference to the evidence of the offender locking the door and turning out lights however that was in the immediate leading up to the offending and does not show a marked degree of premeditation or planning.

14. This offence is a serious example of the aggravated offence and is in the middle of the range of seriousness as that term is used in section 54A of the Crimes (Sentencing Procedure) Act.

15. A number of the features of the offending just recounted would fall under the provisions of section 21A as being matters of aggravation. I have taken them into account in assessing the objective seriousness and do not consider them again as to do so would be double counting.

16. As to count 2, the intimidation is constituted by conduct of doing burnouts in a car and yelling out threats to the victim to the effect that the aunt and uncle of the offender's girlfriend would come to “fuck her up” meaning the victim. The victim took this as a threat to kill her. That is plainly a severe threat and clearly intended to cause fear. I note however that the conduct occurred some distance from the victim; the accepted fact is at a nearby intersection, so nearby but in my view relevantly some distance away. The offender at no stage got out of, or so far as the facts allow, even stopped the motor vehicle. In my view this is not a particularly serious matter, though the seriousness is added to by reason of the victim being the same victim as with count 1, as such conduct would likely have a greater impact on the victim for that reason.

Subjective case

17. The offender relied on a report of Peter Jenkins, a consultant psychologist dated 5 June 2023. Some objections were identified by the Crown to this report, resulting in the accused relying on it only for the opinion the offender is suffering low level intellectual functioning, and not relying on numerous other views stated by the psychologist as to the mental health condition of the offender. The report is also of some assistance in gaining a brief history of the offender, tempered by the fact that it is not on oath, nor is it tested.

18. The offender gave a history of being born in AA and attending school there until year 10. The history was of being in a special education unit due to his intellectual state causing learning and behavioural difficulties. He said he was the victim of bullying. After leaving school he worked as a farmhand, but long-term employment was not regular.

19. He gave a history of seeing his father bashing his mother and of being beaten himself. He talks of his father punching him to the head causing unconsciousness and being verbally abused by his father by being called a piece of shit and it being suggested he go kill himself. He says he was introduced to alcohol and cannabis at seven years of age by his grandfather and father and has regularly used those substances throughout his life. He has also tried methamphetamine and MDMA, cocaine and heroin. He maintains even now that the rape allegation is false and was his father’s idea motivated by $40,000 left by his stepbrother following his death. He was open to counselling for his mental health issues and current circumstances. He has done some work in custody.

20. Administration of the DASS test revealed scores for depression in the severe clinical range as well as anxiety with stress being in the moderate clinical range.

21. The personality assessment inventory test was administered. It was noted that there may be some exaggeration in the results but at paragraph 36 the view appears to be that the results are of some utility. It notes that there seems to be considerable anger that the offender directed to himself as much as others. Heightened sensitivity is said to explain significant withdrawal. There is a level of suspiciousness that is unusual which is normally associated with paranoia.

22. The view is offered that the offender is likely to be plagued by thoughts of worthlessness, hopelessness, and personal failure. He says he is sad. Although there is no history given beyond the allegations concerning the father it is said he has likely experienced a disturbing traumatic event in the past.

23. The offender recognises that his use of drugs and alcohol has had negative consequences. He reports physical symptoms which often accompany some depression and anxiety.

24. The psychologist expresses concern for the potential for suicide noting recurrent suicidal ideation. The risk is worsened by situational stress, a lack of social support and overuse of alcohol.

25. He is prone to outbursts of anger. He is said to report a positive attitude towards the possibility of personal change and the importance of personal responsibility suggesting an openness to intervention.

26. The diagnosis is to say the presentation is consistent with intellectual disability, neurocognitive disorder not otherwise specified, post-traumatic stress disorder, psychoactive substance (alcohol and other drugs) dependence, major depressive disorder, social anxiety and paranoid personality disorder as classified by DSM-V.

27. As noted above, the offender relies on the report solely to show that the offender was suffering from low level intellectual functioning. The submission was that he was not a great vehicle for general deterrence.

28. I accept the report to that extent, namely that the offender suffers from a low level of intellectual functioning. As to the other matters of history there must be a very guarded approach to that material given that it has not been given on oath that has not been tested. That said, I accept the offender has engaged in substance abuse, and also that he is a person of low mood, and likely a real sense of low self esteem. That is consistent with his appearance at trial and on sentence. The Crown also made the point that so far as the allegations made by the offender relate to his father that there is no other evidence of any type to support it. Further it was denied by the father in his evidence, and a police statement tendered at the sentence hearing showing only one occasion in 2002 of a police attendance for a domestic disturbance. Those matters are not conclusive. I do not conclude adverse to the offender that he is fabricating in this regard but nor am I satisfied on the balance of probabilities that what he has said as to his father’s alleged conduct occurred.

29. There was a sentencing assessment report which predated the psychological report however the offender initially failed to engage with community corrections after the initial interview. Following that he did reengage for the preparation of a sentencing assessment report dated 6 July 2023 which also annexed a structured case note, which I note was available to Mr Jenkins.

30. Dealing first with the sentencing assessment report it noted he was born on 12 May 1998 so that he is now 25 years old. He was 19 and nine months at the time of count one.

31. He says his mother is a prosocial influence but that he is estranged from his father due to the alleged domestic violence. He was unemployed at the time of the offence though it is not clear if that is a reference to count 1 or count 2. He has had various jobs in custody.

32. He has a limited criminal history and has incurred only one misconduct charge in custody.

33. As to attitudes he continues to deny the sexual offending and indicated he was repulsed by the insinuation he was responsible. As in the psychologist report he again blamed his father for the false allegation.

34. The report notes he has no insight into the impacts of the offending, and he appeared largely self focused. Whilst hesitant to undertake interventions he said he would complete programs if required. He was also hesitant to undertake community service work but ultimately when explained to him, he was willing to participate.

35. He was assessed as a medium risk of reoffending and is suitable for community service work

36. The structured case note recounts the history in line with the above and notes a July 2021 assessment of his cognitive function scored within the extremely low range of overall cognitive function indicating significant cognitive impairment. The result is qualified by his presentation being of some ambivalence in that assessment.

37. The structured case note outlines an assessment of the risk of reoffending which was assessed as average for the risk of sexual reoffending. I note the test is a static and not dynamic one. The report states that a score of three indicates a predicted rate of sexual recidivism within five years of 7.9%; just what that means is unclear; 7.9% of what? The best that seems to be able to be said of it is that the chances of him reoffending within 5 years are in percentage terms low, but arguably, compared with a non sexual offender, significantly higher.

38. The report notes that in accordance with the New South Wales most appropriate program pathways criteria the offender is ineligible to custody-based sex offender programs.

Consideration

39. A submission was made for special circumstances to be found due to the fact the offender has low level intellectual functioning, it is his first time in custody, the difficulties he has had in custody including suffering covid twice and I would add although not expressly evidenced the more difficult time in custody due to Covid experience bearing in mind he has now had 792 days in custody.

39. In my view there is also a basis for special circumstances in light of the fact that he is not eligible for any custody-based sex offender programs. This offender plainly needs such a program. If there is not one in custody, then some extended period of supervision may assist in such a course being completed in the community.

40. The Crown accepted a finding of special circumstances was open but that the allowance should be a modest one. The Crown also contested the submission of having suffered Covid in the absence of corroborative evidence. Even if he has not actually suffered Covid himself the fact is he has now been in custody for more than two years. This length of time in custody means the offender was in custody at a time when Covid was more of a concern and that made custody more onerous of itself.

41. I find that there is a need for counselling for the offender beyond sex offender counselling. Even on the limited evidence taken from the psychologist’s report as to his health, that is, the low level intellectual functioning, and some guarded reliance as to the history it contains, there would appear to be matters affecting the behaviour of the offender beyond simply low level intellectual functioning and there needs to be a form of intervention to try and determine just what his state of being is and then determine any appropriate course of treatment.

42. Section 3A sets out the purposes of sentencing as follows

1. To ensure the offender is adequately punished;

2. To prevent crime by deterring the offender and others 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 actions;

6. To denounce the conduct of the offender;

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

44. The need to recognise harm to the victim should be given emphasis in the sentence. The sentence should denounce this behaviour and make the offender accountable for his actions. I accept that he does suffer from intellectual low-level functioning however it is not clear on the evidence how that could so markedly cause him to deviate from accepted norms of behaviour in our society. In the same way I accept that his low-level intellectual functioning may make him a less appropriate vehicle general deterrence, however the reduction in general deterrence would be modest at best. There is a need for specific deterrence. The sentence should also promote his rehabilitation. The offender requires education as to the appropriate use of substances (based on a guarded acceptance of some of the history), and some sex offender treatment, which is not available in custody. Some further counselling also seems necessary as noted above, but on the present evidence would be in the nature of investigation to determine just what his condition is beyond the three aspects identified of substance abuse, sex offending, and suffering low level intellectual functioning. It may be that any such investigation does not unearth further conditions.

45. The finding of his low-level intellectual functioning and a history of substance abuse is the height of the offender’s subjective case. He does not have available any discount, he has shown no remorse as he continues to deny the offending, he has shown very little if any empathy or sympathy towards the victim (the SAR states he shows has no insight of the offending on the victim), and his prospects of rehabilitation at this stage are very difficult if not impossible to determine on the evidence.

46. I do take into account his relative youth and that he was still only 19 at the time of the most serious offence. I also take into account that he has only a very modest criminal history though that needs to be balanced against the fact that he was a young adult at the time of the offending. He does not seem to have had much work history and his prospects overall are not encouraging.

47. The sentence will be an aggregate sentence.

48. In setting the indicative sentence for count 1, I am conscious of the maximum sentence and also the standard non-parole period and I am guided by them as referred to at the beginning of these reasons.

49. The conclusion arrived at, taking all the above matters into account, is that the offender be sentenced to an indicative term of imprisonment of 7 years.

50. The intimidation charge has a far lesser maximum sentence (5 years) and no standard non-parole period. In my view, whilst it is in the low range of seriousness, its serious aspect really arises from the fact that the victim is the same victim as with count 1, so that such conduct is likely to have a greater impact on the victim. For that reason no sentence other than imprisonment is appropriate. The indicative term of imprisonment is 4 months.

51. Counts 1 and 2 occurred just more than 3 years apart. They are connected by reason of the offender and victim being the same in each case, and by count 2 being a response to the disclosure of count 1 by the victim. The carrying out of the two offences is however two quite separate criminal acts, and no concurrency is warranted.

52. The aggregate sentence should therefore be 7 years and 4 months. The non-parole period will be 4 years and 9 months. This allows a period of 9 months for special circumstances, which reflects the need for special circumstances referred to above. The sentence will be backdated by 792 days, being the time the offender has spent in custody in respect of the offending to date.

53. Had the sentence for count 1 been a separate sentence of imprisonment for that offence, the non-parole period would have been 4 ½ years. The reason this is shorter than the standard non parole period is because whilst I have found count 1 falls in the middle of the range of seriousness, I consider the appropriate sentence should be towards the lower end of the range of sentence for offences in that range, resulting in the head sentence that has been arrived at, and then because of the allowance made for special circumstances. It also approximates proportionately the ratio of the aggregate head sentence and non parole period that has been set.

Orders

54. The offender having been found guilty of count 1 and count 2 on the indictment is convicted of those offences.

55. The indicative sentences are set out above, and the offender is sentenced to an aggregate term of imprisonment with a non-parole period of 4 years and 9 months to date from 15 July 2021 so that the offender will first be eligible for release on 14 April 2026, and with a balance of term of 2 years and 7 months expiring on 14 November 2028.

56. Note: Count 1 falls within the definition of a serious sex offence under section 5(1)(a)(i) and (ii) of the Crimes (High-Risk Offenders) Act 2006. The offender is warned at this sentence about the existence of and the application of that Act to him.

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Decision last updated: 19 September 2023