R v Widdows

[2025] NSWDC 61

District Court

New South Wales

Medium Neutral Citation:

R v WIDDOWS [2025] NSWDC 61

Hearing dates:

27 February 2025

Date of orders:

20 March 2025

Decision date:

20 March 2025

Jurisdiction:

Criminal

Before:

Lerve DCJ

Decision:

Sentenced – see paragraphs [76]-[79]

Catchwords:

CRIME – sexual offences – sexual intercourse without consent – three counts – reckless as to consent

SENTENCING – plea of guilty at trial – finding of remorse – unlikely to reoffend – pro social supports in community – good chance of rehabilitation – delay – aggregate sentence

Legislation Cited:

Crimes (Sentencing Procedure) Act, 1999

Cases Cited:

Alenezi v R [2023] NSWCCA 283

Doe v R [2013] NSWCCA 248

Donald v R [2013] NSWCCA 238

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

Hearne v R [2001] NSWCCA 37

Locke v R [2010] NSWCCA 296,

Pender v R [2023] NSWCCA 291

R v Ibrahim [2021] NSWCCA 296

R v Jackson [2024] NSWCCA 156

Rv RE [2023] NSWCCA 183

R v Tuala [2015] NSWCCA 8

Shanmugam v R [2021] NSWCCA 125

Sullivan and Skillin v R [2008] NSWCCA 296

Category:

Sentence

Parties:

The King
Matthew Widdows

Representation:

Counsel:
Mr A Dixon for the Crown
Mr R Thomas for the Offender

Solicitors:
Office of the Director of Public Prosecutions
Fitzgerald Naylor Lawyers

File Number(s):

2023/103857

Publication restriction:

There is to be no publication of the name of the complainant nor anything that may tend to identify them.

REMARKS ON SENTENCE

1. The offender was committed for trial from the Wagga Wagga Local Court on 20 December 2023. On 2 February 2024 the offender appeared for arraignment at the District Court at Wagga Wagga and entered pleas of not guilty to one charge of Sexual Touching Without Consent and three charges of Sexual Intercourse Without Consent. The matter was listed for trial on 28 October 2024 but the court acceded to a request the matter be stood over to the following day. On 29 October 2024 the offender pleaded guilty to the three counts of Sexual Intercourse Without Consent, namely counts 2, 3 and 4 on the Indictment. Those pleas of guilty were accepted by the Crown in full satisfaction of the Indictment.

2. The offending involving three different types of sexual intercourse occurred in the one episode. Accordingly, counts 2, 3 and 4 are in identical terms, namely that the offender:

On or about 16 May 2021 at Tullibigeal in the State of New South Wales, did have sexual intercourse with MC without the consent of MC knowing that she was not consenting.

3. Mr Thomas, counsel for the offender, in his written submissions (MFI 2 on sentence) puts that the offender is entitled to a discount of 10% for the utilitarian value of the pleas of guilty. However, the Crown correctly submits (see MFI 1 on sentence) that given the timing of the plea and s 25D(2)(c) of the Crimes(Sentencing Procedure) Act 1999, the offender is entitled to a discount of 5% for the utilitarian value of the pleas of guilty. I observe however, that the pleas of guilty assist the Court (together with other material) to come to a finding on balance that the offender is remorseful.

4. The maximum penalty for each of the offences to which the offender has pleaded guilty is 14 years imprisonment. Parliament has specified a standard non-parole period of 7 years in respect of the offence.

Facts

5. The facts are before the court by way of a set of agreed facts, exhibit A on sentence. The offender was born on 3 June 1998 and accordingly was almost 23 years of age at the time of the offending. The victim was of a similar age. The victim was working as a teacher at Tullibigeal and living in a nearby town.

6. Saturday, 15 May 2021 was “ladies Day” for the victim’s netball team. She played netball and went to the home of TD, a friend, to shower and change after the game. AA, another friend of the victim, also got changed at that house and they both planned to stay at that home overnight. Later in the afternoon they went to watch the men's AFL game between Tullibigeal and Lake Cargelligo.

7. After that game the victim, TD and AA went to the Mayfield Hotel for an awards presentation and more drinks. They arrived at the hotel at about 4.30pm. The victim continued to drink during the evening and she is unsure of exactly how much alcohol she consumed that night. The offender was also at the hotel that night. The victim knew of him as he had previously been in a casual relationship with TD but she had never spoken to him and she did not speak to him at the pub.

8. The pub closed at about 12:30am, by which time the victim was very intoxicated with alcohol. Outside the hotel there was a mention of “kick ons” (reference to an “after party”) at a place called Kings Lane. AA drove TD’s car to this location, following the offender in his utility as he was aware of the route. A short time later the offender accompanied the victim and AA back into town to pick up TD, who was still at the pub.

9. On the way back out to Kings Lane the offender was sitting next to the victim in the back seat of the vehicle. He put his arm around the victim across her shoulders pulling her in a little bit in a hugging type motion. The victim shifted her body towards the window leaning away from him. He kept his arm around her shoulders for most of the trip. The victim did not talk to the offender during this time. The facts recite that the victim felt very drunk and was tired and was falling asleep. The facts also recite that the victim felt “out of it”, was not paying attention and was focusing on not vomiting.

10. The party at Kings Lane lasted for a couple of hours and concluded at about 3am. At one point during the party the victim was standing near the fire by herself. The offender came up and talked to her about mutual friends and at one point the offender grabbed hold of the victim to hold her up, essentially to prevent her from falling into the fire. He kept his arm around the victim who viewed this as a safety precaution. She did not ask him to move his arm or try to move it off her. The facts go on to recite that the victim did not feel unsafe with the offender at this time but wished to avoid being alone with him. The offender became distracted and the victim went back to her friend.

11. When the party ended, the offender went over to the victim, AA and TD and enquired as to whether they knew how to get back into town. He suggested they follow him and they agreed. The victim was in the front passenger seat as they followed the offender back into town and the victim was still highly intoxicated. TD pulled up at her house. The offender pulled up his utility next to her and said words to the effect of, “Are you going to invite me in?” Through his car window. The victim did not say anything and cannot recall if anybody else said anything. They all went inside the offender took with him cans of premixed alcoholic UDL drinks. The victim sat on the couch in the lounge room. TD and the offender sat at the kitchen bench talking. TD then went to get ready for bed and left the lounge room.

12. The offender then went and sat next to the victim on the couch and put his arm around her. The victim turned her body away from him. The offender said “Come on, drink up”. TD went to bed, leaving the offender and the victim alone on the couch in the lounge room. The offender kissed the victim on the lips. The facts recite at this point the victim felt okay with the interaction but did not feel overly “keen” about it.

13. The victim was feeling bad as the offender had previously been in a sexual relationship with TD. The victim did not want things to go any further but she did not stop the offender kissing her. After a short time she pulled away and said “I can’t do this”. The offender asked why and she told him that it was because of his history with TD. He said something of to the effect of, “It’s fine. She wouldn’t care. She’s been with heaps of my mates. Who cares?”

14. The offender again kissed the victim who said, “We can’t, we can’t”. The offender took hold of her and moved her so that she was straddling him, sitting on his thighs with their genitals close together. He began to grind his penis up against her vagina over the clothes. The victim felt the offender’s penis becoming erect when he did this. The offender continued to try to kiss the victim and held his arms around her. The victim was leaning back saying words to the effect of “We can’t do this. We can’t. This can’t happen.” The offender said “Nobody needs to know and I know you want this. Shh, Shh.” He kept his arms around her while saying this and continued to grind against her.

15. The victim attempted to get off the offender’s lap by putting her hands on the lounge behind him and pushing backwards. She tried to move her right leg backwards away from him. The offender took hold of both her thighs and held her on his lap. He then flipped her so that she was sitting on the couch in a slouched position and he was over the top of her. The victim said, “Stop”. The offender said, “I know you want this badly. Just admit it.”

16. While in this position the offender lifted the victim’s jumper and put his head underneath so that it was in front of her breasts. He undid her bra, pulled the cups down and began to suck hard on her breasts, alternating from one to the other. The victim was trying to pull her jumper down and push him away. At some point while in this position he placed one of his hands on the victim’s throat.

17. The facts then go to count 2 on the indictment. The offender pulled his head out from under her jumper and began to fumble with her pants trying to pull them down. The victim held onto her pants to try and keep them up. He undid the button on her jeans and pulled both her jeans and underwear down to her knees. The offender used one of his hands to touch her around her genital area and inserted two of his fingers into her vagina. While doing this he kept saying, “I know you want this. Tell me you do.”

18. The victim did not respond as at this point she had “given in”. The facts recite the victim stated that she knew the offender was not listening to her so she wanted it to happen fast and be over with.

19. Going then to count 3 on the indictment, the offender then used one of his hands to pull one of the victim’s shoulders so she was sitting forward in a more upright position with her bottom closer to the edge of the couch. He pulled his own pants down to mid thigh exposing his penis, which was erect. He grabbed the back of her head with both hands and pushed her head down towards his penis which was at a similar height. He put his penis into her mouth and moved her head backwards and forwards repeatedly.

20. The victim tried around two or three times to push him away by placing her hands on his thighs and pushing away but he continued to push her head back onto his penis. As a result of his actions in putting his penis into her mouth the victim thought she was going to vomit.

21. As to count 4 on the indictment the offender pushed her back to a slouching sitting position her bottom still near the edge and the top of her back against the back of the couch. He inserted his penis into her vagina and moved his penis backwards and forwards. The offender continued having penile-vaginal intercourse until he ejaculated in her vagina.

22. The victim immediately got up pulled up her pants and did up her bra. She said, “That shouldn’t have happened” and was shaking her head while saying this. Her puppy had knocked over the bin while the assault was happening, so the victim walked into the kitchen to clean up the mess. She kept saying “This shouldn’t have happened. This shouldn’t have happened.” The offender sat down on the couch and said things to the effect of “No one needs to know. Why would I tell anyone?”

23. The victim sat on the couch shaking her head and said aloud, “Oh my God. This shouldn’t have happened.” The offender said, “It’s okay nobody is going to know. She’s been with my mates. No one cares. It’s fine.” The victim leant back against the back of the couch and fell asleep.

24. The facts recite that the victim did not consent to any of the sexual activity. Further the facts recite that for the purpose of the sentence proceedings the Crown accepts that the offender’s state of mind with respect to the victim’s lack of consent is that he was reckless; that is, he did not consider whether or not the victim was consenting but nevertheless proceeded with the acts of sexual intercourse.

25. Under the heading “disclosure” in the agreed facts it appears the victim woke up just after 5am but the offender was gone. The victim felt disoriented confused and sick. She grabbed her belongings and went to her car which was parked outside. At 5:43am she called her mother and told her mother what had happened. TD called the victim a short time later and the victim also told her what had happened. The victim went home and slept for some few hours. AA and TD took her to the Griffith Hospital for a medical examination. The victim did not feel comfortable participating in a sexual assault investigation kit (SAIK) at this point in time and was told that she would have to travel to Wagga Wagga for that purpose.

26. After speaking to counsellors and a friend in the New South Wales police she made an informal statement to police on 19 May 2021. On that same day she underwent a SAIK.

27. The victim moved away from Tullibigeal in June 2021. She made a formal police statement on 19 May 2022 and a police investigation commenced thereafter. The offender was arrested and charged on 30 March 2023. As was his right the offender exercised his right to silence.

28. The offender’s semen was located on the couch where the offending occurred and in the victim’s endocervix.

Assessment

29. Bellew J (Hoeben CJ at CL, Johnson J agreeing) in Doe v R [2013] NSWCCA 248 said at [50]-[51]:

“To the extent that this Court has said that an act of digital penetration is less serious than an act of penile penetration, it has been consistently stressed that such a proposition is a general one, and that the entirety of the circumstances of particular offending must be taken into account. For example, in R v O [2005] NSWCCA 327 (which was a decision expressly referred to by the sentencing judge in the present case) Sully J (with whom Hidden and Hall JJ agreed) said (at [32]-[33]):

‘I would accept that as a general proposition an act of digital penetration, as such, is less serious than an act of penile penetration as such. I do not agree, however, that such a general proposition is more or less as of course a proposition of universal applicability in cases of digital penetration. One has only to read the victim impact statements of KW and of JS to see at once how damaging to a particular victim an act of digital penetration, let alone more than a single such act, can be to a very young child.

I would at once agree that the acts of digital penetration are not properly to be regarded as the worst types of sexual intercourse on a scale of statutory penalties that peaks at a sentence of imprisonment for 20 years. That said, however, I do not agree that the offences here relevant are to be treated as though they were more or less trifling offences. They were, in my opinion, nothing of the kind. They were, for the reasons earlier herein explained, in my opinion offences of significant objective criminality’.

[51] In R v Hibberd [2009] NSWCCA 20; (2009) 194 A Crim R 1 (to which McClellan CJ at CL referred to in King (supra)) Tobias JA (at [21]) expressed the view that this Court should give consideration to departing from the general proposition that digital sexual intercourse was to be regarded as generally less serious than penile sexual intercourse. James J (at [27]) reserved his position on the issue raised by Tobias JA. However, Price J said (at [56]):

‘Relevant considerations in determining where on the scale of seriousness an offence contrary to s 61I of the Crimes Act lies include "the degree of violence, the physical hurt inflicted, the form of forced intercourse and the circumstances of humiliation ... see R v Gebrail (Court of Criminal Appeal, 18 November 1994, unreported) per Mahoney JA at 10-11. To those matters I would add the duration of the offence. Non-consensual sexual intercourse by digital penetration has generally been considered to be less serious than an offence of penile penetration: see, for example, R v Santos Da Silva (Court of Criminal Appeal, 30 November 1995, unreported) per Grove J at 3, but each case will depend on its own facts. There is no canon of law which mandates a finding that digital penetration must be considered less serious than other non-consensual acts of sexual intercourse. Whilst the form of the forced sexual intercourse is an important factor it is not to be regarded as the sole consideration’".

30. The Crown submits that the evidence is insufficient for the Court to find positively on balance in favour of the offender that the offending was opportunistic. It is put by the Crown that the offender showed some sexual interest in the complainant before the offending. That is so. However, the facts also state, for e.g. at paragraph 14, “…but she also thought this was very flirty. She did not ask him to move his arm or try to move it off her”. At paragraph 22 the facts recite that the victim did not stop the offender kissing her. I do not want what I have just said to be taken as “victim blaming”. In this regard I also note that a little later the victim said, “We can’t do this”. However, those matters entitle the offender to a finding on balance that the offending was opportunistic.

31. The objective seriousness of each count will need to be assessed separately even though the three acts of intercourse were part of one ongoing episode. Although generally there is no hierarchy of types of sexual intercourse it is generally accepted that penile/vaginal intercourse, particularly as it did in the matter presently under consideration involve ejaculation in the victim’s vagina, is more serious than other types of intercourse.

32. There was some degree of persistence by the offender. The act of fellatio involved the offender holding the victim’s head and manipulating it so that his penis went into her mouth. Apart from that and the acts of intercourse themselves there was no additional force or violence. However, had there been actual physical violence the charge would have been more serious. The lack of an aggravating factor does not make a mitigating factor.

33. The act of penile vaginal intercourse (count 4) is just or marginally below mid-range. The act of fellatio (count 3) is slightly less serious than that and the digital penetration (count 2) is less serious than count 3.

Victim Impact Statement

34. At the sentence hearing the victim read a comprehensive victim impact statement. That statement, as such statements in matters such as this often do, spoke eloquently of the short and long-term harm occasioned to the victim. One can only hope that the offender was listening carefully as the victim read that statement to the court.

35. However, appropriately, the Crown does not rely on the victim impact statement as grounding a finding of any circumstance of aggravation. I note and have regard to the decision in R v Tuala [2015] NSWCCA 8. Be that as it may the effect of the crime on the victim is taken into account by virtue of s 3A(g) of the Crimes (Sentencing Procedure) Act, 1999.

Criminal History

36. The offender has been dealt with without convictions on separate occasions for the offences of Buy Prohibited Weapon and Drive Without Proper Control of a Vehicle. Those matters are of no practical significance and essentially the offender is entitled to be dealt with as a person of prior good character.

Subjective Case

37. No oral evidence was called from or on behalf of the offender. However, there was a considerable volume of written material tendered. Exhibit 1 on sentence is a comprehensive psychological report prepared by Ms Lisa Zipparo. It would seem that the offender had an unremarkable upbringing, as he reported normal development with no significant childhood illnesses. He reported a stable home life and good relationship with his parents. His mother speaks with him on the phone daily.

37. Further, the offender reported that he had an “on and off” relationship with his present partner before they moved in together. They have two boys aged three and 18 months. He is particularly close to his three-year-old as he did much of the early nurturing. He is concerned about increasing behavioural issues with his three-year-old.

38. The offender has always been gainfully employed since leaving school. He completed an apprenticeship, worked as a farm hand and subsequently obtained employment at Elders as a stock and station agent which he described as his “dream job”. He intends to return to that type of work upon his eventual release.

39. The offender gave an account to the author of the report of depression and anxiety increasing markedly after his arrest. He was prescribed antidepressants but is seeking a review of his medication.

40. Since being in custody after bail was revoked when the pleas of guilty were initially entered, the offender has been assaulted by another inmate and threatened by another inmate with a syringe. Not surprisingly the offender constantly feels fearful and his anxiety has reached “difficult to manage” levels.

41. The offender began to self medicate with alcohol after his arrest. The offender recognised that he had been self-medicating and acknowledged that he needed medical help to manage his mood, rather than relying on alcohol.

42. At page 4 of the report Ms Zipparo diagnosed post-traumatic stress disorder. It would seem that this is as a result of what has occurred in the custodial setting after the offender was taken into custody.

43. As part of the structured interview the offender described the significant symptoms of inattention, hyperactivity, and impulsivity, endorsing all but a few of the symptoms stipulated for a diagnosis of ADHD. Later in the report (page 7) the author of the report diagnoses attention–deficit/hyperactivity disorder (ADHD). A little later in the report (also page 7) the author says “… His main risk factors are his ADHD and alcohol use which were both likely factors in his reported misinterpretation of the circumstances leading to the assault. Mr Widows expressed significant dismay and remorse at his actions and expressed high motivation to engage in any recommended education/treatment programs.”

44. At the sentence hearing I suggested to Mr Thomas, counsel for the offender, that that opinion could be an opinion of a causal connection between the ADHD and the offending, therefore enlivening what was said by McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]-[178]. However, I understood counsel to submit that he was not relying on that part of the report in that fashion but rather he was putting that as part of the overall subjective mix.

45. Under the heading “Attitudes to current offences” the author of the report sets out:

“Mr Widows explained that he recalled the victim saying something to the effect of ‘we shouldn’t do this’ which he interpreted as her being worried about being disrespectful to a mutual friend with whom Mr Widows had a brief relationship. Mr Widows said he reassured of the victim that their friend would not mind and continued thinking that what was occurring was consensual. Mr Widows expressed horror at the pain he had unwittingly caused the victim and a family and the embarrassment he had caused his own family.”

47. Clearly the offender is entitled to a finding on balance that he is remorseful. The contents of Exhibit 10 on sentence, that is a letter from the offender, fortify this finding.

48. Ms Zipparo opined that the risk of sexual reoffending is “likely to be low” (page 8). A little earlier in the report (page 6) she said that there were two risk factors that require management, namely, the ADHD diagnosis is relevant in that the core features of this disorder include poor attention and increased impulsivity therefore making Mr Widdows vulnerable to poor decision-making and misinterpretation of interpersonal communications and cues; the other issue related to reliance on alcohol.

49. The author of the report recommends that the offender will benefit from participation in an education program about sexual behaviours and safe practices given his reported tendency to misread and misinterpret behaviours.

50. Given the offender’s age, his lack of record and the opinion of Ms Zipparo I am prepared to find on balance that the offender is unlikely to reoffend. For those reasons taken with the pro social supports he has with his partner and family, I am also prepared to find on balance that he has good prospects of rehabilitation.

51. The recommendations by the author of the report also go to justify a finding of special circumstances in that the offender will require additional supervision to ensure that he participates in the programs as recommended. On this issue other factors that go to justify a finding of special circumstances include the offender’s age, this will be his first time in custody, and the need for him to be supervised to ensure that he is properly reintegrated into the community.

52. Exhibits 2 to 9 inclusive on sentence are a collection of character references, namely:

Exhibit 2:   Bradley Lees

3:   Leanne Hampton

4:   Keith Fixter

5:   Christopher Frankel

6:   Linton Howarth

7:   Matthew Tinkler

8:   Murray Hendersno; and

9:   Robert Wiencke

53. Exhibit 11 is a copy of a Certificate of Completion of a course in Customer Service and Exhibit 12 is a letter from the Chaplaincy Service of Junee Correctional Centre.

54. I have now read each of the references, exhibits 2 to 9 inclusive, a number of times. As is to be expected of character references they each speak well of the offender and in particular his work ethic. A number of the referees maintain that the offences to which the offender has pleaded guilty are out of character. The offender was actively involved in the community and sporting groups. The offender has been a member of the West Wyalong Local Aboriginal Lands Council since 2018. It was put by counsel at the sentence hearing, and I accept that the offender identifies as Aboriginal. Overall, it speaks well of the offender, given that he can marshal an impressive number of references from a cross-section of the community. The contents of the references fortify me in the findings that the offender is unlikely to reoffend and that he has good prospects of rehabilitation.

55. I note also that the offender was 23 at the time of offending, and as such can properly be regarded as a young offender. I note and have regard to authorities such as Hearne v R [2001] NSWCCA 37 and Locke v R [2010] NSWCCA 296, in particular at [41]-[49] of the judgment of Hulme J.

Comparable Cases

56. Mr Thomas of counsel included in his written submissions a number of what are said to be comparable cases. The Crown Prosecutor provided a table of what he maintained were comparable cases. I have read each of the decisions to which counsel have referred me. I note that a good number of the cases referred to by Mr Thomas were Crown appeals asserting manifest inadequacy.

57. With respect to counsel for the offender, none of the cases to which he refers relate to offending as serious as the matter presently under consideration. In R v RE [2023] NSWCCA 183, an aggregate sentence of 2 years 8 months with a non parole period of 13 months was imposed, which was after trial. There were two complainants and the intercourse was insertion of an object (dildo) and the other digital penetration. The offender had significant health issues in particular cancer. On the issue of the cancer, I note in particular the judgment at [41]ff. The offender in that matter had a deprived background. The Court concluded that the sentence was not manifestly inadequate but that was in the context of the case as a whole, including the subjective features, including the cancer.

58. Taking another matter, i.e. R v Ibrahim [2021] NSWCCA 296 was another Crown appeal. A head sentence of 2 years with a non parole period of 9 months was imposed. The matter involved a single count. The offender was a 43 year old pharmacist who the victim consulted for the “morning after pill”. The act was digital penetration in the course of an alleged examination. Dhanji J at [113] found that the non-parole period was manifestly inadequate.

59. The remaining cases to which Mr Thomas refers clearly do not involve offending as serious as the matter presently under consideration.

60. I now go to the cases extracted by the Crown in MFI 4. R v Jackson [2024] NSWCCA 156 was a Crown appeal, which was successful. That was a verdict of guilty after trial. There was no suggestion that the offender was remorseful and nothing to suggest good prospects of rehabilitation. The facts in my view are slightly more serious than the matter presently under consideration. The decision of Pender v R [2023] NSWCCA 291 involved two counts of sexual intercourse. The matter involved verdicts of guilty after trial. The offender maintained his innocence and there was no finding of remorse. The offender was on conditional liberty at the time of the offending. The offender had served prison sentences.

61. The matter of Alenezi v R [2023] NSWCCA 283 involved an unsuccessful appeal against a sentence of 7 years 6 months with a non-parole period of 5 years after a plea of guilty and a 25% discount. The offending was found to be above mid range. There was no finding of remorse, unlikely to reoffend or good prospects of rehabilitation. The sentencing judge found that the victim was vulnerable. Dr Furst in a report for the offender noted (see [38] of the judgment of the CCA) “Mr Alenezi taking advantage of a vulnerable and heavily intoxicated young woman, previously unknown to him, under the initial guise of helping her”. The sentencing judge declined to find that the offending was opportunistic. I am of the opinion that the offending in that matter was also more serious than the matter under consideration.

62. Shanmugam v R [2021] NSWCCA 125 also involved an unsuccessful appeal by the offender. It involved verdicts of guilty after trial to charges of Sexual Touching (2 counts), Attempt Sexual Intercourse Without Consent, and Sexual Intercourse Without Consent (2 counts). A total sentence of 5 years with a non-parole period of 3 years was imposed. The sentencing judge found that the offending was towards the lower end of the range. The offender had a nil record and was found to be unlikely to reoffend.

63. The various decisions to which I have been referred have been helpful, but as I have commented a number of times the offending in each of them is quite different to the matter that I am presently considering.

Delay

64. Mr Thomas devotes a considerable portion of his written submissions to the issue of delay. The agreed facts indicate that the victim complained to her mother and a friend virtually immediately but waited 12 months to make a formal report to the authorities. I note however that once the matter was reported to police there was no delay in the matter progressing through the court system.

65. I had the advantage of having the written submissions of the parties in advance. At the sentence hearing I referred Mr Thomas (and in fact provided a copy) of the decision in Donald v R [2013] NSWCCA 238. I inferred from the written submissions that it was being put that the offender deserved some consideration for the delay by the Crown in providing material which ultimately led to the offender entering pleas of guilty. As best as I could determine from what was put at the sentence hearing, this material related to the complaint material.

66. In Donald Latham J reviewed a number of authorities, including interstate authorities on the issue of delay. Her Honour concluded at [49]:

“There is nothing in this Court's consideration of the issue of delay in Fahda, Khoury, Blanco, Barker & Gibson, TJ v R [2009] NSWCCA 99, Tourni v R [2010] NSWCCA 317 or Giourtalis v R [2013] NSWCCA 216 that departs from the summary set out above in Scook, with the exception of the last factor (a mitigated penalty as a mark of disapproval of tardy prosecutorial conduct) in Buss JA's judgment. I am not aware of any authority in this State that has endorsed such an approach to the sentencing of an offender, where the absence of a satisfactory explanation for the delay leads to the conclusion that the prosecution has been "dilatory or neglectful". Overwhelmingly, the focus is on the consequences of the delay to the offender, no matter what the explanation for it.”

67. I have a memory of Mr Thomas arguing that if the material had been received in a more timely fashion the offender may have entered a plea of guilty earlier and therefore received the 25% discount for the plea. Whether the more timely provision of the relevant material, which was never precisely identified at the sentence hearing, would have led to an earlier plea is a matter of conjecture. I note the decision of Sullivan and Skillin v R [2008] NSWCCA 296, particularly at [14]-[22]. The offender knew what he had done. Any consideration for delay would be extremely minimal.

General Remarks

68. Mr Thomas’ primary submission in his written submissions appeared to be that a Community Corrections Order for 3 years would be within the appropriate sentencing range. That seems to have been abandoned at the sentence hearing as the primary oral submission was that the sentence imposed ought be one that encourages the rehabilitation of the offender and should entail a non-parole period in the vicinity of 12 months. I indicated to Mr Thomas at the sentence hearing and maintain that if a sentence of that order was imposed it would be manifestly inadequate, noting there are 3 counts all of which carry a maximum penalty of 14 years with a standard non-parole period of 7 years.

69. Further, Mr Thomas argued that the statistics and the cases to which he refers in his written submissions indicate that such a disposition, i.e a non-parole period of 12 months, was within the appropriate sentencing range. With respect, I disagree with counsel.

70. Counsel for the offender also emphasised, appropriately, that the offender was a young offender with good prospects of rehabilitation. It was put that any partial accumulation would be modest and that totality is to be considered.

71. The offender is to be sentenced in respect of three counts of sexual intercourse without consent. Each of them involve different types of intercourse. Even though they are part of the one ongoing episode there must be some degree of partial accumulation to recognise the different offending.

72. The Crown in oral submissions put there would need to be some partial accumulation. The Crown submitted that the court would not find that the offending was opportunistic. The submission continued that the facts indicate that the offender had a sexual interest in the complainant before the offending. I have already made findings on this issue. The Crown also reminded the court of s 21A(5AA) on the issue of self-induced intoxication.

73. I must give proper regard and effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act, 1999. 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.

74. 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 maximum penalty, the standard non-parole periods prescribed for each offences and the offending I am firmly of the opinion that the threshold within s 5 of the Sentencing Act is crossed.

75. This is an appropriate matter for an aggregate sentence. The sentences that would have been imposed had separate sentences been imposed are:

Count 2 (digital penetration): Non parole period of 1 year 8 months with a balance of term of 14 months making a total sentence of 2 years 10 months indicating a starting point of 3 years.

Count 3 (fellatio):   Non parole period of 1 year 11 months (23 months) with a balance of term of 1 year 4 months (16 months) making a total sentence of 3 years 3 months indicating a starting point of 3 years 6 months.

Count 4 (penile/vaginal):   Non parole period of 2 years 3 months (27 months) with a balance of term of 1 year 6 months (18 months) making a total sentence of 3 years 9 months indicating a starting point of 4 years.

Orders

76. The offender is sentenced to an aggregate sentence of 4 years and 6 months with a non-parole period of 2 years 8 months. The non-parole period will commence on 29 October 2024 and will expire on 28 June 2027. The balance of term on parole of 1 year 10 months (22 months) will commence on 29 June 2027 and will expire on 28 April 2029.

77. The offender is eligible for release to parole at the expiration of the non-parole period and I recommend that release.

78. The sentence indicates a substantial finding of special circumstances the reasons for which were given earlier in these reasons but include the offenders age, this is his first time in custody and the need for assistance in reintegration into the community. The non-parole period is 60% of the total sentence.

79. I direct that a copy of the report of Ms Zipparo, exhibit 1 on sentence, be forwarded to the Department of Corrective Services.

**********

Decision last updated: 25 March 2025