The offender was born in Newcastle. He is now 43 years of age.
He describes his developmental years as "not very good at all" as he was regularly beaten by his mother and his step-father, and sexually molested by his mother and his uncle. His medical records note that his father was recorded as "unknown". He was in foster care when he was around 11 years old and when he was 12 years old he went to live with his uncle and aunty.
He reported he found it difficult to focus on school due to undiagnosed ADHD and PTSD conditions which were formally diagnosed, he reported, at the age of 27 at the Dooralong Transformation Centre, a rehabilitation program for individuals affected by mental health and addiction issues. He said he was expelled from school at age 14 for being disruptive and has had no schooling since then.
Since the period of rehabilitation I have mentioned, he has relapsed using alcohol to cope with his emotional troubles.
The psychologist reported that the offender was unwilling to discuss the offences for which he was charged, but said that the complainant and himself were very intoxicated at the time and in his recollection the sexual activity was consensual.
[2]
Psychometric Screening
Dr van der Linde took a number of screening tests on Mr Bates. Indeed, most of the report is taken with the results of this screening rather than the psychologist giving opinions on more relevant matters.
According to the DSM‑V brief form Mr Bates' results indicated a severe level of "negative affect" which refers to emotions such as anxiety, depression, stress, sadness, guilt, anger and shame.
On the emotional detachment scale Mr Bates' responses were consistent with a person who is hesitant to connect with others and maintain relationships.
Mr Bates' responses, according to the psychologist, indicates he does not tend to exhibit antagonistic behaviour or that he has problems exercising control over his emotions. His responses also indicate he has no issues relating to psychoticism.
According to the SASS-21, Mr Bates indicated severe levels of depression which supported a diagnosis of major depressive disorder.
Mr Bates' results place him at the severe end of the anxiety spectrum. This was consistent, the psychologist said, with several anxiety disorders and he also exhibited an extreme level of stress.
The K10 test indicated that he was experiencing psychological distress.
The UNCOPE test identified Mr Bates, according to the psychologist, as being at a high risk of suicide.
[3]
Review of Psychometric Screening
The review by Dr van der Linde opined that Mr Bates' poor mental health at the time of the offences and his experiencing issues of post-traumatic stress disorder, depression, anxiety and addiction were highly clinically relevant. He noted Mr Bates described his depression as him constantly "feeling sad" and preferring "to invert into myself".
Mr Bates confirmed that he had detachment difficulties and indicated he did not generally have issues with antagonism and was not an angry person. Concerning the findings regarding disinhibition, Mr Bates indicated to the psychologist he was generally not too bad, but sometimes struggled with navigating his emotions. He was adamant he did not experience suicidal ideation, but confirmed he used alcohol excessively.
[4]
Conclusions
Dr van der Linde opined in summary that incarceration was:
1. likely to exacerbate the offender's pre-existing mental health issues.
2. that the offender's intoxicated state when the offending took place had likely affected his ability to make rationally informed decisions.
3. that the lack of appropriate psychological intervention played a role in Mr Bates' deteriorating mental health and inappropriate behaviours, and;
4. that his disappointment in his behaviour, in the psychologist's opinion, bode well for his rehabilitation prospects.
I note that it was not concluded by the psychologist in terms that any mental health condition suffered by the offender at the time of the offending contributed in a material way to the offending conduct so as to attract the principles in DPP v De La Rosa [2010] NSWCCA 194 and reduce the moral culpability of the offender. Insofar as a submission was made to the contrary by counsel for the offender in her written submissions, I reject it as I do not believe it can be supported on the evidence.
[5]
Medical Records
There was also before me a patient health summary of Mr Bates setting out various medical issues suffered by Mr Bates including prior diagnosed amphetamine and cannabis use disorders, borderline personality vulnerabilities and acquired brain injury, although I observe with respect to this injury that there is no evidence it is linked in any way to the offending. There was consistent reference to post-traumatic stress disorder, mental health issues and the use of medication, particularly as a result of childhood trauma. There was also reference to prescribed medicines to treat mental health conditions.
All of these matters will be taken into account in the subjective case of the offender as part of the sentencing synthesis. As I have said, however, I do not consider that there is any matter in the offender's subjective case that reduces his moral culpability for the offending.
In terms of the offender's prospects of rehabilitation it is clear that the offender needs some assistance with his mental health issues and drug abuse problems. Whilst this is his first sexual offence, he maintains that the intercourse was consensual. This displays no insight into his behaviour. He did, however, express sincere regret and remorse for his actions and acknowledged the vulnerability of the victim when she was intoxicated, but at the same time blamed his own intoxication. I am prepared to accept he has some remorse, but it is not of significant weight as it was not made by him in evidence before me.
I regard his prospects of rehabilitation as reasonable if he obtains help for his mental health and drug and substance abuse issues.
The sentencing assessment report assessed him as being of a medium risk of reoffending. If he obtains the assistance I have mentioned, I do not regard him as a serious risk of sexually reoffending.
[6]
Sentencing Principles
I must have regard to the purposes of sentencing in s 3A Crimes (Sentencing Procedure) Act. The Crown submitted that all of the stated purposes of sentencing in that section apply. There is some force in that submission although, of course, that is probably the case in all sentences, with some purposes having more application than others.
Here, I consider that specific and general deterrence are important purposes of sentencing. Sexual offences are offences which have devastating, often lifelong, effects on victims and I expressly acknowledge the harm that such offending does cause to victims.
These offences were committed against an intoxicated victim who, at the time of the first offence being committed, was asleep. The second offence involved her resisting, as I have described, until the offender desisted. He then lied about what had happened and tried to shift blame to the victim by saying that she had said another of the boys could come in. As I have observed, even if such a thing was said by her, this did not and could not amount to consent to any sexual contact between her and the offender. People, particularly males, must know that consent must be given at the time of any sexual intercourse. I should add that the intoxication of the offender is not relevant to his knowledge as to whether the victim was consenting and nor is it a mitigating factor.
There is no doubt in my mind, and it was not submitted otherwise, that the s 5 threshold has been crossed and that no other sentence other than one of imprisonment is appropriate.
By reason of the struggles with his mental health and drug abuse issues, it is accepted that the offender will find custody more onerous. I will make a finding of special circumstances so that there is a longer period on parole for him to obtain treatment and assistance necessary. I also note the submission of counsel for the offender which referred to the hardship of the offender being in custody during part of the COVID crisis and in my opinion this also adds support to a finding of special circumstances.
I will impose an aggregate sentence. I acknowledge that I must have regard to the principles of totality. There is an issue about cumulation or concurrency of the sentences as the two offences occurred very quickly after each other in the same incident.
Counsel for the offender submitted that the sentence for the first offence, the penile/vaginal intercourse, can comprehend and reflect the criminality of both offences. Thus, it is submitted that the sentences should be wholly concurrent.
The Crown submitted that the two offences involved distinct criminal acts the criminality of which could not be encompassed by a completely concurrent sentence. It was submitted that whilst there should be a level of concurrency, some degree of accumulation is required to reflect the fact that there was penile vaginal intercourse followed by cunnilingus.
I accept the Crown's submissions. I do not think that wholly concurrent sentences are appropriate. I do not think that, having regard to the nature and seriousness of the offending, the criminality of the second offence would be comprehended by wholly concurrent sentences. There will, however, be a significant degree of concurrency as the offences were in the same incident.
Each party agreed that to take into account the time spent in custody by the offender in respect of these matters rounded up to 470 days, the sentence should commence on 9 February 2023.
I note that each sentence carries with it a standard non-parole period of seven years with a maximum penalty of 14 years. I will take the standard non-parole period into account as part of the sentencing synthesis as I must, however, I will not be imposing a non-parole period of seven years for either offence. To do so would, in my opinion, result in a sentence that is not proportionate to the offending and to the principles of totality, concurrency and cumulation that I have mentioned. I must, however, indicate a non-parole period for each of the sentences.
[7]
Sentence
Mr Bates, for the offences for which you were found guilty by the jury, you are convicted:
1. For the count 1 offence, I indicate a term of imprisonment of 5 years 8 months. I indicate a non-parole period of 3 years 6 months.
2. For the count 2 offence, I indicate a term of imprisonment of 5 years 6 months. I indicate a non-parole period of 3 years 4 months.
3. I impose an aggregate term of imprisonment of 7 years.
4. I set a non-parole period of 4 years 3 months.
The sentence will commence on 9 February 2023 and expire on 8 February 2030.
The first date you will be eligible for release to parole is 8 May 2027.
***
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Decision last updated: 16 July 2024
The offender was tried before a jury and convicted of these offences on 28 July 2023. I am required to make findings of fact on which the offender is to be sentenced.
In sentencing an offender after a jury verdict, the relevant principles with respect to the findings of facts for sentence were set out by Payne JA in R v Cranston [2023] NSWSC 1004 at [3] as follows (omitting the reference to authorities there cited):
1. A sentencing judge has a duty to make as far as possible findings of fact relevant to the issues that will inform the sentence. I will omit the references to the authorities that his Honour included.
2. Sometimes, however, it may be impossible for the sentencer to resolve a given factual question in a way that tends to either increase or decrease the sentence. In that case, the sentencer must leave that matter to one side and proceed on the basis of what can be found.
3. If a party at a sentencing seeks to rely on a particular fact, that party has the onus of proving the fact in question. There is, however, no general joinder of issue in sentencing and, unlike the trial, no generalised onus of proof.
4. If the prosecution seeks to rely on a fact, they must prove it beyond reasonable doubt. If the offender seeks to rely on a fact, the standard of proof is on the balance of probabilities.
5. After a jury returns a verdict of guilty, the sentencer is constrained to making findings of fact that are consistent with the jury's verdict.
6. A sentencer cannot know in many cases exactly what facts the jury found or what evidence they accepted. The sentencer is constrained by a verdict only when that verdict, by necessary implication, reveals that the jury accepted particular evidence or resolved facts in a particular way, and;
7. Within this constraint, the sentencer can make findings as they see fit. There is no requirement to accept all of the Crown's case as put to the jury, nor is the judge required to take a view of the facts most favourable to the accused."
It is with those principles in mind that I make the following findings of fact having considered the evidence and being conscious that facts averse to the offender must be proved beyond reasonable doubt. As this is a sentence following a jury verdict, as the principles I have referred to above note, I must make findings of fact consistent with the jury's verdict.
Objective Seriousness
Any form of sexual intercourse without consent is a serious offence. The significant maximum penalties and standard non-parole periods are legislative guideposts to the seriousness with which such offending is rightly regarded.
Each of the parties have referred me to various authorities dealing with an assessment of the objective seriousness of sexual intercourse without consent offences. I do not intend to refer to all of them, but I have had regard to the principles I have been taken to in the parties' written submissions. I accept that any form of non-consensual sexual intercourse is itself an extreme form of violence that must be denounced by the Courts.
I cannot make any finding as to the exact duration of the penile vaginal intercourse, however, I infer that it was relatively brief as the victim was woken by the act of intercourse occurring. The cunnilingus was also brief, but the victim was resisting and pushing the offender away with his leg while saying no. I do not mention the duration of the two acts of intercourse to downplay the objective seriousness of the offending. I accept the Crown's submissions that, by reference to the authorities cited in their written submissions, the duration of offending is not a measure of its seriousness.
Additionally, that there was no violence or threats made by the offender does not diminish the seriousness of the offending. Here the victim was asleep when the offender penetrated her vagina with his penis. This, in my opinion, makes the offending more serious. As I have found, the offender must have known the victim was asleep and she could not consent, but he nevertheless penetrated her. I thus reject the defence submission that the seriousness of the offending is lessened because there was an absence of coercion, intimidation or manipulation.
For the penile/vaginal count the victim was asleep. Of course, the offending then was opportunistic (or described in Fisher v R; R v Fisher [2021] NSWCCA 91 at [89] as "rank opportunism") and there was no planning, and for the cunnilingus the offender forced her legs apart and she resisted and told him no. Each offence was a gross violation of the victim's body and dignity when she was intoxicated and vulnerable.
I cannot accept the defence submission that the offending falls to the lower end of the range for offences of this type. In my opinion, having regard to all of the circumstances, I accept the Crown's submission that the penile/vaginal offence and the cunnilingus offence each fall at about the mid-range of objective seriousness for offences of this type. I note that the offender's self-induced intoxication cannot be used to explain his behaviour or as a mitigating factor.