R v WB

[2023] NSWDC 516

District Court

New South Wales

Medium Neutral Citation:

R v WB [2023] NSWDC 516

Hearing dates:

20 October 2023

Date of orders:

17 November 2023

Decision date:

17 November 2023

Jurisdiction:

Criminal

Before:

Bright DCJ

Decision:

Sentence of 8 years imprisonment with a non-parole period of 5 years 3 months.

Catchwords:

CRIME — Sexual offence – Sexual intercourse without consent — actual knowledge lack of consent — pregnancy

SENTENCING — Relevant factors on sentence — Subjective considerations on sentence — Health issues

Legislation Cited:

Crimes Act1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

R v Hibberd (2009) 194 A Crim R 1

Category:

Sentence

Parties:

Rex (Crown)
WB (Offender)

Representation:

Counsel:

Mr A O’Connor (Crown)

Ms Rowan (Offender)

Solicitors:

Ms Maine (DPP)
Ms Carter (Umbrella Legal)

File Number(s):

2021/00048679

Publication restriction:

Section 578(2), Crimes Act applies to this matter – no publication of any matter which identifies the victim or may lead to the identification of the victim.

JUDGMENT

1. WB (60 years old) appears for sentence before Gosford District Court having been found guilty on 8 March 2023 after a jury trial of one count of sexual intercourse without consent, an offence pursuant to s 61I, Crimes Act.

2. The count was as follows:

“Between 25 August 2007 and 26 August 2007, at Watanobbi in the state of New South Wales, had sexual intercourse with BK without her consent, and knowing that BK had not consented to the sexual intercourse.”

3. The maximum prescribed penalty for the offence is 14 years imprisonment. There is a prescribed standard non-parole period of 7 years.

4. The offender has been bail refused since 9 March 2023 when a detention application was not opposed. He also spent 2 days in pre-sentence custody. Accordingly, the sentence imposed today will be backdated to 7 March 2023.

The Crown material on sentence

5. The Crown material on sentence was as follows:

Exhibit A, Indictment, Notice of Committal, Criminal History, Custodial History.

Exhibit B, The Crown written submissions.

Exhibit C, Report by Dr Gordon Elliott, Psychiatrist Justice Health Forensic Mental Health Unit 15 June 2023.

Exhibit D, Copy of indictment in relation to a trial matter heard before Judge Shead, Sydney District Court.

The Facts for sentence

6. I find the following facts established beyond reasonable doubt for the purposes of sentencing:

7. The victim is BK. As at the date of the offending, she was 43 years old. The offender was also 43 years old.

8. The victim had met the offender in 1983 when he began to go out with her old school friend KC.

9. Over the years, the victim would very regularly stay at the offender and KC’s house. The offender and KC lived at a number of addresses.

The events of 25 August 2007

10. On 25 August 2007, the victim travelled from Metford with her 2 children to attend a 2^nd birthday party in Watanobbi for SW (the granddaughter of the offender and KC).

11. After the party finished, she returned to the offender and KC’s home to stay the night.

12. After KC went to bed, the offender made the victim an alcoholic drink and they sat and talked and watched television. At this stage, the victim was sitting in a single chair.

13. She gave evidence that she only took a couple of mouthfuls of the drink and then “can’t remember much after that”. The very next thing she remembered was waking up on the 3 seater lounge and the offender was on top of her having penile vaginal intercourse with her. She said she froze and could not move. The offender said to her, “Do you want this?” and she said, “No”. He then said, “Well you want another baby don’t you?”. She said, “No”.

14. The victim gave evidence that the sexual intercourse continued. She said, “I must have passed out because I don’t remember anything until I woke up on the lounge in the morning.” She said she felt “numb” at the time.

15. During his record of interview, the offender told police that he had ejaculated twice during the sexual intercourse.

16. When the victim awoke the following morning, her clothes were on. She said she was “in shock, trying to understand what happened the night before”. She gave evidence she felt dirty and disgusting.

17. When she saw the offender’s wife the following morning, she asked to have a shower. Shortly thereafter, she left the premises. She did not disclose to the offender’s wife what had happened the previous night.

18. After several weeks, she became aware that she was pregnant. She had a baby on 28 May 2008. I accept the evidence of the victim that it was the offender’s child. She considered a termination but ultimately decided to keep the child.

19. Whilst the victim had told a number of people she had been “raped” by the offender, the matter was not reported to police until May 2020. She gave evidence that she was too scared to go to police when it happened, and she did not want to get her children involved.

20. The offender was arrested on 19 February 2021. He participated in a record of interview with police. He admitted having sexual intercourse with the victim on 25 August 2007. He told police it was consensual. By virtue of the jury verdict, I am satisfied beyond reasonable doubt that the sexual intercourse was without the victim’s consent and the offender knew she was not consenting.

21. Those facts that I have found consistent with the jury’s verdict of guilty disclose serious objective criminality. The offender commenced sexual intercourse when the victim was asleep and vulnerable. He did not stop despite her expressing clearly that she did not want to have sexual intercourse with him. The behaviour of the offender was reprehensible. As a consequence of the sexual intercourse, the victim fell pregnant. In my view, this as a very serious example of this offence. Both general and specific deterrence are important considerations on sentence.

Assessment of objective seriousness

22. In assessing the objective seriousness of the offence, I have taken into account the following factors:

1. The type of intercourse was penile/vaginal recognising there is no hierarchy of seriousness based upon the type of the intercourse alone (see R v Hibberd (2009) 194 A Crim R 1 at [56]).

2. The victim was asleep when the intercourse began.

3. The victim was staying with friends and had a reasonable expectation of safety.

4. The offender ejaculated twice during the sexual intercourse.

5. The victim became pregnant as a consequence of the sexual intercourse.

6. I am satisfied the offender had actual knowledge of the victim’s lack of consent in circumstances where I am satisfied beyond reasonable doubt that she told him “No” in response to his question “Do you want this?”.

23. Having regard to those factors, I assess the objective seriousness as well above the mid range. The most important factor in that assessment is that the victim became pregnant as a consequence of the offending.

No victim impact statement

24. The Court did not receive a victim impact statement. Notwithstanding the absence of a victim impact statement, I have no doubt that the offending would have been extremely distressing for the victim at the time and that it has had life long consequences in circumstances where she became pregnant.

25. One of the purposes of sentencing is to recognise the harm done to the victim (see s 3A(g), Crimes (Sentencing Procedure) Act).

Aggravating factors

26. The Crown relied on one aggravating factor, namely, that the offending occurred in the home of the offender.

27. In circumstances where I have taken the victim’s reasonable expectation of safety into account in relation to determining the objective seriousness, I do not propose to take this aggravating factor into account.

The offender’s subjective circumstances

28. The offender is 60 years old.

29. His criminal history is very limited.

30. In 1983 when he was 20 years old, he was dealt with for possess and smoke indian hemp and possess utensils. He was fined and sentenced to 2 days hard labour.

31. In 1986, he was sentenced for one offence of common assault (he received a recognizance) and further offences of possess and administer cannabis and possess utensils. He was fined and sentenced to 4 days hard labour.

32. Since his conviction of this offence, the offender has stood trial in the Sydney District Court. On 5 October 2023, he was found guilty of 18 counts as follows:

1. Aggravated indecent assault, s 61M(1), Crimes Act (7 counts).

2. Aggravated sexual intercourse without consent, s 61J(1), Crimes Act (7 counts).

3. Assault occasioning actual bodily harm, s 59(1), Crimes Act (3 counts).

4. Common assault, s 61, Crimes Act (1 count).

33. With the exception of one count of aggravated indecent assault, all the sexual offending occurred prior to the offending involving the current victim.

34. Having regard to those convictions, I am satisfied that they disentitled the offender to the leniency on sentence that would otherwise be available to a person of good character.

35. The offender did not give evidence during the sentence proceedings.

36. The following material was tendered on his behalf:

Exhibit 1, Report of Dr Pillemer, Orthopaedic Surgeon 19 September 2023.

Exhibit 2, Judicial Commission Sentencing Statistics.

Exhibit 3, Defence written submissions.

37. The offender’s background is outlined in the report of Dr Gordon Elliott, Psychiatrist (Justice Health and Forensic Mental Health Unit). Dr Elliott assessed the offender on 13 June 2023 via AVL for 1 hour after the Court had requested a forensic psychiatric assessment.

Background

38. The offender reported that he was born and grew up initially around Penrith. He said he grew up in Housing Commission before his family moved to a farm in Muswellbrook when he was 7 years of age. He said that he has an elder half-sister with a different father and three younger sisters also with a different father. He said that he never met his biological father. He reported that he was raised by his mother and stepfather. He spoke positively of his childhood.

Education and employment

39. The offender reported that he completed Year 10. He said he also worked after school hours as a bus conductor and also on farms. After leaving school, he began working with the DMR. He said he has worked all his life with heavy equipment, including in mining operations and elsewhere.

40. The offender reported that up until his reception into custody, he was working as a full-time casual as a heavy plant operator, typically driving bulldozers but also other forms of heavy earthmoving equipment.

Relationships

41. The offender reported that he has been in a relationship with his wife since he was 16 years of age. He said that he has three children. He said his wife, children, grandchildren, mother and sisters are visiting him regularly and he has daily contact with family members.

Medical history

42. The offender reported that he fractured his foot after falling from a bulldozer in September 2021. He reported continued pain in his foot and shoulder. He said he suffers difficulties mobilising in custody. He reported that he has chronic bronchitis. He also recalled prior concussive injuries as a young man. He said he has inguinal hernias. He reported that he is not on any current medication.

Psychiatric history

43. The offender denied any history of psychiatric hospital admissions. He also denied any history of contact with community mental health teams.

44. He reported that he saw a General Practitioner following his original charge for this offence. He explained, “I was having a hard time processing it all.” He said he was prescribed a medication for anxiety, but he could not recall the name of the medication. He did not continue it beyond around two or three weeks.

45. Dr Elliott noted:

“WB did make remarks about his current mood. He told me he was getting by and said this in a positive tone”.

Substance use history

46. The offender described himself as a “moderate” drinker. He said he primarily drank on special occasions in recent years. He said as a younger man he drank more heavily in a binge pattern when going out on weekends.

47. The offender reported that he first smoked cannabis at the age of 17 and he smoked on a daily basis from the age of 18 to his early twenties, when he was arrested for cannabis possession. He said he then ceased cannabis use until his mid-to-late thirties before he started smoking it again and engaged in a pattern of smoking a small amount each night until his early forties.

Opinion

48. In Dr Elliott’s opinion, there was no evidence in the assessment that the offender suffers from a mental illness. Dr Elliott noted he does report a mild past cannabis use disorder in long term remission.

Treatment recommendations

49. Dr Elliott did not make any specific treatment recommendations. He stated:

“There was no indication on this assessment that WB requires formal psychiatric care.”

Report of Dr Pillemer (Orthopaedic Surgeon)

50. Dr Pillemer interviewed the offender at Parklea Correctional Centre on 19 September 2023.

51. Dr Pillemer outlined the background and treatment of the offender with respect to the offender’s ankle and shoulder injury. The injury had occurred when the offender was refuelling a dozer and slipped and fell landing heavily on the ground.

52. The offender underwent surgery on 21 September 2021 for factures to his ankle. He had a second surgery on 29 March 2022 when screws were removed but other internal fixation remained in position.

53. Prior to entering custody, the offender was attending physiotherapy 2-3 times a week. He was also taking Panadeine Forte and Panadol. Whilst in custody, he has not had any physiotherapy or medication.

54. The offender reported ongoing difficulties with his ankle when weight bearing, he often wakes at night and it is aggravated by some footwear. He described the condition of his ankle as unchanged over the past year.

55. The offender also reported daily ongoing discomfort in his right shoulder region. He reported he was attending physiotherapy prior to entering custody. It has deteriorated since entering custody.

56. Dr Pillemer considered the offender’s conditions would now be regarded as stable given it is 2 years since his injury. He predicted that the offender is going to have ongoing problems with his ankle and shoulder in the long term. He considered the offender would benefit from physiotherapy for his foot, ankle and right shoulder and pain medication.

Judicial Commission Statistics

57. I have had regard to the Judicial Commission statistics acknowledging they are of limited assistance.

Submissions by parties

58. The Crown relied upon written submissions and supplemented by oral submissions.

59. Ms Rowan of Counsel on behalf of the offender also relied upon written submissions supplemented by oral submissions.

60. I have taken those submissions into account in determining the appropriate sentence.

Prospect of rehabilitation

61. It was submitted on behalf of the offender that the Court would find the offender has good prospect of rehabilitation particularly because of his age, his disability and the time that has passed since the date of the offence (2007).

62. In circumstances where the offender continues to maintain his innocence in relation to the offending and has been recently convicted of serious sexual offences which occurred between 1999 – 2018, I am unable to find he has good prospects of rehabilitation. I am also unable to find he is unlikely to reoffend.

Special circumstances

63. It was submitted on behalf of the offender that the Court would find special circumstances and vary the statutory ratio between the non parole period and parole period in circumstances where the offender will suffer additional hardship in custody as a consequence of his physical incapacity.

64. I am satisfied his physical difficulties in combination with him serving his first custodial sentence warrants a finding of special circumstances. I propose to vary the statutory ratio pursuant to s 44(2), Crimes (Sentencing Procedure) Act.

Determination

65. In determining the appropriate sentence, I have had regard to the purposes of sentencing as set out in s 3A, Crimes (Sentencing Procedure) Act.

66. Pursuant to s 5(1), Crimes (Sentencing Procedure) Act having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate.

67. I have had regard to the objective gravity of the offence, the relevant maximum prescribed penalty, the standard non-parole period in accordance with s 54B(2) Crimes (Sentencing Procedure) Act and the offender’s subjective circumstances.

68. WB, in relation to one offence of sexual intercourse without consent, you are convicted.

69. You are sentenced to a non parole period of 5 years 3 months imprisonment to date from 7 March 2023 to expire on 6 June 2028 with a balance of term of 2 years 9 months to expire on 6 March 2031.

70. The total term of the sentence is 8 years imprisonment.

71. You will become eligible for parole on 6 June 2028.

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Decision last updated: 24 November 2023