R v Widdison

[2024] NSWDC 601

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v WIDDISON [2024] NSWDC 601

Hearing dates:

29 November 2024

Date of orders:

18 December 2024

Decision date:

18 December 2024

Jurisdiction:

Criminal

Before:

Lerve DCJ

Decision:

Sentenced – see paragraphs [63]-[67]

Catchwords:

CRIME – sentencing – sexual intercourse without consent subsequent recording offender agreed victim had said no –– trial verdict of guilty on one court - offence occurred in the victim’s home - Bugmy factors

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act, 1999

Cases Cited:

Bugmy v the Queen [2013] HCA 37

Cheung v The Queen [2001] HCA 67; 209 CLR 1; 76 ALJR 133; 185 ALR 111

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1

Lloyd v R [2022] NSWCCA 18

R v Hassenein Naderi [2022] NSWDC 534

R v McMahon [2021] NSWDC 437

R v Tuala [2015] NSWCCA 8

Stein v R [2023] NSWCCA 324

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

Category:

Sentence

Parties:

Rex
Corey WIDDISON

Representation:

Counsel:
Ms L Hanshaw for the Crown
Mr Swaine for the Offender

Solicitors:
Office of the Director of Public Prosecutions
Mr D Smith, Walsh and Blair Lawyers

File Number(s):

2023/00084697

Publication restriction:

There is to be no publication of the name of the complainant or anything that might tend to identify them.

JUDGMENT

1. The offender appeared for trial at the Wagga Wagga District Court on 10 September 2024 and pleaded not guilty to three counts on an indictment. The trial proceeded and on 16 September 2024 the jury returned verdicts of not guilty to counts 1 and 2 but guilty to count 3 on the indictment, namely, that he on 8 March 2023 at Ashmont in the State of New South Wales did have sexual intercourse with [JP] without the consent of [JP] knowing that she was not consenting.

2. The offence is contrary to s 61I of the Crimes Act 1900. The maximum penalty is 14 years imprisonment. Parliament has specified a standard non-parole period of 7 years in respect of the offence.

3. There can be no discount or consideration for a plea of guilty. That is not to say that the penalty is increased because the offender put the Crown to proof, rather there simply can be no discount or consideration for any plea of guilty.

Facts

4. The Crown has helpfully provided a draft set of facts. Mr Swaine of Counsel observes that not all the contents of that document is agreed between the parties. Gleeson CJ, Gaudron, Hayne & Callinan JJ in The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at 27 said:

“As to the standard of proof that should be applied, we would adopt what was said by the majority in R v Storey - that a sentencing judge

‘may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.’"

R v Storey is reported at [1998] 1 VR 359.

5. It is instructive to go to the decision of Cheung v The Queen [2001] HCA 67; 209 CLR 1; 76 ALJR 133; 185 ALR 111. At [14] in their joint judgment, Gleeson CJ, Gummow & Hayne JJ said:

“In Isaacs the Court of Criminal Appeal summarized certain well-established principles concerning the law and practice of sentencing in New South Wales as follows (omitting references to authority):

‘1. Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury ...

2. Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings. ...

3. The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury. ...

4. A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt.

5. There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender. ... However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender. ...’ "

6. The jury acquitted the offender of counts 1 and 2 on the indictment, which were allegations of Sexual Touching. It occurs to me that the verdicts of not guilty are easily explained by the fact that there was substantial corroboration of the complainant in respect of count 3 namely, the recording covertly made by the victim of a conversation between herself and the offender on 13 March 2023. In these circumstances it seems to me that it is appropriate that the facts for the purpose of sentence are those that are supported by that recording.

7. Prior to the sentence hearing, given that both parties had provided written submissions is a very timely fashion, I drafted a set of facts. I read that draft to the parties at the sentence hearing and neither party took any issue with what I had drafted. For the purpose of proceeding to sentence I am satisfied of the following beyond reasonable doubt.

8. The victim and the offender initially met each other about two weeks before 8 March 2023 (date of the offence) by chance at the school where their respective children both attended while waiting to collect their children one afternoon. On 7 March 2023 there was another meeting between the victim and the offender at the school, again as they were waiting to collect their respective children. They were parked adjacent to each other, but if anything turns on this, I am satisfied that this was by chance.

9. There was then a conversation between the victim and the offender as to what each other did, with the victim telling the offender that she was a single stay at home mum. The offender who had his own lawn mowing business asked the victim “Who mows your lawns?” to which she replied that she did. Eventually the offender offered to attend the victim’s home the next day to attend to the whipper-snipping. The offender said, “That’s a date”.

10. The following morning the victim took her children to school and arrived home about 9.30am and found the offender cleaning the gutters. He had already done the whipper snipping and told the victim that he had done that.

11. After some little time, the victim and offender sat at the back table and engaged in general conversation including talk of past relationships. During this conversation the victim told the offender that her ex-husband had had a vasectomy, and the offender told the victim that he too had had a vasectomy. The victim got up to attend to her infant son, who she heard whinging.

12. Later in the kitchen the offender washed his hands. After he dried them, he handed the victim an artificial rose in a small cylinder and said words to the effect of, “I told you this was a date”. The victim said, “You weren’t invited here for this intention”. I note that the victim said that to the offender during the recorded conversation on 13 March 2023.

13. Both the offender and the victim ended up in the victim’s room. There is a dispute as to whether the offender led the victim to her room. Mr Swaine for the offender makes a valid point when he puts that the suggestion that the offender led the victim to the room is “in contradistinction” to the jury’s verdict in respect of count 2. In these circumstances I find that both ended up in the room, but I am not prepared to find beyond reasonable doubt that the offender led the victim to the room nor am I prepared to find that the victim led the offender to the room.

14. Further, I am satisfied beyond reasonable doubt consistent with the verdict that at some point in the victim’s room the offender said to the victim words to the effect of, “What’s the difference between this and a one night stand”.

15. The offender attempted to kiss the victim, but she had her hand covering her mouth. She said “no” a number of times. I am satisfied beyond reasonable doubt that the victim said “no” to the offender multiple times. I note that in the recording of 13 March 2023 the victim can be heard asking the offender a question to the effect of, “How many times did I say no?”; the offender said, “heaps”. The victim noticed the offender’s stained teeth while he was kissing her. The Crown case is that the victim said “no” about twenty times. I am not able to find precisely how many times she said “no” but I am prepared to find on that recording, consistent with the jury’s verdict, that she said “no” multiple times.

16. The offender pulled down his pants and also pulled down the victim’s bike shorts and underpants in one go and removed them. The offender touched the victim’s vagina and said “You must like this because you are wet”. The offender inserted his penis into the victim’s vagina but she just lay there. The offender had sexual intercourse with the victim for 30 seconds to a minute after which he ejaculated inside of the victim and then removed his penis.

17. The victim grabbed her clothing and went to the toilet where she noticed semen coming from her vagina. The victim went to the kitchen where she saw the offender putting on his boots. He said words to the effect of, “I’ll see you next week” to which the victim said, “No you won’t”. He left the house. The victim felt in shock, embarrassed and dirty and left the house.

Assessment

18. Mr Swaine on behalf of the offender submits that the matter is somewhat below the mid-range of seriousness. The Crown maintains the matter is more serious than that. It is accepted that the factor of statutory aggravation of the offence occurring in the victim’s home is made out.

19. The sexual intercourse was penile/vaginal and the offender ejaculated inside the complainant. Even if there was no risk of pregnancy because of the vasectomy there is the issue of humiliation and degradation of the victim. The offending was essentially opportunistic. The offender had been invited to the home, but for purposes of assisting with the gardening. The sexual intercourse lasted 30 seconds to a minute.

20. During the recorded conversation on 13 March 2023 the offender acknowledges that the victim said “no” multiple times. I have found beyond reasonable doubt that the victim did in fact say no multiple times. In these circumstances I am satisfied beyond reasonable doubt that the offender had actual knowledge that the victim was not consenting. Further I am satisfied that the present case does not involve recklessness or non-reasonable belief that the victim was consenting. As the Crown puts in the written submissions the case for the offender at trial was that the victim was enthusiastically involved in having sexual intercourse with the offender. Clearly the jury rejected the offender’s version at trial.

21. Mr Swaine relies upon the decision of my colleague His Honour Judge King SC in R v McMahon [2021] NSWDC 437. The offender in that matter was convicted of one count of sexual intercourse without consent but acquitted of other counts. At [6] King SC DCJ said:

“…In respect of the count on which they convicted him, it would appear that they either accepted that if he had an honest belief that she was consenting it was not on reasonable grounds by that stage of the interaction between them, or alternatively, by that stage he was reckless as to whether she was consenting”.

22. This is in contrast with the matter presently under consideration where I am satisfied beyond reasonable doubt that the offender had actual knowledge that the victim was not consenting. Also in McMahon the victim and the offender in that matter had been drinking considerable quantities of alcohol together before any sexual activity.

23. In all of the circumstances including the nature of the intercourse, the ejaculation inside the victim, the fact it was in the victim’s home and the duration of the intercourse and in particular the offender had actual knowledge that the victim was not consenting the matter is only marginally below mid-range.

Criminal History

24. The offender ran a limited character case at trial in that he had never been charged or convicted of a sexual offence. In November 1999 he was convicted and fined in respect of a shoplifting charge. On 29 November 2023 he was convicted of a domestic violence assault and placed on a Community Corrections Order for 12 months and fined $350. I note the offending in that matter occurred on 19 August 2023, i.e. after the offending with which the present matter is concerned.

25. The offender was also convicted and fined in respect of a Common Assault in 2001 and again was convicted and fined for a Common Assault in 2004. In 2011 he was convicted and fined for Drive While Licence Suspended.

26. The offender was born on 30 August 1977 and accordingly was 45 at the time of offending and is 47 at the time of sentence. He receives some degree of leniency given his limited criminal history, although he is not a person of prior good character. Further, the offending post this matter impacts on the finding as to likelihood of re-offending and prospects of rehabilitation.

Victim Impact statement

27. Exhibit B on sentence is a victim impact statement. That victim impact statement, as those statements often do, speaks eloquently of the short and long term harm occasioned to the victim as a result of the offending.

28. In particular the victim sets out that she has difficulty with relationships and her outlook on life. The impact of the assault has impacted many aspects of her life. Each day in her own home she is reminded of the offending. Like many victims she continues to feel guilt. Again, like so many victims she feels ashamed, worthless and isolated.

29. I have no difficulty accepting all of what the victim says. However, I do not understand the Crown to submit that the victim impact statement grounds the finding of any factor of aggravation. Further, I note the effect of the decision of R v Tuala [2015] NSWCCA 8. The effect on the victim of the crime is taken into account by virtue of s 3A(g) of the Crimes (Sentencing Procedure) Act, 1999.

Subjective Case

30. There was no oral evidence called from or on behalf of the offender. However there is a bundle of subjective material, Exhibit 1 on sentence. Essentially the offender relies on the psychiatric report prepared by Dr Calvin.

31. At paragraph 2 of the report the author notes that the offender reported a history of significant psychological distress, particularly after facing this current matter. He experienced suicidal ideation and began an attempt to hang himself from which he withdrew.

32. The report goes on to set out that the offender disclosed childhood trauma including being sexually abused on multiple occasions and being exposed to severe domestic violence. According to the history given by the offender the offender’s father was a violent alcoholic who created a turbulent home environment characterised by frequent violence towards family members including the offender’s mother. There was a history of alcohol dependence on the offender’s paternal side.

33. At paragraph 10 of the report the author emphasises that the offender grew up as the youngest of three siblings, with his childhood being marked by significant instability and exposure to domestic violence primarily due to his father’s violence and alcoholism.

34. Further, at paragraph 12 the author sets out that the offender reported a history of sexual trauma with him being “molested” when he was nine years of age by his friend’s sister who was much older than him.

35. The Crown submitted in effect, at least as I understood the submission, that the court in the circumstances of this case would be circumspect about accepting at face value the untested assertions of the offender. The circumstances relied upon by the Crown successfully sought at the trial to rely on lies as consciousness of guilt and the objective evidence of the covert recording made by the victim on 13 March 2023. Mr Swaine, relied upon the decision of Lloyd v R [2022] NSWCCA 18 in which McCallum JA (as her Honour then was) said at [46]-[47]:

“ The current practice of the District Court is to require any report prepared by a mental health expert to be served in advance of the sentence hearing: District Court Criminal Practice Note 20, cl 15. The clear purpose of that practice is to afford the Crown an opportunity to consider whether to accept or challenge the contents of such reports. In cases where a report is not challenged, the correct approach is as stated by Allsop P (with whom Price J agreed at [101]) in Devaney v R [2012] NSWCCA 285 at [88] (cited by Hamill J in Luque v R [2017] NSWCCA 226 at [116] and Fullerton J in Pym v R [2014] NSWCCA 182 at [79] (Hoeben CJ at CL and Price J agreeing at [1] and [2]):

‘It is one thing to discount admissible statements made to a psychiatrist or psychologist if the offender is not prepared to give evidence to the same effect: Qutami at 377 [58]-[59] and 380 [79] and [83] and Palu at 184-185 [40] and 175 [1] and [2] (although care needs to be taken not effectively to exclude admissible evidence by a process going beyond an assessment of weight); it is quite another to lessen the effect of the opinion of a professional psychiatrist, without cross-examination, when that opinion is based on history. In most cases, a psychiatrist will form a diagnosis from what is said to her or him; that is the very nature of the professional expertise being deployed. Part of the professional skill of the psychiatrist is the assessment of the history - how it accords with hypothesised and formed views of the professional. To say that the applicant was manipulating the psychiatrists is to criticise the professional opinions of the psychiatrists and should be put to them. The sentencing judge should not have diminished the weight of the psychiatrists who came to the view that the applicant had some insight into his condition.’

[47] I would particularly endorse his Honour’s observation that care needs to be taken not to exclude admissible evidence “by a process going beyond an assessment of weight”. Where the report of a mental health professional is admitted without objection, qualification as to its use or cross-examination of the author, no principle of law requires the sentencing judge to exercise “very considerable caution” before relying on its contents absent evidence from the offender. It is by no means beyond debate that the court is the only forum in which a reliable medical history can be obtained. To sweep aside the considered opinions of medical experts with clinical experience in taking psychosocial histories and assessing their significance is, with respect, a lawyerly arrogance.”

36. In the matter presently under consideration Dr Calvin was not required for cross-examination. His CV is annexed to his report. He is clearly a very experienced practitioner in his field. While the report gives the appearance of Dr Calvin merely repeating what the offender said, there is nothing within the report by the doctor that would lead me in the absence of cross-examination to reject the report. The report reads like so many of the reports that I have read over the years. I am not prepared to reject what is contained in the report.

37. The history of the offender being exposed to domestic violence and his father’s alcoholism certainly entitles the offender to a finding that the principles enunciated by the High Court in Bugmy v the Queen [2013] HCA 37 are enlivened at least to some extent. This goes to reduce the moral culpability of the offender at least to some extent. As I observed in R v Hassenein Naderi [2022] NSWDC 534 at [100]-[101]:

“When a court in sentencing an offender takes into account what has become known as the “Bugmy factors” the court is not simply extending sympathy to the offender because of deprivation that was endured in their formative years. As the High Court explained at [43] of the decision in Bugmy v The Queen:

‘The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.’

[101] As I understand the principles, consideration is extended to an offender by reducing the moral culpability of an offender to whom the principles apply because the criminal law accepts that because of the deprivations and other experiences suffered or witnessed in formative years a person has a distorted or unrealistic and/or an incomplete or limited or very little if any, real understanding of what is morally wrong or unacceptable. Once it is established on the evidence that the “Bugmy factors” are enlivened it becomes a question of what weight attaches to those factors in reducing the moral culpability of the offender.

38. Although what have become known in shorthand terms as the “Bugmy factors” are enlivened in this case, and I accept absolutely that the offender’s moral culpability is reduced, those factors do not achieve the same weight as in other cases this court has seen, especially in far western New South Wales.

39. The report sets out (paragraph 11) that the offender attended school but struggled academically due to difficulties with concentration and learning. In this regard I note that in her letter to the court the offender’s sister, which is part of Exhibit 1 on sentence, says that the offender was assessed as being “intellectually mild” at school and was placed in “special classes”. I presume the expression “intellectually mild” means that the offender was assessed as having a mild intellectual disability.

40. I cannot find on this statement from the offender’s sister that the offender suffers from an intellectual disability. There is nothing in the report of Dr Calvin that would entitle me to make that finding. I am not suggesting that the offender’s sister’s account is inaccurate, merely that there is no objective professional or medical opinion to support the court making such a conclusion.

41. However, in this regard I note that Dr Calvin at paragraph 23 says;

“In addition, there is a history of poor intellectual development. He reports difficulties with concentration and poor academic performance, necessitating his placement in special classes. Despite his efforts to use school as an escape, he faced bullying and social rejection, ultimately leading to his withdrawal from formal education in Year 9”.

42. Dr Calvin is of the opinion that the offender has displayed reasonable insight into his challenges. The offender has actively engaged in constructive activities within the custodial setting including exercising, attending church, and improving his literacy skills. The offender has expressed an interest in obtaining work within the prison system.

43. While Dr Calvin opines (paragraph 22) there is no evidence of a formal psychiatric diagnosis, the offender’s history reveals significant predisposing vulnerabilities stemming from the offender’s childhood and family environment. The report then goes on to repeat what justifies a finding of what have become known in shorthand as the “Bugmy factors” being enlivened. It occurs to me that it would be double counting to give further credit or take these issues further into account.

44. Dr Calvin makes it clear (paragraph 27) that there is no evidence to suggest a direct causal relationship between the offender’s mental health challenges and the offending.

45. Further Dr Calvin opines (paragraph 26) the offender has demonstrated significant resilience and has developed positive coping mechanisms. However, under the heading “future risk”, there is a long paragraph (paragraph 28) at the end of which the doctor does not appear to come to a particular conclusion. A number of risk factors are set out. These include history of unresolved childhood trauma and the impact of growing up in a violent dysfunctional family environment. Dr Calvin goes on to say however that the offender’s demonstrated willingness to seek counselling, his abstinence from alcohol and to engage in constructive activities may reduce the risk of reoffending.

46. The author of the report recommends that the offender will require ongoing monitoring for his mental health challenges and vulnerabilities. He also maintained that a key element of the offender’s treatment should be long-term psychological therapy focusing on addressing emotional vulnerabilities.

47. Mr Swaine submits (paragraph 57 written submissions) that the while Dr Calvin found no evidence of a formal psychiatric diagnosis nor of any direct causal connection between the “mental health challenges” and the offending, the traumatic events which impacted on the offender’s emotional and cognitive development make him a less suitable medium for specific and general deterrence, retribution and denunciation.

48. With respect, the “traumatic events” to which counsel refers are already taken into account by means of what have become known as the “Bugmy principles”. To my mind, to give those issues further weight is again to engage in “double counting”.

49. Again, with respect to counsel, I do not read anything in the report of Dr Calvin which would justify principles set out by McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]-[178] being enlivened. If I am incorrect in that conclusion in the circumstances of this case noting the whole of the report those factors would achieve very little weight.

50. I will now go into a little more detail so far as the letter from the offender’s sister is concerned. She maintains that the offender always struggled with reading social cues. Whilst I have no doubt this is the case, and the matter presently under consideration as the Crown submits, it is a case of the accused actually knowing that the victim was not consenting to the sexual intercourse. The Crown case was, and I have found beyond reasonable doubt, that the victim said “no” multiple times and as much was accepted by the offender in his reply “heaps” when asked by the victim in the covert recording, “How many times did I say no”.

51. However, the offender’s sister confirms the issues referred to in the report of Dr Calvin of the dysfunctional upbringing of the offender that give rise to the “Bugmy factors” being enlivened. She also speaks well of the offender’s work ethic noting essentially that the offender has generally been fully employed. She also notes that the offender has come to accept the reality of being in custody and is making positive changes to his life.

52. As the Crown correctly submits there is no material before me on which I could make a finding on balance that the offender is remorseful. Mr Swaine submits that I would find both that the offender is unlikely to reoffend and that he has good prospects of rehabilitation.

53. Noting the domestic violence offence of which the offender was convicted which was committed after the matter presently under consideration and what appears to be the ambivalence of Dr Calvin to make any assessment as to the likelihood of the offender reoffending, I am not prepared to make a positive finding at this point in time that the offender is unlikely to reoffend. This is essentially a neutral finding. Much will depend on the manner in which the offender engages with the relevant authorities and agencies upon his release.

54. At the sentence hearing my attention was drawn to the decision of Stein v R [2023] NSWCCA 324. I note and have regard to the findings of Wilson J at [83]ff. In oral submissions in reply, Mr Swaine relied on paragraph 20 of Dr Calvin’s report on the issue of insight and prospects of rehabilitation. That paragraph immediately follows the heading, “Mr Widdison’s explanation of the Alleged Offences”. It reads:

“Mr Widdison stated that he has provided an explanation for his offences during the trial and had nothing to add. He expressed confusion about the events leading to his charges but is committed to accepting the consequences of his actions. He noted that dwelling on the matter could negatively impact his mental health and stated that he is relying on his legal practitioner for guidance”.

55. After a great deal of consideration, I remain of the opinion that the offender is not entitled to a finding that he is remorseful. Again, if I am incorrect in this conclusion the finding of remorse would attract very little weight. However, there is a clear indication that the offender has gained some insight into his offending.

56. However, noting the contents of the report of Dr Calvin and in particular the positive steps the offender has already taken in his few months in custody I am prepared with some minor hesitation to make a finding at this point in time that he has good prospects of rehabilitation.

57. Mr Swaine submits that given the economical manner in which the trial was conducted the offender is entitled to some consideration pursuant to s 22A of the Crimes (Sentencing Procedure) Act. The Crown opposes any such finding. The matters set out in Mr Swaine’s submissions (paragraph 32) are correct. A number of police were not required and expert witnesses were not required for cross-examination.

58. This issue achieved a great deal of significance at the sentence hearing, and indeed, I might observe more significance than it deserved. There is some substance to the Crown’s submission that given the defence case at trial, noting that it was conceded that sexual intercourse had occurred, it is difficult to see how the various witnesses not called could have taken the matter anywhere. Be that as it may there appeared to be genuine co-operation and I am prepared to extend some minor consideration to the offender pursuant to s 22A of the Sentencing Act. If necessary, I would give this minor consideration a numerical value of no more than 5%. As Mr Swaine submitted, the offender (then the accused) was entitled to put the Crown to proof. The witnesses not called included busy professional people i.e. forensic biologists and doctors.

General remarks

59. I will need to give proper effect to the provisions of sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely:

1. to ensure that the offender is adequately punished for the offence,

2. to prevent crime by deterring the offender and other persons from committing similar offences,

3. to protect the community from the offender,

4. to promote the rehabilitation of the offender,

5. to make the offender accountable for his or her actions,

6. to denounce the conduct of the offender, and

7. to recognise the harm done to the victim of the crime and the community.

60. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the offending, the maximum penalty and the standard non-parole period clearly there must be a sentence of imprisonment imposed in this matter. Mr Swaine counsel for the offender appropriately, did not submit otherwise.

61. The parties agreed that the appropriate commencement date for the sentence was 13 September 2024.

62. However, I am of the opinion that there should be a generous finding of special circumstances. These include, not in any particular order, the age of the offender, this is his first time in custody, the need for assistance with the issues outlined in the report by Dr Calvin and perhaps more importantly, assistance with reintegration into the community.

Orders

63. In respect of the offence that you on 8 March 2023 at Ashmont in the State of New South Wales did have sexual intercourse with [JP] without the consent of [JP] knowing that she was not consenting you are convicted.

64. Consequent upon that conviction you are sentenced to a non-parole period of 2 years 3 months commencing on 13 September 2024 and expiring on 12 December 2026. Thereafter there will be a balance of term on parole of 18 months commencing on 13 December 2026 and expiring on 12 June 2028.

65. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.

66. The sentence indicates a finding of special circumstances the reasons for which have been enunciated earlier in these reasons. The non-parole period is 60% of the total sentence.

67. I direct a copy of the report of Dr Calvin be forwarded to the Department of Corrective Services with the relevant warrant.

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Amendments

25 March 2025 - Minor punctuation error

Decision last updated: 25 March 2025