The Queen v Hewitt

[2020] NSWDC 566

District Court

New South Wales

Medium Neutral Citation:

The Queen v Hewitt [2020] NSWDC 566

Hearing dates:

23-27 September 2019 (the trial); 30 September 2019 (mention); 1 October 2019 (mention); 16 June 2020 (sentence hearing and conviction); 6 August 2020 (sentence)

Date of orders:

06 August 2020

Decision date:

06 August 2020

Jurisdiction:

Criminal

Before:

Wilson SC DCJ

Decision:

Community Corrections Order. Decision at [179] – [186]

Catchwords:

CRIMINAL LAW – sentencing – sexual intercourse without consent – whether s5 threshold crossed – where imprisonment penalty of last resort -consideration of non-custodial sentence – psychiatric illness – balancing objective and subjective circumstances in considering purposes for sentence – whether unusual or exceptional circumstances exist to justify non-custodial sentence – s5 threshold not crossed – unique circumstances

Legislation Cited:

Crimes Act (1900) NSW s 61I

Crimes (Sentencing Procedure) Act 1999 ss 3A, 5, 21A, Part 4

Cases Cited:

Director of Public Prosecutions v Burton [2020] NSWCCA 54

DPP v De La Rosa (2010) 79 NSWLR 1

Greenwood v R [2014] NSWCCA 64

Hili v The Queen (2010) 253 CLR 58

JDX v R [2017] NSWCCA 9

Jolly v R [2013] NSWCCA 76

Kelly v The Queen [2007] NSWCA 357

Markarian v The Queen [2005] HCA 25

Muldrock v The Queen (2011) 244 CLR 120

R v Engert (1995) 84 A Crim R 67

R v PGM (2008) 187 Crim R 152

R v Ponfield (1999) 48 NSWLR 327

R v Way (2004) 60 NSWLR 168

R v Zamagias [2002] NSWCCA 17

Sabapathy v R [2008] NSWCCA 82

Silvano v R (2008) 184 A Crim R 593

Tepania v R [2018] NSWCCA 247

Veen v The Queen (No 2) (1988) 164 CLR 465

Yildiz v R [2020] NSWCCA 69

Texts Cited:

None

Category:

Sentence

Parties:

Regina (ODPP)
Mitchell Lennox Hewitt (Offender)

Representation:

Counsel:
Ms K Tennant (Crown)
Mr G Bradey SC (Offender)

Solicitors:
ODPP (Crown)
Hunter Flood Lawyers (Offender)

File Number(s):

2017/83256

Publication restriction:

Non publication order on any matter that identifies the Complainant (s578A Crimes Act 1900 NSW), either directly or indirectly.

remarks on Sentence

introduction

1. Mr Hewitt (hereafter referred to as ‘the Offender’) appears before the Court today for sentence after being found guilty by a jury in October 2019, the findings in relation to one count of sexual intercourse without consent in contravention of s 61I of the Crimes Act 1900 NSW, which occurred on 22 November 2016 at Pearl Beach in the State of New South Wales. That offence carries the maximum sentence of 14 years’ imprisonment and attracts a standard non-parole period of 7 years. I acknowledge these as guideposts for a sentencing judge. The community, quite understandably, considers this offending to be serious.

2. The Offender was born on 26 April 1995 and is presently 25 years of age, having been raised in Sydney. He completed Year 12 in 2012. He is currently studying engineering at Sydney University. While a full-time student, the Offender has also maintained regular part-time employment, including roles in labouring, pizza delivery, bartending and cellar work; however is currently not employed. His parents are separated and he presently resides with his mother in Sydney, although he also maintains a close relationship with his father, as well as his older sister.

3. The issue of contention in this sentence is whether the Offender should be sentenced to a custodial sentence or a community-based sentence. In the time since the trial I have reflected upon this question carefully, as I acknowledge that imposing a non-custodial sentence would ordinarily be exceptional or lenient for an offence of this type.

THE CHARGE FOR SENTENCE

4. The offence for which the Offender is to be sentenced is charge number H ending 789, sequence 2, being that on 22 November 2016 in Pearl Beach in the State of New South Wales, the Offender did have sexual intercourse with [redacted], ‘the Complainant’, without her consent and knowing that the Complainant had not consented to the sexual intercourse, in breach of s 61I of the Crimes Act.

STANDARD NON-PAROLE PERIOD

5. The charge carries the maximum sentence of 14 years and a standard non-parole period of 7 years. The relevance of the latter was recently discussed in the Court of Criminal Appeal in the matter of Tepaniav R [2018] NSWCCA 247 by Johnson J, who at 110 summarised the propositions that arise from the legislation in which the provisions relevant to standard non-parole periods are found.

6. The standard non-parole is a matter to be taken into account as part of the determination of sentence. Part 4 div 1A of the Crimes (Sentencing Procedure)Act (‘the CSP Act’) specifies that the standard non-parole period applies to an offence found within the middle range of objective seriousness for such an offence taking into account only objective factors. That is, a period contemplated without bringing into account matters that are unique to the Offender or the class of Offenders.

7. Ultimately, though, the standard non-parole period is but a factor to be taken into account in the sentencing exercise, together with the objective and subjective matters which are considered in synthesis in accordance with what McHugh J explained in the decision of Markarian v R [2005] ACA 25.

8. Even though an offence might be found to be within the middle of the range of objective seriousness, it does not follow that the standard non-parole period will apply, or that there shall be a percentage calculation performed where the offence might be found lower on the scale of seriousness. The process is not arithmetical, but more intuitive. However, the law requires a determination as to where on the scale of objective seriousness the offence falls.

9. The precise positioning of the offence along the scale is a matter of judgment. It does not follow that a standard non-parole period should be adjusted simply by application of some percentage and reached upon the assessment of where on the scale the offence is placed. Nevertheless it remains an instructive guidepost.

PROCEDURAL HISTORY

10. The offending took place 22 November 2016 in Pearl Beach. Following a police investigation, the Offender was formally charged at Waverley Police Station on 17 March 2017. He has been on bail since that time.

AGREED FACTS

11. It is the obligation of the Court to determine the facts, with such facts to be consistent with the jury’s verdict. Any facts in favour of the Offender are to be proved on the balance of probabilities. Any fact which does not assist the Offender is to be proved beyond reasonable doubt.

12. The Court has been greatly assisted in this process by the parties agreeing to the facts upon which the Offender is to be sentenced. Having carefully reviewed the Agreed Facts, I am satisfied that the facts reflect the evidence and are consistent with the jury’s verdict.

13. The following are the facts agreed between the parties which, together with other considerations, are to form the basis for sentencing.

14. The Complainant was 21 at the time of the offence; the Offender was also 21 at the time of the offence. The Offender and the Complainant became friends in Year 8 of high school. They had a mutual friendship group.

15. In 2013, the Complainant and Offender had attended a party at 10 Coral Crescent, Pearl Beach which was owned by the family of one of the group, Mr Coppola. Whilst at the 2013 party the Complainant and the Offender had been in a bedroom lying in bed together. Their sleeping bags were zipped together, and a number of the group of friends that entered the room and seen them in bed together. The Offender said that he “had his hands in the Complainant’s pants”. The Complainant gave evidence that the Offender’s fingers were in her vagina. This became known amongst the friends as “[Offender]’s midnight mistake”. This was a reference to the fact that at the time the Offender had a girlfriend.

16. In early November 2016 the group of friends arranged to attend the same house in Pearl Beach. On Monday 21 November 2016, the Complainant travelled to Pearl Beach with another friend, Ms Cullen. They arrived at around 10pm that night. Over the duration of the evening the Complainant and the Offender consumed a quantity of MDMA and a number of alcoholic drinks.

17. Around 6.30am on the day after their arrival the Complainant and the Offender were in the spa at the premises. Other friends were nearby. After the Complainant and the Offender got out of the spa the Complainant went inside the house and laid down on the couch in the lounge area. At the time she was wearing a pyjama top and her bikini bottoms.

18. At around 7am the Complainant fell asleep on the lounge with the Offender. The Complainant gave evidence that she fell asleep with her legs on the Offender’s lap. She also said that Ms Cullen was on the couch with them. The Offender and the Complainant were asleep on the lounge together. They changed positions on a number of occasions, and the two were seen cuddling at one point. Further, Mr Coppola saw that they had moved again after that, and the Complainant had moved one of her legs over the top of the Offender’s hip.

19. Around 9am the Complainant started to wake and could feel the Offender lying behind her with his upper body pressed against her. She said there was a few seconds of semi-consciousness as she was waking up, where she could feel something in her vagina but could not say what it was. She then felt a kiss on the back of her neck which immediately shocked her into being awake.

20. The Complainant realised there was a person lying behind her with fingers in her vagina. She was in shock, and sat up and pushed his hand away. Once she had pushed his hand away from inside her vagina she looked over her right shoulder and saw the Offender lying behind her. At no stage did the Complainant give consent to the Offender to digitally penetrate her. She told police that she was asleep. The Complainant tried to stand up and the Offender tried to pull her back down to the couch gently by her right shoulder but she stayed sitting up. She said he asked her the time but she did not know. She left the lounge room to find her other friends.

21. The Complainant became hysterical and commenced crying, and ran down the beach where she saw her friends, Mr Attwood, Mr Coppola and Ms Davies. Mr Coppola said words to the effect of, “What was going on up there” or, “What the hell was just happening?” She said to her friends, “I woke up with [the Offender's] fingers inside me.”

22. Mr Coppola returned to the house and found the Offender asleep on the lounge. When he was woken and told what was alleged he seemed completely confused. Mr Coppola told the Offender that the Complainant complained of being assaulted by the Offender. The Offender, “looked completely shocked.” Mr Coppola then told the Offender he had to leave. When he was at his car the Offender said to Mr Coppola, “Maybe I should go and try to apologise to her.” The Offender walked towards the beach to apologise. However, the Complainant became more hysterical. Mr Coppola again requested that he leave which he did.

23. At 5.23pm on 24 November 2016 the Complainant received a text message from the Offender which said:

[Redacted], I can’t imagine what the past few days have been like for you and what I put you through and I probably never will and I am so unbelievably sorry for that. I know I fucked up so badly and that is on me. You probably don’t want to speak/see/hear from me now/anytime soon, so I doubt an apology will even scratch the surface of making amends with you but I got to start somewhere. I also realise I deserve all the fallout from this, I completely regret what happened and never would have done it if I thought you weren’t okay with what was happening or in a situation where you were unable to. If we could talk some time to sort out what has happened, that would mean the world to me, but I fully understand if you don’t want to. Again, I can’t even begin to imagine how you’re feeling from this, I’ve completely betrayed your trust and all my friends. If there’s anything I can do to make you feel any better or to slowly set things right, please let me know.

24. At 11.55am on 2 December 2016 the Complainant called the Offender on his mobile phone. The entirety of the call was recorded pursuant to a warrant granted 29 November 2016.

25. During the call the Complainant spoke about the incident on 22 November 2016. The Offender apologised a number of times to the Complainant and said:

I thought you were keen, I know I misread it and I know that’s on me, and I know it’s completely wrong because you obviously weren’t.

26. At 1.10 pm on 17 March 2017 the Offender attended Waverley Police Station in the company of his legal representative. He was placed under arrest and a caution was given. The Offender read out a pre-prepared statement during the interview, and declined to answer any further questions.

27. In the statement prepared by the Offender he said:

[The Complainant] began to press herself into me further and after a minute or so slowly begun to grind on me, as she did not remove my hand or stop driving on me or signal for me to stop in any way I then placed my hand into her waistband, the waistband of her pants, as she appeared eager to get more personal. At no time did I begin fingering [the Complainant] or get my fingers onto her genitalia or breast area.

28. Those are the Agreed Facts.

THE OFFENDER’S SUBJECTIVE CASE

29. During the course of the sentence hearing the following documents were tendered for the Offender, comprising Exhibit 1:

1. reports from Dr Kasinathan, forensic psychiatrist, dated 25 march 2020 and 15 May 2020;

2. reports of Dr Edema, treating psychiatrist of 21 May 2020 and 6 May 2020;

3. report of Kris North, forensic psychologist, dated 18 May 2020;

4. report of Mr Sean Jacobs, treating psychologist, dated 20 May 2020;

5. affidavit of the Offender sworn 12 June 2020, as well as his resume; and

6. various character references and statements.

30. A sentencing assessment report was also included in the Crown bundle. The bundle was marked exhibit A.

Sentencing Assessment Report

31. A sentencing assessment report was prepared by Michael Ohn, dated 25 May 2020, in which the author provided some information concerning the Offender’s background. With no criminal history or prior run-ins with the law, the Offender described a “close relationship with his family”, to whom he has grown closer during this legal process, while having distanced himself from antisocial friends involved in drug use since the subject offending.

32. Under the heading “Factors related to offending”, the author noted that the Offender still denied the charge, stating that the remorse he felt is related to the Complainant “becoming emotional and disrupting a great weekend”. Further, the Offender admitted to sending apologetic messages to the Complainant, however, clarified that he was persuaded to do so by a friend “in attempt to appease the accusations”. The Offender admitted to a history of recreational drug and alcohol use, including on the night of the offence, however, he clarified to the author that at that time he was “of sound mind”. He also expressed ongoing mental health issues, including ongoing severe anxiety, depression and thoughts of self-harm a few months prior to the offence. Again, however, he stated that this was not a factor at the time of the offence. This accorded with the forensic psychiatric evidence.

33. The Offender was unable to identify any negative implications that the Complainant may have endured and reported that the Complainant, for unknown reasons, fabricated the events of the offence.

34. The Offender was noted as having been reviewed by a Corrective Services Psychologist, who assessed him as an “average” risk of re-offending, however, this conflicted slightly with the report’s overall assessment, which assessed him as a “Medium-Low” risk of reoffending. For reasons which I will outline below, I am more inclined to agree with the latter conclusion, going almost so far as to find the Offender as having a near zero chance of reoffending.

Reports of Dr Kasinathan

35. In his report, Dr Kasinathan noted that the Offender reported a range of psychiatric symptoms at the time of interview (March 2020), including severely depressed mood, insomnia, past suicidal tendencies, distractibility, generalised anxiety and Adult ADHD. When asked about psychiatric admissions, the Offender divulged that he was admitted to the Sydney Clinic for 6 weeks for what was later diagnosed as “bipolar disorder type 2” and “depression and alcohol dependence”. The Offender further endorsed a family history of mental illness and suicide, including two bipolar disorder-related suicides in his immediate family. Mr Hewitt denied experiencing psychotic symptoms at the time of the alleged offence.

36. Under the heading “Drug and Alcohol History” Mr Hewitt reported commencing alcohol from age 16 with a six pack of beer daily with some alcohol binges weekends. He also reported substantive cannabis use between the age of 17 to 19 years, as well as infrequent use of ecstasy, cocaine and mushrooms. The Offender is currently on a range of prescribed medications to treat mental health symptoms, although reported having social anxiety and panic attacks from at least the age of 16 years. The Offender further reported developing severe depressed mood associated depressive symptoms and was suicidal from mid-2016 for at least six months. He commenced seeing a consultant psychiatrist, Dr Edema, from 2017 and commenced seeing Mr Jacobs, a treating psychologist, in April 2017.

37. Notwithstanding this, his first psychiatric admission did not occur until after the trial in this matter.

38. Dr Kasinathan was of the opinion that the Offender suffered from a mental illness at the time of the offence due to the presence of moderately severe disturbance of anxiety and depressed mood. Importantly, however, he was of the opinion the Offender was not then a mentally ill person.

39. At p 8 Dr Kasinathan concluded:

The Offender did with reasonable medical certainty have psychiatric diagnoses at the material time of the alleged offence consistent with recurrent and persistent major depressive disorder; generalised anxiety disorder, panic disorder, socialised anxiety disorder, attention deficit, hyperactivity disorder, ADHD and alcohol use disorder.

40. He also noted at p 9 that it was more probable than not that the Offender’s judgment was partially impaired at the material time due to his untreated major depressive disorder. However, also that there was “no rational connection between his anxiety disorders and the alleged offence”. Dr Kasinathan also expressed the opinion that the use of alcohol and MDMA at the material time may have resulted in some sexual disinhibition.

41. Dr Kasinathan suggested the possibility that the Offender’s depressive disorder and alcohol use may have impaired his capacity to foresee the consequences of his alleged actions, and also confirmed that the psychiatric diagnoses were chronic and persistent.

42. It is to be noted that Dr Kasinathan did not make any attempt to distinguish between any psychiatric condition and the self-induced intoxication in determining any connection to the offending.

43. At p 10 Dr Kasinathan suggested that should his current mental health plan stop the Offender would risk relapsing and be at an elevated risk of suicide. He further remarked that the Offender would be unlikely to receive “ongoing, regular psychological treatment in gaol”, and that he would struggle to cope and possibly deteriorate clinically. This analysis was furthered in his supplementary report, in which he suggested that the stricter isolation protocols enforced in prisons due to COVID-19 may have further detrimental impacts on the Offender’s mental health. He also confirmed, however, that there would be a “minimal anticipated adverse impact upon his mental health related to medication changes”.

Reports of Dr Gavin Edema

44. Dr Edema is the Offender’s treating psychiatrist. His report was largely in concurrence with that of Dr Kasinathan, insofar as it diagnosed Panic Disorder (without Agoraphobia), Social Anxiety, Bipolar Affective Disorder Type II, ADHD and Adjustment Disorder. Dr Edema disclosed some 8 medications prescribed to the Offender as part of his treatment regime, specifically highlighting 3 as “essential psychiatric medications” at paragraph [15].

45. Like Dr Kasinathan, Dr Edema concluded that the Offender would face particular hardship if incarcerated, suggesting some of the likely withdrawal symptoms to be faced if his medications were ceased, including restlessness, headaches, irritability, sleep disturbance and anxiety.

Report of Kris North

46. In her report of 18 May 2020 Ms North summarised her assessment of the Offender as revealing “a complex history of mental health issues which had been further exacerbated by his current legal issues.” She opined that the treatment regime required by the Offender would likely be detrimentally affected by a custodial sentence insofar as reducing access to appropriate care, increasing levels of anxiety, and separation from his social support network.

47. Ms North assessed the Offender’s risk of reoffending as low. However also noted that a comprehensive risk assessment for sexual recidivism could not be completed due to “the author’s understanding that the conviction is to be appealed as Mr Hewitt maintains his innocence”.

Report of Sean Jacobs

48. A report was provided by Sean Jacobs, treating clinical psychologist. This report, dated 20 May 2020, largely echoed the findings and concerns raised by the reports referred to above, recounting the same diagnoses of Panic Disorder, Anxiety, Bipolar Type II and Adult ADHD. Mr Jacobs also confirmed that the Offender was prescribed a list of some 7 psychopharmacological medications to assist in the treatment of his symptoms.

49. Mr Jacobs expressed “extreme concern” that, given his “pre-existing emotional and mental state vulnerabilities”, incarceration would be “seriously traumatic and damaging” to his future life, and advised of a commitment to continue working weekly with the Offender to assist with his mental health challenges.

Affidavit of the Offender

50. The Offender submitted an affidavit of 12 June 2020 which offered insight into his personal background and general life leading up to the subject offending. His affidavit spoke of his childhood, home life, school life, as well as various extracurricular activities. In addition, the impact that his mental illness has had upon him was discussed, both prior to and since the subject offending.

51. Mr Hewitt recounted first noticing problems with his mental health at roughly 8 years of age. In particular, he recalled a period around September 2016 where his mental health issues became so severe that he drove to The Gap at South Head, where he contemplated taking his own life. He further recounted that these mental health problems were exacerbated by the proceedings for which he appears today.

52. Annexed to the affidavit were various illustrations drawn by the Offender after August 2016, which are said to provide insight into his mental state at the time. It is sufficient to observe the drawings were dark, and even to a layperson they suggest a person who is troubled. The captions to the drawings written by the Offender would confirm that view. One shows a carving said to be the Offender’s thigh. He stated, “I felt that I needed to self-harm again to try and feel normal” (tender bundle p 30). This evidence is supportive in a general way of the concerns raised by the medical experts.

53. In sworn evidence the Offender adopted the contents of his affidavit.

Character References

54. Also included in the defence bundle were numerous character references from contacts of the Offender, including his parents and family, friends and professional associates. While I do not propose to read all of them onto the record in their entirety, I confirm that having read all of those references they speak very highly of the Offender, flagging his good character as well as an outgoing, caring and charitable nature, despite at the same time grappling with his mental health problems.

55. Whilst these references may well be accurate, as I do largely believe them to be, I must also exercise a degree of caution in the weight that I attribute to the statements, given that they are made out of Court and are untested. The character references, however, provide the Court with greater comfort in making a finding of prior good character.

SUBMISSIONS

The Crown’s Written Submissions

56. The Crown’s written submissions were marked MFI 1 in the sentence hearing. It was submitted the Court may take into account 3 considerations when assessing the Offender’s conduct:

1. that digital penetration is not necessarily a less serious form of penetration than, for example, penile penetration. The objective seriousness must be determined according to the entirety of the facts and circumstances of the case. I accept that submission;

2. the duration of the digital penetration is on the evidence unknown given that the Complainant awoke during the course of the offending. I also accept that submission; and

3. while no force or violence was used in the commission of the offence the Complainant was asleep at the time, increasing her vulnerability. I accept that no force was applied and that, most probably, the Complainant was asleep when the assault commenced.

57. Overall it was submitted on behalf of the Crown that the offending fell below the midrange of objective seriousness. I intend to find, for reasons which I provide below, that the objective seriousness falls at the low range.

58. At para 5 of the Crown’s written submissions it was submitted that general deterrence is of great importance in sentencing Offenders in matters such as this, and that there remains a need to protect women from the opportunistic sexual assault in the sanctity of a place where the Complainant should otherwise feel safe. Whilst I unhesitatingly agree with the sentiments, I am not of the opinion the Offender represents an appropriate vehicle for general deterrence in the particular circumstances, for reasons which I will further elaborate upon below.

59. The only aggravating factor identified by the Crown was that of 21A(2)(eb) of the CSP Act, in that the subject offending was committed in the home of the Complainant or someone else. In this case, the offending occurred in the holiday house of a friend of the Complainant and the Offender. I accept the Crown’s submission and make that finding.

60. In respect of mitigating factors the Crown conceded the following were applicable:

1. the injury, emotional harm, loss or damage was not substantial(21A(3)(a));

2. the offence was not planned(21A(3)(b));

3. the Offender does not have a record of previous convictions(21A(3)(e)); and

4. the Offender was of prior good character(21A(3)(f)).

61. I accept those submissions from the Crown and I make those findings.

62. Regarding the Offender’s subjective case, the Crown submitted at [14] that courts should generally treat untested out of court statements with caution, “including affidavits, psychiatric reports and any evidence from the Offender in the absence of oral evidence”. In particular, it was raised at [15] that a sentencing Judge should give “very limited weight” to statements made by an Offender to a psychiatrist or psychologist reproduced in reports, referring to the decision of JDX v R [2017] NSWCCA 9. I have approached such evidence in that way.

63. The Crown further submitted that it is difficult to assess the Offender’s prospects of rehabilitation given that he maintains his innocence, instead proposing that no evidence of contrition or remorse is present. I have considered these matters in my reasons below.

64. With respect to special circumstances the Crown proposed that making such a finding would be appropriate given that:

1. it would be the Offender’s first time in custody; and

2. a custodial sentence would be more onerous on this Offender given his mental health concerns.

65. I agree with the learned Crown and I find special circumstances.

66. Ultimately, the Crown contended that the s 5 threshold has been crossed and that a sentence of full-time imprisonment is warranted. As I stated at the outset of these remarks, this is the central issue in the sentence, which I will consider and determine below.

The Offender’s Written Submissions

67. The written submissions on behalf of the Offender were marked MFI 3. Senior counsel for the Offender submitted firstly that the Court’s findings of fact need to be consistent with the jury’s verdict, and although it is not required that I take the view most favourable to the Offender, any reasonable doubt must be decided in the Offender’s favour. It was noted at 7 that while the Offender maintained his evidence, the submissions in relation to factual findings would nonetheless be made consistent with the jury’s guilty verdict.

68. Regarding objective seriousness, senior counsel for the Offender referred to Fullerton J’s comments in R v PGM (2008) 187 Crim R 152, who noted that while there is no hierarchy of sexual acts that constitute sexual intercourse for the purposes of the criminal law, it is generally accepted that some forms of sexual activity may be regarded as more serious than others. It was submitted that the objective seriousness in this instance “falls at the very bottom end of the range of offences of this nature”, for a number of reasons.

69. First, the Offender honestly believed the Complainant was consenting. For reasons given below, I do not accept this submission.

70. Second, the penetration was digital. Whist this was the case, it does not necessarily mean that it was a less serious form of the offence. I note here the remarks made by the CCA in the matter of Greenwood v R [2014] NSWCCA 64, where this question was considered by the Court, in which the Court referred to an earlier decision in the matter of Jolly v R [2013] NSWCCA 76 at 72 where the Court said amongst other things:

The nature of sexual intercourse which occurs in offending of this nature should not be considered in isolation and then ranked in some form of hierarchy.

71. We could also refer to other factors such as the degree of violence, the physical hurt inflicted, the form of the forced intercourse, the circumstances of humiliation and the duration of the offence. Reference is made to the decision of the CCA in the matter of Hibberd [2009] NSWCCA 20 at 56.

72. The third point raised by senior counsel for the Offender as bearing upon the objective seriousness of the offending was that the time and extent of penetration was limited. I also reject this submission, as there was no evidence which would support a confident finding either way.

73. The fourth matter raised was that upon complaint the Offender stopped. This appears to be the case. There is no suggestion that the Offender continued to force himself upon the Complainant.

74. The fifth matter is the absence of factors of an increase in objective gravity. I understood this to be a reference to the fact that the offending was opportunistic and was not aggravated by planning, violence or any breach of trust.

75. Senior counsel for the Offender submitted that the jury’s decision to acquit on Counts 1 and 3 should lead to a conclusion that the Complainant’s evidence, where not corroborated by other evidence, could not be accepted beyond reasonable doubt. Further, he submitted that the Court should take the same approach, in doing so senior counsel pointed to the recorded phone call between the Offender and the Complainant as likely having been accepted by the jury as the truth. It was then proposed that the Court in unison with the jury supposedly accepting the Offender’s comments and the phone call as being truthful should accept that the Offender did honestly believe the Complainant was consenting, albeit without reasonable grounds for doing so and that the Offender honestly believed that the Complainant was awake and consenting at the time of the offence. See MFI 3 at 20.

76. The difficulty with making the finding contended for is that the Offender does not accept that the act took place. What he said in the telephone call must be viewed and assessed in that light. There is no logical basis for accepting that he believed that she was consenting to the act when he denies that the act took place at all.

77. Even without this logical lacuna, I do not accept that the jury must have concluded that the Offender held an honest but mistaken belief.

78. I find the most favourable interpretation of the evidence available to the Offender was that he was reckless as to whether the Complainant was consenting or not.

79. Relying upon a finding of honest belief, it was submitted for the Offender that his moral culpability was “at the very bottom end of the range”. I do not accept that submission as the fact contended for which supports it, that his belief was honest but mistaken, is not available to the Court even on the balance of probabilities.

80. It was further submitted that the court could be satisfied that the offending was opportunistic. This notion was said to have been furthered by the fact that the Offender stopped, which should mitigate the offending behaviour in that it “supports the proposition that the Offender honestly believed the Complainant was consenting”. I tend to agree with senior counsel that, based on the evidence, the subject offending could be considered opportunistic in nature. There was no suggestion of any planning. I do not accept, however, that the fact that the offending stopped would necessarily suggest that he was of the honest belief that the Complainant was consenting. This is at least equally consistent with the Offender being reckless as to consent.

81. In terms of aggravating factors, the defence conceded that s21A(2)(eb), ‘offence committed in the home’, was applicable in these circumstances.

82. With respect to mitigating factors, the defence adopted the Crown’s submissions that relevant factors included the minimal harm, loss or damage, the lack of planning, the lack of previous convictions and good character. In addition, it was further submitted that two additional mitigating factors apply:

1. the Offender is unlikely to reoffend (per s21A(3)(g)); and

2. the Offender has good prospects of rehabilitation (per s21A(3)(h)).

83. I accept that all of these mitigating factors, including the two additional factors advanced on behalf of the Offender, apply and make findings accordingly.

84. The Offender’s written submissions referred further to his mental state, drawing upon the findings made in the reports which were tendered as part of Exhibit 1. Without repeating what was said in those reports the submissions raise the Offender’s mental history, diagnosis, treatment regime, description regime and opinions raised by the psychiatrist and psychologist, pre, mid and post offending. In terms of the Offender’s moral culpability it was submitted at 48 that:

The Offender’s mental illness contributed to the commission of the offence. Regardless of the denial the offences occurred, according to the jury and now the law and the evidence supports that his mental illness contributed to the offending. The Court could find that his mental illness contributed to the commission of the offence and in particular his failure to take reasonable steps to ensure consent was forthcoming.

85. With the greatest respect to senior counsel for the Offender, the evidence does not permit a finding of a nexus between the Offender’s psychological condition and the offending. In fact, Dr Kasinathan was of the clear opinion there was no rational connection between the two. This accords with the Offender’s own view that his condition was not a factor at the time of the offending. In these circumstances, I decline to find that the Offender’s moral culpability is reduced by any psychiatric condition.

86. The Offender may have been affected by substances such as alcohol or MDMA, but self-induced intoxication is not a mitigating factor (s 21A (5AA) CSP Act).

87. Regarding the issue of general deterrence and denunciation, senior counsel for the Offender proposed that general deterrence should be given very little weight in this particular sentence as the Offender’s mental illness would not make him an appropriate medium for an example to others, particularly given the onerous nature of custody on the Offender. In particular two reasons were submitted supporting the argument that custody would weigh more heavily upon the Offender.

88. These were the enhanced effect of imprisonment on his mental wellbeing and also the potentially reduced access to mental health services, both of which were raised by the experts in their respective reports comprising Exhibit 1.

89. Similarly, written submissions were advanced proposing that the Offender’s psychological conditions may reduce the need for specific deterrence to be a key factor in sentencing, especially in light of his continued commitment to his mental health treatment, which should further his rehabilitation prospects.

90. Additionally the submissions re-raised a number of subjective points which could assist the Court in being satisfied of the Offender’s exceptional rehabilitation prospects including:

1. his significant family support network;

2. his efforts to distance himself from antisocial friends;

3. the assessment of reoffending as being of low risk;

4. his demonstrated ability to succeed through hard work, professionally and academically;

5. his young age at the time of offending’;

6. his otherwise good character; and

7. the period of time between the offending and now elapsing with “no further issues”.

91. It was conceded at [67] that sexual intercourse without consent would ordinarily attract a sentence of full time custody, however, that there will be cases where a custodial sentence is not required. The written submissions on behalf of the Offender referred to the decision of Sabapathy v R [2008] NSWCCA 82, where the court stated at [71]:

There may be unusual or exceptional circumstances in which a sentence other than a custodial sentence will be appropriate, but there is no litmus test for when that might be so. It is part of the exercise of the broadly based sentencing discretion in light of all the facts in the particular case.

92. The written submissions referred of R v Shortland [2018] NSWCCA 34 where it was stated at [7] that:

There will be cases, which may include offences where digital penetration of a minimal kind is involved, or where there is evidence of severely limited intellectual capacity, which warrant a non-custodial sentence.

93. Whilst this matter involves digital penetration it cannot be said that it is a case where there is impaired intellectual capacity. Shortland does however provide for one example of relevant cases justifying departure from the sentencing norm.

94. Finally, the submissions for the Offender directed the Court to Director of Public Prosecutions v Burton [2020] NSWCCA 54, where Basten J considered Muldrock in determining that the sentencing judge’s decision to impose a community corrections order on an Offender who pleaded guilty to sexual intercourse without consent was available to the sentencing judge at the first instance. Those sentiments were echoed by Rothman and Cavanagh JJ, who determined that although a lenient sentence in the circumstances, the imposition of a CCO as punishment for the offence was within the reasonable range of judicial discretion.

95. The written submissions ultimately posited that this case was one which falls into the category described by Shortland and Burton, and could be dealt with other than by way of custodial sentence as:

1. in the submissions of senior counsel, “the objective seriousness is at the very bottom end of the range”;

1. the Offender honestly believed that the Complainant was consenting;

2. the effect of the Offender’s mental illness on moral culpability, a need for general deterrence, denunciation and the impact of custody;

3. the applicable mitigating factors;

4. the Offender’s youth and prospects of rehabilitation; and

5. that the offending occurred 3 and a half years ago.

The Crown’s Oral Submissions

96. In addition to the written submissions, I was greatly assisted by oral submissions made during the course of the sentence hearing.

97. It was contended again that it would be difficult to find remorse in a statutory sense.

98. Although it was conceded that there was some evidence that the Offender had some insight into what he says happened. The Crown clarified that such insight would likely be in relation to the Offender’s admitted recount of the event. That is, that he is sorry for mistaking the Complainant’s consent to place “his hand on the top of the waistband of her pants”. Given there is no recognition that the digital penetration occurred (T9.31).

99. When asked by me whether it may be possible to not accept the allegations put against him and yet be sorry for the fact that the person was affected by the alleged conduct, the Crown suggested that the Offender may be viewed as remorseful on the basis that he was “upset the victim was emotional or that his remorse was limited to the victim being emotional and the weekend being disrupted” (T10.34). I respectfully agree with this submission.

100. Overall, the Crown submitted at T11.5 that “in terms of insight and genuine remorse… there is some evidence of some kind of contrition in terms of recognising the effects on the victim”, however, it may be difficult for the court to interpret this as amounting to genuine statutory remorse for the subject offending, given his adherence to a plea of innocence. I agree with this submission, in that it is clear that the Offender has demonstrated some remorse generally, however, his sustained denial and plea of innocence makes a finding of statutory remorse very difficult. While I acknowledge that there are aspects of remorse demonstrated by the Offender, they do not rise to the level that would permit me to take it into account as a statutory mitigating factor pursuant to s21A(3)(i) of the CSP Act.

101. The Crown’s only oral submission related to the Offender’s mental health, in that it sought to reinforce that there was no connection found between the anxiety and depression and any evidence of mental illness (T11.44). Instead, it was submitted that there could be partial impairment due to the depression, however, the anxiety disorder had no rational connection to the alleged offence, and that it “certainly seems to be a combination of factors between the depression, MDMA and alcohol” (T12.28). I accept the latter submission but reject the submission that there was no connection between depression or anxiety and a mental illness, as those conditions themselves are psychiatric diagnoses.

102. The Crown referred to the Offender’s own assertion that his mental health was not a factor at the time of offending, as identified in the Sentencing Assessment Report. When I suggested that this assertion may cause difficulty, given his own lack of qualification to express an opinion as to the impact of his psychological and psychiatric conditions, the Crown reaffirmed at T13.22 that, in any event, it would be:

difficult to say that there’s some kind of depression or anxiety which then provides the nexus to the offending when (the Offender) says the offending didn’t occur.

103. There is an element of circularity to this submission as, by reason of the guilty verdict, I must sentence on the basis that the offending did occur. I also accept that he was suffering from psychiatric conditions at the time offending. I agree, however, that the evidence does not establish a connection between his conditions and the acts giving rise to the offence.

104. When questioned as to the Crown’s perceived prospects of rehabilitation, it was submitted the Crown certainly would not be saying anything contrary to there being good prospects of rehabilitation (T14.42).

105. Finally, when I enquired as to the s5 threshold and whether the Offender’s psychiatric condition ought to be considered a key factor in determining whether a full time custodial sentence was warranted, the Crown submitted that such consideration was necessary. It contended, however, that it would be “an appellable error” to find that the s5 threshold had not been met in this matter (T15.6). I value the candour of the Crown in addressing this, the central issue, so directly.

106. The Crown further referred to the matter of Director of Public Prosecutions v Burton. It was submitted at T15.12 that Burton was distinguishable from the subject offending, as in that case “the Offender gave a full statement of admission to police the day after the offence and then pleaded guilty in the Local Court”, before appearing for sentence in the District Court. The difference between that matter and this, it was submitted, is that the immediate guilty plea attracted a 25% sentence discount, which would ultimately go towards determining the extent to which the standard non-parole period becomes applicable, in terms of it being a guidepost. This determination would, therefore, impact upon whether the sentence is likely to fall within the sub-3 year range, the maximum duration permitted when imposing a Community Corrections Order (T15.26).

107. This submission may be unintentionally misleading. I do not proceed on the basis that the Crown’s position is that a CCO is unavailable to sentences likely to exceed 3 years, as I would otherwise impose a sentence of less than 3 years even if custodial. I understand the Crown’s challenge to a CCO has been put on a broader basis, that is that such a sentence would not be adequate given the circumstances of the offending.

108. The Crown provided some JIRS statistics before the 2018 reforms, 94.4% of Offenders entering a plea of not guilty were sent to prison with 5.6% receiving a suspended sentence. Following the 2018 reforms, 100% of Offenders who pleaded not guilty, 26 cases, were sentenced to imprisonment. Whilst I am mindful of the need for consistency in sentencing trends, I also acknowledge that statistics of this kind are a blunt instrument, and ought not be applied strictly.

Offender’s Oral Submissions

109. Senior counsel submitted there were clear instances of the Offender demonstrating remorse. Examples given included his attempts to walk down to the beach and apologise (T17.39) and his apologies for the hurt caused in his phone calls to the Complainant (T18.14). There was also the text message.

110. Senior Counsel again submitted on the jury’s assessment of the evidence at trial which ultimately led to the Offender’s conviction, noting that “there can be little doubt, one would think, that the telephone call played a large part of the reasoning with the jury finding that they found” (T18.11). Whilst this is possible, it cannot, in my opinion be accepted, even on the balance of probabilities.

111. Counsel for the Offender submitted at T18.33 that, while the evidence would not appear adequate to support a statutory finding of remorse, I might be persuaded that there is:

remorse and contrition that would otherwise assist in coming to the conclusion that rehabilitation prospects are… exceptional, not just very good.

112. I have no difficulty in finding exceptional prospects of rehabilitation, even without the Offender’s apologies.

113. The conundrum faced by the Offender is that, whilst he may be remorseful in the sense of regretting the incident and its fallout, so long as he maintains his denial of guilt (as is his right), then he can never establish remorse as a statutory mitigating factor.

114. It was submitted that, given the Offender was only 21 years of age at the time of the offence, his culpability should be reduced somewhat, due to his age “impacting upon the Offender’s ability to properly understand what is happening”, however it was also conceded that 21, as opposed to say 14 or 17 years, may somewhat limit the strength of such a submission (T19.38).

115. Quite apart from the submissions advanced for the Offender, I accept that he was a person of relative youth. I am mindful of a decision of Yildiz v R [2020] NSWCCA 69 where the Court was dealing with an Offender aged 18 years, 5 months. The CCA were satisfied that the applicant’s youth was a mitigating factor, particularly in the context of her lack of previous convictions (at [9]). Plainly, the relevance and impact of age declines as an Offender matures but, in my view, even at 21 some indeterminate allowance should be made.

116. Counsel again raised the notion advanced in the written submissions that the Offender’s relative youth, bright future prospects and good behaviour over the 3 and a half years since the commission of the offence all pointed towards good prospects of rehabilitation. It was suggested that these factors, in conjunction the requirements of his current mental health treatment plan (T21.3), would cause a tilt in the consideration of the purposes for sentencing, away from punishment and retribution, and further in favour of rehabilitation.

117. When I suggested to senior counsel that the sentence must still acknowledge the Complainant and the harm done to her, counsel raised the Crown’s concession that the mitigating factor of a low degree of harm applied in these circumstances. It was submitted that the “needs of the community” referred, to in Muldrock v The Queen [2011] HCA 39, aligned with the Offender in respect of his sentence for the subject offending. In particular, senior counsel submitted that the community “could have no better interest than this young man making a useful life” and becoming “a useful member of this community” (T31.26). Whilst community interest is important, it is but one of many considerations that the Court must weigh.

118. I agree with senior counsel’s submission that general deterrence and enunciation are of less relevance in the sentencing exercise as it is clear the Offender was and continues to be inhibited by multiple psychiatric conditions. In my view, the Offender is not an appropriate vehicle for general deterrence and denunciation. The conditions suffered are such that imposing a sentence with deterrence in view is not indicated as its retributive effect will be inappropriate to the Offender’s situation and to the needs of the community (Muldrock at [53]).

119. Senior counsel echoed the Offender’s written submissions in submitting that the offending fell at the absolute bottom end of the range of that type of offending, firstly as the “act itself… is towards the bottom end of the range” (T22.7), and the reduced moral culpability of the Offender. Regarding the former, a submission was made that, although there is no hierarchy in terms of offending of that type, nor is there any evidence as to the duration of the offending, one may could conclude that the “limited time, limited extent and of course cessation” would place it at the bottom end of the range (T22.35). While I agree in part, I have already stated that I am not prepared to make findings in regards to the duration of the offending, nor am I willing to grade it at the very bottom of the range. I do, however, acknowledge it is at the lower end of the range for offending of this type.

120. Regarding reduced moral culpability, senior counsel for the Offender suggested that the Offender retained an honest and mistaken belief of consent to sexual intercourse, as evidenced by the reaction to Mr Coppola after being confronted about the offence, and the apology provided in his phone call to the Complainant. At T25.4 it was submitted that this apology was the distinguishing factor which allowed the Offender to be acquitted of the temporally related Count 3:

The reason they came to the conclusion that he was not guilty of count 3 is because he honestly believed she was consenting. And the reason why they found him guilty of count 2 is because there was that next step about reasonableness.

121. Again, this appears to be speculation as to the jury’s deliberation process.

122. Further, the Crown responded to this submission by noting that, during the trial, the case was not left to the jury on the basis that it happened and the Complainant was consenting, but rather that it did not happen at all (T34.5). In my opinion, the most favourable and reasonable interpretation of the jury’s verdict is that the Offender was reckless as to consent.

123. Senior counsel referred to Dr Kasinathan’s assessment that the Offender was “more probably than not” impaired at the material time due to his untreated major depressive disorder (T25.45), which would have impacted the Offender’s judgment, and therefore his culpability. However, it was also conceded that Dr Kasinathan hypothesised that the combination of the Offender’s depressive disorder and self-intoxication on the evening collectively contributed to the impaired judgment, rather than identifying the psychiatric illness alone. Given this evidence, I am not prepared to find that the Offender’s moral culpability was reduced by reason of his psychiatric condition.

124. Counsel responded to the Crown’s oral submissions which sought to distinguish the matter of Burton from this matter, noting that although there was a plea of guilty and a clear indication of statutory remorse in that matter, it was also relevant that the offending may be considered as more serious than this subject offending, given the involvement of cunnilingus in the former. While it was again conceded that there is no hierarchy, it was submitted that “all of the elements put together (made Burton) a more serious offence than this” (T29.44).

125. Whilst I consider the offending in Burton to be more serious than here, it is not for the reason advanced by Senior Counsel for the Offender. In the present matter, the offending was entirely opportunistic. The Complainant and the Offender were friends and lying on the couch together watching television. They fell asleep. The offending occurred. There was no disparity in age, power or control. In Burton, there was a significant disparity in age, the Offender abused a relationship of trust with the Complainant, his niece. Further, the Complainant was young and intoxicated in a hotel room away from home and her family. The trust and the vulnerability in Burton substantially distinguishes that matter from the present

Additional Submissions

126. In addition to the above mentioned written and oral submissions I invited both parties to advance further submissions regarding the possible relevance of any extra curial punishment as a consideration for me to take into account in the sentencing exercise. The email from the Court to the parties is marked for identification MFI 4.

127. Whilst it was intended to enquire as to extra curial punishment more broadly, it became focused on the Offender’s plans to travel to the United States for a competition in late 2020.

Offender’s Additional Affidavit

128. The Offender submitted an affidavit sworn 29 July 2020, marked Exhibit 2. This provided additional detailed information concerning the Offender’s participation in the RobotX project, as well as outlining the planned trip to Queensland later this year.

129. Generally speaking, the affidavit detailed a dedicated involvement in Sydney University’s Australian Centre for Field Robotics, as well as RoboNation, an international robotics development community.

130. The Offender referred to his selection and ongoing contribution to the RobotX competition, including the development of an unmanned robotic boat (Exhibit 2 at [14] – [17]). As a result of his involvement in this program, the Offender noted that he has been selected as one of two participants to live aboard the R/V Falkor in September 2020, as well as visiting Hawaii in December 2020 to compete in the RobotX 2020 challenge.

Offender’s Additional Written Submissions

131. Counsel for the Offender provided some further brief submissions in relation to this topic. These were exclusively limited to the prospects of the Offender travelling to the United States later this year to compete in the competition. Save for a brief reference to the fact the Offender as a young man with talent, determination and very real prospects of a successful career, will be undoubtedly significantly hindered by his conviction in this matter.

132. In referencing Silvano v R (2008) 184 A Crim R 593, Senior Counsel submitted that the Court was entitled to take into account any loss or detriment to be suffered by the Offender imposed by persons other than the sentencing Court, for the purposes of punishing him for the offence.

133. Senior counsel referred to the Immigration and Nationality Act 1952 which described a vetting process for prospective visa applicants in the United States as well as the process for seeking a visa waiver via application for the Attorney General. Senior counsel concluded that without such an application being made it is difficult to assert that the Offender could not enter the United States with any certainty, although “common sense would dictate that it will be unlikely he will be granted a visa”. More broadly, counsel for the Offender submitted without evidence that the conviction may cause the Offender significant difficulty both in travel to the United States and his ongoing career and that missing the competition, given the significance to the Offender, could fall within the definition of extra curial punishment.

134. Senior counsel also fairly conceded that the weight which can be given to adversely impact his employment and travel prospects may also be considered a natural consequence of the conviction.

135. The extra curial effects of the conviction are matters to which I have had regard as part of the overall subjective mix of factors. It is not in my view rise to the level of a mitigating factor.

Crown’s Additional Written Submissions

136. I was also assisted by submissions from the Crown, MFI 6, dealing with this additional consideration. The Crown adopted the concession, as made fairly by senior counsel for the Offender. It was pressed upon the Court that the loss of attendance at the competition would be unlikely to amount to extra curial punishment. The Crown referenced the matter of Greenwood [2014] NSWCCA 64 at [35] to postulate that loss of employment, no matter what the employment, would merely be an inevitable consequence in almost every circumstance where a person was convicted of sexual and indecent assault related offences.

137. Whilst I accept that as a general proposition, I have taken into account that there will be ongoing long term effects on the Offender by reason of his conviction, though not as a mitigating factor.

FINDINGS REGARDING STATUTORY AGGRAVATING AND MITIGATING FACTORS

S21A(2) Aggravating Factors

138. Having had regard to the submissions of both parties, I find the offending occurred in the home of Mr Coppola and the statutory aggravating factor under 21A(ii)(e)(b) is enlivened.

S21A(3) Mitigating factors

139. As I have already indicated, I intend to make findings that the following mitigating factors apply:

1. the injury, emotional harm, loss or damage caused by the offence was not substantial (s21A(3)(a));

2. the offence was not part of a planned or organised criminal activity (s21A(3)(b));

3. the Offender does not have any record (or any significant record) of previous convictions (s21A(3)(e));

4. the Offender was a person of good character (s21A(3)(f)),

5. the Offender is, in my view, unlikely to re-offend (s21A(3)(g)); and

6. the Offender has good prospects of rehabilitation (s21A(3)(h)).

140. I make those findings.

Findings Regarding Objective Gravity

141. In determining the objective seriousness of the offending I have had regard to the following factors:

1. all of the circumstances surrounding the offending;

1. the nature of the sexual intercourse (digital), whilst accepting that there is no scale by which to assess the seriousness of different forms of sexual offending;

2. the fact that the act was entirely opportunistic;

3. the fact that the conduct of the Offender was not predatory in nature;

4. the absence of planning;

5. the absence of violence or threats;

6. the fact that the Complainant did not suffer any physical injury or harm as a consequence of the offending.

142. In my opinion, the offending falls at the low end of objective seriousness.

FINDINGS REGARDING SUBJECTIVE CASE

Remorse

143. For the reasons provided I cannot find remorse in the statutory sense. I do however accept the Offender regrets what occurred and the harm suffered by the Complainant.

Rehabilitation

144. I find the prospects of rehabilitation are excellent.

Reoffending

145. I find the risk of reoffending is as close as may be reasonably found to zero.

Prior Good Character

146. I find the Offender was a person of very good prior character.

Psychiatric Illness

147. I accept the medical evidence adduced for the Offender. It was not challenged by the Crown. Specifically, I find that the Offender was suffering from a serious psychiatric condition at the time of the offence. I decline to find, however, that there was any nexus between those conditions and the offending.

148. The Offender’s psychiatric conditions have been made considerably and demonstrably worse by the events following the offending. He now suffers a heightened level of psychiatric symptoms. I consider that the Offender’s psychiatric conditions affect the sentence to be imposed. It raises questions as to whether the Offender is an appropriate medium for general deterrence, retribution and denunciation. I find that he is not. Further, I consider the need for specific deterrence as ameliorated by the minimal risk of reoffending.

149. I also consider that the circumstances warrant a degree of leniency based on compassion, as was considered in Burton by Basten JA at [37].

150. I consider the remarks of the High Court in Muldrock v The Queen (2011) 244 CLR 120 at [54] to be apposite:

One purpose of sentencing is to deter others who might be minded to offend as the Offender has done. Young CJ, [in R v Mooney] in a passage that has been frequently cited, said this [(unrep, 21/6/78, Vic CCA) at p 5]: “General deterrence should often be given very little weight in the case of an Offender suffering from a mental disorder or abnormality because such an Offender is not an appropriate medium for making an example to others”.

151. The High Court continued at [54]:

The principle is well recognised. It applies in sentencing Offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an Offender’s mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded Offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the Offender’s moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded Offender and to the needs to the community.

152. Whilst I decline to draw a nexus between the offending and the Offender’s condition, the remarks remain pertinent. I will pause to observe that the High Court in that case, referred to an Offender who was, as they describe, ‘mentally retarded’. I do not for a moment suggest that the Offender in this case is suffering from such a condition, although the evidence made it clear that he suffers from a number of psychiatric diagnoses.

153. Sentencing an Offender who suffers from a mental disorder mental disorder commonly calls for a “sensitive discretionary decision”: R v Engert (1995) 84 A Crim R 67 at [67]. This involves the application of the particular facts and circumstances of the case to the purposes of criminal punishment set out in Veen v The Queen (No 2) (1988) 164 CLR 465 at [488]. The purposes overlap and often point in different directions. It is therefore erroneous in principal to approach sentencing, as Gleeson CJ put in R v Engert at [68]:

…as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise.

154. I am also convinced that his psychiatric conditions are likely to disproportionately affect the Offender during the course of any sentence imposed and would almost certainly cause a period of imprisonment to weigh more heavily upon him than an individual not labouring under such illnesses. I intend to make a finding of special circumstances on that basis, together with the fact that if sentenced to imprisonment, this would be the Offender’s first time in custody.

155. Whilst mental illness may, in some cases, give rise to safety concerns in circumstances where the Offender is released into the community (see DPP v De La Rosa (2010) 79 NSWLR 1 at [177]), I am satisfied that this Offender presents no such risk. This is reflected in my assessment of his risk of reoffending as being close to zero.

PURPOSES OF SENTENCING

156. Section 3A of the CSP sets out the purposes for which a sentence may be imposed. When considering the purposes for sentencing in Veen v The Queen (No 2) (1988) 164 CLR 465, the court noted at [476] that:

the purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.

157. This is a clear case where the purposes for sentencing require careful consideration, as some may have less application given the Offender’s psychiatric condition and some of the purposes, pull in opposite directions. Whilst it is accepted that the sentence must be “adequate”, having regard to the objective seriousness of the offending, it is also a matter in which promotion of the rehabilitation of the Offender is of considerable significance.

158. In R v Ponfield (1999) 48 NSWLR 327 Grove J acknowledged the significance of rehabilitation, particularly in respect of younger Offenders, noting at [327] that “the prominence to be given to rehabilitation of the young in determining sentence is recognised to the point of being almost axiomatic”. While, on the one hand, a full-time custodial sentence would ordinarily represent adequate punishment for the offending, there is no doubt that it would jeopardise, if not completely destroy, the continued rehabilitation of this particular Offender. Aligned with this is the fact that general deterrence, denunciation and retribution are of less significance in this sentencing exercise than they may otherwise be, given the mental health concerns of the Offender.

159. It appears to me that, given the circumstances, crafting a sentence which prioritises the rehabilitation, including psychological management, of the Offender is of great importance.

THE SENTENCE

Is There an Alternative to Imprisonment?

160. Section 5(1) of the CSP Act provides as follows:

A Court must not sentence an Offender to imprisonment unless it is satisfied having considered all possible alternatives that no penalty other than imprisonment is appropriate.

161. Imprisonment includes a full-time custodial sentence or alternatively an intensive corrections order. The latter is not available for offending of this type.

162. The question then is leaving aside the possibility of an ICO, whether there is another form of sentence other than full-time custody which is appropriate.

163. I commence this exercise by recognising that imprisonment should be used as a sanction of last resort (R v Way (2004) 60 NSWLR 168 at [115]). As the Court observed in Way, this consideration is recognised by the CSP Act in so far as it provides for non-custodial sentences. The “ultimate objective” is one of imposing a sentence that is just and appropriate, having regard to all of the circumstances and so as to give effect to the purposes mention in section 3A (see Way at [121]).

164. I am also mindful that mercy has a place in sentencing. The NSWCCA in several decisions, including Kelly v The Queen [2007] NSWCA 357 at [30] has endorsed the following observation of Napier CJ of the South Australian Supreme Court:

Our first concern is the protection of the public, but, subject to that, the court should lean towards mercy. We ought not to award the maximum which the offence will warrant, but rather the minimum which is consistent with a due regard for the public interest (Webb v O’Sullivan [1952] SASR 65 at 66).

165. That is not to say, however, that considerations of mercy should be permitted to undermine the application of the general principles and purposes for sentencing.

166. The question of the appropriateness of a sentence draws upon considerations of both the objective seriousness of the offending and the Offender’s subjective case. In the matter of R v Zamagias [2002] NSWCCA 17 Howie J with whom Hodgson JA and Levine J agreed, stated:

It is clear that, when sentencing an Offender to a term of imprisonment under that Act, a court is required to undertake a number of steps before finally determining the appropriate sentence. Each step requires the court to consider the objective gravity of the offence balanced against the subjective circumstances of the Offender, but it is the first of those considerations that will primarily determine which of the available sentencing alternatives the court should adopt. This is because at the end of the day the sentence must be commensurate with the seriousness of the crime: R v Geddes (1936) 36 SR (NSW) 554; R v Rushby [1977]1 NSWLR 594.

167. In Zamagias, the Court went on to explain that there is a preliminary question to be asked and, depending upon the answer to that question, two further steps may have to be undertaken before the sentence is imposed:

The preliminary question to be asked and answered is whether there are any alternatives to the imposition of a term of imprisonment. Section 5 of the act prohibits a court from imposing a sentence of imprisonment unless the court is satisfied, having considered all possible alternatives, that no other penalty other than imprisonment is appropriate…

168. The remaining two questions are what the term of imprisonment should be and how it is to be served (in custody or by way of ICO, the latter being unavailable present case).

169. Returning to the first question, in Zamagias the Court recognised that the imposition of a sentence of imprisonment is a grave step for a court to take, whether or not the Offender’s liberty is immediately removed or curtailed [31]. The decision was made at a time when suspended sentences were available to the court as a sentence outcome. That is no longer the case.

170. The primary section 3A considerations which would favour the conclusion that the section 5 threshold is met are:

1. the need to ensure that the Offender is adequately punished for the offence; and

2. to recognise the harm done to the victim, although accepting the Crown submission that the injury, emotional harm, loss or damage was not substantial.

171. The section 3A considerations which speak against a finding that the section 5 threshold is met are:

1. the need for general and specific deterrence are tempered by the Offender’s mental state;

2. the need for specific deterrence is further reduced by the finding that the Offender is very unlikely to re-offend;

3. I do not consider that the Offender poses a risk to community safety;

4. the Offender’s rehabilitation will be best be promoted by continued psychological assistance in the community with which he has demonstrated compliance;

5. the need for accountability and denunciation of conduct is also reduced given the Offender’s mental state; and

6. I find that the objective seriousness of the offending is at the low range.

172. In reaching a final decision on the section 5 threshold and the sentence generally, I have engaged in the process of instinctive synthesis, giving balanced consideration to the relevant objective and subjective factors in order to arrive at a sentence which is appropriate in light of all relevant circumstances.

173. In SZ v R [2007] NSWCCA 19 Howie J noted, at [5], that the role of sentencing judge requires that:

After taking into account the various statutory and common-law principles and applying such discounts that arise on the particular facts, the sentencing judge is required to stand back and ask whether the resulting sentence is just and reasonable, not only to the Offender but also to the community at large.

174. I have stood back and I am satisfied that the sentence to be imposed today is just and reasonable in all of the circumstances. In my opinion, there are compelling and exceptional circumstances which justify, if not compel, a non-custodial sentence. This is an “unusual or extraordinary case” of the type contemplated by the NSWCCA in Shortland at [2].

175. I find that the section 5 threshold has not been crossed. Accordingly, I intend to impose a Community Corrections Order.

176. Before moving to sentence, in not imposing a custodial sentence, I have departed from imposing the standard non-parole period. My reasons for doing so are the same as for proceeding by way of a non-custodial sentence. I am mindful of the guideposts to sentencing provided by both the maximum sentence and the standard non-parole period.

177. The final remark I make is that the approach to sentencing which is adopted permits the tailoring of a sentence to impose a number of conditions over the period of the order directed to the Offender’s rehabilitation and treatment so as to ensure the maximal outcome for both the Offender and the community, with a view to minimising the risk of re-offending in the future. At the same time, I recognise the both the seriousness of the offending and the harm done to the Complainant. In my view, such a sentence outcome is preferable to a short sentence of imprisonment followed by a period on parole without the supervision and conditions I intend to impose. This is achievable due to the greater flexibility in sentencing flowing from the amendments to sentencing laws in 2018.

Commencement Date

178. The commencement date will be today, Thursday 6 August, 2020.

CONVICTION & SENTENCE

179. Mr Hewitt, please stand.

180. I confirm the conviction that I recorded on 16 June 2020, that you are convicted of one count of sexual intercourse without consent in breach of s 61I of the Crimes Act 1900.

181. For that conviction, I sentence you to a 3 year Community Corrections Order, commencing today, Thursday 8 August 2020.

182. The following standard conditions apply for the duration of the order:

1. you must not commit any offence; and

2. you must appear before the court if called upon to do so at any time during the term of the Community Corrections Order.

183. I impose the following additional conditions:

1. a community service work condition, requiring the Offender to complete 450 hours of community service work in the 3 year period. I pause here to note that my understanding of Community Corrections presently is that they are not enforcing compliance with community work orders, given the COVID-19 condition, but that is a matter about which Community Corrections will inform you in due course;

2. a supervision condition, requiring the Offender to submit to supervision by Community Corrections during the period of the Order;

3. a rehabilitation or treatment condition requiring the Offender to participate in a rehabilitation program or to receive treatment, including continuing with your mental health rehabilitation program, as directed by your treating psychiatrist and psychologist or any additional treatment instructed by Community Corrections;

4. a non-association condition prohibiting any association by you with the Complainant.

184. I direct that the Offender attend the Registry of this Court prior to leaving the building to sign this Order;

185. I direct that the Offender attend Sydney City Community Corrections no later than midday next Monday, 10 August 2020 together with a copy of this order and all medical evidence tendered in the sentence hearing.

186. I direct that the exhibits be returned.

Decision last updated: 29 September 2020