R v Starke (a pseudonym)

Case [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.

  1. 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.

  2. 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…

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

CaseChat Overview and Summary

The case of R v Starke, which was heard in the Supreme Court of Victoria, involved a dispute concerning multiple counts of aggravated sexual assault and stalking. The defendant, Starke, was accused of subjecting his former partner to a prolonged campaign of intimidation and physical abuse, culminating in several instances of aggravated sexual assault that resulted in actual bodily harm. The prosecution sought to establish the defendant’s culpability under the relevant provisions of the Crimes Act 1958 (Vic).

The court was tasked with determining whether the evidence presented met the requisite legal standards for establishing the charges of aggravated sexual assault and stalking. This involved examining the nature and extent of the harm inflicted, the defendant's intent, and the context of the alleged offences. The defence contested the credibility of the complainant’s testimony and argued that the acts did not amount to the statutory definitions of the crimes charged.

The court found that the prosecution had successfully demonstrated that the defendant's actions constituted aggravated sexual assault and stalking. The judge detailed the evidence, including witness testimonies and medical reports, which corroborated the complainant’s account of the incidents. The court held that the defendant's behaviour met the legal criteria for the charges, particularly in relation to the infliction of actual bodily harm and the intent to cause fear of physical harm. Consequently, the defendant was found guilty on all counts. The court will proceed to consider sentencing, which will be detailed in subsequent orders.

Orders

Orders of the court

See [54 - 56]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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