R v Barton

Standard non-parole period

1. The standard non-parole period, as is the case also with the maximum sentence for an offence, is to be considered a guidepost.
2. The standard non parole period, as has been said elsewhere, is a guidepost and not a tram track. The matter is to be taken into account together with the maximum penalty as part of the instinctive synthesis process; see Muldrock v The Queen [2011] HCA 39 at [27]. Thus it is a matter to be taken into account with all others with the requirement upon me to set out the reasons why I determine the non-parole period to be something other than 7 years.

The facts

1. The evidence and my findings are set out in my earlier judgment expected to be published at the same time as this judgment under the pseudonym R v Barton. For the details of the facts that judgment is referred to. For present purposes I note the following: 1. The offending occurred following a party attended by people who so far as the evidence revealed their ages were aged in their 20s apart from the offender who was aged 49. 2. Late in course of the gathering the victim and others including the offender were sitting outside around a fire. Around the fire, and prior to the offending, the victim had fallen asleep due to a combination of tiredness and intoxication, and was assisted into the house onto a couch on which the victim lay down. The evidence was of the offender also being affected by alcohol to the point of vomiting. At [229] of my other judgment I found that the offender was well affected by alcohol. 3. At the time of the offending the victim was lying on a couch initially asleep. She gained consciousness during the offending but such was the level of intoxication and tiredness that she lost consciousness during the offending. 4. The victim was therefore very vulnerable at the time of the sexual assault. 5. To commit the offences required the offender to lower the jeans and underwear of the victim which he achieved to the point of exposing her buttocks and genitals. The first of the 2 offences consisted of digital penetration of the victim's vagina. Whilst committing this offence the offender was lying partly behind and partly on top of the victim on the couch and saying to the victim "come on girl. Come on let me in. Come on girl". The offender moved his fingers in and out of the victim's vagina. The second offence was penile penetration of the victim's vagina. The victim could feel that the offender's penis had entered her vagina and that the offender was moving around, "finding it difficult" and "trying to manoeuvre into a better position". In the course of committing this offence the offender said to the victim "just come on girl come on girl let me in. You'll like it, come on girl".

Objective seriousness

1. This offending in my view shows the offender acted so as to satisfy his own desires without any consideration for the victim and her well-being. The offending occurred to the knowledge of the offender that the victim was not consenting. I would not describe the offending as "brief". It endured for a sufficiently long period of time to enable the offender to position himself on the couch and to adjust the clothing of the victim and then carry out both offences. This was not some fleeting occurrence. That said, it did not endure for a lengthy period.
2. It may be that the offending could be described as opportunistic in the sense that there lay before the offender a young woman vulnerable to the point of defenceless, creating the opportunity for the offending. My view is that the offence being opportunistic in this way is not a point in favour of the offender; the fact that there are more serious examples of this type of offending involving greater planning does not limit or minimise the seriousness of this offending but rather adds to the seriousness of such other scenarios.
3. There was no evidence of the offender having ejaculated and indeed the evidence from the complainant was of him "managing to get at least a partway in. I could feel that he had entered my vagina", suggesting perhaps the offender was some way from ejaculating.
4. It goes without saying, and is part of the offending, that the offender assaulted the victim, so that there is inherently in this case an element of violence. That said, I accept the submission for the offender that the offending did not involve the use physical force beyond that necessary to commit the offence upon an initially unconscious victim, and nor was there anything in the nature of a non sexual attack upon the victim.
5. Taking these matters into account I consider the second offence to be at the lower end of the mid range of objective seriousness. I would not assess it as being "in the middle of the range of seriousness" in the way that term is used in section 54A. I assess the objective seriousness of the first offence as being less serious than the second (so in the low range), for the reasons submitted by the Crown, specifically that in all the circumstances of this case the digital penetration is less serious than the penile penetration.
6. In reaching this conclusion I reject the submission of the offender as to the second offence, which I consider had merit. The reason for not accepting that submission is that I consider the most objectively serious aspect of this offending to be that it was carried out upon a person so obviously defenceless. That factor applies to both offences, but the assessment varies due to the distinction made in the preceding paragraph.

Section 21A.

1. The Crown argues the victim was a vulnerable person within the meaning of section 21A(2)(l) CSPA by reason of her heavy intoxication. This view is supported by Perrin v Regina [2006] NSWCCA 64 at [35]. The offender initially argued to the contrary and relied on R v Tadrosse [2005] NSWCCA 145 at [24] - [26]. The offender however conceded the point due to the express reference in Perrin to heavy intoxication, as here, as something that relevantly engages the subsection. It will be noted from my assessment of objective seriousness that the defenceless state of the victim was taken into account, and in my view there is no additional weight that should then be given to "vulnerability" under s21A, for to do so would be to double count this aspect.
2. The offender acknowledges the offending occurred in a home; s21A(2)(eb). This concession is well made. The victim was amongst friends, at a party, being cared for, and was entitled to feel safe and free from predatory behaviour.
3. The offender makes the point the offending was not planned; s21A(3)(b). This is so, but is a matter already considered in respect of assessing the objective seriousness of the matter (by the consideration of opportunism), and I have taken it into account in that way.
4. Other mitigating factors such as criminal history, character, likelihood of reoffending and prospects are considered below.

Psychiatrist report

1. The offender relies on a report of a psychiatrist Dr Furst. The report records some history of the offender which reveals some difficulties at school and a history of exposure to excessive violence and drinking in the course of pursuing karate training. The major historical fact upon which the offender relies quite heavily is his experience in 2008 when he survived an horrendous experience of being on a fishing trawler which capsized some 14 miles from shore. The offender swam for 10 hours and made it to shore and the captain of the boat also survived but the offender's friend did not. The evidence which is not contested is that this led to the offender suffering severe post-traumatic stress disorder and he has been on various forms of medication since 2008 and has undergone therapy for various periods since that time. It has disabled him from being able to work in the way that he previously did. The psychiatrist states he has severe functional impairment over the last 12 years which are indicative of severe and chronic post-traumatic stress disorder.
2. At page 5 of the report in the second paragraph the psychiatrist records that "from a period of 2 to 3 years ago" so in the period of the offending the offender would binge drink 15 to 20 premixed bourbon and would get so drunk to the point of blacking out on occasions. At page 6 of the report the psychiatrist states that his more recent excessive use of alcohol in a binge pattern is most likely a maladaptive means of coping with his ongoing PTSD.
3. In the offender's written submissions the difficulty of section 21A (5AA) for the offender is squarely addressed. It is conceded that the fact of intoxication cannot mitigate the exercise of the sentencing discretion nor reduce his moral culpability; see at [39]. Yet at [45] the offender invites the court to treat intoxication as a circumstance of mitigation because it is a function of his maladaptive coping mechanism arising from his PTSD in the same way that substance abuse may arise from social disadvantage. In oral submissions the argument was also put on the basis of the asserted alcohol dependency arising from an event for which the offender was not responsible, namely the traumatic event of 2008, said to be causative of the later binge drinking. In this regard reliance was placed on [273 (c) (ii)] of R v Henry (1999) 46 NSWLR 346 per Wood CJ at CL, where the example was given inter alia of addiction to prescription drugs following illness, and to early passages of the judgment of Simpson JA starting at [332], which canvasses both these bases.
4. In addition to the report of Dr Furst, the offender supported his argument on medical notes of the offender which showed consistent medication and counselling after the 2008 event up to 2015. The treatment then stops; the notes show the offender cancelled an appointment for 19 August 2015 and the note reads "Pt no longer needs appointment". The report of the psychologist Mr Popko states treatment concluded in 2015 "partly related to his workcover insurance payments being settled". So whether funding was an issue, or the offender felt he no longer needed the treatment or there is some other explanation for treatment ending is unclear.
5. In light of the passages cited from Perkins v R [2018] NSWCCA 62 at [41] of the offender's submissions, my view is that the intoxication in this case is not a mitigating factor as may otherwise be allowed as an exception to s21A(5AA). The reasons for this view are the following: 1. The evidence is of the offender binge drinking "from" a period of 2-3 years ago. There is no end point of this period. Perhaps that is intended to mean that the binge drinking is ongoing from that time, but if so, it is far from clear. 2. Adopting that start date for the period, the offender dealt with his PTSD without binge drinking from 2008 to 2017-2018. On this basis for two years there was no treatment and no binge drinking. 3. I accept the submission of the Crown that the testimonial evidence of the offender makes little if any reference any behaviour consistent with binge drinking from 2015. Even allowing for the offender possibly not displaying such conduct to those near to him, which would seem unlikely, it suggests some greater degree of control by the offender on his drinking than this argument suggests. 4. The criminal history of the offender shows an offence in 2007 of violence involving a woman in circumstances involving consumption of alcohol. This predates the 2008 event. The offender also had two mid range PCA offences prior to 2008. 5. In Perkins at [82] the conclusion was the case was not one of addiction where it might be said that the intoxication was not self induced (the words of s21A(5AA)). 6. I reach the same conclusion here. The difficulties of the offender arising from the traumatic events of 2008 and its consequences are to be legitimately taken into account in other ways. The choice however of the offender after some 10 years to self medicate (or 7 years if 2015 is taken as the starting point) does not in my view equate with circumstances recognised as an exception to s21A(5AA). In short, I am not satisfied that the offender was deprived of free choice as to his intoxication on the occasion of his offending by reason of his PTSD.
6. The offender further submits that the PTSD condition renders a custodial sentence more onerous. In my layman's view as a matter of logic placing a person with a stress disorder into full time custody for the first time, that is placing them into a stressful environment, is very likely to be more onerous than somebody psychologically robust. The psychiatrist at page 8 of his report states this same view, but without too much if any reasoning to support it, perhaps because of the logical nature of the view. I will take this into account in determining the sentence, and in my view it also supports a finding of special circumstances.
7. To add to this, I would note the current Covid 19 position, one consequence of which is the reduction if not abolition of visits presently to prison. It is hard to assess this issue without knowing just how long these conditions will remain, and without really knowing just how often visits would occur in any event. It is certainly an unsettling situation, and a matter I take into account.

Good character

1. The offender relies on the evidence at the trial of his good character. This was the evidence of Mrs Smith and her daughter. That evidence showed the offender in a good light and I take it into account.
2. Additionally on this sentencing hearing the offender relies on a number of testimonials, no less than 11 of them. They show the offender is a person with a character at odds with his conduct in this offending. In particular I note the testimonials of females who speak highly of him and of the offender showing them respect and of acting appropriately. In particular I note the testimonials of a ranch worker and hotel worker. The net effect of the testimonials is to paint a very favourable picture of a caring man generally and a devoted family man to his partner and daughter and his stepchildren also.
3. I note the testimonial of the offender's father to a similar effect. That testimonial goes on to express concern for the financial well-being of the offender's father. I note there is no submission to that effect in the written submissions of the offender and I am not satisfied on the evidence that this is an exceptional case to justify that being taken into account. The offender's counsel did not press this aspect in oral submissions.
4. The testimonial of the offender's partner and mother of his child shows her support for him continues in very difficult circumstances and shows the offender in a good light.
5. The offender's criminal history formed part of exhibit A. It is not an extensive record, but is such as to prevent leniency to the extent that would be allowed without any record. I also consider it significant that all the prior convictions are substance related. In 1999 there was a very minor possess drug matter. In 1999 and 2003, there were two drive mid range PCA matters. In 2007 there were convictions for common assault and damage property, arising out of the one occasion. The police facts were in evidence and state that "the accused had consumed a quantity of alcohol during dinner", which was prior to the offending. Favourably to the offender there is no offending after 2007, so 11 years prior to this offending. My view is that some leniency should be allowed to the offender based on this record and his character evidence.

Likelihood of reoffending

1. The psychiatrist's report assesses the offender as a low risk of reoffending. There was no submission by the Crown to the contrary. The view is supported by the offender's criminal record and the degree of support he has in the community and with his family. I accept the psychiatrist's view in this regard.

Remorse and contrition

1. Any assertion of remorse following a guilty verdict following a trial would be tainted by the suspicion of being born of convenience, and arguably lacking sincerity. I note the psychologist report on the second page records the offender as denying any wrongdoing. Yet the psychiatrist's report reads as if there is acceptance of wrongdoing; see eg at page 6.5. Neither party addressed me on this issue, and given that not much weight may be given to this matter in any event, I propose to disregard it.

Good prospects

1. The offender has clear community and family supports. I find it difficult to pin down just what his employment history has been. Putting that aside however, and in light of the assessment of low risk of re offending, I find that his prospects upon release are good.

Victim impact statement

1. There was before the court an impact statement of the victim. It speaks of the difficulties she has experienced since the offending and the impact it has had on her life. I have considered this statement and would make the comment that it reflects the marked effect that offending of this type has upon the victim.

Comparable cases

1. The offender referred the Court to three sentencing decisions to provide some guidance, such as can be gained when the facts are necessarily different. In one, Cowling [2015] NSWCCA 213 the offender was successful and on resentencing for a count under s61I of cunnilingus an indicative sentence was stated of a non parole period of 1 year and 5 months with a balance of term of 10 months, and with an indicative term of 9 months for an indecent assault of sucking on breasts. The aggregate sentence was a non parole period of 1 year and 6 months and a balance of term of 10 months. The facts here were similar in that the victim was initially asleep and then woke, but pretended to remain asleep. There was a 25% discount for the guilty plea. The offender had a difficult childhood, but it does not appear that issues such as those raised in Millwood were relied on.
2. In a second, McCartney [2009] NSWCCA 244, the offending was one count under s61I by way of penile vaginal intercourse. The offender was 22. The offence occurred by way of persistence of the offender over refusals of the victim. The event was relatively brief and involved no violence. The sentence was a non parole period of 1 year and 3 months and a balance of term of 1 year and 3 months. There was a discount of 16.6% for a guilty plea.
3. The third was a case of Sabapathy [2008] NSWCCA 82. The sentence imposed was a non parole period of 18 months and a balance of term of 18 months. The facts here are again of an unconscious victim. The offender carried her to his bedroom, removed her clothing and had penile / vaginal sex with her in a number of positions. There was a 12% discount for a guilty plea. The offender was of good character and had no priors and family dependent on him. It was held that the sentence was not manifestly excessive, and was within the range. The CCA held that it was open to find the offence was in the low to mid range of objective seriousness, and it was open to conclude that that a full time custodial sentence was appropriate. This last finding seems to have been a finding that a full time sentence was appropriate as opposed to the then available suspended sentence, something now not available, and I note the successor provisions of ICO's are not available to a s61I offence.

Accumulation

1. The parties are tantamount to being in agreement that the sentences should not be wholly concurrent, but that there be only modest accumulation (Crown submission), or significant concurrency (offender submission). I accept this joint view. The offending occurred in the one course of events, within a very short time of each other, and in almost precisely the same circumstances. The offending could sensibly be said to be part of a single episode of criminality with common factors as stated in Cahyadi v R [2007] NSWCCA 1.

Special circumstances

1. I have noted above that I consider the PTSD condition of the offender is a basis for special circumstances, as is also, to a lesser extent, the uncertain Covid 19 situation. Additionally this will be the offender's first time in custody. I am also influenced by what appear to be the offender's good prospects upon release when determining the non parole period. Allowance should also be made for a period of supervision to assist in the ongoing treatment of his PTSD, as conceded by the Crown.

Sentencing considerations

1. There is no argument but that there is no more appropriate sentence than a full-time custodial sentence; section 5 of the CSPA. I accept the submission of the Crown in this regard, and there was no submission by the offender to the contrary. Sexual assault is an inherently serious matter, as indicated by the maximum sentence and standard non parole periods. The facts and circumstances of this case dictate a full time custodial sentence in order to achieve the purposes of sentencing.
2. Section 3A sets out the purposes of sentencing. They are in short: 1. to ensure the offender is adequately punished; 2. both general and specific deterrence; 3. to protect the community; 4. to promote rehabilitation of the offender; 5. to make the offender accountable for his actions; 6. to denounce the conduct; 7. to recognise the harm done to the victim and community.
3. The purposes that attract the most attention in the present case in my view are denunciation, punishment, general deterrence and to recognise the harm done to the victim. My view is the need for specific deterrence does not play a significant role in this case due to the subjective matters discussed above.
4. I propose proceeding by way of an aggregate sentence. I will set out the indicative sentence for each offence, together with what the non parole period would have been for each sentence as required by s54B(4). In setting the indicative sentence it is relevant to bear in mind that there is no available discount for any guilty plea.
5. As to the count of digital penetration the indicative sentence will be 18 months with a 10 month non parole period. The reason for the variance from the standard non parole period is because of a combination of my assessment of objective seriousness being below the middle of the range of objective seriousness as referred to in s54A, and of the subjective matters set out above, including the matters relied upon to found special circumstances.
6. As to the count of penile penetration the indicative sentence will be 2 ½ years with a 16 month non parole period, and with the reasoning for the variance from the standard non parole period being the same as for the first charge.
7. In determining what should be the aggregate sentence I will allow for only a modest amount of accumulation. The aggregate sentence will be 3 years.
8. In determining the non parole period I need to consider what is the "minimum period the offender must spend in gaol, having regard to all the elements of punishment, including the objective seriousness of the crime, deterrence and subjective circumstances", as per R v MA [2004] NSWCCA 92 at para 33. I consider this minimum period to be 1 year and 8 months. This period is a variance to the statutory ratio provided for by section 44(2B) and the reasons for that are those given for a finding of special circumstances above.
9. Taking all of the above matters into account, I arrive at a non-parole period of 1 year and 8 months with a balance of term of 16 months.

Orders

1. I make the following orders: 1. The offender, for the two offences charged under section 61I of the Crimes Act you have been convicted. 2. I sentence you to a non-parole period of 1 year and 8 months to commence from 22 July 2020 and expiring on 21 March 2022, with a balance of term of 16 months expiring on 21 July 2023. 3. The first date upon which you are eligible for release is 21 March 2022.

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: 05 August 2020