Regina v Kondasinghe Aron Sudath

[2007] NSWDC 213

CITATION:	Regina v Kondasinghe Aron Sudath [2007] NSWDC 213 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	22-23 & 30 March 2007; 29 May 2007; 20 July 2007
JUDGMENT DATE:	21 September 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ;
DECISION:	Count 1 – Convicted. ; Sentenced N.P.P. 3 years to commence 14 March 2008 expire 13 March 2011.; Balance of term 2 years to expire 13 March 2013; Count 2 - Convicted.; Sentenced N.P.P. 6 months to date from 14 September 2007 expire 13 March 2008.; Balance of term 9 months expire 19 December 2008; MFI 23 – surrendered passport on 30/3/07 @ Parramatta is to be returned to accused.
CATCHWORDS:	Criminal Law - Sentence after trial - secual intercourse without consent - anal - assault - domestic violence - standard non parole period - assessing mid range of seriousness for sexual intercourse offences - distinguished medical career - strong support in Sri Lankan community - absence of contrition.
LEGISLATION CITED:	s 54A (2) Crime (Sentencing Procedure) Act 1989
CASES CITED:	R v Gladue [1999] 1 SCR 688 at [80] De Simoni v The Queen ((1972) 126 CLR 576 R v Gebraiel (Unreported) NSW CCA 18 November 1994 R v Hartikainen, unreported, NSWCCA 8 June 1993 R v Pay [1999] NSW CCA 40 R v O’Grady, unreported, NSWCCA 13 May 1997 R v AGP [2004] NSW CCA 434 at [13] R v Hamid [2006] NSWCCA 302
PARTIES:	Regina Kondasinghe Aron Sudath
FILE NUMBER(S):	06/21/0266
COUNSEL:	C Patrick, Crown Prosecutor
SOLICITORS:	CROWN: MR LOW F/W: MS A BANNISTER

SENTENCE

1 HIS HONOUR: Kondasinghe Aron Sudath practised as a doctor. His public persona was that of a man of deep religious convictions, having an excellent academic record, who liked to dedicate his time, resources and professional services to underprivileged people in need; gentle, caring and pursuing with skill and compassion his medical career. He presented publicly as the devoted husband to Lakjawani Advenagi and father to their child. Once, however, the door to the family home was closed, the private persona could be very different.

2 In mid-April 2005, Miss Advenagi had reached a point where she could no longer tolerate the abuse and violence she experienced from him. She was concerned their fifteen-month-old son was being affected by it. She told him she wished to separate. She had not yet done so. It was in these circumstances on 29 and 30 April 2005 the two offences - one of anal penetration of Miss Advenagi without her consent and the other of an assault upon her - occurred.

3 Kondasinghe Sudath maintains he is not guilty of either offence. A jury has found otherwise. Today he must be held accountable for the criminal conduct the jury found him guilty of.

4 As sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentences for these offences before this Court committed by this offender harming this victim in this community - R v Gladue (1999) 1SCR 688 [80]. My initial task requires an assessment of the objective criminality of the offences before the Court. I will also need to have regard to matters personal to the offender - subjective matters.

5 The starting point for such assessments requires a sentencing judge to make findings of fact from the evidence before the Court relating to the offence and to the offender. The offender’s rehabilitation prospects will have to be assessed, even if looking through a glass, darkly. Before any sentence can be made there are likely to be technical questions relating to deterrence, whether special circumstances are to be found, totality, whether the offence attracts a standard non-parole period and, if so, the length of the parole period, and finally, of course, the ultimate length of the term of imprisonment or other penalty to be imposed. None of these can be commenced until the primary facts are determined. What weight needs to be given to all of these matters against the imperative, that all sentencing should have as its primary focus the protection of the community, will also need to be determined.

Facts

6 On the morning of 29 April 2005, Dr Sudath had finished his last shift at the Bega Hospital. Together with his wife and son, he returned through the day to his home in Baulkham Hills. On the trip home there had been domestic tension in the car, accompanied by physical assaults upon the complainant. One of the areas of tension contributing to the violence was the question of whether the complainant had her passport or knew where it was. That issue was raised in the car. The family arrived at Baulkham Hills by 6pm or so.

7 About 9pm the complainant went to the bedroom, intending to breastfeed her son. She was lying on her bed, her son at her breast. The offender lay beside her and began making advances consistent with indicating a desire to have sex. The complainant said “No. I am breastfeeding my son. Leave me alone.” She was wearing a nightdress; he a sarong. The child began to cry. The complainant moved from the lying position. He asked, “Where’s the fucking Sorbolene?”. She left the room to look for it, thinking he may use it, as he had apparently had done so in the past, for self-pleasuring. She returned to the room and was told “Look under the bed in our room.” The son on the bed was still crying.

8 The complainant crawled on the bed towards the pillows where the boy was lying. She intended to lift the baby and take him from the room. As she made her way across the bed to the child she was pushed forward so that her backside was raised but her head and shoulders lowered towards the bedclothing. Her ankle or lower leg was grabbed. The offender lifted her nightgown and put Sorbolene in the region of her anus. She screamed “Don’t do it, don’t do it.” He inserted his erect penis into her anus. It was painful for her. She was being held and was fearful of falling towards her son. He pumped his penis into and out of her anus. She called upon him to stop. She screamed in pain. Her son had not stopped crying and was crying still, no doubt in response to his mother’s cries of distress. Her whole anal area felt ripped apart. He finished. She thinks he ejaculated. I cannot be satisfied of that beyond reasonable doubt. He left the bedroom. She remained behind and breastfed her son, hoping this would soothe him. The child fell asleep.

9 She made her way to the shower and showered for half an hour. She washed away what she thought was semen weeping from her anus. When she touched her anus she also noticed blood. While I am satisfied there was a discharge that could have been semen, equally open is the possibility it was a Sorbolene discharge.

10 The complainant sustained injury as a consequence of the incident. On her thighs there were a number of small bruises. On the angiogenital area there were more than a dozen linear abrasions, some two or more reaching into the anal canal. Those injuries were occasioned by the application of force to the area in the course of this sexual assault. The ones reaching into the anal canal were caused by forceful penetration of the anus. She experienced pain when she sat upon the toilet the following morning.

11 The complainant has no family in Sydney. There may have been some prospects that when she separated from the accused she would return to her home country - Sri Lanka. No decision to do so had been made.

12 The following morning the offender encountered the complainant on the upper landing of their two-storey dwelling. She was carrying the child. He asked her for her passport, claiming to need it for purposes of opening a bank account. She replied she did not have it. Immediately he replied, “Where’s the fucking passport?”, again to be told she did not have it. He responded, “You’re a fucking liar. Your parents are fucking liars.” He became angry. She told him she did not want to open a bank account in her name, if he wanted to open an account he could do so himself because she would not be part of that stuff any more.

13 By now he was screaming. She turned to go down the stairs. The offender grabbed her hair, banged her head up against a door frame of the upstairs study up to three times, all the time demanding her passport. She lost her footing but was able to put her son on the floor. She tried to regain her footing. The offender said, “Here is the fucking child.” and handed the child back to her. For a second time he grabbed her hair, pulling it as both made their way down the stairs. At the foot of the stairs she fell backwards, striking her bottom on one of the steps. She retained her son, clasping him in both arms.

14 Pulling on her hair the offender pulled her forward onto her feet, then pushed her towards a couch in the loungeroom. She sat holding the child. She was distressed and crying. Aron Sudath kept continuously striking her head with his fists numerous times. She was screaming. She estimates that this conduct continued for some five or more minutes.

15 She was pushed to another couch. In anger he struck her yet again in the head. She sought to defend herself by raising her hands. She called out for him to stop. At some point she stood up, only to be pushed back to the first couch and assaulted yet again. She began to scream for help, “Please hear me, please hear me.” The offender grabbed a cushion and put it on her face. The complainant struggled for breath. She stopped screaming. He released the pillow. She commenced screaming again. He replaced the cushion on her face. She lost air and stopped screaming. The cushion was removed. She screamed a third time. Three times the pillow was replaced before her will was overcome and she stopped screaming.

16 She was then told by the offender, “Feed the fucking child.” She went to the kitchen, made him formula. Once the formula was made she grabbed the child with one hand, her handbag with another and fled the house, running to a nearby neighbour’s house.

17 When examined by Dr Brennan, the complainant presented with injury to the left hand. There was deep bruising to the proximal interphalangeal joints and a possible fracture of the final phalanx of the third finger. I cannot be satisfied these injuries occurred in the sexual assault. It is more likely they occurred in the assault the following day. What I am satisfied of though is that they occurred as a consequence of the activities of the offender on either 29 or 30 April.

18 However, the terms of the indicted charge are such that I cannot take these injuries, if they did occur in the assault, into account as an aggravating feature – see De Simoni v The Queen (1972) 126 CLR 576. I do, however, take into account the assault was of such ferocity that it was capable of causing injury, but I do not take into account the consequence of the assault, that is the bruising to the hand and the possible fracture.

19 Once out of the house the complainant called triple O. The offender left the premises, driving away in his red Mercedes.

20 At some point prior to 12 May but after the complainant had made contact with police the offender sent a long text message to her mobile telephone,

“You are the only woman I ever loved. You and baby are my life. No woman can replace you and baby. We can have a wonderful and comfortable family. Why did you destroy our family? Hope you got what you wanted. Good luck with your new man and new life. Remember no man ever loved you and baby the way I love you. Ezunuka is a God-given gift. Don’t abuse it. As horoscope says he is obsessed with his father. No-one can replace it. He will always love his father and find his father. Ezunuka and God will punish you for what you did. I don’t have to. I will always love you and miss you. Hope you are happier with your new man. I am so lonely and miserable. You can ring me any time ... I still dream of Friday night. I love you Kushmani. Don’t hesitate to ring me.” [Ezunuka I take to be a reference to the child]

21 There is nothing in the evidence, including the cross-examination, that discloses any reason for the accused to think the complainant had formed any interest in another male.

22 At the time she received this text she was living at a women’s refuge with her child. I am satisfied the message was sent in circumstances where the offender knew the complainant was in contact with the police in respect of her treatment at his hands.

23 I am satisfied neither of these incidents was an isolated incident. However, while I am satisfied there had been anal intercourse with the complainant previously, I could not be satisfied it reached the violence of the one I am dealing with. Likewise, while I am satisfied there had been other forms of domestic assaults previously, I cannot be satisfied they reached the level of violence displayed in the charged offence.

Objective Criminality

24 I turn now to assess the objective criminality of this offence.

25 From the facts as he finds them to be, a sentencing judge is required to assess the objective criminality of the offences before the Court as an essential step in assessing the seriousness of the criminal behaviour of the offender. That is done by comparing objectively the criminality exhibited in the instant offences with criminality of offences of a similar kind. It is in this way that the seriousness of the criminality of these offences can be evaluated. The objective criminality has an important impact upon the overall sentencing outcome.

26 A useful starting point in the assessment of objective criminality in sexual assault cases is to remind the Court of part of a judgment of one of the great judges of the Supreme Court, Mr Justice Mahoney JA,

“As I have indicated, every offence of this kind is a serious offence, but those whose duty it is to deal with crimes of this kind, and to sentence those who commit them, know that though each case is inherently serious, some are more serious than others. In some cases the degree of violence, physical hurt inflicted, the form of forced intercourse and the circumstances of humiliation and otherwise are much greater than are involved [in other cases]. It is to be understood that in sentencing it is appropriate, indeed in most cases it is necessary, that the sentencing judge form and record his assessment of where on the relevant scale of seriousness the particular offence lies.” - R v Gebraiel (Unreported) NSW CCA 18 November 1994.

27 In 1993 the then Chief Justice made the point that non-consensual intercourse is an extreme form of violence and one which the community expects courts to take seriously (see R v Hartikainen unreported NSWCCA 8 June 1993), even if no additional violence is administered other than the intercourse -

(R v Pay [1999] NSW CCA 40).

28 Unwanted forced intrusion into the privacy, indeed the intimacy, of a complainant’s body and psyche against her will by the use of physical power and callous disregard of her wishes or feelings marks the essence of sexual assault offences.

29 The anal penile intercourse is an offence that occurred in circumstances where the complainant had a couple of weeks earlier indicated she was seeking separation. While it is true the couple were still sharing the same bed, that bed was located near the baby’s cot. The evidence does not disclose whether they shared any intimacy in the prior two weeks.

30 The complainant had accompanied the offender to Bega whilst he was working there. I can draw no nexus for her desire to separate and the act of non-consensual intercourse. I can attribute no malice to him on that account. That must be particularly so because I would need to be satisfied of such malice beyond reasonable doubt. Nor do I draw any nexus between the events occurring in the red Mercedes on the return trip from Bega and the non-consensual intercourse. Nor can I attribute any malice following from those events in the car and the accused’s decision to engage in non-consensual intercourse.

31 I am satisfied the non-consensual intercourse was about the accused’s own sexual gratification. I am satisfied the anal intercourse was selected by the accused because it offered to him greater sexual gratification. I am satisfied some part of that sexual gratification derived from the non-consensual nature of it and the additional humiliation to his victim arising from his selection of her anal passage to satisfy himself.

32 The concept of non-consensual intercourse ipso facto involves an abuse of power by the strong over the weak. While it may well be at its outer extremities, e.g. the frail, the aged and the emotionally unfirm may present as vulnerable victims, I do not regard as an aggravating feature on the score of vulnerability his selection of his partner, who was seeking separation. On the other hand, the offence does constitute a very serious breach of trust by him.

33 I am conscious of Justice Sully’s remarks in R v O’Grady (Gleeson CJ and Hunt CJ at CL agreeing, see R v O'Grady (unreported) NSWCCA 13 May 1997)

“...that it must be a feature of the way in which modern personal relationships are conducted that if, for whatever reason, they break down then the woman who is involved in a relationship is entitled to feel that whatever other consequences ensue her personal safety will not be threatened at all, let alone threatened by the commission of criminal offences of the gravity of these with which we are now called upon to deal.”

34 This offender had gone through a form of marriage ceremony with the complainant. Essential to that concept was a desire by him that she would understand he would respect her person. True the ceremony could not have been a lawful marriage ceremony, but there was nothing to suggest it was an insincere exercise by him. His abuse of her person in these assaults on that basis amounts to a breach of trust aggravating the criminality of both.

35 The intrusion of his penis into her anus is to be regarded as a more serious breach of intimacy of her body than some other form of penetration. It is also more degrading to his victim. The intrusion occurred not only in circumstances where she did not consent, but in the more clear circumstances where she rejected his advances. Further, she continued to reject him but he appears not to have heeded her rejections but continued with his unlawful conduct.

36 The intercourse occasioned actual bodily harm in the form of pain at the time of offending and residual pain lasting some time after the event. There were the linear abrasions, seventeen in all, in the perianal region occasioned by his force. There was the bleeding. The occasioning of actual bodily harm of this kind must aggravate the criminality. While there was the use of lubricant, it would seem that was more about achieving anal penetration than minimising the complainant’s pain or discomfort.

37 The offence was not an isolated incident. While that does not aggravate the criminality, it does deny to the offender the opportunity to complain it was a one-off or entirely out of character.

38 The objective criminality of the assault was high. It would appear to have been sustained. It appears to have three sites - the upstairs landing, the foot of the stairs and the couch. It involved the repeated and continual use of force. It also involved the use of objects such as the door jamb and the cushion to advance the assault and the trauma. It was occasioned in domestic circumstances where there was a clear power imbalance between the attacker and his victim.

39 While I am not satisfied there is any nexus between the intended separation and the offence, I am satisfied the malice was related to the offender’s inability to find or secure his victim’s passport. His desire to do so was no doubt in the hope or expectation that he could use it as a bargaining chip on the question of if and when and how separation was to be achieved.

Not Mid-range of Seriousness

40 The crown seeks to argue the anal intercourse offence is one falling in what is called the midrange of seriousness. I accept that the midrange offences are offences falling within a band having borders equidistant, as it were, from a notional midpoint. The breadth of the band may well require some consideration of the maximum available penalty.

41 The offence is to be evaluated standing on its own. The fact that the offender also stands convicted of a subsequent serious assault cannot impact upon the assessment of the midrange of seriousness for the previous night’s offending.

42 In evaluating whether the offence falls within the midrange, in addition to my earlier assessment it is important to recognise what it is not.

• It is not part of a series of sexual offences committed against the same victim in the same incident or sequence of incidences.
• It is not a offence against a virgin or sexually inexperienced woman or girl still tender in years, even though over sixteen.
• The violence outside the actual sexual activity, serious as it was, did not extend beyond grabbing her ankle. There was no gratuitious violence.
• The degrading of her, serious as it was, did not extent beyond the actual sexual activity.
• It is not an offence that occurred in the course of some other unlawful activity such as a home invasion.
• There was no trophy taking such as a video recording or the taking of clothing.
• It was not achieved by threats against her or any other person with whom she had a relationship nor were there threats of retaliation in the event of disclosure.
• This is not an offence that was planned or schemed.
• While it may be that a decision was made to have non-consensual sex with the complainant from the moment she first said “No” when approached, I make no finding on this because I could not be satisfied, beyond reasonable doubt, of that proposition. The offence smacks of a more opportunistic decision made when he saw her crawling across the bed.
• It is not an offence in which the complainant did not know the sexual history of her attacker. Thus her concerns in respect of sexually transmitted diseases were thereby minimised.

43 Offences falling, on their objective circumstances, within the midrange are likely to have one, or perhaps more, of those features over and above the objective criminality I have found present in the instant case before such an offence as I am dealing with would fall within the midrange.

44 Of course, should an offence such as I am dealing with have substantially more such features or the gravity of the features I have found themselves be greater, then a grading above the midrange would be appropriate.

45 As I assess the objective features, taking into account the aggravating features I have found, this offence falls below a midrange of seriousness, it escapes such a classification by a small margin.

46 I reject the defence submission that the offending falls towards the lower end of the range of seriousness for s 61I offending.

Victim Impact Statement

47 I have received a victim impact statement. The material contained in the victim impact statement is not sworn evidence and has not been subject to cross-examination. To the extent that any opinions are expressed in the statement I recognise they are not the opinions of a qualified expert.

48 The victim impact statement coming, as it does, from the primary victim may, if I accept it as reliable, provide unsworn evidence as to the facts of the offences and their effect upon her.

49 The function of statements such as this one is firstly to give to the victims an opportunity of being heard in sentencing proceedings by publicly identifying the trauma of impact visited upon them by the acts of an offender.

50 Secondly they enable the sentencing proceedings to assist victims as they move towards some closure of grief, resentment and brooding arising from the criminal conduct of an offender.

51 Thirdly the victim impact statement contributes to an offender at least hearing first hand and perhaps gaining insight into the impact his offending conduct had upon his victim.

52 Finally, the victim impact statement ensures that a court has a continuing consciousness of the impact violent crime has upon those ordinary men and women who are its victims. As such a victim impact statement plays a very important part in the administration of criminal justice.

53 The relevant portions of this victim impact statement, which I accept do not entirely comply with the provisions of the Act, are these:

“My name is xxxx Advenagi. My date of birth is xx xxx 1976. This is my victim impact statement.

It has been very difficult for me to write this as it reminds me of things that I would rather forget...After [the offender] sexually assaulted me and then assaulted me the following morning I knew I had to escape from him. I feared for my safety, I could not stay.

I stayed in a refuge for eight months and this put a large strain on my relationship with my parents and extended family. I did not have control over my own finances when I was living with him...

The violence and sexual abuse by Aron has had a profound effect on my abilities as a functioning member of society. I feel as though he has ruined my life.

I have been receiving counselling over the last two years to help me overcome the effect of these offences. I have problems sleeping, I have nightmares and an overwhelming sense of anxiety about life in general. I have difficulties concentrating on my studies. I have also discussed with my counsellor my fear of being around men and intimacy...

I am still fearful of Aron and will never really feel safe from him again. I do not feel safe in my day to day living. I do not feel any safer knowing there are AVOs and bail conditions that he is not to contact me. I avoid going to Parramatta as I do not want to relive the fear I felt when I was there for his trial. I have tried to change everything about my life to avoid being reminded of him in any way.

I have suffered physical injuries with fractures, cuts and bruises. I still feel degraded and humiliated when I think of the medical examination and photographs of my injuries. I feel embarrassed that they had to be shown to the jury but I realised it was important that they knew what happened...

I wonder what I will tell our son about his father. Will I tell him about the crimes his father has committed, will I tell him what happened to me, how will I deal with it. How can I take that shame away from my son?

I now have difficulties trusting my own judgment again after this. I feel my life will never be the same.”

54 It would appear that the victim had little legal assistance preparing that statement and I have read out and taken into account the impact only of the offending conduct I am dealing with.

Subjective Features

55 I turn now to the subjective features. I am both entitled and required to do that. Not only am I sentencing for the criminal offence but I am also sentencing this offender for it.

56 Each offender coming before the Court varies from other offenders who stand or who have stood for sentence. Circumstances personal to an offender may offer to the court some explanation and insight into the commission of these offences by this offender or some reason why a more or a less sentencing outcome is appropriate.

57 Aron Sudath was born in Colombo, Sri Lanka in September of 1967. He was forty years of age this week. He had a comfortable life within an established family in Colombo. He is the youngest of three bothers and one sister. His family are all high achievers.

58 He has been married. He claims he commenced a defacto relationship with the complainant in 2003. She however has been living in his home since 1999. He claims he was not in a relationship with her then.

59 It would seem that he either felt a need for, or sought the approval of his family to enter into a relationship with her. The evidence before me suggests inter-family inquiries on the part of both families to assure each family the other one was of sufficient standing for the relationship to be approved. After mutual approval was obtained a culturally appropriate wedding ceremony was performed in the Blue Mountains.

60 Unfortunately Sudath had been previously married but not divorced. In that sense the ceremony was a fraud and profoundly disrespectful to the complainant. As I said earlier it does not mean that he did not otherwise approached it sincerely. The human psyche is capable of entertaining more than one emotion at a time. I have no reason to doubt the ceremony was entered into by Sudath as a sincere commitment by him to the complainant.

61 Aron Sudath was academically astute. He was the dux of his school, he was a leader and sportsman at the school. He attended university in Adelaide, qualified in medicine receiving a high distinction in some, if not all, of his subjects. He was involved in research and practiced medicine in remote areas serving Aborigines as a general practitioner and surgeon. He also worked in New Zealand for nine months.

General Health

62 The offender is reported to suffer from stress related angina which is said to have commenced in 2002. He also suffers hypertension, cholesterol, both of which are controlled by medication. These are matters he was able to cope with during his busy practice.

63 Justice Health will be responsible for oversighting the offender’s health needs and should take note of these problems. In addition to this criminal matter are other stresses to be found in the Family Court proceedings and in his potential for deportation.

64 He also experiences lower back pain which he manages with anti-inflammatories.

Mental Health

65 The offender appears to have been battling reactive depression since 2002. He claims the depression related to the complainant who he says was also suffering depression. Another contributor may have been overwork. The depression has increased since being charged in 2005 and yet again after the jury verdict. He is on a maximum dose of Zoloft, an antidepressant and the sedative Temazepam.

66 He appears, at least when he was on bail, to be supplementing those medications with at least a bottle of wine daily which I would have thought would be contra-indicated against the medications of depression.

67 There is material which suggests that his wine consumption, prior to his bail being revoked, could be as much as two litres daily.

68 There is little doubt the offender’s public persona has been one of dedicated service to the public through his profession, strong commitment to his Buddhist faith. His older brother writes:

“Aron was always keen on community-based work, charity work, humanitarian work. Consequently he spent quite a lot of his time working for underprivileged rural Australia and for Aboriginal communities. Whenever he goes to Sri Lanka he treats a large number of poor and needy people free of charge as a service.”

His sister writes:

“Aron loved serving underprivileged and disadvantaged communities as a doctor. Since medical school his heart was set to serve rural Australians, Aborigines and Royal Flying Doctor Service in Australia. Outside Australia he wanted to serve poor and needy in third world countries consequently he spent a lot of time working for rural Australians/Aborigines.

Whenever he travelled to Sri Lanka and India he conducted many clinics free of charge and donated medicines brought from Australia. He loved charity and is a very generous man. He visited tsunami affected regions and donated a house to victims. He has provided a number of scholarships to struggling students in rural Sri Lanka.”

His present partner writes of him being a caring gentle lover. Other of his references speak of the offence as being out of character. It is clear, from the oral evidence led on sentence and testimonials tendered in evidence, that there is a wide network of support and admiration for Aron Sudath.

69 There is in 1998 a discharge with a $375 fine for the commission of a common assault that occurred in September of 1997. There are no other convictions recorded in New South Wales.

70 But for this minor blemish of physical violence ten years ago he is otherwise legally of good character consequently he is entitled to considerations of leniency on that account.

Attitude to offence

71 He maintains his innocence. Some insight into his attitude to the offence can be gleamed from his post-trial attitude to the complainant. He told Anita Duffy that in Sri Lankan culture marrying a doctor was “a big prize for a young girl”. He gave a history to Dr Allnutt that he was unable to engage with the Sri Lankan community “because of his wife’s family poor reputation within the community”.

72 In the text message that I referred to he made reference to his “not having to punish her” and a derisory reference to her being happy with another man.

73 He told John Taylor that he never married the complaint “because of his ongoing concerns about her background”.

74 These statements appear to indicate, as I say, a lack of respect for her. In the light of the jury’s verdicts these remarks would have to be assessed as a continuing lack of respect for her.

75 On the other hand a certificate of participation showing completion of three courses offered by the Domestic Violence and Incest Resource Centre has been tendered. The courses were completed in the community as distinct from within the prison. They relate to domestic violence, recognising it, managing professional development in responding to it and providing crisis intervention and support for those experiencing it.

76 On one view the courses may be seen as part of the continuing education and professional development of a GP. On another view the courses may be viewed as a step towards managing his personal, as distinct from professional, development in a way in which he did not lose face within his community to focus on domestic violence. I am prepared to accept it as the latter.

77 An overview of his attitude to this offence is an absence of contrition, a continuing disrespect to the complainant and an absence of any real insight into the antisocial nature and the violence involved in his behaviour.

78 There appear to be a number of positive rehabilitation factors:

• Good family support and a wide social network also supportive.
• Intelligent, well-qualified man. While it is unlikely he will practice medicine again, he has skills and capacity as a researcher. He is likely to find employment opportunities given his qualifications and skill base.
• But for an assault ten years ago there is nothing of violence on his record.
• He is experiencing reactive depression which hopefully will be amenable to treatment and improved circumstances upon release.
• While his attitude to the complainant appears to be one where he is lacking in respect, it does not appear that he generally lacks respect for women. His present partner seems to feel he is respectful of her.

An Overview of Subjective Matters

79 Apart from a lack of contrition for and insight into his offending conduct his subjective features are otherwise strong mitigating features upon the sentencing discretion. An overview of the subjective features are not such that they would tip this matter into a midrange of seriousness. I have paused to consider whether the material I reviewed on the offender’s attitude to the offence should do so. On my view of the evidence that material is not such as to suggest an increase to the seriousness of the offence itself. True it may adversely impact upon the sentencing discretion but those matters do not drive upwards the objective seriousness of the offence (see s 54A(2) Crime (Sentencing Procedure) Act 1999. These are all ex post facto conditions (see R v AGP [2004] NSW CCA 434at [13] per Simpson J, Adams and Howie JJ agreeing).

Delay

80 The jury verdict was delivered in March of 2007. It is now six months later. It is regrettable the matter has taken so long to finalise. For those six months the offender could have been in no doubt that he would be incarcerated. However, the factors of delay ought be analysed. The offender changed his legal representation. Finding suitable dates in a busy court calendar and for equally busy practitioners is always difficulty.

81 While I appreciate the impact of having the prospect of uncertain imprisonment time hanging over one's head for such a lengthy period, the delay that I have before me cannot mitigate the sentence otherwise appropriate. The matter was set down for hearings on sentence shortly after trial. Delays have been either of the offender’s own making or because of busy court and legal professional activities.

Special Circumstances

84 This is an appropriate case in which to find special circumstances. The offender will be entering prison at forty for his first sentence. He has good prospects of rehabilitation. As a Sri Lankan he is likely to be culturally isolated in New South Wales prison. Given his prior status as a doctor he may well be a target for standover merchants. He is likely to find prison more arduous than most.

85 He told Robert Kerr, psychologist he was suffering an extreme reaction to people that conformed to his stereotypes of people who he might encounter in gaol.

Guideline Judgments

86 Way’s case is a seminal case regarding the sentencing of offenders charged with offences that may carrying a standard non-parole period. Even when, as in this case, the sentencing judge determines the case is one that does not demand or require the standard non-parole period, he or she is still required to respond to the legislature’s intention that such offences are to attract greater severity of sentencing outcomes than was previously the case.

87 The sentence I have framed is one that is intended to reflect this principle. On the other hand the subjective features, as I have earlier remarked, have a mitigating impact upon the sentence particularly in the selection of a non-parole period I have settled upon.

Deterrence

88 Both offences were domestic violence offences. They were committed within a domestic relationship. In sentencing a domestic violence offender specific and general deterrence are important factors to be taken into account in sentencing (see R v Hamid [2006] NSWCCA 302).

Custody

89 The offender has been on bail since charged but for a week. He was incarcerated last week when his bail was revoked.

Formal Orders

90 Kondasinghe Aron Sudath I convict you of the offence that you, on 30 April 2005 at Baulkham Hills in the State of New South Wales did assault Lakjawani Anne Advenagi.

91 I sentence you to a non-parole period for this offence of six months to date from 14 September 2007 and to expire on 13 March 2008. I set a balance of term for this offence of nine months to expire on 13 December 2008.

92 Kondasinghe Aron Sudath I also convict you that you on 29 April 2005 at Baulkham Hills had sexual intercourse with Lakjawani Anne Advenagi without her consent knowing she was not consenting.

93 I sentence you to a non-parole period of three years to commence on 14 March 2008 and to expire on 13 March 2011. I set a balance of term of two years to expire on 13 March 2013.

94 The question of whether you will be released to parole or not is not a question for me, it is a question for the Parole Board and that will depend upon what progress you make whilst you are in custody. Yes the offender may be returned to his custody.

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15/12/2008 - removed identity of victim - Paragraph(s) 53