R v TS

[2010] NSWDC 111

CITATION:	R v TS [2010] NSWDC 111
JUDGMENT DATE:	28 January 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Aggravated sexual assault- domestic violence related (Charge sequence 1): Sentence minimum term 3 years and 9 months. Balance of term of 3 years, 4 months and 15 days. Aggravated sexual assault- domestic violence related (Charge sequence 12): Sentence 4 years minimum term. Balance of term of 3 years and 6 months 6. Intentionally or recklessly damage property by fire/explosive (Charge Sequence 20): Sentence to fixed term of 6 months imprisonment. All sentences to be served concurrently
CATCHWORDS:	Criminal Law - Sentence - Aggravated sexual intercourse without consent (x2) Malicious Damage by Fire - 3 further sexual intercourse without consent taken into account on Form 1 - victim ex-partner and mother of his three children - domestic violence offence - separated 3 months - visits victim's home - use of physcohological violence through threats and menace - cutting clothing with scissors - flicking inflamible material upon naken victim - knife to throat - fellatio - penile vaginal intercourse to ejuculation - further fellation (Form 1) further penile vaginal intercouse (x2) (Form 1 - no protection during intercourse - soft tissue injury to body and tenderness to vaginal region -fires lit in rear yard and waste bin in bedroom - effected by alcohol and amphetamines at time of offending - long term poly drug abuser
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Gladue [1999] 1SCR 688 [80] R v Cuthbert (1967) 2 NSWR 329 R v Rushby [1977] NSWLR 597 R v Hayes [1984] 1 NSWLR 740 R v Gebrail unreported NSWCCA 18/Nov (1994) R v Hartikainen unreported NSWCCA 8 June 1993 R v Pay (1999) NSWCCA 40 [7] The Attorney General Application under S 37 Crimes (Sentence Procedure Act) 1999 (2004) 61 NSWLR 38 R v Way (2004) 60 NSWLR 168
PARTIES:	Regina TS
FILE NUMBER(S):	2009/5054
COUNSEL:	Defence: L Gray
SOLICITORS:	Crown: Ms A Bhat - Office of DPP, Gosford

JUDGMENT

1. This court, as are others, becomes daily more concerned with the increasing percentage of Aboriginal men and women who are in custody. By the time an offender stands before a court the options open to the court are limited and constrained by legal principles. Such scope as there is in sentencing to avoid incarceration should be pursued so long as proper legal sentencing principles are respected. But before dramatic reductions in Aboriginal incarceration rates can be achieved there must be dramatic changes made in Aboriginal communities and daily living patterns that bring about a reduction in the need to call the police and invoke the procedures of the criminal justice system.

2. So much of domestic violence in Aboriginal household is linked to mammoth cannabis and amphetamine abuse, alcohol and past parental example to the modern day abuser. Once unleashed, the violence exhibited is so grossly disproportionate to the claimed domestic insult or injury said to be responsible for the outburst. So it is with T S who presented in court as manly, balanced, insightful, contrite and overwhelmed as he sat sober in the witness box willing to accept responsibility for his appalling criminal conduct.

3. The picture that emerges of the same man at Umina Beach on 27 September 2009 is one of an insatiable, self-focused, vicious man willing to humiliate through sexual dominance and psychological menace the mother of his children and his partner for the previous eleven years.

4. Today he is to be held accountable for his criminal conduct. As sentencing judge it falls to me to determine the appropriate sentence for the offences committed by him on 27 September 2009. It falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for these offences before this court committed by this offender harming this victim in the Umina community. Gladue v The Queen [1999] 1SCR 688 [80].

5. My initial task requires an assessment of the objective criminality of the offences before the court. I will also need to have regard to matters personal to the offender, subjective matters. The starting point for these assessments requires me to make findings of fact from the evidence before the court relating to both the offence and the offender. The offender’s rehabilitation prospects will have to be assessed, even if looking through a glass darkly. Before any sentence can be made there are likely to be technical questions relating to deterrence, discounts, whether special circumstances are to be found and the totality of the criminality exhibited as reflected by the charges, whether any of these offences attracts a standard non-parole period and ultimately the length of the parole period or periods; and finally of course the ultimate of the term of imprisonment or other penalty be imposed.

6. None of those issues can be determined until the primary facts have been determined. What weight needs to be given to all of these matters against the imperative that all sentencing should have as its primary focus the protection of the community will also need to be determined. See R v Cuthbert [1967] 2 NSWR 329, R v Rushby [1977] 1 NSWLR 597 and R v Hayes [1984] 1 NSWLR 740.

Facts

7. TS and R J have been in an off and on domestic relationship for the past eleven years. Their relationship yielded three children, Trevor (not real name) eight, Tammy (not real name) seven, and Tina (not real name) four. In about March 2007 the complainant and offender no longer resided together. They had separated. She had taken the children, but no court orders were in place regarding access or custody. Since the separation she had allowed the offender to visit the children at her home and sometimes stay over. On those occasions the two would share a bed together and sometimes have consensual sexual intercourse.

8. On 27 September 2008 in the first half hour of the day he unexpectedly attended her home, he knocked on the front door demanding to be allowed inside. He said he wanted to talk with her about their relationship. He was drunk. Also present in the house were her son and his friend. She told him he was not allowed inside. He responded that if she did not let him in he would kick the door in. Concerned, she opened the door and he entered. Once inside she sent her son and friend to their bedroom.

9. The complainant and the offender began to argue over the children. The argument turned to the issue of her not wanting to be with him. She left and went into the children’s bedrooms making up their beds. He went to the garage and a short time later she joined him in the garage in order to further discuss issues with him.

10. Once she was inside the garage he became angry as they engaged in a verbal argument. He picked a pair of scissors from the top of a washing machine and approached her. He cut her tracksuits pants from the bottom of the legs upwards. While doing this he was saying words to the effect,

“If you don’t give me the kids I will kill you. If you don’t want a family with me you’re not going to have a family at all.”

Those words are filled with menace.

11. He then ripped her pants off, leaving her naked from the waist down. He began to cut her shirt with scissors before ripping the shirt off, leaving her completely naked and exposed. He walked across the garage and stood next to a motorbike. He released the fuel with his right hand, causing petrol to pour from it. He placed his right hand under the motorcycle and began to flick fuel onto and toward her. He kept saying, “If I can’t have the kids with you no one can.” One cannot ignore the menace of petrol flying towards her as he said those words. He picked up a container of lighter fluid and sprayed it over her a number of times.

12. The facts do not disclose to what extent she was soaked. Any high degree of soaking of her would have to be proved beyond a reasonable doubt. Nonetheless, lighter fluid is highly inflammable. He stepped back and pulled out a lighter, flicking it, causing it to spark. He said to her from, presumably, some distance, “You don’t want me to get any closer.” Again, the menace in those words and that act cannot be underestimated.

13. He directed her to sit on a chair located in the garage. She complied. He grabbed her around the throat with his right hand, pulled her head back with his left before picking up a twenty centimetre black handled knife. He was now in front of her. He walked behind, letting go of her throat, but still holding her hair. While behind her he brought the knife to her face so that she could feel it touching her left eye. She was frightened, so frightened she could not register in her mind precisely what it was that he was saying. She heard him say he did not want anyone else playing father to his kids. She heard him say she had better not be having sex with anyone else. But other things were said she could not register.

14. He took off his own pants, grabbed her head with his two hands, forced her to have his penis in her mouth and perform oral sex upon him. She was still seated in the chair, he in front of her, not wearing a condom. She tried to push him away but he, having the greater strength, was able to hold her there. That lasted for a couple of minutes and constitutes the first charge of aggravated sexual assault.

15. He let go of her head, pulled her up from the chair, pushed the chair away, bent her over so that her hands were now touching the floor. He then commenced penile/vaginal intercourse with her. While doing so repeatedly told her to shut up and slapping her on the back. She, for her part, was crying and repeatedly told him to stop. His response was, “If you make me stop I will fucking kill you.” He ejaculated inside her. That offence constitutes the second aggravated sexual assault charge. After he had finished he stood her up and asked her to get him a cigarette. She was unable to locate one.

16. He began to torment her. He walked into her bedroom, emptied her beside table, drawer onto the floor, and set fire to its contents. There were papers but nothing of value. He said, “The longer it takes you to find me a cigarette the longer it’s going to burn.” Again the menace in that was his capacity to control the flame, or was it to get out of hand.

17. Shortly, he put the fire out and returned to the garage. She stayed in the bedroom and dressed herself. While doing so she noticed a strong smell of smoke from the backyard. She walked into the yard and saw the clothing, earlier cut from her, burning on the ground. She tried to put out the fire, again was pushed away by him. He told her to go inside. He followed her inside to the loungeroom area. He sat her on the lounge, pulled down the pants and said, “Hurry, do your job.” A moment’s thought about the use of the word ‘job’ shows what their relationship had descended to. Intercourse between partners is meant to be a love affair, not work. She commenced performing oral sex upon him, fearful of what he may do if she declined. That offence constitutes the first item on the Form 1.

18. Shortly he made her get on to her hands and knees and for a second time had penile/vaginal intercourse with her. Again she was crying, telling him to stop. He ignored her until he ejaculated inside her. Having finished, both of them sat on the loungeroom floor for a short time before she left and went to the bedroom. He followed her. They both lay on the bed for some fifteen minutes. He started pulling down her pants. She tried to stop him but was unable to do so. For a third time he commenced having penile/vaginal intercourse with her, again to the point of ejaculation. Once finished he rolled over and went to sleep. That item constitutes the third item on the Form 1.

19. I should have indicated that the earlier penile/vaginal intercourse was the second item on the Form 1.

20. I am unable to determine from the information before me at what point in time the criminal activity ceased, but it must have been a substantial time after he had arrived at her premises.

21. At about 7.30am she retrieved her child and the friend and left the house. She went to her mother’s, crying, and told her mother of the assaults. Police were contacted and attended a short time later.

22. At about 2pm she was examined at the Gosford Hospital. On the right side of her neck was an area of lineal small red petechia. Petechia are areas of bruising that occur under the skin caused by pressure to an area. There was a large area of multiple abrasions over her upper thoracic spine that were both red and tender. The dorsal area of the right hand displayed an area of dark purple bruising. There were three areas of tender, superficial linear abrasion to her fossa navicularis and inner labia minora, consistent with forcible sexual intercourse.

23. The offender was arrested at about 10.20 that morning. On 1 April 2009 he pleaded guilty to these offences at the Gosford Local Court and it is upon that committal he ultimately appeared before me. He has remained in custody since his arrest on 27 September 2008.

24. The accused’s evidence is that this offending conduct occurred three weeks after he and his former partner had split (transcript p 20). It would seem they had separated earlier but were still on terms that allowed for contact visits with the children and overnight stays with the partner. For some reason that had ceased three weeks before these offences.

Objective Criminality

25. From the facts as he finds them to be a sentencing judge is required to assess the objective criminality of the offences as an essential step in assessing the seriousness of the criminal behaviour of an offender. The judge does that by comparing objectively the criminality exhibited in the cases before him with criminality of offences of a similar kind. It is in this way that the objective seriousness of the criminality of these offences is evaluated. Objective criminality is a main factor in the overall sentencing outcome. A useful starting point in the assessment of objective criminality in sexual assault cases is to remind the court of part of a judgment of Mahoney JA. His Honour said:

“As I have indicated every offence of this kind is a serious offence, but those whose duty it is to deal with crimes of this kind and to sentence those who commit them know that though each case is inherently serious some are more serious than others. In some cases the degree of violence, physical hurt inflicted, the form of forced intercourse and the circumstances of humiliation and otherwise are much greater than are involved [in other cases]. It is to be understood that in sentencing it is appropriate, indeed in most cases it is necessary, that the sentencing judge form and record his assessment of where on the relevant scale of seriousness the particular offence lies. (See R v Gebrail unreported NSWCCA 18/Nov (1994)).”

26. In 1993 the then Chief Justice made the point that non-consensual intercourse is an extreme form of violence and one which the community expects courts to take seriously, (see R v Hartikainen unreported NSWCCA 8 June 1993). Even if no additional violence is administered other than the intercourse itself, (see R v Pay (1999) NSWCCA 40 [7]). Unwanted forced intrusion into the privacy, indeed intimacy, of a complainant’s body and psyche against her will by use of physical power and callous disregard for her wishes or feelings marks the essence of the criminality of these offences.

27. The objective criminality of the offences requires consideration of the means by which it took the aggravated form. The Crown relies upon the aggravating circumstances arising from the use of “weapons”, namely petrol, scissors and knife. I have taken the petrol to embrace also the use of the lighter fluid. I note the scissors were not used to deliver any direct physical threat but rather to cut the complainant’s clothing from her and to accompany the menace of his words spoken at the time.

28. I have no doubt their use in the circumstances added seriously to the psychological fear she was then experiencing, exacerbated, no doubt, by his verbal threats to kill and his demands she would have family with no one else. Her being completely naked in the garage, in the circumstances she was in, was a humiliation of her by the offender. His flicking petrol upon her was sadistic, psychological torment. Such petrol that landed upon her may well have irritated her skin. The menace was contained in her knowledge that the petrol was inflammable. The action of flicking it and the menace were emphasised by his words, “If I can’t have the children no one can.” His spraying of lighter fluid and menacing again with the cigarette lighter was again a psychological torment designed to humiliate, crush and enforce his domination over her.

29. This psychological terror was elevated to yet a higher plane when he grabbed the knife, brought it to her face so that it touched her left eye. Her level of fear at this point was apparently so extreme she was unable to comprehend all that he was saying. She did hear enough to understand he did not want anyone playing father to her children and that she had better not be having sex with anyone else. Both of those comments display what I call a proprietal ownership they’re about where the accused was coming from. Frankly, he owns no one other than himself, as do we all. Demands such as those, as I say, expressed a notion, long gone from our cultural and his, that women are property.

30. The period of psychological standover by him was sustained and culminated in sexual assaults. I have concerned myself with whether the psychological menace engaged in with a naked lady constituted some bizarre form of sexual foreplay by him, using his physical and psychological dominance over her, enjoying some humiliation to sexually titillate himself. If it were so I would regard it as an aggravating feature. Frankly, I cannot be satisfied beyond reasonable doubt that it is so. I am satisfied these threats were made for the purpose of scaring the complainant into compliance, but there was no intention to carry any of them out.

31. I am satisfied the offence occurred in circumstances where the offender’s judgment was impaired and his normal inhibition levels were lowered as a consequence of his ingestion of alcohol and amphetamines, at least so far as the offences conducted in the garage. There is no evidence suggesting ingestion of either alcohol or drugs whilst at the complainant’s premises. In those circumstances the effects of the drugs and alcohol must have begun to dissipate as the time wore on. I note of course that the level of psychological torment also diminished once the offender was in the house.

32. The offender claimed to “have no control over my actions”. I suspect he is confusing loss of memory for his action with absence of control. When challenged on some of those matters that he could not remember, he readily agreed, to his credit, that he was doing those things to her. I have sentenced on the basis of impeded judgment and lower inhibition, but otherwise control over decision making and choice of actions to be pursued.

33. I have no doubt an issue fermenting in TS’s mind at the time of his conduct was his difficulty in accepting the relationship with the complainant was at an end. That clearly comes out in the dialogue of what he is saying to the complainant. I accept termination of the relationship caused him real emotional toil, which may have exaggerated itself as a consequence of his consumption of alcohol and amphetamine.

34. I cannot be satisfied beyond reasonable doubt that the offender intended to sexually assault the complainant when he attended, or even when he went to the garage. That is not to say that he arrived there without any hope of having consensual intercourse. Again, in respect of that I know neither one way or the other. Even so, all women should be able to end a relationship with any partner confident their personal safety is secure and they will be treated with appropriate civility.

35. This offending conduct shows a gross lack of respect for the person of his former partner and the mother of his children. It also shows a complete focus upon his own desires at the cost of her privacy, physical and psychological wellbeing. I am not entirely sure that jealousy, which was the offender’s word for it, accurately describes his feelings. There is no evidence or comment about any other suitor. It is likely feelings of rejection, possibly inadequacy, impotency and personal vulnerability were what was driving his anger.

36. The facts already establish the intercourse was without protection. Given the change to circumstances between the offender and his partner, by which I mean the final separation, that exposed her to a risk of pregnancy that would most likely have been an unwanted pregnancy.

37. Of the two aggravated sexual assaults I regard the second as the more serious. It occurs in circumstances where the complainant has been subjected to an extended period of humiliating, demeaning and psychologically terrifying conduct and has already experienced the intrusion and indignity of the earlier fellatio sexual assault.

38. There is no sense of any planning. The offences are opportunistic. The complainant knew her attacker, which I sense may have been less traumatic than dealing with a total stranger making the very same demands. The offence was committed in her home, a place where he was a guest, albeit a familiar one. Nonetheless, she is entitled to the safety of her home which this conduct denied her. That the offence occurred in her home is an aggravating feature of it. The level of sexual violence was increased by the use of physical force to overpower her by holding her during the fellatio when she sought to push away. In the second instance intercourse persisted, notwithstanding her distress and requests that it cease. During the course of that a threat to kill her was added.

39. I am satisfied in respect of four out of the five cases of intercourse I am considering the offender knew the complainant was not consenting. In the offence of fellatio in the loungeroom I regard him as reckless as to whether she was consenting or not. I have earlier noted each of the sexual assaults constitutes a physical dominance by abuse of physical strength of the male over the female. While the level of violence I have tabulated does not fall into the extreme, taken with the earlier conduct in the garage, the offence occurring in her home, and the state of the victim by the time the second offence occurred, I find it falls within the midrange of seriousness, slightly below the midpoint of that range.

40. Although the offender’s entry into the home has an air of home invasion about it I have already noted I cannot be satisfied that he entered the home with the intent of sexual dominance. The assessment of the second offence falling in the midrange is exclusive of any consideration of the Form 1 matters and their impact upon sentencing. In any event, the Form 1 matters are to be taken into account in the first offence. I should note that, standing alone, I do not regard that first offence as falling into the mid-range of seriousness. Clearly, it is sufficiently serious as to be nudging a mid-range, but it does not do so.

41. Imprisonment is a sentence of last resort. Even so, given the seriousness of each of these sexual assaults, a significant term of imprisonment must be imposed for both of the indicted offences. The offender unlawfully set fire to the complainant’s property on two occasions. It is only the second occasion that is the subject of the charge. While it is not entirely clear, I have assumed from the language of the facts that it is the second fire which is the subject of that charge. That does not mean I do not take into account, in assessing the criminality of that charge, the earlier fire.

Subjective Matters

Family Background and Relationships

42. TS is a single father of three, aged between eight years and four years. He is an Aboriginal man, whose tribe originally came from the far north west of New South Wales. Now many of his relatives live on the Central Coast. He is the second eldest of nine siblings. He lived for the majority of his life on the Central Coast in New South Wales in a stable family environment. He still enjoys good relationships with his siblings. His mother reports the father as being extremely violent, predominantly towards her. As far as is reported, TS himself does not appear to have been a primary victim of the father’s violence. As I said at the beginning, it is likely, though, he is a secondary victim, witnessing the assaults upon his mother, and the violent behaviour of a senior male in the family as a standard expression of displeasure. His parents separated around 2001. The offender’s last contact with the father was more than eighteen months ago.

43. From the age of seventeen, he spent three or four years living with his paternal grandparents, who, he says, still support him. There is evidence that the grandfather had been in court on three earlier occasions when this matter was before the court. My understanding is he lives in Gosford and would not be expected to attend court in Sydney.

44. TS’s relationship with the complainant was long-standing - eleven years. It is now at an end. As earlier noted, that had occurred about three weeks before the charges I am dealing with occurred.

45. There is a fourth and eldest child to an earlier relationship, although the level of contact, if any, with that child, is unknown to me.

Education, Employment and Skills

46. TS finished school after obtaining the School Certificate. He began working almost immediately in various short-term employment positions, mainly labouring. In 2006, he completed a Certificate III in roofing. That was a five-day weekly course that ran for twenty-seven weeks. He put his attendance at 80 per cent. There were some twenty-two topics covered. For the past eight years he has worked as a roof-tiler, most, if not all, of that time with the same employer, Tyrone Drady, who spoke of the offender as good, reliable, skilled, and capable of working unsupervised. Mr Drady graded him as “my best boy”. He indicated that he “will have steady work for TS in the future”.

General Health

47. So far as one can tell from his physical appearance, TS appears to be in excellent physical health. There is certainly nothing before me that indicates his physical health may cause difficulties with his rehabilitation.

Mental Health

48. There is no mental health profile of the offender before the court. I have assumed there is nothing in him that presents to the defence team or the Probation and Parole Officer any issue calling for such a profile. Again, I do not regard his mental health as a factor that will disadvantage his capacity to rehabilitate.

Alcohol and Drugs

49. His drug and alcohol abuse began at the age of fourteen by his smoking three to four cones daily. At twenty-nine, that had escalated to thirty to forty cones daily. The heavy use of cannabis is well-linked to aggression, paranoia and..(fault in recording equipment) [mental health problems (?)]..It is, for that reason, a very sinister drug. Users, including many in Aboriginal communities, smoke it for relaxation, but its effects gradually build up so that anger and aggression are the more readily triggered as a response to conduct of others, including, as in this case, the innocent and legitimate conduct of others.

50. TS also abused ecstasy and speed every second or third day. Speed also has links to anger and aggression. Speed’s link to anger and aggression is also well-documented. Prior to, and at the time of, these charges he was drinking up to ten stubbies of beer or pre-mixed spirits every couple of days. All of these levels of consumption, but particularly the cannabis and speed, amount to instances of serious drug and alcohol abuse - abuse because they were dangerous to his health. Whilst in custody, the offender did an alcohol and drug programme but, at the time of the evidence, that had not been completed, he says on account of his being moved to Long Bay.

51. As will be noted later, he has been in custody since 28 September 2008. It does not seem he placed the drug and alcohol programme on his high priority list, but nonetheless, I should note it does suggest an awareness of him that his drug abuse exists and he needs to deal with it. He noted in evidence his addiction was serious - indeed, he relied upon the seriousness of the addiction to minimise his breach of the good behaviour bond. To his credit, he has also done an anger management course. Whether that course links up at all with the cannabis and amphetamine consumption as a source of anger and aggression is something I do not know and was not explored in evidence.

Character and Criminal History

52. As I have noted elsewhere, there is a tremendous difference between the presentation of TS sober and contrite and his presentation on the morning of 27 September, inebriated, rejected, psychologically cruel, and physically violent. By contrast, in court, he sought to accept responsibility for his acts. He presented as genuinely and profoundly remorseful. He has, with his work, displayed a good work ethic, and I have no doubt good work skills. He has long been in trouble with the law, but it must be noted never before for violence, whether physical or sexual, nor has he been convicted of arson previously. Much of his offending relates to drug offences, including illegal use of conveyances, drug offences, break and enter, and larceny offences.

53. He appeared before the Children’s Court on four occasions. On what appears to be his most serious offence, he was ordered to pay compensation of $1,946. He says he has been in juvenile custody on one prior occasion, but it would appear from the record before me that that must have been a remand custody and not sentence custody. His first adult court matter occurs in August 2000, where he was convicted in his absence of a break and enter and steal offence, and given a Community Service Order, which he subsequently breached. On that occasion, there were also driving offences. In November 2000, convicted in his absence of a larceny, compensation of $800 was ordered. There was further offending in September 2004, again driving offences. In February 2008, there were further driving offences. In respect of the driving without licence offence, the Local Court magistrate imposed an eighteen month s 9 bond. As noted in the evidence, these offences occur nearly eight months after the imposition of that bond. The penalty for each offence I am dealing with, therefore, is aggravated by virtue of the breach of the bond. It can be noted, as I earlier have said, the bond was not given for any offence related to violence or property damage.

Attitude to Offence

54. The offender told the Probation and Parole officer he was devastated by what had happened, sorry for the pain he caused to the complainant, that he had never done anything like this before, and was unhappy with what he had done. When taken to that passage in the Probation and Parole Report by his counsel, he said it remained his strongest feeling.

55. At the hearing, the complainant was present. He sought permission to apologise directly to her. He told her:

“There’s my deepest strongest feelings that I am deeply sorry for what I have done and feel the deepest feelings of remorse for the pain I have caused you and your family. There’s nothing that words could express of how much pain I feel for myself and for yourself and our children and your immediate family. Please forgive me. Hopefully, one day you may be able to understand that I didn't have the greatest control of my actions and am no longer that person, and with the help of the good Lord I will be able to cure myself of this.”

56. I am confident his remorse is genuine and profound. I suspect that his conduct, particularly in the garage, was so dis-inhibited that it has caused him concern about his capacity to control his response to his emotions.

Custody

57. I have noted now for the third time he has been in custody since 27 September 2008. His sentence will date from that date.

Plea

58. He pleaded guilty before the Local Court. It was an early acknowledgment of guilt. I am also satisfied, by accepting all allegations of fact made against him, even in circumstances where he cannot remember, he has sought to minimise further trauma to the complainant that his acts caused to her.

Rehabilitation Prospects

59. In many sexual assault cases, the court is favoured with a professional assessment of the forensic psychological services of the Department of Corrective Services. On this occasion, no such report is before the court. Doing the best I can, I would regard the rehabilitation prognosis as positive. There are a number of favourable indicators:

· Good family support;
· Good work ethic, and employment path available upon release;
· A willingness to participate in a sexual offender’s programme conducted within the prison
· No prior history of violence or arson; and
· In particular, no prior domestic violence matters.
· High level of Contrition
· Participation in anger management and drug programmes.

60. The identified contributors to his criminal offending made by Probation and Parole were his emotional reaction to the separation and his use of alcohol and drugs. To those, I would add the impact upon him of his father’s violence towards the mother; that is that he has learnt that behaviour. The father was able to remain within the family showing violence towards his partner for two decades. Each of those three areas needs to be addressed. What link, if any, between the drugs and alcohol abuse and the history of the violence upon his ex-partner should be explored? Counselling may be useful in respect of dealing with serious emotional upset and past closeness to domestic violence. I would also recommend to the Parole Board that they require of him, as a condition of parole, that he complete a full-time [drug] rehabilitation programme at a culturally appropriate clinic, which enforces a proper urine analysis screening programme. I have found special circumstances upon an assumption that such a condition will be ordered or agreed to.

Setting the Sentence
Deterrence

61. Clearly, both general and personal deterrence are to be given full weight in the sentencing outcome.

Standard Non-Parole Considerations

62. The two sexual assault offences to which the offender pleaded guilty would carry a standard non-parole if the objective criminality of the offences fell within a mid-range of seriousness. The three sexual assault offences taken into account on a Form 1 do not carry any standard non-parole period once they are consigned to a Form 1. The approach to taking offences into account were set out in the judgment of Speigleman CJ in The Attorney General Application under S 37 Crimes (Sentence Procedure Act) 1999 (2004) 61 NSWLR 38. It is important to note these three offences in the Form 1 are not in for sentence by virtue of s 54B(1). The standard non-parole period does not attach to them. In respect of the two indicted aggravated sexual assaults, the standard non-parole period is ten years imprisonment.

63. The court is required to set a standard non-parole period unless it determines that there are reasons for setting a greater or lesser standard non-parole. The reasons for which a court may set a standard non-parole period greater or lesser than the standard non-parole period are only those referred to in s 21A of the Crimes (Sentencing Procedure) Act 1999. Where the Court sets a standard non-parole period greater or lesser than the standard non-parole period, it must identify each factor that it took into account for that increase or reduction. The areas from which s 21A appears to permit matters of aggravation or mitigation to emerge appear to be four in number:

· Aggravating factors found in a check list contained in s 21A(2).
· Mitigating factors found in a check list contained in s 21A(3).
· Other objective or subjective factors that affect the relative seriousness of the offence identified by the sentencing judge.
· Other matters that are required to be taken into account under any Act or rule of law.

64. Aggravating factors revealed by s 21A(2) include that the offence was committed in the home of the victim. I have already taken that matter into account in assessing the objective criminality. The offence involved gratuitous cruelty. Again I have already taken that into account, the psychological terror, when assessing the objective criminality. It may be that s 21A(2)(j) applies in regard to this offender. I have already referred to the bond to be of good behaviour that was breached. I do not regard it as likely in the circumstances of that case before the magistrate that a custodial sentence was likely, that is to say that his liberty was conditional, but his liberty was in a sense conditional, because in the event of a breach, theoretically at least, he stood liable to be sentenced to imprisonment. But it is hard to see that he would have been if the rules of law had been properly applied. In any event, I have already taken the matter into account. I have taken into account the offence was committed against his ex-partner and mother of three children. I have not described that as a position of trust. It was a position in which he owed respect, and that finding is implicit in my regard. I do not regard him as having breached, nor have I been requested to regard him as having breached a position of trust.

65. I regard each offence separately when considering the objective seriousness of each. I have taken into account the various non-sexual assaults upon the complainant when determining the objective seriousness of each offence. I have also taken into account in aggravating the criminality of the second sexual assault offence, that the complainant had previously been assaulted as part of the relevant background. But I note that the first sexual assault was not considered as otherwise part of the seriousness of this offence.

66. As to mitigating factors set out in s 21A(3), I have already taken into account the offence was not planned, that his rehabilitation indicators are more positive than negative, his sincere contrition, his acceptance and full responsibility for his actions, even in circumstances where he cannot remember all of them, his acknowledgement of the hurt and pain he has caused the complainant, her family and children, his plea of guilty.

67. I do not regard the aggravating features as requiring me to consider a longer than prescribed standard non-parole period. I regard the mitigating factors I have identified as permitting and requiring a shorter than the prescribed standard non-parole period; see R v Way (2004) 60 NSWLR 168.

Special circumstances

68. The Crown has not sought to argue against a finding of special circumstances. This offender has never been a sentenced prisoner in adult custody previously. It is also likely he was not a sentenced inmate in juvenile custody. His acts have seen him separated from his children by the gaol gate. Such custody will be more arduous for him than for those prisoners whose children visit regularly. His rehabilitation has greater chances of being fostered in the community than behind gaol walls. These are all reasons why special circumstances should be found and I intend to do so.

Setting the sentence

69. The JIRS statistics for offenders sentenced to s 61J offences shows a range of sentences falling between two years and sixteen years with peaks ranging between six years and ten years. Thirty-five per cent of offenders received a head sentence of nine years or more. Thirty-eight per cent of offenders received head sentences of six years or less. For those with multiple offences the range narrows from three to sixteen years with peaks still between six and ten years imprisonment. Thirty-nine per cent of prisoners received the sentence of nine or more years and sixty-five per cent of offenders fall between six and ten years.

70. These figures suggest there is a vast range of factual matrix constituting an offence of aggravated sexual assault, and that by virtue of the nature of the offending in the vast bulk of cases substantial sentences are called for. I should note the maximum penalty for the indicted aggravated sexual assault offences is twenty years imprisonment. I have mentioned the standard non-parole period of ten years.

71. Although as I have explained it is open to a judge in certain circumstances to set a lesser non-parole period than the standard, the standard non-parole period must nonetheless still impact upward upon the final decision made by the judge.

72. The sexual assault offences on the Form 1 carry a maximum penalty on indictment of fourteen years. If on indictment they also carry a standard non-parole period of seven years. The malicious damage of property by fire carries a maximum penalty of ten years imprisonment.

73. For reasons I have given, I regard the second offence as more serious. I have determined that a starting figure of ten years is called for. In selecting that figure I have taken into account the existence of the standard non-parole period and the related intent of parliament, the sentences for these offences are relatively higher now than they previously were. By virtue of the plea of guilty I have discounted that figure by twenty-five per cent, now giving an overall sentence of seven and a half years.

74. The first offence, although not more serious standing alone, has the three further offences of sexual intercourse without consent to be taken into account on the Form One. While I have regarded it as falling below the mid range of objective seriousness, the impact of the three sexual assault offences also drives that sentence upwards. I have given it a starting point of nine and a half years. Again that is discounted by twenty-five per cent, yielding an overall sentence of seven years, one and a half months.

75. The third indicted charge is malicious damage to property by fire. In the scheme of offences that does not reach the level of seriousness of any other offence. Standing alone it would be dealt with in the Local Court by way of a non-custody option. I have imposed a six month concurrent sentence for it.

Concurrent Sentences

76. All of these offences occurred within, at the very most, a ten hour period, in fact at the very most a seven hour period. My own view is they are likely to have occurred within a three or four hour period. I have determined that each sentence should be concurrent. On that basis they form part of an ongoing course of criminal conduct. I have necessarily fixed an overall sentence that reflects the totality of criminality.

Sentencing

77. TS, I convict you that you on 27 September 2008 at Umina did have sexual intercourse with RJ without her consent, knowing that she was not consenting to the sexual intercourse, in circumstances of aggravation, namely at the time you threatened to inflict actual bodily harm upon her by means of an offensive weapon, namely the knife, the scissors and the use of petrol. For that offence I sentence you to a non-parole period of three years and nine months to commence on 27 September 2008 and to expire on 26 June 2012. There is a balance of term to expire on 11 November 2015.

78. For the second offence, which is, as I said, the main one, it is an offence in exactly the same terms but it relates to the penile vaginal intercourse in the garage, you are convicted. For that you are sentenced to a non-parole period of four years to commence on 27 September 2008 and to expire on 26 September 2012. The balance of term will expire on 26 March 2016.

79. In respect of the intentionally or recklessly destroy by means of fire certain property, to wit personal papers, they appear to be included here in the indictment, clothing, the property of RJ, nonetheless I still sentence you for six months. That sentence will commence on 27 June 2008 (as said) and it expired on 26 March 2009. It has already been served.

80. I should tell you this, when I sentence someone for less than three years I can order them to be released to parole. In your case I cannot order you to be released to parole on the 27 September 2012. That is your earliest release date. You have to persuade the Parole Board that you will be eligible for release on that date, and frankly they will be reluctant to release you, I can tell you this, if you do not do those sexual assault offence courses and if you get into any trouble while in gaol. If you do get to do those courses, I cannot see any reason why you should not be released on that date.

BHAT: Your Honour, in relation to the penalty for malicious damage charge, your Honour indicated that that sentence was to commence from 27 June.

HIS HONOUR: I thought I said 27 September. Did I say June?

BHAT: Yes.

HIS HONOUR: I should have said September - 27 September 2008 and to expire on 26 March. If there is any error I will fix it.