R v Williams

[2023] NSWDC 223

District Court

New South Wales

Medium Neutral Citation:

R v Williams [2023] NSWDC 223

Hearing dates:

7/11/22-29/11/22, 2/12/22, 3/3/23, 16/3/23

Date of orders:

16/3/23

Decision date:

16 March 2023

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to an aggregate term of imprisonment of 6 years 10 months with a NPP of 4 years 9 months (26/5/22-25/2/27).

I find special circumstances.

The indicative sentences are:

Count 1 (H73042156/5) – 3 years 3 months with NPP 2 years 3 months.

Count 1 (H76485044/1) – 5 years with NPP 3 years 5 months.

Count 2 (H76485044/0) – 4 years with NPP 2 years 9 months.

Count 5 (H73042156/2) – 2 years.

I order that a copy of the report of Dr Pusey (contained in Exh A on sentence) be sent to Corrective Services and Justice Health.

Catchwords:

Crime – Sentence – Sexual intercourse without consent – Attempted sexual intercourse without consent – Intentional sexual touching

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Simpson v R [2014] NSWCCA 23

Category:

Sentence

Parties:

NSW DPP – Crown
Matthew James Williams - Offender

Representation:

Mr J Tunks for Crown
Mr T Thorpe for Offender

File Number(s):

2019/359768, 2020/330389

Publication restriction:

Statutory non-publication of the identity of the victims

sentence

1. I note that there is a non-publication statutory provision which prohibits the broadcasting or publication of the names of any of the victims to whom I will be referring in these remarks on sentence.

2. Mr Matthew James Williams is for sentence. He stood trial in November 2022 on two consecutive jury trials for sexual offences relating to three different complainants. In his first trial which related to the victim, JM2, the offender was found guilty of the primary charge, that being count 1, an offence of sexual intercourse without consent. The maximum penalty for that offence is 14 years’ imprisonment, and a standard non-parole period of seven years is specified.

3. His second trial related to the victims, JM and LS. On the counts relating to JM, the offender was found guilty of count 1, being an offence of sexual intercourse without consent, and on count 2, being an offence of attempting to have sexual intercourse with that same complainant without consent. Each of those offences attract a potential maximum penalty of 14 years’ imprisonment, and a seven-year standard non-parole period.

4. In relation to the complainant LS, the offender was found guilty of intentionally touching LS sexually without her consent having been found not guilty of the primary charge of attempting to have sexual intercourse without consent. I note that the offence of intentional sexual touching was expressed in the alternative. That offence carries a maximum penalty of five years’ imprisonment, but there is no standard non-parole period specified.

5. The maximum penalties, and, where applicable, standard non-parole periods, are of course important guideposts in the sentencing exercise to which I have had regard.

FACTS

6. It is for me to determine the facts on which the offender is to be sentenced which must be consistent with the verdicts of the jury. Matters in aggravation must be proved beyond reasonable doubt while, as to matters in mitigation, I only need to be satisfied on the balance of probabilities.

7. The Crown in its written submissions provided a summarised version of the evidence taken from the trial, and there was no dispute during the sentence hearing that that summary was an accurate overview. Based on that summary and the transcripts from the trials, I find the following facts.

8. In relation to count 1 from the first trial which related to JM2, the facts are these. At the time of the offence in May to June 2018, the victim and the offender were acquaintances. The offence occurred at night in an underground garage which belonged to the victim’s neighbour and in which the victim had stored some of her belongings. Due to an argument with her partner, the victim had gone to the garage to sleep, taking with her a doona and pillow. In the garage, the victim made up a bed on top of a dining table.

9. Prior to the offence, the offender had entered the garage and spoken with the victim who told him she wanted to sleep. The offender asked for a cigarette and then the victim went back to sleep. Sometime later, however, the victim awoke to find the offender laying behind her in a “spooning” position with his hand down the front of her pants.

10. The victim became aware of the offender’s hand moving between the lips of her vagina near her clitoris. Penetration of the victim’s vagina took place over a number of seconds before the victim removed the offender’s hand and left the garage and went upstairs to her home unit.

11. Turning to the facts relating to count 1 of the second indictment, which relates to JM. JM was an acquaintance of the offender, who used to drop in occasionally to say hello to her. The offence occurred in the second half of 2015 when the victim was alone in her home, packing her children’s belongings in a rear bedroom and the offender arrived unannounced.

12. The offender offered the victim methamphetamine which she refused. Whilst the victim was crouched over packing boxes in a bedroom, the offender commenced to touch the small of her back and her hips from behind using both his hands. However, the victim rebuffed the offender’s advances saying, “Fuck off. Don’t touch me.” She also shrugged her shoulders to demonstrate that she wanted the offender to desist. She said in evidence, “I was shrugging him, like off, telling just, like, letting him know not to touch me but I was bent down.”

13. This occurred while the victim was in a confined area surrounded by packing boxes with the offender behind her whilst she was bending down attending to the boxes. The offender then grabbed the victim by the back of her neck and forced her downwards towards the floor, resulting in her arms and elbows being either on the floor or one of the boxes.

14. The offender then pulled the victim’s shorts to one side and placed his penis into her vagina telling her that she would enjoy it. He then had sexual intercourse with the victim for a period of less than two minutes until he ejaculated into her vagina.

15. The victim described the offender as having used great strength to restrain her by the neck. To quote her, she said, “The force was, like, unbelievably controlled, like it was a strength that I’ve never encountered, ever.” During the assault, due to an existing medical problem, the victim suffered pain to her hips and struggled to move after the incident.

16. Count 2 of the second indictment also relates to JM, and this offence occurred in around January to March 2019. On the day of the offence, the victim came to the block of apartments where the offender was residing with the intention of visiting a friend who lived on the top floor of the same building.

17. The offender called out to the victim as she was passing by and said he wanted to show the victim what the apartment looked like now that he had rearranged the furniture. After the victim entered the apartment, the offender invited her into a bedroom, but she declined and said she needed to go.

18. The offender then took hold of her shoulders and pushed her onto a couch. The offender then restrained the victim with her back to the couch, using one of his knees. The offender’s knee was in contact with the victim’s hip. At this stage the victim was crying. In evidence, she said,

“I was begging him please just let me - I just want to go…Please don’t touch me…Please don’t do this, Matthew…Don’t, I need to go.”

19. The victim also told the offender her partner would be angry if the offender persisted, in response to which the offender threatened to bash her partner and continued to restrain her with his knee, and then by an arm to her chest while he lowered her pants with his leg or foot.

20. The victim, who was immobilised and unable to get up, placed her hand between her legs. The offender then, in an attempt to have penile/vaginal intercourse, pushed his penis in and out of the victim’s hand until he ejaculated.

21. That brings me to the facts of count 5 of the second indictment which relates to LS. The offender met LS initially through social media and they met in person once prior to the offence when the offender offered the victim methylamphetamine and cannabis, which she accepted at that time. On this occasion, the offender engaged in flirtatious banter with the victim and offered her a sensual massage, which she declined.

22. About a month later, on 13 November 2019, the offender arrived unannounced at the victim’s home. The offender offered her methylamphetamine, which she declined, however they did smoke some cannabis together whilst sitting on her lounge.

23. The offender then leaned towards the victim, placing his body over hers and kissing her on the neck. The victim told him “no,” and attempted to move away. The victim told the offender that she was expecting the police to arrive at her apartment soon, which related to an unrelated apprehended domestic violence matter. She also told him that she was expecting a friend to drop by.

24. The victim felt the offender’s penis on her right leg and felt his pelvis sort of trying to go onto her pelvis. At one point, the offender’s erect penis came into contact with her vagina, which the victim referred to as the offender trying to “dry hump” her. The victim, however, was eventually able to stand up, and around that time police knocked at her front door. Those are the relevant facts of the various offences.

OBJECTIVE SERIOUSNESS

25. In relation to the objective seriousness of the offences, I note firstly that the maximum penalties, and where applicable, standard non-parole periods, are of course indicators that each of these offences must be regarded as serious. However, it is important that I have regard to the nature of the particular offences that are before the Court.

26. Each of the sexual intercourse without consent offences involve penetration of the genitalia of the victims. While the type of penetration, whether it be penile or digital or some other type, is relevant, there is no hierarchy of different forms of penetration, this being just one factor to be taken into account in assessing the objective seriousness of a particular offence.

27. Other matters, including the duration of the offence, any humiliating features, any violence or injury or threats, as well as other matters also will be relevant: Simpson v R [2014] NSWCCA 23.

28. Similar things can be said in relation to the objective seriousness of an offence of sexual touching. While the part of the body touched and the part of the body doing the touching are obviously relevant, these are just some of the matters that need to be taken into account when assessing an offence and its relative seriousness. I turn then to the objective seriousness of each of the four offences before the Court.

29. Firstly, the count involving JM2. This offence involved digital penetration of the victim’s vagina which commenced while she was asleep and alone in a garage, rendering her rather vulnerable. This, and the fact that the victim had earlier indicated to the offender that she wished to go to sleep, satisfy me beyond reasonable doubt that the offender well knew that there was no consent to his actions.

30. The offence was relatively brief in duration, although that was not due to any change of heart by the offender but rather due to the assertiveness of the victim. The offence did not involve any threats or violence beyond that inherent in the offence itself. I regard it as an offence falling slightly below the mid-range.

31. While not relevant to the objective seriousness of this offence, the offender’s criminality is increased to some extent by reason that this offence was committed while he was subject to conditional liberty due to a s 9 bond that had been imposed in the Local Court on 18 January 2018.

32. In relation to the objective seriousness of count 1 relating to the victim JM, I note that this offence involved the offender having penile/vaginal intercourse with the victim while she was bent over some boxes, and in circumstances where she had clearly rebuffed his advances. I am satisfied beyond reasonable doubt that the offender had actual knowledge that there was no consent.

33. The offence involved the offender ejaculating into the victim’s vagina with no condom and the obvious degradation and risk of disease and/or pregnancy that this involved. Also, it was a situation where the offender took advantage of the fact that the victim was in a vulnerable position, bent over in a confined space.

34. The offender’s conduct also caused the victim considerable pain by reason of a pre-existing problem with her hip, and she had great trouble getting herself to a lounge to sit down afterwards. Furthermore, when she got there, she pleaded with the offender to leave her phone within reach so that she could summon help, but he responded by leaving it where she could not reach it.

35. Finally, the offence occurred in the victim’s own home where she should have been safe. I regard this offence as being in the mid-range of objective seriousness.

36. The second count relating to this same victim, JM involved an offence of attempted sexual intercourse with the offender forcefully pushing the victim onto a lounge where he physically restrained her before pulling down her pants.

37. The offence fell only marginally short of actual penile/vaginal penetration, which was avoided by the victim placing her hand between her legs, after which the offender pushed his penis in and out of the victim’s hand until he ejaculated. The offence was over a relatively brief period, although it would have not have felt that way to the victim who kept telling the offender “no,” and “stop.”

38. In these circumstances there is no reasonable doubt that the offender knew that the victim was not consenting, as I am satisfied that the victim continued to say to him to stop, and made reference to her boyfriend being angry with her if he had found out. In my view, it is an offence slightly below the mid-range of objective seriousness.

39. Moving to the last offence, being count 5 on the second indictment which relates to LS. This sexual touching offence involved the offender forcing himself onto the victim and basically pinning her to the lounge with his body weight while she tried to get out from under him. During all of this she continued to protest and even made reference to the expected arrival of police.

40. I have no doubt therefore that the offender knew that his actions were unwanted and not consented to. Although the offender did not succeed in removing any of the victim’s clothing, the victim could feel his erect penis being pressed against her upper leg and under her shorts and at one point his pelvis being in contact with hers, such that his penis came into contact with her vagina momentarily.

41. The offence did not involve ejaculation, although that is probably only because the offender’s actions were interrupted by the victim’s struggling and the arrival of police. The offence was also committed in the home of the victim. Having regard to these various matters, I regard it as a mid-range offence.

VICTIM IMPACT STATEMENT

42. Victim impact statements were provided to the Court on behalf of JM and LS. The Crown did not rely on them as aggravating any of the relevant offences and I do not treat them that way. Nonetheless, and as the Courts have said many times, it is to be expected that emotional and psychological harm will be a common, if not usual, result of sexual offences.

43. In many cases, victims are left with ongoing fears for their safety, difficulties with intimate relationships, anxiety and flashbacks. The victim impact statements of JM and LS speak convincingly of these same sorts of consequences for them.

SUBJECTIVE MATTERS

44. I have had regard also to subjective matters relating to the offender, Mr Williams himself. He is now 33 years of age. He has a fairly lengthy criminal history commencing when he was in his mid-20s, which involve a number of violent offences although no previous sexual offences. His history, however, does not assist any claims to leniency.

45. I have been informed of his background and current circumstances by some written material, including a report from psychologist Dr Paul Pusey. The offender was born in Australia and is of Aboriginal heritage from his mother’s side, although his mother is now deceased. His father apparently is currently in custody and has not been significant in the offender’s life. The offender has some half siblings but reported little contact with them apart from with an older half-brother.

46. He told the psychologist that the most significant events in his growing up were two major operations that he experienced as a child and reported some exposure to “conflict influenced by excessive alcohol consumption,” but that this was not frequent, usually being limited to Melbourne Cup Day. He denied that he had been in general exposed to significantly antisocial attitudes, behaviours or associates.

47. He completed year 8 at school but was expelled due to “days off,” although he later received a certificate of year 10 equivalence through a PCYC course. He has a history of some work, including in carpentry, labouring and as a removalist, although in recent years he has also been involved as a carer for his father.

48. He told the psychologist that he has positive social relationships and denied that his behaviour was adversely influenced by others, describing himself as a “solitary decision maker.” He reported being currently in a relationship with a female partner since 2018. He also told the psychologist that he had not been affected by drugs or alcohol at the time of the offences. The offender continues to deny the offences, and so there is no remorse.

REHABILITATION AND RISK OF REOFFENDING

49. In relation to prospects of rehabilitation and future risk, I make the following observations and findings. Testing by the psychologist indicates that the offender is of average risk of both sexual and general re-offending. The psychologist noted that the offender has a tendency to minimise responsibility for his actions and tended to externalise blame.

50. In the opinion of the psychologist, the offender continues to exhibit a number of risk factors, and meets the diagnosis for antisocial personality disorder. The psychologist says that the risk factor of antisocial personality pattern reflects the seeming impulsive nature of the offender’s actions and his inability to reflect on the consequences of his actions before engaging in them, his focus being largely on his own pleasure seeking and seeming callous indifference to his victims.

51. On the positive side I have been provided with some certificates of attainment relating to courses or programs that the offender has completed while in custody. This material goes some way to indicate that the offender has some motivation to change, which I have taken into account in his favour.

52. However, and even taking this material into account, the contents of the psychological report, the offender’s criminal history, the fact that the offences before the Court were committed over a period of nearly four years, and the fact that the offender was subject to a good behaviour bond at the time of the offence involving JM2, lead me to the view that he remains a real risk of re-offending. In my view, his prospects of rehabilitation cannot be described as positive.

53. In determining the appropriate sentence and its length, including the length of any non-parole period, I have had regard to the fact that the offender has already spent a considerable period in custody bail refused and that this has been partly during some of the worst consequences of the COVID pandemic.

THE PANDEMIC

54. I am well aware that the pandemic has had significant impacts upon inmates in custody with respect particularly to limitations upon access to programs, services and medical and psychological treatment, as well as other aspects, and has also included extended periods of lockdowns. The fact that the offender has been affected by these matters is confirmed in the psychological report which makes reference to his having been locked down at times in part due to, on one occasion, close contact with a COVID case.

54. In determining the sentence, I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999, those being the need to ensure that the offender is adequately punished, to prevent crime by deterring him and others, to protect the community, to make the offender accountable and denounce his conduct, while also recognising the harm done to the victims and the community, but also, of course, to promote rehabilitation of the offender.

55. I am satisfied that the threshold of s 5 in that same Act is crossed, in other words that no penalty other than terms of imprisonment are appropriate. Given that I am required to sentence for four different offences, I intend to impose an aggregate sentence and I therefore must set out the indicative sentences that would otherwise have been imposed. These are not the ultimate sentence that I will impose, that will be made clear in a couple of minutes.

56. The indicative sentences are as follows.

57. For the count 1 offence involving JM2, a head sentence of three years, three months, with a non-parole period of two years, three months.

58. For the count 1 offence involving JM, head sentence of five years, with a non-parole period of three years, five months.

59. The count 2 offence involving JM, head sentence of four years, with a non-parole period of two years, nine months.

60. For the count 5, LS offence of sexual touching, a head sentence of two years.

TOTALITY   

62. Given that I am imposing sentence for multiple offences, I have had regard to totality principles and the need to avoid imposing a crushing sentence. On the other hand, the ultimate sentence and non-parole period must reflect the minimum period of imprisonment that the offender’s criminality warrants. The sentence also needs to acknowledge the fact that it extended over a period of some years and must vindicate the dignity of, and harm done, to three separate victims. In my view, there does need to be some degree of notional accumulation so as to reflect these important considerations.

SPECIAL CIRCUMSTANCES

63. I intend to make a limited adjustment to the statutory ratio of non-parole period to head sentence by reason of a finding of special circumstances. I base that finding on the need for the offender to be monitored for a considerable period in the community, given his risk factors and psychological treatment needs.

64. I impose an aggregate head sentence of 6 years, 10 months’ imprisonment. I impose a non-parole period of 4 years, 9 months. I have given consideration to when that sentence should commence. It was agreed between the parties that before the jury’s verdicts, the offender had spent 240 days in custody bail refused in relation to the offences now before the Court. Also, it was agreed that since the jury verdicts on 29 November 2022, the offender had spent up until 3 March 2023, another 95 days in custody, which as at today’s date amounts to 108 days. However, for part of that period, until 18 February 2023, the offender was also serving the non-parole component of a sentence imposed in the Local Court on 18 January 2023, for assault occasioning actual bodily harm and intentional choking.

65. In these circumstances, it would be inappropriate in my view to include the entirety of the 108 days since the jury verdicts into any backdated sentence. Having regard to totality principles, I intend however to take into account 54 days, being 50% of the 108 days bail refused, since the verdicts on 29 November 2022.

66. Taking those 54 days together with the 240 days pre-verdicts, I intend to backdate the sentence by 294 days. I therefore direct that the sentences commence on 26 May 2022. If I have not said it already, of course, the offender is convicted of the various offences.

67. The head sentence will expire on 25 March 2029. The non-parole period will expire on 26 February 2027.

68. I order that a copy of the report of psychologist, Dr Paul Pusey dated 15 February 2023, be sent to the Department of Corrective Services and also to Justice Health.

69. Mr Crown, Ms McCristal, anything to raise about any of those orders?

70. MCCRISTAL: No, your Honour.

71. WOTTON: Nothing to raise, your Honour.

72. HIS HONOUR: Mr Williams, you heard all of that, did you?

73. OFFENDER: I did.

74. HIS HONOUR: So, you will be eligible for consideration of release to parole on 26 February 2027.

75. OFFENDER: Yes.

76. HIS HONOUR: Thank you. Court will adjourn.

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Decision last updated: 26 June 2023