R v Unardi

[2018] NSWDC 512

District Court

New South Wales

Medium Neutral Citation:	R v UNARDI [2018] NSWDC 512
Hearing dates:	17 December 2018
Date of orders:	17 December 2018
Decision date:	17 December 2018
Jurisdiction:	Criminal
Before:	TUPMAN DCJ.
Decision:	Non-Parole Period of 12 months; Parole period of 12 months; Overall term of imprisonment 2 years.
Catchwords:	CRIMINAL LAW - Sentence - Early pleas of guilty - 25% discount - Two charges of sexual intercourse without consent - Substantive offence digital penetration - Form 1 cunnilingus - Below mid-range of objective seriousness - Victim in her own bed with boyfriend is aggravating factor - Offender 29 year old Indonesian man - Good work history - No criminal antecedents - Offender drunk and under influence of cocaine when committing offences but not a mitigating factor - Genuine remorse and contrition - Low risk of sexual offending recidivism - Excellent prospects of rehabilitation - Powerful subjective case.
Legislation Cited:	Crimes Act 1900 (NSW), s 61I. Crimes (Sentencing Procedure Act) 1999 (NSW), ss 3A, 5, 12.
Cases Cited:	R v Thompson and Houlton & Ors (2000) 49 NSWLR 383.
Category:	Sentence
Parties:	Harvey Unardi The Crown
Representation:	F/W: Mr Skinner   Crown: Ms Paterson
File Number(s):	2018/549

Judgment

1. HER HONOUR: The offender is before the court for sentence following pleas of guilty to two charges of sexual intercourse without consent. He initially pleaded guilty to one count in the Local Court and was committed for sentence. When that matter came to court, the Crown presented an ex officio indictment charging an additional charge of sexual intercourse without consent occurring at the same time. He immediately entered a plea of guilty to that additional charge on the basis that it was to be taken into account as an additional offence on a Form 1. He thus comes to be sentenced by me for one substantive count of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900, an offence which occurred on 1 January 2018 in Sydney. That carries a maximum penalty of 14 years imprisonment with a standard non-parole period 7 years. He asks that when sentencing him for this matter I take into account another charge of sexual intercourse without consent, also contrary to s 61I which appears in a schedule to a Form 1 document signed by him and exhibited in these proceedings.

2. The facts are before the court by way of agreed facts. I accept that this offence occurred on New Year’s Day this year, 2018. The offender at the time lived in a three bedroom unit in Elizabeth Street, Sydney with his girlfriend and others. The victim shared one of the bedrooms with her boyfriend and there were two other males living in the unit. The victim had moved into the unit as part of the household on 7 December 2017. The victim came home from work around 3.00am on 1 January and met up with her boyfriend there, the other two males who lived in the house and, it would appear, some friends who were there socialising after New Year’s Eve revelry. They were all drinking in the lounge room and on the balcony.

3. As I have said it was early on New Year’s Day. The offender and his girlfriend had not yet arrived home. The victim drank some wine and then went to bed with her boyfriend around 4.30 in the morning. She closed the door. She was sleeping in her underpants with no other clothes. One of the other residents also went to bed around the same time with his girlfriend. At around 9.00am that woman noticed the offender in the bedroom looking around and when he saw her awake, he walked out of the room.

4. The offender then went to the victim’s bedroom where she was asleep with her boyfriend. He started to touch her on the bottom while she was asleep and she remained sleeping. She woke at about 9.15 in the morning when she felt his fingers inside her vagina. She initially thought this was her boyfriend so did not open her eyes. The offender then started to lick her vagina and pull her legs apart. She then opened her eyes and realised that it was the offender. This digital penetration constitutes the substantive offence, and the cunnilingus constitutes the Form 1 offence. They are two separate offences, but effectively the same act, both of them committed very close to each other in time.

5. The victim immediately felt shocked, covered up her breasts and moved her legs away from the offender. He stood up and then engaged in what seems to me as a bizarre conversation, telling the complainant that the kitchen was dirty and she had to clean it. Not surprisingly she was overwhelmed and asked what he was talking about. He then walked to the base of the bed and shook her boyfriend’s leg. He had been asleep up till then, but this woke him and the offender also told him that he had to clean the kitchen because it was dirty. The victim’s boyfriend said no, that he would clean it later and so the offender said “okay” and left the room.

6. The victim immediately told her boyfriend about what had occurred, that is the sexual contact from the offender with her, got up and dressed and went into the kitchen and confronted the offender. She asked him what he had done. He did not initially admit anything. She then told him that he had digitally penetrated her and also engaged in cunnilingus. He then admitted it and said he was stupid and he shouldn’t do that. The victim then said “only my boyfriend can touch me like that” and he said “I know, I know.” She pushed him and punched him in the face and then her boyfriend and the other resident pulled her away and tried to calm her down. She was angry and upset and initially went back to her bedroom but then returned to the kitchen and tried to punch the offender again. He pushed her away and the others then tried to pull her away. Her boyfriend then punched the offender and the other resident told the offender to leave, which he did.

7. The victim then told the other resident what he had done to her and she then called the police. The other resident then went outside to wait for the police. He saw the offender sitting outside with vomit on the floor between his legs and he told him to go inside and wait for the police. The offender’s eyes rolled back into his head and he fell to the floor.

8. Police arrived and saw that he appeared to be asleep, but he was woken, arrested and taken to Surry Hills Police Station. There he engaged in an electronic record of interview in which, to a large extent, he admitted the offences. He told police that he was very drunk and that he had taken a line of cocaine around 10.00pm on New Year’s Eve. He said he had arrived home at about 7.00am and in his own words was “feeling horny”, that he was on the balcony and again in his own words was “curious”. He said he went into the bedroom and saw that the complainant was asleep in her underwear and again in his words said that he was “turned on”.

9. The complainant was taken to Royal Prince Alfred Hospital and examined. Relevant DNA samples were taken which ultimately returned a DNA match with the offender from a low vaginal swab, a vulval swab and an external labial swab. DNA samples taken from the offender’s fingers also linked him to the offences as charged.

10. The offender, as I said, pleaded guilty to both the substantive and the Form 1 offences at the first available opportunity and is thus entitled to a 25% discount for the utilitarian value represented by the pleas pursuant to the dicta of the Court of Criminal Appeal in R v Thompson and Houlton & Ors (2000) 49 NSWLR 383. The utilitarian value of a plea of guilty in a matter such as this is high. The timing of the plea, early as it was, has meant that the matter has never needed to be prepared for trial, which has had the particular benefit of the complainant’s knowing that she was never going to have to come to court to give evidence, to be cross-examined and relive this experience. That is a reason why the utilitarian value is significant and attracts the full discount in this matter.

11. I turn to assess the objective criminality involved in this offending. I accept that both episodes of sexual intercourse were of short duration. The exact time is not known on the facts, but the only logical factual finding that could be made is that the offence lasted for a very short time. There is no evidence of any violence, apart from that inherent in any form of sexual intercourse without consent, and no actual physical harm to the complainant on the evidence before the court. It is not possible to know what the impact was on the victim. There is no victim impact statement, but at the very least I accept that she was immediately angry and upset and more probably than not felt a sense of degradation and shame from being used in the way she was.

12. The offences would appear to be more or less spontaneous, categorised by the Crown in its submissions as brazen and opportunistic. However the fact that the offender went into the complainant’s room at all, opening the door as he did, because in his own words he was feeling horny, does tend to diminish slightly the finding that the offence was immediately spontaneous. He was very drunk at the time and also under the influence of cocaine, an illicit drug that he had never used before. However this was self-induced intoxication and cannot be taken into account as a mitigating factor.

13. It is a factor of aggravation that this offence occurred in the complainant’s own home, in her bed, while she was asleep in her bed with her boyfriend, in a room to which she had closed the door. No doubt she felt safe in doing so and ought to have been able to feel safe in that environment. It was a significant violation of her bodily integrity and personal space, an offence committed for no other reason on the part of the offender but to satisfy some immediate, base sexual desire. She did not consent to this and he had no reason to think that she would. He was just using her.

14. The sexual acts themselves constitute sexual intercourse, but in objective terms it seems to me are not towards the top of the range of sexual acts capable of amounting to sexual intercourse as a matter of law. There is certainly personal bodily violation and penetration for the substantive offence, but I accept that none of the risks otherwise associated with penile vaginal intercourse arise in this situation, such as the risk of pregnancy, sexually transmitted disease or the like which might occur with penile vaginal penetration with ejaculation. This is a factor which I take into account overall when assessing the objective criminality together with all of the other matters to which I have referred.

15. For all of these reasons I accept that the substantive offence is below the mid-range in terms of objective criminality but nonetheless does involve penetrative sexual intercourse, albeit digital, on a sleeping complainant, in her own bed, in her own home with her boyfriend present. It is at the bottom of the range but not at the very bottom in those circumstances. I also must take into account in a meaningful way the further act of sexual intercourse that occurred immediately afterwards, to be taken into account as a Form 1 offence.

16. The standard non-parole period of 7 years does not apply strictly because of the finding of objective seriousness below the mid-range and also because this is a plea of guilty, but I must take it into account as a yardstick and bear it in mind when determining the sentence.

17. This is, in my view, a very sad case but not only because of the impact that this has probably had on the victim of the offence. It is also a sad case because I accept that this behaviour by this offender was very much out of character. He is now 29, was born in Indonesia and came to live in Australia in 2007 when he was 18. He initially came to Australia on a student visa to live with his older sister. He is now subject to a partner visa which is due to expire next year. He completed secondary education in Indonesia and then completed a course at a private college in Australia on his student visa. He enrolled then to train as a pastry cook. He did not complete that course but has since then enrolled in human resources and business management which he continues to study in Australia. He has worked as a waiter or supervisor in various well known Sydney CBD restaurants over the last 8 years and I accept is a hard worker who has a good work history. He has several qualifications that he has acquired since coming to Australia. His intention was to seek residency in Australia ultimately. Whether or not that is ultimately successful of course is not a matter that I can take into account, nor a matter that I can, in any event, foresee at this stage.

18. There are before the court a presentence report from August 2018 and a psychological report commissioned by his legal representatives. I accept from that combination of material, and references that are also before the court, that the offender is not a person who drank to excess frequently, if at all. He was a social drinker only with his partner and friends and work colleagues. On this particular New Year’s Eve he did drink to excess at a party that went for several hours into the early morning. I also accept that for the first time used cocaine. I accept that this had the impact of allowing him to drink more alcohol than he usually did, and also more probably than not heightened his disinhibition and increased his libido, which was more probably than not the cause of his acting out of character. As I have said however, I cannot take this self-induced intoxication and the impact it had on his behaviour into account to mitigate the sentence. But it is appropriate to make this finding nonetheless because it affects an assessment of his prospects of rehabilitation.

19. He wrote a letter of apology to the victim in April this year which is tendered to the court on sentence and which he hopes will be passed onto her. I accept that his remorse and contrition is genuine. As I have said he has continued to work in the hospitality field since his arrest. He has excellent references from work colleagues, his partner and long term friends. He has been in a de facto relationship for some time and there is a very supportive reference from his partner. She has remained supportive of him despite these charges and the fact that she was initially extremely angry and disappointed with him after the charges.

20. As I have said he is and always has been a hard worker. I will make a positive finding that he will not in any way be benefitted by a period of prison custody, there can be no doubt about that. No one will benefit from his being sentenced to a term of imprisonment. However, the first task I must undertake is to determine whether, pursuant to s 5 of the Crimes (Sentencing Procedure) Act1999, any other sentence apart from imprisonment is appropriate for this offence and this offender. He is assessed by Community Corrections as a low risk of reoffending, with the only criminogenic issues being alcohol and drug problems. I accept that he has taken up the suggestion of Community Corrections to attend for assessment at a drug and alcohol centre and was advised that he did not have any ongoing problems. He has also undertaken two sessions with a psychologist with his partner. Community Corrections consider that he would benefit from a period of supervision and he has been found suitable to undertake community service.

21. Section 3A of the Crimes (Sentencing Procedure) Act, 1999 provides the purposes that the court must take into account in any sentence. One is to ensure that any offender is adequately punished for the offence and another is to prevent crime by deterring others from committing similar offences. This general deterrence must be taken into account significantly for offences such as this. Another is to protect the community from the offender. It seems to me that there is no evidence that the community is at any risk from this offender in the future. Another is to promote his rehabilitation. I accept that his prospects of rehabilitation are excellent and I accept the opinion of Community Corrections that he is a low risk of reoffending. Another is to make the offender accountable for his actions and another is to denounce the conduct of the offender. Another is to recognise the harm done to the victim of the crime. That is not a factor that I can take into account in any meaningful way in this matter except by a general recognition that victims of sexual intercourse without consent would normally feel a sense of personal violation and degradation and this is particularly so when offences such as this are committed in their own home.

22. Before the new sentencing regime came into effect on 24 September 2018 it would have been open in an appropriate case, even where a finding was made that the only sentence appropriate was one of imprisonment, to consider whether, if the length of the term was within range, the matter could be dealt with by way of suspended sentence. The statistics published by the Judicial Commission for offences under s 61I indicate that the vast bulk of those sentences for these offences were full-time imprisonment and 10% of those reported offences gave rise to periods of imprisonment suspended pursuant to s 12. It has never been open for the court to sentence a person to a term of imprisonment to be served by way of Intensive Corrections Order for offences involving sexual intercourse.

23. Since the amendments to the Crimes (Sentencing Procedure) Act1999, suspended sentences have been abolished. Therefore, in offences involving sexual intercourse, if the court is of the view that the threshold for imprisonment has been reached, the only alternative available to the court is a term of full-time custody.

24. The only alternative to imprisonment in this case would be what I described as non‑custodial alternatives, commencing at the top of the range with Community Corrections Orders and descending to non-conviction s 10 outcomes and similar. I must make a determination in the circumstances whether or not this is a case in which only a term of imprisonment will suffice to deal with all of the factors that the court must take into account bearing in mind the statutory purposes of sentencing. I have vascillated, but in the end have ultimately concluded that only a term of imprisonment is capable of dealing with the objective seriousness of what occurred, even though in this case the subjective case is powerful.

25. I have looked at some of the cases that have been reported for offences previously dealt with by s 12 suspended sentences for this particular offence. They invariably of course involved pleas of guilty, but also they almost always involved a one off offence only with no Form 1 offences attached.

26. I have concluded that, having taken into account the discount for the utilitarian value of the plea of guilty, a term of imprisonment of 2 years for the substantive offence is required, taking into account the Form 1 offence. The offender was on strict conditional bail from the date of his arrest on either 1 or 2 January. Amongst those conditions was a curfew, requiring him to be present at his residence overnight, and given the nature of his employment, namely in the hospitality industry, that was a form of restricted liberty during the whole of his term of bail. I have decided to treat that period of almost 12 months bail, with that restricted curfew condition, as roughly equivalent to a term of 6 months’ imprisonment and therefore will backdate this gaol term to commence 6 months ago from today, that is from 17 June 2018.

27. There are special circumstances, including that this is his first time in custody, he is relatively young and rehabilitation must be a primary concern. For that reason I will be setting a non-parole period of 12 months to commence on 17 June 2018. I stress that I have no reason to expect that this additional 6 months in custody will benefit him, will assist his rehabilitation or will benefit either the victim or the community. I am imposing this sentence because I believe that I have no option under the sentencing regime as it has been amended to commence on 24 September 2018. If I am wrong, hopefully it will be dealt with elsewhere, but in my view this is the only sentencing outcome that can deal with this offence, in the absence of suspended sentences, and with the need for a term of imprisonment to denounce sexual intercourse without consent in order to send a message of general deterrence, and to make this offender properly accountable for his behaviour.

1. For those reasons then I make the following formal orders. The offender is convicted. He is sentenced to a non-parole period of 12 months commencing 17 June 2018, expiring 16 June 2019, with parole thereafter of 12 months commencing 17 June 2019, expiring 16 June 2020, giving rise to an overall term of imprisonment of 2 years commencing 17 June 2018, expiring 16 June 2020. I have taken into account the Form 1 offence when sentencing for this matter.

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Decision last updated: 21 September 2020