Regina v Phillip Mitchell Boney
[2006] NSWDC 85
•27 October 2006
CITATION: Regina v Phillip Mitchell Boney [2006] NSWDC 85 HEARING DATE(S): 18/08/2006
JUDGMENT DATE:
27 October 2006JUDGMENT OF: Finnane QC DCJ DECISION: I sentence the offender as follows:; Count 1 – common assault- I sentence the offender to a non-parole period of 1 year. The non-parole period commences on the 22nd of July 2005 and concludes on the 21st of July 2006. The balance of the sentence commences on the 22nd of July 2006 and concludes on the 21st of July 2007. Count 2- entering a dwelling house, with intent to commit a serious indictable offence, to wit, intimidation, in circumstances of aggravation.- I sentence the offender to a non-parole period of 3 years. The non-parole period commences on the 22nd of July 2005, and concludes on the 21st of July 2008. The balance of the sentence commences on the 22nd of July 2008, and concludes on the 21st of July 2012. Count 3- malicious damage to property.- I sentence the offender to a non-parole period of 6 months. The non-parole period commences on the 22nd of July 2005, and concludes on the 21st of January 2006. The balance of the term commences on the 22nd of January 2006 and concludes on the 21st of July 2006. Count 4- kidnapping.- I sentence the offender to a non-parole period of 6 years. The non-parole period commences on the 22nd of July 2005, and concludes on the 21st of July 2011. The balance of the term commences on the 22nd of July 2011, and concludes on the 21st of July 2014.; Count 5- sexual intercourse without consent.- I sentence the offender to a non-parole period of 7 years. The non-parole period commences on the 22nd of July 2005, and concludes on the 21st of July 2012. The balance of the term commences on the 22nd of July 2012, and concludes on the 21st of July 2015. Count 6- kidnapping in circumstances of aggravation.- I sentence the offender to a non-parole period of 8 years. The non-parole period commences on the 22nd of July 2006 and concludes on the 21st of July 2014. The balance of the term commences on the 22nd of July 2014, and concludes on the 21st of July 2018. Count 7- aggravated sexual intercourse without consent.- I sentence the offender to a non-parole period of 11 years. The non-parole period commences on the 22nd of July 2006 and concludes on the 21st of July 2017. The balance of the term commences on the 22nd of July 2017 and concludes on the 21st of July 2021. Count 8- sexual intercourse without consent.- I sentence the offender to a non-parole period of 7 years. The non-parole period commences on the 22nd of July 2011, and concludes on the 21st of July 2018. The balance of the term commences on the 22nd of July 2018 and concludes on the 21st of July 2021. Count 9- kidnapping.- I sentence the offender to a non-parole period of 6 years. The non-parole period commences on the 22nd of July 2011, and concludes on the 21st of July 2017. The balance of the term commences on the 22 July 2017 and concludes on the 21st of July 2020. Count 10 – aggravated sexual intercourse without consent.- I sentence the offender to a non- parole period of 10 years. The non- parole period commences on 22nd July 2012 and concludes on 21st July 2022. The balance of the term commences on 22nd July 2022 and concludes on 21st July 2028. Count 11- sexual intercourse without consent.- I sentence the offender to a non- parole period of 7 years. The non – parole period commences on 22nd July 2018 and concludes on 21st July 2025, on which date he is eligible for parole. The balance of the term commences on 22nd July 2025 and concludes on 21st July 2032.; Offences referred under sec 166 of the Criminal Procedure Act, 1986.- In respect of each such offence, I sentence the offender to a non-parole period of 12 months. The non-parole periods and the sentences will be concurrent with each other, but partly cumulative on the other sentences imposed on the offender. In each case the non-parole period commences on 22nd July 2025 and concludes on 21st July 2026. In each case, the balance of the period commences on 22nd July 2026 and concludes on 21st July 2028.; The offender is eligible to be released on parole on 21st July 2028. He is to be released from all forms of custody on 21st July 2032. CATCHWORDS: sentence - aggravated sexual intercourse without consent - sexual intercourse without consent - violence - assault - kidnap - abduction - detain for advantge - injuries to complainant - violence of offence - abusive relationship - violent relationship - level of contrition - malicious damage to property - obsessive nature of offender - Aboriginality LEGISLATION CITED: Crimes Act 1900 ss.61, 61I, 61J, 86, 111(2), 195
Criminal Procedure Act 1986 s.166PARTIES: Regina
Phillip Mitchell BoneyFILE NUMBER(S): 05/31/0300 COUNSEL: Crown: Mr G Fatches
Offender: Mr G KumarasinheSOLICITORS: Crown: Mr J Outram for NSW DPP
Offender: Mr S Percy for Stewart Percy & Associates
SENTENCE
Introduction
1 One of the prevalent social problems in our community is the abuse of women by men who refuse to acknowledge that the women have any right to lead their own lives. These men, by their actions, claim the right to detain these women, to assault them and on occasions, to rape them or otherwise to injure them.
2 The law entitles women who are threatened by men to seek apprehended violence orders from magistrates. These orders, which are a form of statutory injunction, are enforced and much Police time in New South Wales is occupied in arresting men who do not obey apprehended violence orders. Unfortunately, there are those men who decline to take any notice of enforcement procedures. Even gaol terms do not deter them from following a course of continuing to harass and persecute women whom they regard as belonging to them.
3 The law attempts to protect the weak and the vulnerable and continual breaches of the rights of the weak and vulnerable must result in lengthy gaol terms being visited on those who breach their rights.
4 The offender in this case is an Aboriginal man living in Moree. He is dangerous, violent and incorrigible. He has attacked the victim in this case many times over many years. Gaol sentences visited on him before this have had no effect in preventing him from continuing to wage a campaign of terror against her. He comes before me now for sentence following a trial at which he was convicted of 5 counts of sexual intercourse without consent, 2 of them being aggravated offences, 3 counts of detaining for advantage, 1 of them being an aggravated offence, 1 count of entering a dwelling with intent to commit a serious indictable offence in circumstances of aggravation, namely deprivation of the complainant’s liberty, 1 count of malicious damage to property and 1 count of common assault.
5 As well as this, I am asked, pursuant to sec 166(1)(b) of the Criminal Procedure Act, 1986, to deal with 3 related offences of contravening an apprehended domestic violence order. The offender has also asked that I take into account, when I consider sentence for the offence of aggravated sexual assault without consent, 7 offences which are set out on a Form 1 list. 5 of these offences concern attacks or threatened attacks on the complainant in this case and 2 offences concern acts of violence against Corrective Services Officers. I propose to take these offences into account when sentencing for that offence.
6 These offences were all grave violations of the rights of the complainant. They were violent and degrading. The complainant, NC, was a brave young woman who gave compelling evidence. She asserted her personal dignity and made it clear in her evidence that the offender did not own her.
7 He has been violating her rights since 1997. The current offences take the violations of rights to a new level, where they involve kidnapping, rape and aggravated rape. The only way of protecting her and protecting society is to impose on him a lengthy non-parole period and a heavy head sentence. This will also serve to warn any others minded to engage in similar conduct what they can expect if they do engage in such conduct.
8 The non-parole period for the trial offences will be 20 years and the head sentence 27 years. I have decided to add an extra year onto the non-parole period for the section 166 offences.
FACTS
9 The complainant, NC, first got to know the offender in 1995 or 1996 and in 1997, she was in a sexual relationship with him, which resulted in the birth of a child. She had a second child to him in 1999, but by August 2000 she had left him and thereafter, they lived separately and apart.
10 From the beginning, the offender was violent towards her, something which was made known to the jury to give some context to their relationship. During the course of the sentence proceedings, detailed evidence was given to me in documentary form of the offences committed by the offender against the complainant from the 6th of December 1997 onwards.
Earlier offences committed against the complainant by the offender
1997.
11 On the 6th of December 1997, he attacked her while she was walking along a street with another woman, grabbing her by the shirt and attempting to pull her towards him. He refused to let her go, when she requested this and she struggled with him until she managed to get away. When arrested, the offender told the Police: "I just wanted her to come with me, I grabbed her and dragged her about two to 3 m." This resulted in an application being made for an apprehended violence order to protect her. He was placed on a 12-month good behaviour bond.
Breach of the 1997 bond.
12 He breached this bond and the apprehended violence order and was charged with these offences on the 14th of November 1998. He was convicted on the 25th of January 1999.
1999 offences.
13 On the 6th of September 1999, he was given a six-month fixed term of imprisonment for an offence of assault committed on the 31st of March 1999. On this occasion, he forced his way into a house, grabbed the complainant, pushed her out the front door, dragged her alongside another house, then pushed and swung her around until she fell to the ground. He then kicked and punched her to the head. On this occasion, the victim was bruised on her right cheek and suffered abrasions to the forehead and nose area.
14 The offender also received concurrent one-month fixed terms for contravening an apprehended domestic violence order.
2000 offences.
15 On the 28th of August 2000 he again assaulted the complainant when she came to his house to pick up some items for her children. On this occasion, he grabbed her by the arms and pulled her onto the ground. He also threatened her with a piece of wood. She ran away, and the Police later arrested him. I have no information to what occurred to him in relation to this offence.
16 From this time onwards, she lived separately and apart from him and attempted to have nothing to do with him. However, he refused to accept this situation and persisted in approaching her and assaulting her.
2001 offences.
17 On the 9th of December 2001, he committed a series of violent assaults against the complainant. On this occasion, he was armed with an iron bar. She had been to a party at a house in Moree. He arrived the same place late at night. About 4:30 a.m., she was outside the house, when he commenced to abuse her and threatened to stab her. He had an iron bar in his hands and as she attempted to get into a car, he swung the iron bar at her chest. She grabbed the bar but it hurt her fingers on her left hand, causing them to bleed, and she was forced onto the ground. One of her cousins then came and grabbed the iron bar. The offender then grabbed her by the shirt with his left hand and started to pull her away from the car. A number of men came to her aid but the offender punched her on the left side of the head and she fell to the ground. He then kicked her in the face, causing a cut to her lip.
18 He was in breach of a community service order, by committing these offences. That community service order had been imposed on him on the 23rd of July 2001 for an earlier assault by him on the complainant.
19 The events of the 9th of December 2001 resulted in his being in prison without parole for five months and then being released on supervision for another four months. Although these offences could have seen him charged on indictment, he was dealt with in the Local Court at Moree. The non-parole period of these offences expired on the 7th of September 2002. He was then on parole for another four months. By my calculation, that non-parole period would have expired on the 7th of January 2003.
20 Notwithstanding the fact that he was on parole, and that he had been dealt with on so many earlier occasions for assaulting the complainant, on the 26th of October 2002 at 2 a.m he assaulted her again. At the time, she was standing on a street in Moree with two women friends he approached and punched her on the nose with a closed fist. This caused her face to bleed, and she suffered bruising around the base of her nose.
21 On this occasion he appeared before the Moree local court on the 13th of January 2003 and was given a six-month non-parole period, with a total sentence of nine months commencing from the 5th of November 2002, the date of his arrest.
22 At all times over these years, there were in place enforceable apprehended domestic violence orders. He was in breach of these orders on every occasion that he attacked the complainant. The orders were of no consequence to him whatsoever, nor was he in any way concerned about being on parole, nor about being subject to any form of bond.
2003 offences.
23 On the 17th of July 2003 at about 6:15 p.m. the complainant took her four-year-old son to the offender's home to give him access to that son. She waited outside the home for about 40 minutes while he had that access. At about 7 p.m. she approached the front door and asked for her son. He asked her to stay the night with his son. She declined to do so, and he then began to punch her with a clenched fist to the region of her left eye three or four times. These assaults occurred while she was holding their son on her right hip. She suffered lacerations behind the left ear and swelling of the left eye and forehead. She also suffered headaches and other pains and discomfort.
24 Following this assault, the offender went to ground. Police inquiries failed to find him. On the 25th of December 2003, whilst she was with a group of other people, he approached her, punched her to the ground, kicked her to the body and dragged her to a home in Moree, occupied by one of his sisters. He then held her there against her will until she managed to escape on the next day.
25 On this occasion he was charged on indictment, and went before the District Court on 6th of May 2004 where he pleaded guilty to the offences committed by him on the 17th of July 2003 and the 25th of December 2003. Once again, he was treated leniently. The kidnapping offence was dealt with by the imposition of a non-parole period of six months with a head sentence of 10 months and the assault occasioning actual bodily harm resulted in his getting a concurrent four-month sentence of imprisonment.
Offences committed against the complainant which are referred to in the Form 1 document
26 This campaign of terror continued up to the time he was eventually arrested. The schedule to the form one document reveals a number of offences committed against her.
20th April 2005
27 On the 20th of April 2005, the offender was in breach of an apprehended violence order. On that day, he had access to his young son and when the complainant came to get their son, he threatened her, demanded that she go to his brother's place, forced her to accompany him and later threatened to kick her.
30th April 2005
28 On the 30th of April 2005, he approached her at a football game, threatened her with a beer bottle and later threatened to stab her. By doing this, he was in breach of an apprehended violence order, which had been granted on the 16th of March 2004.
14th May 2005
29 On the 14th of May 2005, the complainant was again at a football match in Moree, when the offender approached and threatened to kick her if she did not walk with him. He was also threatening her with a beer bottle and made the threat to kick her on a number of occasions. She managed to escape. He was also in breach of an apprehended domestic violence order.
19th July 2005
30 On the 19th of July 2005, he again contravened an apprehended violence order, by going to her father's house where she was staying and demanding that she come out and talk to him. He refused to leave, when asked to do so. This offence occurred after he had committed the offences in counts 1 to 8 on the indictment. The details of the indictment offences are set out below.
31 The offences of which he was convicted on indictment occurred between the 21st of June and the 21st of July 2005. The facts which I have set out above indicate very clearly that there was no continuing relationship between them other than that which was made necessary by her making the children available for access. It is also clear on the facts that despite her making it clear over many years, that she did not wish to have anything to do with him, he declined to accept that and insisted on continuing to approach her and to attack her.
32 Before the 21st of June 2005, he had been taken to court on numerous occasions following these attacks and had not shown any intention of ceasing to approach her and to attack her.
FACTS OF OFFENCES ON INDICTMENT
22nd June 2005.
33 The first series of offences (i.e. counts one to five) occurred on the 22nd of June 2005. The complainant, NC, to get away from the offender, had gone to live in Lismore with her children, but had returned briefly to Moree to attend a funeral. The offender soon found that she was staying at her father's house, and he went to that house in the early afternoon of the 22nd of June. At the time, there was in force an apprehended violence order protecting her from him and he was aware of this. NC's father lived in a house in an aboriginal housing area quite close to the now-defunct Leagues club.
34 At the time, the complainant was in the house with her two young children but no other adults were present. The offender approached the house and asked if he could have access to the children. She agreed, and he took the children away, returning them about 10 minutes later. He then asked her to come and sleep with him at his sister's house. She declined to do this. At the time this conversation occurred, he was inside the house.
35 He became angry, hit her, grabbed her by the hair, pulled her onto the ground and punched her. He then threatened to hit her with a cup. The complainant yelled for help, and her sister, Jacinta, entered the house and picked up a golf club, which was near the fireplace and threatened to hit him with it. He then stopped hitting the complainant. Jacinta then went next door to ring the Police. When she left, the offender grabbed the complainant by the jumper and pulled her out the back door. She managed to get away from him and ran back inside the house, locking the back door. However, the front door was unlocked, and he came into the house from the front door. She ran into the bathroom and locked it. She sat against the door of the bathroom, but he kicked the bathroom door and smashed the lock. He then dragged her out by the legs, grabbed her by the jumper and took her out the back door along the road, through a paddock to his sister's house.
36 Along the way, she encountered a car, which had two aboriginal female relatives in it. She attempted to get in this car, but the two relatives gave her no assistance and drove away. He then threatened to hit her with a stick and forced her to jump over the fence of Georgina Boney's house and to go into that house. Georgina Boney and her de facto husband were in the house, but they gave no assistance to her at all. She was forced into a room, but managed to persuade him that she should be able to go a shop to get some tampons. He then took her to a house occupied by one of his aunts. At this house they met one of his cousins. The offender instructed this man that he was to deny to anyone who asked, that the complainant was there and in particular, was to tell this to the Police. Notwithstanding the fact that she was obviously there under duress, this cousin did nothing to help her and left the house.
37 He then arranged for a man he met to drive them to the service station. She was too frightened to tell anyone at the service station that she had been kidnapped, and he took her back to Georgina Boney's house, forced her into a bedroom, pulled her pants off, lay on top of her and raped her vaginally. She submitted to being raped, because of fear that he would strike her with a stick.
38 Georgina Boney did nothing to help her. Next morning, the complainant escaped, ran to a neighbouring house and asked a woman at this house to ring the Police. She told this woman that the offender had bashed her at her father's house and had forced her to go to his sister's house. While she was talking to this woman, one of the complainant’s cousins came along; lent her a mobile phone, and she rang the Police. It took two calls to get the Police to arrive. She was hiding inside a house during this time, while the offender was at the house and trying to find her. When the Police arrived, she then went with them to a Police Station and told the Police what had happened.
39 At the Police Station, she told Constable Maynard in a detailed written statement what had occurred. This statement bore out the allegations of assault, malicious damage, kidnapping and rape.
40 The complainant's father and her sister Jacinta both gave evidence supporting her evidence as to what had happened at her father's house. A photograph of the damaged bathroom door was produced and tendered in evidence.
41 The evidence supporting the first five counts in the indictment was overwhelming. The jury were entitled to convict on each count and I agree with their verdicts.
Aftermath of the first series of offences.
42 During the next month, Police attempted to find the offender, but were unsuccessful. There is no doubt, in my opinion that misguided members of the aboriginal community, although knowing where he lived declined to assist Police in locating him. This misguided sympathy for him made it possible for him to attack the complainant on two further occasions. It has to be said that Constable Maynard attempted to persuade a number of aboriginal witnesses to give evidence to support the Crown case concerning the first five counts, but none were willing to give any evidence. This unwillingness to be involved may also be partly based on fear of the witnesses about retribution from members of the offender’s family. Indeed, during the trial, Georgina Boney, one of the offender’s sisters while outside the Court building, but in its yard, could be heard shouting threats and abuse at the complainant and those Aboriginal witnesses who did give evidence. I took steps to stop this continuing in the premises of the court.
43 The offender gave evidence, which in my opinion, was false. He claimed to have been living with the complainant at her father's house, and he also alleged that she willingly went with him when he asked her to do so and that she had sexual intercourse with him willingly. All that can be said of his evidence is that it was consistent with his approach over many years that he was entitled to do what he wished to the complainant and that she had to comply with any demand made by him.
44 Because on error on the part of Constable Maynard, there was no medical examination on the 23rd of June. She did not complain of any actual injury suffered by her, although she did complain of suffering pain from being punched and kicked.
25th June 2005.
45 The next series of events, the subject of counts six to eight inclusive, occurred on the night of the 25th of June. The complainant, accompanied by some friends went to a house in Moree. While she was inside, she saw the offender come into the house. She then ran into the first bedroom down the hallway and closed the door. A short time later, the offender came into the room with one of her sisters. The complainant told him to go away, and that she did not want to be with him. He then punched her on the face, knocked her to the ground and commenced to kick her all over. The offender's aunt came in and tried to stop him from hitting her. The complainant grabbed this woman's legs but she walked out. By this time, the appellant felt swelling around her lip and pain around her face and on her scalp, where he had been pulling her hair. She also noticed that her mouth was bleeding. A man called Luke Barlow came in, grabbed the offender and threw him onto a bed. The complainant jumped up and was assisted by her aunt and cousin to get out of the house. Her aunt was Kathleen Smith, and she confirmed what the complainant said when she later gave evidence. Ms Smith was ultimately an impressive witness.
46 However, when she left the house, the complainant again encountered the offender who proceeded to grab her and at the same time, to threaten her with a bottle. By this time, her aunt, Kate Smith, was lying on top of her to protect her but when the offender commenced to threaten both of them with a bottle, she got off the complainant. The offender then grabbed her physically by the jumper, whilst still threatening her with the bottle. He then forced her to go first, to his aunt’s house, and then to the house of Georgina Boney. In Georgina Boney’s house, the offender punched her, kicked her and jumped on her head causing a tooth to chip. One of her brothers made a feeble attempt to intervene and then left. Georgina Boney and her de facto were in the house, but they did nothing to help her. He then dragged her to a bedroom, pulled her pants down and raped her vaginally. Just before he raped her, he threatened to bash her. She managed to persuade him after she was raped that she should be permitted to get a drink of water. Whilst getting the drink of water he threatened to stab her. He then compelled her to go back to the bedroom where he raped her a second time.
47 On the next day, one of her sisters called around to get her. At the insistence of the offender, the complainant told her sister to go away. Shortly afterwards, Georgina Boney shouted out that he should leave, because the Police might be coming. He then compelled her to leave the home. She managed to break away, go to another house and call the Police. When the Police came, she ran to the Police car. He escaped. On this occasion, apart from an interview with Police officers in which she complained of the events of the previous evening, she was medically examined by Dr Puxty, who found that she had a chipped left front incisor, bruising on her front lower lip, including petecchial bruising on the inside of her mouth, purple bruises around the right orbital area and bruising around the left orbital area, a 3 1/2 centimetre purple, linear graze at the base of the neck, a 3 cm by half a centimetre graze on the inside of her right wrist, a 4 x 3 centimetre purple bruise on the medial aspect of the right knee, a 3 cm by 2 cm purple black bruise on the outer aspect of the upper right arm, a 4 cm by 1 cm purple black bruise on the left biceps and a 4 cm by 2 cm purple black bruise on the upper right arm. There was also a 2 centimetre by 2 centimetre brown black bruise on the right inner thigh, quite close to the labial entrance.
48 The jury convicted the offender of Count seven. In view of the way the evidence turned out, I agreed after the hearing of submissions that the circumstance of aggravation alleged could not be made out, since the threat with the knife was not made immediately before sexual intercourse took place. This led to his being convicted of sexual intercourse without consent on Count eight.
49 In my opinion, the jury verdict in relation to both counts was correct.
The 21st of July 2005.
50 After the events of the 27th of June 2005, the offender disappeared. Police attempts to find him failed. In my opinion, this was because witnesses to whom the Police were referred by the complainant were not willing to say anything, and no one in the community in which the offender lived was willing to say anything. This unwillingness to assist the Police was misguided, and ultimately led to the offender being able to kidnap and rape the complainant yet again.
51 On the 21st of July 2005, the complainant went with some friends to drink in a house in Moree. In that house, they heard a disturbance, and went to another house, where the offender was fighting with a man. The offender saw her, and although she ran away, he grabbed her and forced her to go with him. He then forced her to accompany him to 29 Arunga Street, the house of his sister Melanie. He forced her into this house and into a bedroom, and after threatening her with a stick, ordered her to lie down and take her pants off. He then raped her. The next morning, he took her to the house of his uncle, who was not home and then returned to his sister Melanie’s house, where he again forced her into a bedroom and raped her. This time, the Police arrived, forced their way into the house and arrested him. He has been in custody, ever since.
52 The offender gave evidence, which the jury did not believe. He called his sister Melanie to deal with the events of the 21st of July. If her evidence were to be believed, the complainant and the offender climbed through a window into the house, but were giggling and laughing and having a real good time. She claimed that her sister Georgina had not told her that the Police were looking for her brother, nor had anyone else.
53 It was not surprising to me that the jury convicted the offender. His evidence lacked credibility, as did the evidence of his sister, Melanie.
Subjective matters
54 He was born on 27th August 1979 and thus is 27 years old. A pre-sentence report was presented by the Crown. It does not present a positive picture of him. He has previously been under the supervision of probation and parole for drug and alcohol problems and violence problems, but he has made little attempt to take any advantage of any assistance offered him. He made it plain to the probation and parole officer that he regarded the complainant as being a consenting party, although he agreed that he had treated her somewhat roughly. This attitude, combined with the very large number of offences he has committed against her, make it clear in my opinion, that he has no remorse, and regards himself as being entitled to do what he did. This means that he poses a danger to her of a continuing nature. The only way that she can be protected is to ensure that he is kept in custody for many years.
55 His criminal history reveals that he has been in trouble with the law since he was young, but the only really serious offences concern his assaults on the complainant since 1997 and his frequent breaches of apprehended violence orders. His other offences are of a comparatively minor type.
56 A background report upon him was also presented by a psychologist. He did not support the facts stated in this report by any evidence, nor was any evidence called on his behalf to support this material. What is said in the report may be true, but I must necessarily take a cautious approach about accepting it, since the report is based on what he said to the psychologist, but it is not established by evidence.
57 He claimed to the psychologist that he was the youngest of eight children, and that his parents frequently argued and engaged in violence. He also claimed that both parents drank heavily. He claimed that his father died when he was only 10 years old, and that he thereafter was mainly cared for by his maternal grandmother. He also claimed that he and all the members of his family drank heavily when they socialised. He did not spend much time at school and was not much interested in it. He has never been employed and has lived on Social Security benefits.
58 He claimed that from an early age he smoked marijuana, drank alcohol, and later became a regular amphetamine user. The psychologist assessed him as functioning in the range of a mild intellectual disability. I have seen him give evidence, and he does not appear to me to be intellectually disabled, although he clearly is quite uneducated. He has no insight into the nature of his offences against the complainant.
59 The psychologist, probably correctly enough, suggests that he has grown up in an aboriginal community, where he has been subjected to racism and violence as well as exposure to delinquent and substance abusing peers. Whilst this is so, it does not excuse his violent sexual assaults on the complainant, who was also a member of the same community and subjected to much the same when she was growing up, as he was. In my opinion, aboriginality does not provide any justification for his obsessive and cruel behaviour, nor does it provide any explanation of it, apart from the fact that he had been possibly exposed to violence in the family when he was young.
60 My assessment of his criminal record, the probation and parole report and the psychologist’s report are that he is a young, obsessive, drug addict/ alcoholic who does not see that he needs to do anything about himself. He has never worked, has no ambitions and regards himself as being entitled to possess the complainant. He does not regard himself as having raped her, but only of treating her roughly. He has pleaded guilty in the past to assaulting her and breaching apprehended violence orders, but does not regard those matters as being serious. He has never faced any serious sentence of imprisonment in the past. He does not intend to change in the future.
Other matters
61 I have been asked to take into account, when considering Count seven on the indictment, seven further offences. Five of them were committed against the complainant in 2005 in April, May and July. I have set the facts of these matters out earlier in this judgment. The other two were offences against corrective services officers. The first was an unprovoked assault against an officer working in the cells at Moree. The consequence of the assault was to cause her to have split lips, sore gums and a loose tooth.
62 The second assault was on a corrective services officer at Tamworth. On this occasion, the offender spat in the face of the officer.
63 I take all these matters into account when passing sentence on Count seven. The five matters concerning the complainant are indicative of his continuing obsessive and dangerous behaviour towards her. They enable me to reach the conclusion that he has no intention of changing his ways and will do the same in the future as he has in the past. This means, unfortunately, that the complainant will always be at risk of violence at his hands, if he is not in custody. If he is not in custody, they will inevitably encounter each other as they are the parents of two children, her father and other relatives live in Moree and she will undoubtedly attend Moree quite often to attend funerals.
64 The offences against the corrective services officers indicate that he is arrogant, abusive and dangerous to persons in authority, but I would regard these offences as being of a lesser seriousness than the offences committed against the complainant.
Sec 166 offences
65 The Crown has asked that I deal with 3 offences of contravening an apprehended domestic violence order. The offender has pleaded guilty to these matters. Each of them arises from the breach of domestic violence orders in force at the time of the offences charged on indictment. I will impose sentences in respect of these matters.
SENTENCING CONSIDERATIONS
66 The offender, though young, is dangerous. Within a space of one month, he had kidnapped the complainant on three occasions, had assaulted her, threatened her and ill-treated her and he had raped her 5 times, 2 of those rapes being aggravated offences.
67 For reasons I have already given, I place little store on rehabilitation. Sentences must be fixed which properly reflect the seriousness of the offences and they must be sufficiently stern to deter others, particularly men, be they Aboriginal or otherwise, from ill treating and raping women about whom they are obsessive.
STANDARD NON- PAROLE PERIODS-SEXUAL INTERCOURSE WITHOUT CONSENT.
68 Each of the offences of rape has both a maximum sentence and a standard non-parole period. Counts 5, 8 and 11 are offences of sexual intercourse without consent. The maximum sentence is 14 years and the standard non-parole period is 7 years. Counts 7 and 10 are offences of aggravated sexual intercourse without consent. The maximum sentence is 20 years and the standard non-parole period is 10 years.
69 I must approach the task of sentence in accordance with principle. The standard non-parole period may be applied to an offence if the judge comes to the conclusion, following a conviction at trial that it is in the middle range of objective seriousness. Even then, it is always a difficult task to determine whether something is in the middle range of objective seriousness. In each case of sexual intercourse without consent, the intercourse took place after threats and actual violence, was vaginal, and was carried out in circumstances of humiliation of the complainant, who was dragged unwillingly amongst people she knew, to houses occupied by his sisters, to be beaten and raped.
70 In my opinion, each offence of sexual intercourse without consent was more than a mid range offence. However, I take the view that the offence in count 7 was worse than the offence in count 10 and I have imposed a slightly greater non-parole period than the standard non-parole period for this offence.
71 Because of the need to ensure that the overall period of imprisonment not be excessive, I decided not to increase the non parole period for Count 10 above the standard non parole period. For similar reasons, I have decided not to increase the non-parole period for any of the 3 offences of sexual intercourse without consent. There are no mitigating factors, which would enable me to lessen the non-parole periods below the standard non-parole period specified by law.
72 I acknowledge that since the introduction of standard non-parole periods, sentences for offences to which they apply are higher than they used to be. That is the consequence of the Courts applying the law laid down by the Parliament. Nevertheless, the offender is young and must be offered some hope of release. It would not be appropriate merely to accumulate the sentences for one group of offences wholly on the sentences imposed for another group of offences.
73 In my opinion, the sexual offences in this case are offences of the worst type, since they were committed in circumstances of degradation, violence and as part of a long campaign of violence against the same victim, the complainant in this case. No doubt, human imagination could conceive of even worse and even more degrading offences being committed, but in my opinion, that does not make my characterisation of these offences wrong or inappropriate.
74 The sentences, which I impose, reflect my views as to the seriousness of these offences. The sentences are partially accumulated in some but not all instances, so that the overall sentence is not too large. I have fixed non-parole periods for each offence and I have made a partial accumulation of sentences, which results in a total non- parole period of 20 years and a total sentence of 27 years for the trial offences.
75 I have also imposed an effective extra period of 1 year in custody for the 3 offences referred to me pursuant to sec. 166 of the Criminal Procedure Act, 1986. I have made the sentences concurrent with one another, but partly cumulative on the other sentences. In my opinion, the serious breaches of apprehended domestic violence orders in this case, should result in a penalty, which is additional to the penalties imposed for the substantive offences. The effective non-parole period will be 21 years. The head sentence will be 27 years.
76 The imposition of an additional non parole period of 12 months makes it plain to all offenders, including the present offender, that serious offences against women protected by apprehended domestic violence orders will result in punishment for the substantive offences and additional punishment for breach of the orders. It would be excessive punishment to impose a greater penalty than an additional period of 12 months non-parole.
77 Since then. I will backdate the commencement of the sentences to that date. The offender was arrested on 22nd July 2005 and has been in custody.
Sentences
78 I sentence the offender as follows:
Count 1 – common assault
79 I sentence the offender to a non-parole period of 1 year. The non-parole period commences on the 22nd of July 2005 and concludes on the 21st of July 2006. The balance of the sentence commences on the 22nd of July 2006 and concludes on the 21st of July 2007.
Count 2- entering a dwelling house, with intent to commit a serious indictable offence, to wit, intimidation, in circumstances of aggravation.
80 I sentence the offender to a non-parole period of 3 years. The non-parole period commences on the 22nd of July 2005, and concludes on the 21st of July 2008. The balance of the sentence commences on the 22nd of July 2008, and concludes on the 21st of July 2012.
Count 3- malicious damage to property.
81 I sentence the offender to a non-parole period of 6 months. The non-parole period commences on the 22nd of July 2005, and concludes on the 21st of January 2006. The balance of the term commences on the 22nd of January 2006 and concludes on the 21st of July 2006.
Count 4- kidnapping.
82 I sentence the offender to a non-parole period of 6 years. The non-parole period commences on the 22nd of July 2005, and concludes on the 21st of July 2011. The balance of the term commences on the 22nd of July 2011, and concludes on the 21st of July 2014.
Count 5- sexual intercourse without consent.
83 I sentence the offender to a non-parole period of 7 years. The non-parole period commences on the 22nd of July 2005, and concludes on the 21st of July 2012. The balance of the term commences on the 22nd of July 2012, and concludes on the 21st of July 2015.
Count 6- kidnapping in circumstances of aggravation.
84 I sentence the offender to a non-parole period of 8 years. The non-parole period commences on the 22nd of July 2006 and concludes on the 21st of July 2014. The balance of the term commences on the 22nd of July 2014, and concludes on the 21st of July 2018.
Count 7- aggravated sexual intercourse without consent.
85 I sentence the offender to a non-parole period of 11 years. The non-parole period commences on the 22nd of July 2006 and concludes on the 21st of July 2017. The balance of the term commences on the 22nd of July 2017 and concludes on the 21st of July 2021.
Count 8- sexual intercourse without consent.
86 I sentence the offender to a non-parole period of 7 years. The non-parole period commences on the 22nd of July 2011, and concludes on the 21st of July 2018. The balance of the term commences on the 22nd of July 2018 and concludes on the 21st of July 2021.
Count 9- kidnapping.
87 I sentence the offender to a non-parole period of 6 years. The non-parole period commences on the 22nd of July 2011, and concludes on the 21st of July 2017. The balance of the term commences on the 22 July 2017 and concludes on the 21st of July 2020.
Count 10 – aggravated sexual intercourse without consent.
88 I sentence the offender to a non- parole period of 10 years. The non- parole period commences on 22nd July 2012 and concludes on 21st July 2022. The balance of the term commences on 22nd July 2022 and concludes on 21st July 2028.
Count 11- sexual intercourse without consent.
89 I sentence the offender to a non- parole period of 7 years. The non – parole period commences on 22nd July 2018 and concludes on 21st July 2025, on which date he is eligible for parole. The balance of the term commences on 22nd July 2025 and concludes on 21st July 2032.
Offences referred under sec 166 of the Criminal Procedure Act, 1986.
90 In respect of each such offence, I sentence the offender to a non-parole period of 12 months. The non-parole periods and the sentences will be concurrent with each other, but partly cumulative on the other sentences imposed on the offender. In each case the non-parole period commences on 22nd July 2025 and concludes on 21st July 2026. In each case, the balance of the period commences on 22nd July 2026 and concludes on 21st July 2028.
91 The offender is eligible to be released on parole on 21st July 2028. He is to be released from all forms of custody on 21st July 2032.
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