Bullock v R

Facts

1. It is necessary to detail the circumstances surrounding the offence and the conduct that gave rise to the offence in more detail than the previous summary.
2. The sentencing hearing proceeded on agreed facts to which the sentencing judge referred and to a small extent summarised in his Remarks.
3. The Applicant and complainant had known each other for approximately 12 months and were friends. They are not and never have been in an intimate relationship. They would often communicate via text message and Facebook messages.
4. On Wednesday 28 May 2014, an exchange of messages occurred between the Applicant and the complainant using text. The import of the messages was enquiries made by the complainant as to the whereabouts of others; a statement by the complainant that she missed a particular other person and on prompting missed the Applicant; an enquiry by the Applicant as to whether they could be more than friends, including the possibility of a sexual liaison; and an emphatic rejection of such a proposal by the complainant with the comment that, "We're just friends, mate" and, on a request for further and better particulars, a statement by the complainant that she liked another and, "You're not my type and we're just friends".
5. The complainant expressed the view that she does not understand why the Applicant likes her and there are many others with whom he might have a relationship and a comment by the Applicant that the others were not like the complainant.
6. As at 30 May 2014, the Applicant was residing with a friend in the Central Coast in a garage detached from the main house. The complainant would, from time to time, stay overnight in the garage, sleeping in the bed of the friend (i.e. not the Applicant).
7. On 30 May 2014, the Applicant, the complainant and another friend were at the house. At 3pm the three of them attended at an inspection for a rental property nearby after which, the friend returned to her home, but on the basis that she planned to return later that evening.
8. The Applicant and the complainant went to a bottle shop where the Applicant purchased two bottles of vodka: one for the complainant. They returned to the house where the complainant spoke with two other persons and commenced drinking vodka mixed with tropical fruit juice.
9. The complainant was moving back and forth between the main house and the garage, where the Applicant and some others were drinking and listening to music. The Applicant was observed to commence drinking at around 6.30pm or 7pm. At around this time, the third person who attended the inspection returned with another juvenile.
10. The Applicant's brother lived in a house directly across the street. At approximately 7.30pm, the complainant went to the brother's house where other people were drinking, dancing and listening to music. She was wearing a black and white dress, with denim shorts underneath, and underwear.
11. Over the course of the evening, the complainant drank approximately three-quarters of the bottle of vodka and by midnight she was very intoxicated.
12. Just after midnight on 30/31 May 2014, a group of the complainant's friends decided to walk to a convenience store that was nearby. The complainant did not accompany them as she felt too drunk and wanted to go to sleep. The complainant walked back to the residence, being the main house, in the garage of which the Applicant was residing.
13. The complainant left the main house at approximately 1.30am and went to the garage. One of the residents of the main house on the property came out to the garage a couple of minutes later and observed the complainant lying on the bed on which she normally slept, when she slept over. At that time, the Applicant was in the garage seated at his computer.
14. The resident of the main property informed the Applicant that the doors were required to be locked for the night. The complainant bade the resident goodnight, whereupon the resident left the garage and returned to the main house.
15. The complainant said to the Applicant, "I'm going to bed". The Applicant replied, "Okay, goodnight". The complainant climbed under the doona of the bed on which she was lying and went to sleep.
16. Sometime later, the complainant awoke in the dark to the sensation of someone on top of her on the bed. She was lying on her back and felt as if she was "pinned down". The person was kissing her on the lips. The garage light was off. The complainant said, "What the fuck?" and heard a male voice say "It's Matty". Matty was the nickname of the occupier of the garage, other than the Applicant.
17. The complainant immediately recognised this as the Applicant's voice. She pushed him away from her with both her hands on his chest, moved out from underneath him and slid onto the floor. The complainant walked towards the garage door past the Applicant's bed.
18. The Applicant was then in front of the complainant. The Applicant grabbed the complainant on the top of both of her arms and pushed her down onto his bed. He then got on top of her and pinned her down with his body. He held her arms above her head. The Applicant screamed and the Applicant then placed one of his hands over her mouth to stop her from screaming.
19. The Applicant began kissing the complainant on her neck and touching her breasts. The Applicant put his hand down the front of the complainant's denim shorts, inside her underwear and digitally penetrated her. The complaint screamed very loudly. The Applicant then leaned over and put his head up against the complainant's face, putting her lip in between his teeth. With one hand he was holding the complainant's hands above her head, and his other hand was still down her shorts.
20. The complainant managed to get one of her hands free from the Applicant's grasp and she pushed him hard to the shoulder to try to get him off her. She said, "Stop, please". The Applicant told her to "Shush".
21. The Applicant then pulled his hand out of the complainant's shorts and put his hand over her mouth again. The complainant struggled to breathe because the Applicant's hand was blocking her nose and mouth. She felt dizzy. She said, "Can you please stop, I won't scream". The Applicant took his hand from her mouth. The complainant then screamed as loudly as she could and ran for the garage door. She tried to undo the latch. She removed the latch and threw it at the Applicant. The Applicant grabbed it and threw it onto his bed. The Applicant then grabbed the complainant around the mouth and swung her around so that she fell back onto the bed.
22. The Applicant pulled the complainant's shorts and underwear down and off and placed them nearby. He then pulled down his pants. The complainant grabbed her underwear and stuffed them down her shirt. The Applicant again held the complainant down with his hands holding onto her arms. The complainant tried to scream but nothing came out. The Applicant placed his penis into the complainant's vagina and started thrusting. The complainant wiggled her body to try and get out from underneath the Applicant. The complainant did not see whether the Applicant was wearing a condom or whether he ejaculated.
23. The other four friends had, as a group, gone to the convenience store. They were gone for approximately 40 minutes, returning before 1am on the morning of 31 May 2014. The group did not walk all of the way to the convenience store and decided to return to the house. As they walked along the street they stopped outside the residence and garage and were talking. They all heard the sound of a female screaming. At first, three of the four thought it was the complainant "being stupid" because she was intoxicated. As a consequence, they ignored the scream.
24. A short time later they heard another scream. Two of them ran to the garage and opened the door. One of those two observed the Applicant jump off the complainant and jump under the blankets. She noticed that he was naked from the waist down. The complainant leapt out of the Applicant's bed and ran from the garage screaming and crying. The complainant ran down the driveway and stopped to put her underwear back on. She collapsed in the middle of the street between the residence that contained the garage and the Applicant's brother's house. The complainant said, "He raped me, Justin raped me".
25. The two that had gone to assist in the garage assisted the complainant across the street and into the Applicant's brother's house, where she sat down on a bed. The complainant told the brother, "Justin raped me". The brother said, "I'm gonna get him" and ran across the road to locate the Applicant. The Applicant was not there.
26. One of the residents of the main residence, who had heard screaming at about 2.30am, walked out of the front of the house, saw the complainant standing across the road in a singlet and underwear, crying and screaming.
27. The other resident, who was asleep in the main house, was awoken by the complainant screaming. He heard the complainant scream, "He raped me". The commotion caused him to get out of bed upon which he saw the complainant and some of the other girls outside. He observed the complainant crying, curled up in a foetal position, shaking and sweating. She was being comforted by the brother and the other girls. He could not see the Applicant.
28. Police and an ambulance were called and they arrived shortly after. The complainant was conveyed to hospital and police attended Gosford Hospital to obtain a version of events from the complainant.
29. The complainant was examined at the hospital by Dr Collins. She observed that the complainant had peri-oral swelling and redness around her upper lip area which was stinging to the touch. The Doctor also observed a two centimetre tender bruise on the complainant's front upper thigh and two two-centimetre bruises on the side of the complainant's thigh. The complainant also had linear abrasions on her back. An examination of the complainant's vagina revealed bi-lateral redness and multiple small fissures.
30. Police at the scene of the incident searched for the Applicant, but could not find him.
31. The following morning, Saturday 31 May 2014, the Applicant presented himself to the police station with his mother and grandfather. On questioning from police, the Applicant stated that he had no memory of the events of the previous night, except running away from the house and that he woke up, that morning, in the bush. He could not say anything about the allegation of sexual intercourse with the complainant.
32. The Applicant did tell police that he had been communicating with the complainant on Facebook in relation to offers that she made to have sex with him in exchange for money to which he replied that he wanted to be in a relationship with her but she had said no, only for money.
33. A print out of the Facebook chat logs between the Applicant and the complainant from 19 October 2013 to 30 May 2014 revealed no such communication.

Submissions and Remarks on Sentence

1. Only one ground of appeal has been raised, being that the sentence imposed is manifestly excessive. As earlier stated, the sentencing judge provided the Applicant with a 25% discount on sentence for his early plea of guilty to the offence. As a consequence, the starting point for the head sentence was 8 years' imprisonment.
2. Essentially, the Applicant submits that the sentencing judge failed to assess the objective seriousness of the offence properly and that insufficient weight was given to the Applicant's subjective circumstances, in particular his youth and emotional immaturity.
3. The Applicant, in submissions, cited sentencing statistics that evidenced:

• Of all of the 135 offenders sentenced for one offence against s61I of the Crimes Act, between July 2008 and June 2016 (which includes the Applicant's sentence), 76% of those offenders received a lesser head sentence than the Applicant;
• If the statistics were confined to those offenders with no prior record of which there were 51 offenders, 92% of them received a lesser sentence than the Applicant;
• There were 31 offenders with no prior record and who had pleaded guilty, none of whom received a head sentence beyond five years' imprisonment;
• Of the 14 offenders who had pleaded guilty and were aged between 18 and 20 years (including the Applicant), 72% received a lesser head sentence (including those that had prior offences);
• Of the six offenders who had pleaded guilty, who had no prior criminal offences and were aged between 18 and 20 years, none had received a head sentence beyond three and half years.

1. The Crown submissions dealt with the proportion of non-parole period and the findings of objective seriousness of the offence, reminding the Court that there was a dearth of submissions at the sentencing hearing from the accused relating to the category of objective seriousness of the offence.
2. The Crown submitted that the judge's reference to it being a "serious offence" should be read in the foregoing context and in the context that the offence had occurred when the complainant had been asleep and vulnerable to the Applicant's attack, both for that reason and because she was intoxicated. Further, a degree of violence was inflicted.
3. As is obvious from the foregoing, the sentencing judge found special circumstance based upon the Applicant's youth and his need for an extended period of supervision. The sentencing judge also remarked: "[that the Applicant] took advantage of this girl who was asleep, vulnerable and probably affected by alcohol. Although it was not premeditated, certainly what was premeditated was his sexual interest in her which is reflected in the material."
4. Further the sentencing judge accepted that the applicant was remorseful and regretful and found that there were sound prospects for rehabilitation. He also noted that he is a young man who needs psychological assistance.
5. The maximum penalty for the offence under s 61I of the Crimes Act is 14 years' imprisonment and the legislature has established a standard non-parole period of seven years. The Applicant pleaded guilty and the standard non-parole period does not apply, but both it and the maximum penalty remain guideposts in the fixing of an appropriate sentence.
6. As earlier stated, the sentencing judge provided a discount of 25% on account of a plea of guilty and its utilitarian effect. He mentioned contrition reflected in the plea of guilty and remorse that was expressed in the witness box, which the sentencing judge accepted.
7. On one view of the comment as to contrition and remorse, it may be that the sentencing judge seems to have considered that the 25% discount may have covered those factors. Nevertheless, no express statement to that effect was made. As was the case, the sentencing judge noted that the Applicant had no prior convictions and was 18 years of age at the time of the offence.
8. The sentencing judge also noted that the offence was not premeditated but seems to have taken into account that he had a long standing sexual interest in the complainant which the sentencing judge described as "premeditated". It is not immediately apparent how one would take that into account. The sentencing judge compared that situation to a person who "jumped out from behind a bush in a street". It is unclear whether the sentencing judge was comparing it favourably or unfavourably.
9. It is not clear whether the sentencing judge was implying that, as a consequence of the fact that the Applicant knew the complainant, there was a breach of trust or whether some other aspect arose as a consequence.
10. While the sentencing judge noted the immaturity of the Applicant and the subjective circumstances of being bullied at school when he was young, the sentencing judge commented that "the mere fact that a person is the victim of violence himself or herself does not mean that they necessarily avoid doing the same sort of thing".

Consideration

1. The Applicant points to no finding of fact that is wrong or reliance by the sentencing judge on any mistaken view of the facts. Nor does the Applicant rely upon the judge failing to rely on any principle or rely upon any mistake of principle. In other words, as the ground of appeal makes clear, the applicant relies on manifest error.
2. Manifest error occurs when a sentence is excessive (or lenient) to an extent that the result discloses an error of principle or the misapplication of principle or some mistake of fact, even though none can be identified. In relying upon manifest excess, the Applicant must show that the discretion exercised by the sentencing judge miscarried, resulting in a sentence beyond the range of sentences available for the offence and taking account of the subjective circumstance of the Applicant. It is insufficient, in order to justify this Court intervening to correct a sentence, for the Court to come to a view that it would have sentenced differently or less severely or given less or more weight to one or more factors. [3]
3. The High Court, in Markarian v The Queen [4] said: "As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentence allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentence not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as 'manifest excess', or in a prosecution appeal, as 'manifest inadequacy'." [5] [Citations omitted]
4. As earlier stated, the Applicant is a first time offender who pleaded guilty. As a consequence the standard non-parole period, while relevant to sentencing, does not apply to the Applicant.
5. Further, the Applicant was only just over 18 years of age at the time of the offence. Sentencing a youth, even one that has reached majority, may require a different approach than the sentencing of an adult. In R v AEM Snr & Ors, [6] the Court said: "It is well accepted that in the case of youth, general deterrence and public denunciation usually play a subordinate role to the need to have regard to individual treatment aimed at rehabilitation…. However, important as that principle is, it cannot defeat the primary purpose of punishment nor, in circumstances where young offenders conduct themselves in a way which an adult does, can it stand in the way of the need to protect society."
6. The principle that a Court shall treat a youth more like an adult, where the youth conducts himself in the way an adult might and commits a crime of considerable gravity, does not mean that every crime of considerable gravity is one in which the youth has conducted himself in the way an adult might. The question is always one of seeking to synthesise the principles of sentencing. Punishment, general and specific deterrence and condemnation are some of the principles. Rehabilitation is another. Rehabilitation, in the case of youth acting immaturely, plays a far more significant role.
7. In BP v R, [7] Hodgson JA said: "[4] First, statements that, in relation to young offenders, principles of retribution may be of less significance and considerations of rehabilitation may be of more significance, may tend to obscure the point that even in relation to retribution the youth of an offender may be a mitigating circumstance. In my understanding, considerations of retribution direct attention to what the offender deserves; and in my opinion, where emotional immaturity or a young person's less-than-fully-developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution: see TM v R [2008] NSWCCA 158 at [33] - [36]. [5] Second, while I agree with the statements in KT at [26] that the weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity, and that a 'child offender' of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years of age, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there: Children (Criminal Proceedings) Act 1987). In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties: see R v Slade [2005] NZCA 19; [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott [2006] NSWCCA 305; (2006) 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime. [6] Third, I do not think courts should be over-ready to discount the relevance of an offender's youth on the basis that the offender has engaged in adult behaviour or acted as an adult. In the present case, the offence is a very serious one; but it did not involve significant planning or reflection, or any other indicia of mature decision-making. The applicant was 16 years old, and in my opinion the circumstances of the offence suggest rather that emotional immaturity and less-than-fully-developed capacity to control impulses were likely to be contributing factors."
8. As the Court has made clear on a number of occasions, a youth who is not a minor, must be sentenced bearing in mind the youth and immaturity of the offender. While the regime for minors is different from the regime for persons over 18 years of age, a person, such as the Applicant in these proceedings, who is only just over 18 years of age, should be treated similarly to a person who may be three months younger.
9. In dealing with a young person, whether or not of majority, it is unnecessary for the sentencing judge to set out the principles for sentencing young persons at any great length. Nevertheless, it is necessary for the sentencing judge to pay regard, not only to the youth of the Applicant as such, but to the effect of that youth.
10. The sentencing judge refers to the Applicant being young and to the Applicant's immaturity. He does not refer to the effect of the youth and immaturity on the Applicant for the purposes of sentencing.
11. Rather, the sentencing judge refers to deterrence, general and specific, in a way which suggests that deterrence is the most important element. For youth acting immaturely, rehabilitation plays a far more significant role and retribution and deterrence play a less significant role.
12. As Hodgson JA [8] points out, see above, even in relation to retribution the emotional immaturity of a young person and a less than fully developed capacity to control impulsive behaviour may contribute to the offending and may mitigate culpability.
13. Lastly, I deal with the evidence of comparable sentences. In Green & Quinn v The Queen, [9] the High Court referred to the term equal justice embodying "the norm expressed in the term 'equality before the law'" as "an aspect of the rule of law". It requires identity of outcome in cases that are relevantly identical and it requires different outcomes in cases that are different in some relevant respect. I would add that the difference in outcome needs rationally to reflect the difference in the relevant respect.
14. Further, the High Court made clear that consistency in the punishment of offences against the criminal law is a reflection of the notion of equal justice and fundamental element in any rational and fair system of criminal justice.
15. Different sentences may be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances and apply to persons charged with similar offences arising out of unrelated events. The consistency that the latter requires is a consistency in the application of the relevant legal principles and not some mathematical equivalence.
16. Further, the application of statistical analysis, blindly and without regard to the particular circumstances of cases, leads to an artificial limitation on the range of sentences available to be imposed. Nevertheless, some regard must be had to the range of sentences that are imposed on persons in like circumstances.
17. As is summarised above, the Applicant's submissions point out, correctly, that no offender who was convicted of one offence only and had no prior offences and pleaded guilty had imposed upon him or her, a non-parole period of greater than three years. When one factors in an age group of 18 to 20 years of age, no offender received a head sentence beyond three and a half years.
18. As earlier stated, one must be very careful with statistics of that kind. In the case of 18 to 20 year old offenders on a first offence with no priors and a plea of guilty, there were only six such offenders included in the statistical analysis. Further, the sentences would include the discount for a plea of guilty.
19. Nevertheless, if one takes out the age factor and looks only at offenders who had no prior record, of which there were 51, 92% of them received lesser head sentences than the Applicant in these proceedings. Of those 51 offenders, 31 had no prior record and pleaded guilty and of those, none received a head sentence beyond five years' imprisonment.
20. In this case, the sentencing judge fixed a starting point (that is, before applying the discount for the plea of guilty) of eight years' imprisonment as a head sentence. For an offender with no prior offences, who pleaded guilty to the charge and was only just of majority, that starting point is beyond the range ordinarily applied.
21. The foregoing does not discount the serious damage done to the complainant in these proceedings. Nor does it underestimate the seriousness of the offence and the debilitating effect of such an intrusion and such abuse on a young person, particularly the effect that she can no longer trust her friends as she did before. Such a feeling is necessarily a not unusual effect of such a serious intrusive offence. This is a very serious offence with obvious long-term effects on the victim/complainant. People, particularly women, should be able to go to sleep in peace without being set upon by some person with an unrequited fixation. The Court must condemn this violence in strong terms.
22. Nevertheless, when one takes into account the principles that apply to a youth, just over the age of 18, who has plainly acted wholly immaturely and as a child without the adult capacity to control impulsive behaviour, together with the leniency that a first offender otherwise might be shown, the sentence imposed, and the starting point of eight years' imprisonment is manifestly excessive.
23. The excessive outcome may be due to a failure to apply the principles relevant to the sentencing of a person of this age and the necessity to give greater significance to rehabilitation than to retribution. It may have resulted from a failure to accord the leniency associated with a first offender. It may simply be that the sentencing judge did not pay appropriate regard to the range of sentences imposed in comparable cases. It is difficult to ascertain precisely where error has been made. Nevertheless, the outcome reflects an error of principle or a misapplication of principle and manifest error.
24. As a consequence of the foregoing, it is necessary, should the Court accept the orders that I propose, for the Applicant to be re-sentenced. I take into account the subjective factors to which the sentencing judge referred. I also take account of the principles in sentencing a person of immature mind and a young age, just over the age of 18 and the leniency which a first offender ought to be shown.
25. I also allow a 25% discount for a plea of guilty at the earliest possible opportunity and find, for the reasons expressed by the sentencing judge, that a longer period under supervision is appropriate. I shorten the non-parole period to allow for a longer period during which the Applicant is eligible for parole. I take account of the comparable cases to which the Applicant and the Crown have referred the Court.
26. The statistics must also be used carefully because when comparing an offender in this category to other offenders, the statistics will generally reflect a discount applied for the plea of guilty in the sentence that is recorded.
27. The offence is a serious one. Notwithstanding the intoxicated state of the offender, it involved violence and an overpowering of a person who was weaker and vulnerable. It also involved both digital and penile penetration and was extremely intrusive. A full-time custodial sentence is plainly warranted. I would fix a starting sentence of six (6) years' and eight (8) months' imprisonment, to be reduced by the 25% for the early plea of guilty. The sentence I propose is still longer than any other sentence imposed on offenders for similar offences and with these subjective circumstances that are shown on the statistics, but any less would not reflect the serious nature of the offence. Other comparable sentences have been more severe, but I agree with the analysis of Fagan J and his comments, to which I have, since drafting these reasons, had access.
28. For the foregoing reasons, I propose that the Court make the following orders: 1. Leave to appeal granted; 2. Appeal allowed; 3. Sentence imposed on Justin Bullock on 17 April 2015 be quashed and, in lieu thereof, for the offence of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW), the Applicant, Justin Bullock, be sentenced to a non-parole period of two (2) years and six (6) months commencing 17 April 2015 and concluding 16 October 2017 with a remainder of term of two (2) years and six (6) months concluding 16 April 2020. 4. The Applicant is first eligible for release on parole on 16 October 2017.
29. FAGAN J: I agree with Rothman J that the sentence imposed in the District Court was manifestly excessive. It was significantly more severe than sentences which have been imposed or upheld by this Court in respect of other offenders in circumstances which should be regarded as comparable, after making due allowance for individual features of this case and differences from the facts considered in past decisions. The manifest excessiveness, if not corrected, would constitute an inconsistency in the administration of the criminal law with respect to sentencing for offences against s 61I Crimes Act.
30. For the purposes of determining an appropriate sentence for the applicant and of comparing the circumstances of his case with those of others which have come before this Court, the essential features of the present appeal may be enumerated as follows: 1. The sexual intercourse took the form of full penile vaginal penetration. 2. Significant force was used to overcome physical resistance of the complainant. 3. The complainant was heavily affected by alcohol. 4. The offender was 18 years of age at the time of the offence. 5. The complainant was close in age to the offender, being 17 years, and the two were well known to each other and had socialised over the preceding 12 months. 6. The complainant was not only injured in the course of the sexual assault but was very seriously distressed by it and suffered continuing psychological impact. 7. The applicant pleaded guilty at the earliest opportunity and was entitled to a 25% discount on the sentence which would otherwise have been imposed.
31. In Cowling v R [2015] NSWCCA 213 the sexual assault was less serious in physical terms, not involving penetration. The offender and victim in that case were close in age (22 years and 20 years, respectively) and were well known to each other. The offender pleaded guilty and was entitled to a 25% discount. This Court considered a non-parole period of 1 year and 6 months with a balance of term of 10 months appropriate. In giving the principal judgment Leeming JA at [51]-[54] considered, amongst other cases, McCartney v R [2009] NSWCCA 244, and Badans v R [2012] NSWCCA 97, both of which involved full penile vaginal intercourse where the offender and victim were known to each other socially and were close in age.
32. In McCartney v R the physical acts were less serious than those in the present case because the offender desisted in the face of resistance. In Badans v R the offender forced himself upon the complainant whilst she slept. Mitigating subjective circumstances included that the offender had very low cognitive capacity, to a degree which was significant to his culpability.
33. Each of these three cases was broadly comparable with the present but in each of them there were features of the objective conduct or of the offender's subjective circumstances, or both, which rendered the offending less seriously punishable than in the present case.
34. In BP v R [2010] NSWCCA 159 the offence against s 61l was constituted by sexual intercourse by a young male of an age close to that of his victim. The offender was almost 17 years old, the victim 19. As in the present case the offender and the victim had socialised during the evening in question and the offender had then forcibly penetrated the victim vaginally whilst she was heavily intoxicated. The offender was entitled to more consideration on account of his youth than the present applicant. His background in a highly dysfunctional Aboriginal family was also given weight towards reduction of sentence. On the other hand he had a criminal record including a previous aggravated sexual assault. He had defended the subject charge and was therefore not entitled to a discount. On re-sentence this Court imposed a non-parole period of 3 years with a balance of term of 2 years. For purposes of comparison, if he had pleaded guilty and received a 25% discount there would have been a non-parole period of 2 years and 3 months and a balance of term of 1 year and 6 months. Making due allowance for some circumstances of BP v R which warranted a higher penalty than in the present case and some features which tended the other way, overall the criminality and the warranted degree of punishment were quite closely comparable between BP v R and the present case.
35. In Stewart v R [2012] NSWCCA 123 the offence against s 61I was committed by digital penetration over the protests and physical resistance of the complainant. The offender and the complainant were aged 21 years and about 23 years respectively and had been in a relationship for some years. They had a three month old baby. On the evening of the offence the complainant informed the offender that their relationship was over. He responded by forcing himself upon her violently, in the manner above described. There was an early plea of guilty and a 25% discount was allowed. The offender came from a broken home, had a history of Attention Deficit Hyperactive Disorder and had had one psychotic episode. He was diagnosed with depression at about the time of or soon after the offence. A non-parole period of 2 years and 8 months was imposed with a balance of term of 1 year and 10 months. A severity appeal was dismissed. Again, making due allowance for variances between the two cases (in both directions with respect to the level of penalty called for) Stewart v R was relevantly comparable with the present case.
36. There are to be found many other cases where sentences for offences against s 61I have been imposed of greater severity than that which Rothman J would substitute in the present case. Some of them are cited in the reasons of the Court in the appeals referred to above. Without rehearsing the facts and points of difference in such other cases it may be said of them generally that they involve either objective or subjective features which would explain the more severe punishment. By making this comparison with cases which were significantly less serious than the present case overall, with others which are most closely comparable and with those which clearly warranted more severe punishment than the present applicant, the Court can be satisfied that the sentence proposed by Rothman J is relevantly consistent with its other decisions in sentence appeals concerning s 61I offences.
37. For the reasons given by Rothman J and for the additional reasons which I have given above, I agree that the orders of the Court should be as his Honour proposes.

Endnotes

1. Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Procedure Act"), s 54A(2).
2. Sentencing Procedure Act, s 44(2).
3. Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 at [22], [53]; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321; Wong & Leung v The Queen [2001] HCA 64; (2001) 207 CLR 584; Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15].
4. [2005] HCA 25; (2005) 228 CLR 357 at [25], per Gleeson CJ, Gummow and Callinan JJ.
5. See also Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 at [35].
6. [2002] NSWCCA 58 at [97].
7. [2010] NSWCCA 159.
8. BP v R [2010] NSWCCA 159 at [4] - [6]; see [70] infra.
9. [2011] HCA 49; (2011) 244 CLR 462. The relevant passage reads:

"'Equal justice' embodies the norm expressed in the term 'equality before the law'. It is an aspect of the rule of law. It was characterised by Kelsen as 'the principle of legality, of lawfulness, which is immanent in every legal order.' It has been called 'the starting point of all other liberties.' It applies to the interpretation of statutes and thereby to the exercise of statutory powers. It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen:

'Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.' (emphasis in original)

Consistency in the punishment of offences against the criminal law is 'a reflection of the notion of equal justice' and 'is a fundamental element in any rational and fair system of criminal justice'. It finds expression in the 'parity principle' which requires that like offenders should be treated in a like manner. As with the norm of 'equal justice', which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances'." DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 July 2016