R v Tatola (No. 4)

Case •

[2023] NSWDC 518

•

23 November 2023

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v Tatola (No. 4) [2023] NSWDC 518
Hearing dates: 11 September 2023
12 September 2023
13 September 2023
14 September 2023
15 September 2023
18 September 2023
19 September 2023
20 September 2023
21 September 2023
22 September 2023
16 November 2023
Date of orders: 23 November 2023
Decision date: 23 November 2023
Jurisdiction:Criminal
Before: Montgomery DCJ
Decision:

See [69]

Catchwords:

CRIME – Sentence – s 61I – Intention – Reckless – Disputed facts – Fact finding – Youth – Special circumstances

Legislation Cited:

Crimes Act 1900 (NSW), ss 33(1)(b), 35(2), 61I

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 22A, 44(2)

Evidence Act1995 (NSW), s 191

Cases Cited:

Alenezi v R [2023] NSWCCA 283

Bussey v R [2020] NSWCCA 280

Cheungv The Queen (2001) 209 CLR 1; [2001] HCA 67

Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29

Hili v The Queen (2010) 242 CLR 527; [2010] HCA 45

Kramer v R; R v Kramer [2023] NSWCCA 152

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Muldrockv The Queen (2011) 244 CLR 120; [2011] HCA 39

R v Brannen [2023] NSWDC 356

R v Daley [2010] NSWCCA 223

R v Hines [2020] NSWDC 511

R v Isaacs (1997) 41 NSWLR 374

R v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14

Category:Sentence
Parties: Rex (Crown)
Mateo Lisi Tatola (Offender)
Representation:

Counsel:
Ms K James (Crown)
Ms E Hile (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Tang Lawyers (Offender)
File Number(s): 2022/00164198
Publication restriction: Statutory non-publication order regarding the name of the victim or anything that might identify them.

JUDGMENT

Introduction

  1. On 22 September 2023, the Offender was found guilty by unanimous verdict of the jury of 12 of the single offence under s 61I Crimes Act 1900 (NSW) of have sexual intercourse without consent with the victim (hereafter referred to as “CX”). The jury were empanelled and the case opened on 11 September 2023. CX and the Offender gave evidence over 2 days. In total, the evidence of all witnesses completed in three days. The jury deliberated over the most of five days.

  2. The single issue in the trial concerned whether or not the penile/vaginal penetration was intentional. The Offender agreed that penile/vaginal sexual intercourse occurred, that CX communicated to him that she did not consent to penile/vaginal sexual intercourse, and that he was aware that she did not consent to penile/vaginal sexual intercourse. Essentially, the Offender’s defence was that in the course of their very physically active and consensual sexual contact, his penis slipped into CX’s “vaginal flap” unintentionally. The Court must determine the facts of the offence, consistent with the verdict, upon which the Offender is to be sentenced, in accordance with the principles established in Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67, R v Isaacs (1997) 41 NSWLR 374, Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29, R v Olbrich (1999) 199 CLR 270; [1999] HCA 54, and Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14.

  3. The maximum penalty for the offence is 14 years. The legislature has set a standard non-parole period of 7 years. The maximum penalty and the standard non-parole period are legislative guideposts which must be taken into account in the course of the correct approach to sentence including in the making of a value judgement as to the appropriate sentence: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27].

  4. There are no Form 1 matters to be taken into account.

  5. The Offender was born on 11 January 2000. The offence occurred on 6 February 2022. He was therefore just 22 years of age. It is common ground that CX is of approximately the same age.

  6. They met on 22 January 2022, when each attended a boat cruise on Sydney Harbour. During that evening they talked, and the Offender purchased CX a drink. They exchanged phone numbers. At 2:19am the following morning, the Offender messaged CX, “I hope you got home alright x”. Over the following days they communicated by messaging and agreed to meet for dinner on 5 February 2022. Their plan was to meet at Darling Harbour. On that date, being the evening preceding the offending in the early hours of 6 February 2022, they did meet, talked, ate dinner together, and walked around the city. The Offender invited CX home to watch a movie. At first, she declined because she was planning on meeting up with some friends later that night, but after the Offender asked again, CX agreed to go with him to his house to watch a movie. They shared a consensual kiss. At about midnight, they boarded a train from Town Hall Railway Station, which they departed at Sydney Olympic Park Railway Station and then travelled by Uber back to the Offender’s residence in Rydalmere.

  7. The above agreed facts depict a respectful and appropriate meeting and engagement between the two young adults, CX and the Offender. Indeed, a significant fact in the task of sentencing is that they continued in a mutually consensual, respectful, and affectionate engagement up to the point of the incident of penile/vaginal penetration.

  8. Upon arriving at the Offender’s home, CX messaged her cousin AX with the Offender’s home address. Once inside, the Offender and CX went upstairs into his bedroom, and he closed the door. The Offender put on the movie “The Fast and The Furious” and they laid down next to each other on his bed. They mutually commenced kissing. CX said to the Offender “I don’t want to do anything”. The Offender undid the tie to CX’s top, and she took her top off, exposing her breasts. They continued to mutually kiss and change body positions. They changed between CX being on top of the Offender, the Offender being on top of CX, and CX and the Offender being side by side.

  9. CX asked the Offender if she could borrow some “trackies” because her jeans were uncomfortable. There is a dispute as to whether or not the Offender gave her a pair of shorts to wear. It is common ground that CX, at that point, was wearing underpants. It is agreed that they then engaged mutually, affectionately, and sexually, including in forms of sexual intercourse other than that of penile/vaginal penetration. That mutual engagement included, fully passionate mouth kissing, manipulation of CX’s breasts, manipulation of the Offender’s nipples, the Offender digitally penetrating CX, CX masturbating the Offender, CX performing fellatio on the Offender, and the Offender performing cunnilingus on CX. All of these activities occurred whilst they were changing positions and sharing that mutually consensual sexual engagement on the bed.

  10. CX said that her underpants were pulled to the side exposing her vulva during consensual cunnilingus and the effect of her evidence was that that state of exposure of her vulva consensually continued. She denied in cross examination that she was completely naked. The Offender said that before penile/vaginal penetration occurred, CX was completely naked. The common ground is that from a relatively early point in their mutual sexual engagement, the Offender was naked.

Facts and Intention – Determination

  1. The Crown presses that, for the purposes of sentencing, I should find that the Offender intentionally and deliberately performed penile/vaginal intercourse with CX. The defence presses that, for the purposes of sentencing, I should find that the Offender recklessly performed penile/vaginal penetration. In this way, the Crown pressed a finding of fact for an offence of greater gravity than the finding of fact pressed by the defence.

  2. The Crown argued that the jury rejected the Offender’s testimony in which he denied that he turned his mind to the possibility of penetration occurring, and an examination of the evidence of CX and of the Offender results in a preference for CX’s description of the circumstances of penile/vaginal penetration, such that the verdict of guilty is necessarily consistent with the jury having accepted CX’s version beyond reasonable doubt and having totally rejected the Offender’s version.

  3. In closing arguments to the jury at trial, both parties challenged the credit of the other’s evidence. Part of the Crown argument was that analysis of the evidence of the Offender reveals inconsistencies between that which he said during the warrant (pretext) call, inconsistencies in his ERISP answers to Police questions as to whether or not sexual intercourse occurred, and his oral evidence during the trial. The Defence pointed to CX’s admission in cross examination, that whereas during evidence in-chief she had said that she was wearing her underpants, pulled to the side, when penile/vaginal penetration occurred, that was a fact she had not told Police, and which did not appear in her Police Statement. At trial and during the sentencing hearing, counsel for the Defence submitted that the jury would have had cause to be concerned that CX had introduced that fact so as to avoid conceding that she was naked because being completely naked might have looked bad for her and the Police might have thought that she was “going to” have sex with the Offender: T 91. 14 – 22.

  4. I am mindful that representatives for the parties pressed that I should base my determination, for the purposes of findings of fact consistent with the verdict, substantially upon the impression CX and the Offender made and assessment of their credibility in the evidence which they gave.

  5. In my opinion, my task does not require that determination. My task is not to determine the jury’s preference between the evidence of CX and of the Offender and whether or not the jury wholly rejected the Offender’s version of the penile/vaginal penetration in finding the Offender guilty. My task is to find the facts material to sentencing, consistently with the jury’s verdict of guilty, and bearing in mind that the Offender was, before the jury, given the benefit of any reasonable doubt: R v Isaacs at 380D. In addition, the Crown’s closing submissions urged the jury that they would reject the Defence case that the penile/vaginal penetration was neither done with deliberate intention, nor done recklessly, because (T 221. 38 – 43):

“… When you think about the positions of him and [CX] at the time that he said that his penis went into the labia of her vagina, the Crown says that his explanation is utterly implausible …”

  1. Given the evidence of both CX and of the Offender that their consensual sexual engagement reached a point, immediately before the offending penile/vaginal penetration, where the Offender’s penis was hitting very close to her vaginal opening (see evidence extracted at [23] below), I do not find that the Offender’s explanation was implausible for reason of bodily positions. Accordingly, I do not find, on the basis of that argument, that the verdict is consistent with total rejection of the Offender’s evidence describing the event of penile/vaginal penetration. I do not find their bodily positions to assist in determining between those alternatives for intention consistent with the verdict. It was not put by the Crown, nor, in my opinion, could it properly have been put, that it was implausible that the penile/vaginal penetration was at the level of intent of recklessness.

  2. In this process of determination of the facts and specifically the determination of the circumstances of the penile/vaginal penetration as it was differently described by CX and the Offender, a proper characterisation may lie somewhere along the line between the “extremes” of their different versions in evidence: Weininger v The Queen at [22]. In my opinion, it is an error to suggest that in order to achieve satisfactory determination of the facts upon which I am to sentence, that I am to determine which of CX or the Offender was preferred as a witness by members of the jury when arriving at the verdict of guilty on the basis of deliberate intentional act or recklessness. A sentencing hearing is not an inquisition into all that may bear upon the circumstances of the offence. I am to make use of what facts are known and I am not required for sentencing to reach a state of factual precision, of exactly how many times CX said “Stop”, of when she said stop in relation to the moment of penetration, or of the duration of and physical extent of the penetration. I am to do the best I can on the facts so far as the evidence permits me to establish them whilst bearing in mind that facts against the Offender’s interest for the purposes of sentence must be arrived at beyond reasonable doubt: Cheung v The Queen. In Cheung at [36], Gleeson CJ, Gummow and Hayne JJ observed that provided the facts found by a sentencing judge are not inconsistent with the jury’s verdict, the judge may make an assessment of an Offender’s degree of culpability which would not be supported by all, or perhaps any, members of the jury.

  3. The jury was instructed as follows:

“Intention

The Crown must prove that the act of penile-vaginal penetration was done intentionally.

Intent and intention are very similar words; in this legal context they carry their ordinary meaning. You may infer what was the accused’s intention from the circumstances in which he engaged with [CX] when they were on his bed in his bedroom, and from his conduct before, at the time of, or after the disputed description of the penile-vaginal sexual intercourse occurred. Whatever a person says about his or her intention may be looked at for the purposes of finding out what that intention was in fact at the relevant time. You should, in this regard, consider the disputed evidence of what was said between [CX] and the accused before their physical engagement on his bed in his bedroom, during that engagement and afterward.

In some cases, a person’s acts may themselves provide the most convincing evidence of their intention. Where a specific result is the obvious and inevitable consequence of a person’s act, and where that person deliberately does that act, you may readily conclude that the person did that act with the intention of achieving that specific result.

Let me assist you with an illustration of that direction. If one person hits another on the head with a hammer, it is (you may think) both obvious and inevitable that that person will receive a really serious bodily injury as a result. If, therefore, the first person deliberately hits the other on the head with a hammer, it is a simple matter for a jury to conclude that the person did so with the intention of inflicting really serious bodily injury upon that other person. You may think that there is no difficulty at all about coming to such a conclusion.

But you must remember that you are considering the intention of the accused in this case and not what your intention might have been had you been in his position, nor the intention of any theoretical person.

Recklessness

It is sufficient to prove intention if the Crown proves that the accused was reckless as to the act of penetration eventuating from his actions. What then does ‘reckless’ mean in this sense?

The element of recklessness is made out if you are satisfied beyond reasonable doubt that sexual intercourse (as above defined) was caused recklessly by the accused. That sexual intercourse was caused recklessly if the accused realised that penetration to any extent of the complainant’s genitalia by his penis may possibly be caused by his actions yet he went ahead and acted as he did.

However, the accused cannot be found to have acted recklessly unless the Crown proves beyond reasonable doubt that the accused actually at least in his mind realised the possibility of penetration to any extent of the complainant’s genitalia by his penis occurring.”

  1. The jury verdict determined against the Offender the element of intention; that is, the jury were satisfied beyond reasonable doubt that he performed penile/vaginal sexual intercourse, either with deliberate intention to so proceed, or him having become aware of the possibility of penetration, did so proceed. The verdict does not, by necessary implication, determine between those two characterisations of intention. That is a matter of importance when assessing the criminal culpability of the offending: see Cheung v The Queen per Gleeson CJ, Gummow and Hayne JJ at [5]. It is impossible to know whether some or all of the jurors accepted the whole of the evidence of CX or the whole of the evidence of the Offender describing the event of the penetration. They rejected the Offender’s evidence that the possibility of penetration never entered his mind. It cannot be known whether or not they accepted and rejected parts of the evidence of each of CX and of the Offender. Those are, as described in Cheung at [7], “familiar aspects of what is sometimes described as the inscrutability of a jury verdict.” In Cheung at [17], their Honours said of the constraint of consistency with the verdict (principle number three stated in R v Issacs and approved in Cheung): “But the judge does not know the approach taken by the jury, or individual members of the jury, to particular facts relevant to the issues, or to the evidence of particular witnesses, except to the extent to which, by necessary implication, that is revealed by the verdict.”

  2. In the present case, when in finding beyond reasonable doubt the element of intention proved, necessarily the jury found as a fact that penile/vaginal intercourse occurred when the Offender’s state of mind was, at the minimum, at the point where he did think of the possibility of penetration and yet he went ahead. The verdict of guilty is not necessarily consistent with the jury having found as a fact that the Offender proceeded with deliberate intention to penetrate CX’s vagina with his penis.

  3. Regarding the dispute on sentence as to the issue of whether or not CX was mutually sexually engaging with the Offender whilst she was completely naked or so participating in the sexual engagement consensually and mutually whilst her underpants were pulled to the side exposing her vulva; in my opinion, it is not of great significance in the assessment of the objective seriousness and moral gravity of the subject offending. This is because either state of exposure is consistent with full access to genitalia and to penetration. Consensual digital penetration and cunnilingus had preceded. CX had consented to exposure of her genitalia whilst trusting the Offender not to breach their agreed boundary of their sexual engagement, which was that they do not engage in penile/vaginal sexual intercourse.

  4. This passage of consensual, respectful, and mutual sexual engagement at that significant level of shared sexual activity cannot have been hurried or momentary because it lasted until the movie had finished. The argument that, if CX had completely removed her clothing, it would indicate that she was to some measure more participating, is of little or no persuasion. CX and the Offender had agreed that CX did not consent to penile/vaginal sexual intercourse. Even if she had been completely naked, that does not change. CX had said and the Offender knew that she did not consent to penile/vaginal intercourse.

  5. At a point, following mutual sexual digital and oral penetration, CX and the Offender were again kissing, he was “pleasuring” her breasts, and she was playing with his nipples. As already said, they had changed positions throughout the course of their sexual engagement and at a point when the Offender was on top, they respectively gave the following descriptions of what they physically felt of the penile/vaginal penetration:

CX (T 74. 4 – 6):

“… At this point, I could feel - I could feel his penis kind of hitting very close to my vagina, and my vaginal opening, so I was getting a bit nervous, I decided to tell him again that I didn’t want to have - didn’t want to have sex.”

CX said she then spoke (T 74. 9):

“I don’t want to have sex”.

CX does not recall whether or not the Offender responded. She said that after she spoke those words and whilst they were kissing and she could feel his penis hitting that part of her anatomy (T 74. 27 – 28):

“… I just said to him, ‘No, stop,’ and then he did put his penis inside my vagina.”

The Offender also said that his penis hit that region of CX’s anatomy and then he said what occurred as (T 155. 31 – 32):

“… I moved my body. My penis slips into the flap of the complainant’s vagina.”

The Offender described what he felt at this point as (T 156. 11; T 156. 14):

“A physical feeling of the tip of my penis.”

…

“Of something touching something.”

The Offender said in cross examination that he only felt CX’s vagina on the tip of his penis and not on any other part of his penis (T 176. 26 – 27):

“I didn’t feel any more physical - I guess, any more physical - anything physical touching my penis - the rest of my penis.”

  1. The Offender conceded that he did hear CX say, “I don’t want to have sex”, and that his penis penetrated her genitalia. It is also common ground that CX said “No, stop”. The evidence of CX and of the Offender differs is as to the sequence of CX saying “stop”, and the Offender’s penetration of her genitalia. Their evidence also differs as to the action and depth of penetration of his penis into her vagina, the duration of that penetration, and whether or not CX told the Offender to “stop” repeatedly. CX said she kept telling the Offender to stop whilst he was thrusting in and out of her vagina with his penis: T 74. 47 – 48; T 75. 23 – 27. Her evidence was that she said “stop” multiple times and that she tried to push the Offender off her using her arms underneath his arms to try and pull him to the side, but he was too heavy, a “dead weight”. CX did not say that the Offender struggled back or employed force upon her to maintain the action. What she described was that he was too heavy for her to move.

  2. CX recalled that her legs were on either side of him. She could not remember how many times she said “stop” but she felt like it was every second. She did not know how long penile/vaginal penetration lasted whilst she was trying to pull or push him off. When it was put to her during examination in-chief if it was more than five seconds, she answered “yes”, and she thought it was more than 10 seconds but she did not think it lasted for a minute.

  3. In cross examination, CX denied that whilst the Offender was on top, her hips were thrusting and then in the course of their changing positions, the tip of the Offender’s penis slipped into the labia of her vagina, during the course of which penetration she only said “stop” once: T 92. 6 – 36.

  4. The common evidence is that the Offender suddenly stopped and moved to the side from CX without ejaculating and without there being any other statement, action, or circumstance causing him to do so. CX then dressed and left the room without them speaking.

  5. During oral evidence, the Offender confirmed that during the warrant (pretext) call with CX, he agreed that his penis had penetrated her genitalia at a time when he knew she did not consent to that and he described it to her as only having lasted for a “quick sec”. During his ERISP and his oral evidence in Court, he was unshaken in that description of the penetration: T 159. 10; T 184. 6 – T 185. 48. Throughout the warrant (pretext) call, during his ERISP and in his oral evidence, the Offender maintained that the penetration occurred when they were moving their bodies belly to belly and he moved and his penis slipped into the “flap of her vagina”, “the very front” of her vagina, “Not the vaginal canal”, “the close bit of her vagina”: see examination in-chief at T 155. 29 – T 156. 8. He said that he knew that his penis did not further penetrate because of the “physical feeling of the tip of my penis” only (T 156. 11 quoted above). His evidence was consistently that when the tip of his penis was hitting the region of CX’s vagina, he felt that shallow penetration. CX then said stop and he moved his hips and penis away: T 156.

  6. During examination in-chief, he confirmed that during his ERISP he had agreed with the Police putting to him that CX had said “stop” multiple times while she was trying to push him off. He maintained that CX said “stop” only once and said that he gave those answers because he panicked during the pressure of the interview: T 157. 10 – 29. During cross examination he was unshaken in his evidence and the consistency of his report during the warrant (pretext) call, his ERISP, and his oral examination in-chief, that his penis slipped into CX’s “vaginal flap”: T 185. During cross examination, he maintained that CX said “stop” only once: T 186. 24. The Offender maintained his denial of full penetration with thrusting forward and back, as described by CX: T 164. 35 – 43.

  7. The Offender’s evidence was that he did not at any point think that his penis might go into CX’s vagina, until penetration in fact occurred: see cross examination at T 162. 50.

  8. It is, of course, undisputed that the verdict is inconsistent with the Offender’s denials on oath of having turned his mind to the possibility that his penis might penetrate CX’s vagina even when he knew his penis was hitting CX in that region of her body. The jury rejected his denials. My otherwise observation is that both CX and the Offender gave oral evidence at the trial not significantly inconsistent with, for CX her Police Statement, and for the Offender both the recorded “warrant” (pretext) call and his extensive ERISP. In relation to the physical acts involved in their engagement, generally, both CX and the Offender appeared as frank and generally credible witnesses. I do not accept the Crown argument that the verdict is consistent with the jury having rejected the entirety of the Offender’s testimony.

  9. The jury in determining the verdict of guilty, did so by careful consideration of these differences in the testimonies of CX and the Offender to ultimately determine unanimously that the Offender intended the penile/vaginal intercourse, in accordance with the above quoted direction.

  10. In the surrounding circumstances of their engagement of active movement of body against body whilst the Offender’s penis was hitting very close to CX’s vaginal opening, a circumstance which caused CX to appreciate the risk of penile/vaginal penetration sufficiently to cause her to say “No, stop”, the jury’s verdict could be consistent with either; momentary penile/vaginal penetration but not a deeper penetration of the vaginal canal, or with full penile/vaginal penetration and a thrusting sensation. In my opinion, it is impossible to resolve that factual question. Indeed, amongst the jurors, there may have been disagreement as to it whilst they resolved unanimously to find the Offender guilty on the single contested issue of intention. In that circumstance, I must leave that issue to the side and proceed on the basis of what findings of fact against the Offender were proved beyond reasonable doubt, whilst being mindful that there is no general requirement that a sentencing judge must sentence an offender upon the basis of a view of the facts, consistent with the verdict, which is most favourable to the offender: Cheung v The Queen.

  11. The facts proved beyond reasonable doubt and consistent with the verdict, are that the Offender realised the possibility of penetration of CX’s genitalia to some extent when the tip of his penis was hitting near CX’s vagina and whilst knowing that CX did not consent to penile/vaginal penetration, went ahead.

  12. The duration of penetration was long enough for CX to commence or perform pushing and pulling of the Offender before he moved away. The Offender weighed approximately 90 kilograms, his body and legs being on top of CX, whether her legs were straight out but slightly apart, as the Offender described, or on either side of the Offender as CX described. Common sense dictates, beyond reasonable doubt, that those facts infer an activity of a few seconds and not less. The descriptions of each of CX and of the Offender are based on their interpretation of what they felt. The Offender interpreted it as a very shallow penetration of his penis and CX interpreted what she felt as the Offender thrusting. The telling and common evidence is that quite promptly the Offender suddenly stopped the penetration by moving away and off of CX. The Offender said he did so immediately and CX could not positively estimate the duration of penetration at more than a few seconds.

  13. The evidence is consistent with the Offender ceasing the situation of penetration not deliberately intended, rather than finding beyond reasonable doubt the more grave act of deliberate action to pursue non-consensual penetration. It is consistent with ceasing an act because it was not planned and deliberately pursued.

  14. In arriving at this determination, I find that the verdict of guilty is consistent with the jury being satisfied beyond reasonable doubt, that in his mind, the Offender did realise the possibility of penetration to CX’s vagina to some extent, by his penis, when it was hitting against her in the region of her exposed vaginal opening, yet he went ahead, CX protested “No, stop”, and it took him a few seconds to remove his penis by moving the whole of his body from CX and to the side.

  15. The frank evidence of CX was that she could not say for how long the penetration had continued. No doubt this was because of her horror at the realisation of her vagina being penetrated by the Offender’s penis, when she and the Offender had agreed there would be no penile/vaginal penetration and when she trusted him in that engagement during their significant shared sexual activity, which had progressed with her consent over a time equal to at least the duration of the movie, up to the moment of the penetration.

  16. In my opinion, it was not a necessary finding for the jury to arrive at the verdict of guilty, that, beyond reasonable doubt, CX said “stop” before the moment of the commencement of penetration, and that having heard that, the Offender went ahead deliberately and against CX’s command that he stop. The command “No, stop” by CX occurred when the Offender’s penis was hitting near her vaginal opening and at about the moment of actual penetration of CX’s vagina. The verdict of guilty arrived at on the basis of recklessness is not inconsistent with CX’s evidence of that timing (T 74. 3 – 6; 25 – 29) when weighed with consideration of the Offender’s evidence during examination in-chief (T 156. 2 – T 157. 29) and during cross examination (T 164. 2 – 44; T 167. 20 – T 168. 22; T 175. 19 – T 176. 47; T 177. 21 – 34; regarding ERISP at T 185. 2 – 47; regarding the warrant (pretext) call at T 184. 40 – T 185. 1), and how the Offender described the event during the warrant (pretext) call and the ERISP.

Objective Seriousness

  1. Sexual intercourse without consent, s 61I Crimes Act, is a serious offence as indicated by the statutory goalposts set by the Parliament of maximum penalty and of standard non-parole period. That I have determined it is appropriate to sentence on the lesser gravity of recklessness, rather than on the basis of deliberate intentional act, does not of itself mean that the Offender’s moral culpability falls into the low range of objective seriousness for offences of this type: see Alenezi v R [2023] NSWCCA 283 per Basten AJA (Adamson JA and Sweeney J agreeing) at [20] (whilst noting the difference that in Alenezi the Court was considering objective seriousness of recklessness as to lack of consent which is not a factual issue here). The Court in Alenezi emphasised that the offender’s state of mind is only one factor in assessing objective seriousness. The assessment of objective seriousness is an essentially evaluative and impressionistic judgement: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [27]. That CX consensually participated in significant preceding sexual acts including other forms of sexual intercourse, does not mitigate the objective seriousness of the offence: see for instance Kramer v R; R v Kramer [2023] NSWCCA 152.

  2. In my opinion, it is appropriate to observe that not uncommonly victims of sexual assault have offered their partner their vulnerability to the offence only because they trusted, as CX did the Offender here, their sexual partner to abide by and respect the limits of their consent to the acts in which they engage.

  3. In that way, CX’s preceding consensual participation in sexual acts and the limit of that consent known to the Offender, defined the offending but cannot be seen as having mitigated the criminality of it. I respectfully adopt the observations of Harrison J (as his Honour then was; Hoeben CJ at CL and Bellew J agreeing) in Bussey v R [2020] NSWCCA 280 at [95] – [96], when considering an instance of non-consensual sexual intercourse between partners of a long-standing sexual relationship. The violation and defilement suffered by CX is a quintessential aspect of the offence and that she had been consensually participating in significant sexual engagement preceding and up to the moment of the offence, can have no bearing upon the fundamental circumstance. The Defence did not submit that CX’s consensual participation to that point was a mitigating factor. Indeed, from the outset as he had expressed in the warrant (pretext) call, the Offender was apologetic and appeasing, and to the extent that he admitted penetration “for a quick sec”, he was contrite.

  4. In her Victim Impact Statement, CX expressed the hardship suffered by her in consequence of the sexual assault. The community recognises the reality of those claims. They are immediately accepted. They are not exaggerated. In her pursuit of the professional qualification, Masters in Speech Pathology, she has suffered great difficulty with concentration and even attendance of classes on occasion. The assault has increased her anxiety and panic attacks to the point that on some days she has been unable to leave her room. She has had to seek special consideration from her university. She struggles with trust and being around unfamiliar men.

  5. The Crown submitted that the objective seriousness of the subject offence falls below the mid-range: MFI 1 at [21]. The Defence submitted that the objective seriousness falls toward the lower end of the range: MFI 2 at [12]. The penile/vaginal intercourse was consequent of the Offender’s recklessness as opposed to a deliberately intentional act, was of short duration, did not involve violence beyond that which is inherent to the offence, and did not inflict physical injury or humiliation or degradation beyond that which is inherent to the offence. In my opinion, the offence falls into the low range of objective seriousness for offending of this type.

Aggravating Factors

  1. The Crown submits that the Offender’s prior convictions for relatively minor traffic offences is an aggravating factor: s 21A(2)(d) Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSP Act”); MFI 1 at [25]. In my opinion, the Offender’s antecedent record is insignificant, save that for the purposes of s 21A(2)(d) CSP Act, it is consistent with the Offender, prior to the subject offending, being generally law-abiding, of good character and, particularly given his youth, a person of whom it is within the public interest to advance his prospects of rehabilitation.

s 22A CSP Act Discount

  1. I accept the Defence submission (MFI 2 at [18]) that the Offender is entitled to some benefit on sentence for his facilitating the administration of justice by way of admissions immediately made, that he knew that CX did not consent to penile/vaginal intercourse during the warrant (pretext) call, during his ERISP, and at trial, the focused way in which his case was conducted by limiting the issues, his agreeing to sets of facts pursuant to s 191 of the Evidence Act 1995 (NSW) and, by so limiting the field of contest, shortening the trial. Indeed, CX was required to participate in a very short cross examination only.

Subjective Considerations

  1. The Offender who is presently 23 years of age and completed his High School Certificate at Holy Cross College, Ryde, having secured a scholarship to study there on account of his sporting prowess as a rugby league player in the Canterbury-Bankstown Bulldogs Rugby League Club Program. Even whilst at school he worked in construction on weekends. After leaving school he commenced a plumbing apprenticeship and at the time of the offending had completed three years with only one year left to achieve his trade. He did play representative rugby league at a state level whilst at school and went on to play junior rugby league professionally for the Canterbury-Bankstown Bulldogs Rugby League Club. He is a member of a loving and supportive family and is regularly involved in youth group events at his local parish. Mr Pike, the Wellbeing and Education Manager at the Canterbury-Bankstown Bulldogs Rugby League Club, gave evidence of his observation and assessment of the Offender as respectful when in the company of women.

  2. I accept the Defence submission that there are a number of protective factors which are likely to ameliorate against future offending, including the Offender’s supportive family system, his strong community ties, and the incentive for him to return to work and complete his plumbing apprenticeship. The Offender has been an active volunteer in development programs for Tongan youth.

  3. The author of the Sentencing Assessment Report (“SAR”), dated 16 November 2023, observed that the Level of Service Inventory – Revised (“LSIR”), actuarial assessment, arrived at a reoffending risk assessed at the “Average” range. I also note that the SAR recommends referral to a Corrective Services New South Wales psychologist for a risk assessment and referral to an appropriate service to address sex offending, despite the author having acknowledged that the LSIR assessment of “Average risk range”, interpreted by the author of the SAR as “Medium risk of reoffending”, would render the Offender ineligible for CSNSW Custody or Community-Based Sex Offender Programs. In my opinion, with respect to this Offender, the LSIR assessment is of limited utility in the instinctive synthesis of the sentencing exercise and should be valued according to its expressed internal limitations. In this regard, it is not a comprehensive risk assessment. It mistook the offending for the more serious offending of “forced penile/vaginal intercourse”, and arrived at a total score of 3, including 1 for not having resided with an intimate partner for at least two years. Given he was only 22 years of age at the time of the offending, there would have hardly been much opportunity for him to have achieved such a relationship by that age. A score was attributed to the Offender in the age category of 18 to 34.9 years. That is a very broad age range for application to a 22 year old. The LSIR assessment provided that offenders with the same score of 3 reoffend at a rate of between 5.8% and 7.2% over five years.

  4. The LSIR is to be assessed with the Offender’s strong surrounding family and community ties, job prospects, youth, and ambition to return to work to complete his apprenticeship, and that in the short period between conviction and sentence he undertook and completed rehabilitative courses at the John Morony Correctional Centre, as well as his responsiveness to both the verdict and the impact of his offending on the victim. These are all matters of equal or greater influence in the instinctive synthesis.

  5. Specifically in regard to remorse, the author of the SAR observed that the Offender identified that his actions had a “very big impact on the victim” and on her life “and how she interacts with others”.

  6. I make the following further observations in assessment of the Offender’s remorse:

  • Actual remorse is qualified to the extent that the Offender maintained, during interview with the author of the SAR, that the penetration was “an accident” because although he heard and understood CX say that she did not consent to the penetration, he told the author of the SAR, “I slipped”;

  • From the time of them first communicating following the incident, that being the warrant (pretext) call, the Offender acknowledged to CX that penetration in fact had occurred and apologised to her on the basis of his acknowledgement that she did not consent to it;

  • Consistent with the above referred to qualification of the expression of his remorse, in the Offender’s Letter of Apology to the Court, he wrote that whilst in custody he has come to terms with and respects and understands the jury’s verdict; that he acknowledges that he was reckless in his actions, putting it in the terms, “I didn’t think [and] process what possibly could happen at the time”; expressed his apology to CX and her family for his “wrong”; expressed his understanding that his actions have a significant impact on her and “everyone around her”, and that she lives with it daily; and he acknowledged his understanding that his offending has made CX feel insecure and that CX “may feel held back in daily life”.

  1. Whilst exercising caution when evaluating the Offender’s Letter of Apology, he not having given oral evidence and stood the test of cross examination as to it; in my opinion, it is of obvious consistency with his apologies to CX and appreciation of harm done to her since the warrant (pretext) call and therefore it is worthy of acceptance.

  2. By his Letter of Apology, the Offender informed the Court of the pressures of trying to achieve professional status as a rugby league player in a family amongst whom all six of his brothers had played at a high representative level, two of them professionally, and that in the year preceding his offending, his parents were evicted from their home and the family struggled to make ends meet. His father’s health which involved dialysis had declined and his father passed away, he having suffered a heart attack on 1 May 2023 after the subject offending. Whilst each of those hardships are readily acceptable as a source of stress for the Offender as a young adult male; they do not inform the offending and do not weigh significantly in the assessment of appropriate sentencing. I understand them to be not more than him attempting to express that he was not at his best state of mind at the time of the offending. Indeed, those stresses had caused him to cease playing rugby league when a member of the Canterbury-Bankstown Bulldogs Rugby League Club Under 20’s team, which was for him a career path. In the context of the significant evidence at trial and by way of references tendered in the sentencing hearing, that the Offender was of good character in the community other than for this offending is not in issue.

  3. The Offender’s youthful age, acceptance of and respect for the verdict, excellent future work, family and community participation prospects, are, in my opinion, special circumstances as is this being his first experience with incarceration. His Letter of Apology to the court expressed:

“Being in custody has been a new learning experience for me as I have never been charged before nor been to jail before. I have learned many different lessons from fellow inmates’ situations or experiences and I’ve implemented them to how I want to live my life. Communicating with fellow inmates have (sic) made me realise that their lifestyles is (sic) something I don’t admire to be or follow… But participating in programs; being open to discussion have (sic) made me realise my wrongs…”

  1. Whilst incarcerated the Offender has completed programs including: Caring: Healthy Lifestyle; Coping: Managing Emotions Distress Tolerance; Connection: Family, Friends & Community; Communication; Change: Identifying Abuse; and Choices: Action Planning. Exhibit 4 is a Certificate of Acknowledgement from John Morony Correctional Centre awarded to the Offender for his participation in the Induction, Orientation and Health Survival Tips information sessions in a polite and respectful manner.

  2. In his Letter of Apology, the Offender states that on release he plans to finish the fourth year of his plumbing trade apprenticeship including completion of the trade TAFE course and to attempt to resume his ambition of achieving a professional rugby league contract. He also plans to return to being an active member of his local parish church and being active with Tongan youth programs. The Exhibit 2 reference by his eldest brother Macquire and the Exhibit 5 reference by his mother Evaloni show the strong family support for the Offender. The author of the SAR recognised that support and, on every Court Day, the public gallery was well populated by members of his family. His mother confirms that during her numerous visits to the Offender in gaol, he has assured her that he is “remorseful for the situation” and that he is “taking measures to learn from his experience.” The John Morony Correctional Centre records corroborate those claims.

  3. My consideration of the above factual matters, in my opinion, indicates that this young Offender of first experience with incarceration has good prospects for rehabilitation at a level of special circumstance.

Synthesis

  1. The Crown submitted and the Defence conceded that the threshold pursuant to s 5 CSP Act is crossed. In my opinion, the Defence concession is appropriate. Having considered all possible alternatives, no penalty other than imprisonment is appropriate for sentence.

  2. Current Judicial Commission of NSW, Judicial Information Research System Statistics (“JIRS Statistics”) indicate imposition of a penalty of imprisonment in 95% of cases and penalty by way of Community Correction Order in 4.1% of cases. Of all offenders, 0.7% were sentenced to imprisonment of periods rounded up to 1 year and a further 1.3% to imprisonment rounded up to 1 year and 6 months. Statistics for cases including no Form 1 matter, no antecedent criminal history, no guilty plea, for all offenders between 21 and 25 years of age, sentenced to prison, indicate terms of between 2 years and 8 years. 9.1% of offenders sentenced to imprisonment in that category were sentenced to terms rounded up to 2 years, 9.1% to imprisonment rounded up to 8 years, and 27.3% to imprisonment rounded up to 3 years. 25% of offenders convicted and sentenced to imprisonment for a single offence in the age category 21 to 25 years with no Form 1 matter, no antecedent criminal history, and no guilty plea were sentenced to imprisonment rounded up to not more than 2 years. The JIRS Statistics do not internally identify differentiation of sentencing according to variation of degree of intention, such as was an issue in this case, between a deliberate intention to sexually assault and, the less grave, reckless sexual assault.

  3. Neither party, for application in consideration of consistency of sentencing, referred the Court to judgments. Counsel for the Defence referred to the rarity of this conviction, the circumstances being that the Offender, at trial, acknowledged that the sexual intercourse without consent occurred, but based the defence on denial of intention.

  4. Whilst it was not part of the argument during the sentencing hearing, but in order to give full consideration to that “rarity”, I state that in my opinion, those features of the case require consideration in the synthesis of individual justice but do not render other cases to be wholly uninstructive for the purpose of considering consistency of sentencing: Hili v The Queen (2010) 242 CLR 527; [2010] HCA 45 at [49].

  5. True it is, that in the present case, a finding of deliberate intent to inflict penile/vaginal sexual intercourse against consent would be a crime of greater gravity than the reckless infliction of the sexual assault against consent, which I have found. But the reckless sexual assault was, by its inherent nature, a breach of the clear and understood limit of the consent given by CX.

  6. CX only permitted herself to engage as she did, with her exposed genitalia, vulnerable in that way, because the Offender had agreed that he would not engage in penile/vaginal sexual intercourse. That is the nature of their relationship at the time at which the offending penile/vaginal intercourse occurred and which is of “particular importance”: Bussey v R at [91] – [96] per Harrison J (as his Honour then was) (Hoeben CJ at CL and Bellew J agreeing). On their first real date, these young adults had engaged in a respectful and trusting, mutual sexual engagement with that defined and agreed limit. For these reasons, in my view, sentencing on the facts of the offending of this case is not so different from that in cases involving recklessness as to consent such as to make those cases not of assistance or uninformative for appropriate and “reasonable consistency” in sentencing in accordance with the principles in Hili v The Queen at [49].

  7. The recent decision of the New South Wales Court of Criminal Appeal in Alenezi v R, provides an example of where reckless sexual assault involved circumstances indicating degrees of the offender’s perception of the victim’s lack of consent and of degrees of “unbearable discomfort” inflicted on the victim of much greater gravity than the circumstances of the present offending. The penalty imposed by the judge at first instance, after 25% discount for early plea was imprisonment for 7 years and 6 months with a non-parole period of 5 years. On appeal, that sentence was not varied. In Kramer v R; R v Kramer, having met via the dating application “Tinder”, the victim and the offender, at the offender’s apartment, engaged in some consensual acts including kissing and sexual touching but the victim made it clear that she did not consent to penile/vaginal intercourse. When the offender obtained a condom, the victim asked why, stating that they were not having sex and he responded that he would not put his penis inside her. He rubbed his erect penis against her body near the entrance to her vagina and then inserted his penis into her vagina, thrusting in and out. For about 10 seconds, the victim froze because of her shock, he having promised that he would not insert his penis. She struggled to push him off and the offender resisted by pushing back just as hard. She was pleading for him to stop as they struggled. The victim slapped the offender’s chest, and he still did not respond but kept thrusting. That forceful penile/vaginal assault continued for up to a minute and a half before the offender moved away. In my opinion, the facts in Kramer involved a more grave sexual assault than the present case, particularly because it was forceful penile/vaginal sexual assault lasting a minute and a half and involving a physical struggle with the victim while she protested that she did not consent. At first instance, the offender was sentenced to a 2 year Community Correction Order. On appeal, the Court found that sentence to be manifestly inadequate but was not required to resentence the offender for other reasons. In R v Brannen [2023] NSWDC 356, following a discount of 25% on early plea and in the circumstances of a preceding intimate relationship including sexual intercourse of the victim and the offender who lived together, in the course of consensual penile/vaginal intercourse, the victim said “stop” but the offender continued for one to two minutes and ejaculated. The offender conceded his recklessness in terms that he understood the command “stop” to mean that the victim needed a break when he was “caught up in the moment”. It was determined that the s 5 CSP Act threshold was not crossed, and a sentence of a 2 year Community Correction Order was imposed. In Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54, the victim’s uncle had “gone down” on her, the next morning admitting the act to the Police and stating that he believed it was consensual. He entered an early plea of guilty. It was found that the offending was impulsive, spontaneous and opportunistic, the offender being reckless in that he realised the possibility that she was not consenting but went ahead regardless. The sentence of a 3 year Community Correction Order imposed at first instance was not adjusted on appeal. In R v Hines [2020] NSWDC 511, following a 25% discount for early plea, the penalty imposed was 2 years imprisonment with a 1 year non-parole period for digital penetration of the victim, with whom the offender was sharing a bed and they having been close friends for four years, but at a time when their relationship did not include intimate, sexual relations.

  8. Drawing distinctions between specific sexual acts in those cases and in the present, is not how to measure an appropriate sentence. The objective seriousness of the offence of sexual assault depends on all of the circumstances of the case and is not confined to the nature of the act committed by the offender. The short duration of the sexual assault in the present case, does not of itself reduce the objectives seriousness of the offence: R v Daley [2010] NSWCCA 223 at [48]. But the shortness of the duration in this case is the measured consequence of the Offender ceasing the penetration and suddenly moving away without ejaculation, on his realisation of penetration which, in my opinion, was conduct which in this case characterises the objective seriousness and moral culpability for the purposes of sentencing. Also, as identified in the assessment of objective seriousness, there was not defilement, humiliation, or violence beyond that which is inherent to offending of this type, inflicted on CX.

  9. In my opinion, employing the purposes of sentencing listed at s 3A CSP Act, a sentence of a maximum term of imprisonment of 1 year and 3 months is appropriate to adequately punish for the offence, provide general and specific deterrence, as well as to denounce the conduct of the Offender and make him accountable for his actions, whilst recognising the harm done to CX and the community. In my opinion, and whilst bearing in mind the goalpost of the standard non-parole period, the s 44(2) CSP Act ratio should be adjusted to set a minimum period of imprisonment properly sentencing the Offender for the seriousness of the offence whilst allowing an extended parole period given the special circumstances, which I have identified, to best protect, in the interests of himself and of the community, his excellent prospects of rehabilitation.

  10. I backdate the sentence on account of 2 days prior custody (6 and 7 June 2022).

ORDERS

  1. I make the following orders:

  1. You are convicted.

  2. You are sentenced to a term of imprisonment of 1 year and 3 months, commencing 20 September 2023 and expiring on 19 December 2024.

  3. You are sentenced to a non-parole period of 8 months, commencing 20 September 2023, and expiring on 19 May 2024.

  4. You will be eligible for consideration for a release to parole on 19 May 2024.

  5. I direct you to accept the supervision and guidance of the Community Corrections Services and obey all reasonable directions of Community Corrections Services including in regard to referral to psychological and risk assessment and referral to appropriate services to address sex offending.

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Decision last updated: 24 November 2023

Cases Citing This Decision

0

Cases Cited

16

Statutory Material Cited

3

Alenezi v The King [2023] NSWCCA 283
Bussey v R [2020] NSWCCA 280
Cheung v The Queen [2001] HCA 67