HER HONOUR: The offender Christian Brannen is before the Court for sentence following his plea of guilty in the Local Court to one count of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW) which occurred at Cootralantra on or about 31 August 2021. There is a maximum penalty of 14 years imprisonment for this offence with a standard non parole period of 7 years. Specifically, the charge alleges that on or about 31 August 2021, the offender had sexual intercourse with the named victim without her consent and knowing that she was not consenting to that sexual intercourse.
The victim first complained to the police about this offence on 4 March 2022. The offender was arrested and charged with the offence at Cooma Police Station on 28 June 2022. He was granted bail at the time of arrest and has remained on bail ever since without any breaches. He pleaded guilty in the Local Court at the first available opportunity after the prosecution brief was served, and the compulsory case conference conducted. On 21 February 2023, he was committed from the Cooma Local Court to the District Court at Queanbeyan for sentence on the basis of that plea of guilty.
He came before me for sentence during the March 2023 circuit of the District Court at Queanbeyan and was adjourned for a further period to enable him to obtain some expert psychiatric evidence. Regrettably, the anticipated sentence in late June had to be further adjourned because of my unavailability at the time. He has adhered to his plea of guilty in this Court since first mention in Queanbeyan in March 2023. His plea of guilty is thus entered at the first available opportunity. He is entitled to a 25% discount pursuant to the provisions of the Early Appropriate Guilty Plea Scheme.
His plea of guilty has a significant utilitarian value in this matter, not just on the basis of its timing and the fact that there was no need for any trial to be run, and never was, but for further reasons which will be referred to in due course.
R v Brannen [2023] NSWDC 356 | Case summary | Zoe
The relevant facts are to be distilled largely from an agreed statement of facts, and a statement of the offender dated 29 March 2023 tendered by consent. He was not required for cross examination on that statement. He has also provided a history to Dr Olav Nielssen for the purpose of a medico legal report to the Court which was tendered without objection. Albeit that there are occasions on which the Court should perhaps be somewhat circumspect in relation to accepting histories given by offenders to such third party reporters, nonetheless, the history given is in very large part supported by both his own statement to the Court and the contents of the pre-sentence report. There is nothing in that history which would give me any doubt, but to accept the history as truth.
I accept that as at 31 August 2021 the offender was aged 20, born in March 2001, and the victim was 16, born in December 2004. The offender had been living with his parents in Berridale for about two years before this offence, and at some stage in the 12 months beforehand, he moved to live in a farmhouse at Cootralantra. Both these places are in the Snowy Monaro region of New South Wales.
At some stage after he moved to live there, the victim and the offender were introduced to each other through a mutual friend, and the victim thereafter contacted the offender via a messaging service known as Snapchat. They then met in person at a party in Cooma and spent a night together at the offender's house in Cootralantra. About a week later, the offender asked the victim to be his girlfriend over a FaceTime conversation, and she agreed. They then regarded themselves as boyfriend and girlfriend and stayed together frequently at his house, more probably than not I accept, for a few months on the basis of his history provided to Dr Nielssen and did so in a mutually satisfactory relationship. They had an intimate relationship involving consensual sexual intercourse from the beginning of their relationship. That included several occasions of consensual sexual intercourse during August 2021 before the commission of this offence. There is nothing in this background to the relationship, from whatever source it is obtained, to suggest anything other than a mutual attraction between two young people which became an intimate boyfriend girlfriend relationship.
On the occasion of this offence, nominated in the charge sheet as about 31 August 2021 and in the agreed facts as sometime between August and September 2021, the offender and the victim were in the bedroom at the farmhouse. They began kissing. He kissed down the back of her neck and back, and then removed her underwear apparently with her consent. He then undressed and put on a condom. Clearly there was an agreement between them at that stage that they would engage in sexual intercourse, which is what occurred.
According to the agreed facts, the offender inserted his penis into the victim's vagina with her consent. The facts indicate that she "Didn't really feel turned on", and this hurt. There is nothing to indicate that she conveyed this to the offender, and the facts say that she was "Okay with it", but soon became "really uncomfortable". The comments about the victim's state of mind at this stage, which appear in the agreed facts in quotations, I infer must have come from a statement made by her, but which was not tendered on sentence.
There is nothing to indicate that the victim at that stage conveyed any of this state of mind to the offender, nor that anything which had occurred up until then was not consensual. The victim then said "Stop", but the offender did not stop. The agreed facts indicate that the victim's perception at the time was that "He couldn't hear me or something". The offender continued to have penile vaginal intercourse with the victim for between one and two minutes and ejaculated.
The victim said "Stop" a few times according to the agreed facts, but the offender did not stop. The agreed facts indicated that at some stage during this continuation of sexual intercourse, the victim tried to push the offender away by placing her hands into his rib area, but that this did not work, and then she "Just laid there". The facts do not indicate whether or not the offender realised that the victim was pushing him away, and there is nothing elsewhere in the evidence, either in his statement to the Court, any subsequent Snapchat contact between him and the victim, nor anything else in Dr Nielssen's report to indicate that the offender was ever aware that the victim had tried to push him away.
The agreed facts at paragraph 12 include the following sentence, "The victim did not consent to the continuation of sexual intercourse, and the offender knew the victim was no longer consenting." This sentence appears in the same paragraph immediately after the reference to the victim having said "Stop". These are clearly negotiated agreed facts after the offender indicated a willingness to plead guilty, and in circumstances where, he like every other person charged with any indictable offence, is required to engage in the Early Appropriate Guilty Plea Scheme in the Local Court requiring a case conference and knowing that an early plea of guilty gives rise to a 25% discount on sentence to represent the utilitarian value of that plea.
It is the experience of this Court that the facts that are negotiated and presented to this Court can often appear tortured and clearly the subject of negotiation. This Court is frequently told by those representing offenders in the Local Court in these circumstances that they are given little if any opportunity to make changes to facts presented to them by the DPP during the course of those case conferences, and that the opportunity to enter an early plea of guilty and thus obtain the benefit of a 25% discount frequently requires acceptance by an offender of agreed facts compiled by the DPP with little if any opportunity to make changes, at the risk of losing the sentence discount.
Whether or not that is a matter that occurred in this case is not known, but it is the common knowledge of the Court in relation to negotiated pleas of guilty during the course of the Early Appropriate Guilty Plea Scheme, and reading of the Court file indicates that there were several adjournments of this matter in the Local Court whilst the presentation of the prosecution brief occurred, and the case conference was allowed to occur.
The factual circumstances of offences brought contrary to s 61I of the Crimes Act 1900 which become the subject matter of jury trials, in the experience of this Court, often lead to acquittals in circumstances very similar to those relevant to this matter. That is where there is nuance, in particular in relation to the element of establishing that an offender did not have reasonable grounds for believing that the victim was consenting, or that there was any other evidence from which the Crown could establish knowledge of lack of consent.
The offender's admission here in the agreed facts that he knew that the complainant was not consenting represents a significant admission in the light of some of the other evidence in the agreed facts including at paragraph 11, from the victim herself, that she was not sure that the offender heard her when she said "Stop". That of course could easily have been the subject matter of cross examination of the victim relevant to the area of knowledge of lack of consent.
The plea of guilty in the circumstances, and the admission in the agreed facts, has made that unnecessary and, significantly, ensured a conviction in circumstances whereas as stated earlier, it is the experience of this Court that very similar factual matters presided over in jury trials often result in acquittals. The utilitarian value of the plea of guilty in this case, in those overall circumstances, is very high, not just as a result of the early timing of that plea.
They would appear to be the factual circumstances or set out the factual matrix relevant for sentence. The facts further indicate that after the offender ejaculated, the victim got out of bed and went outside. The facts indicate that she cried for about five minutes, then had a smoke, and came back inside. There is nothing in the facts to indicate the offender knew that she was upset, or that she said anything to him at that stage to convey that. When she came back into the bedroom, she told the offender she had a headache and wanted to sleep and they apparently both went to sleep. The following morning, they woke up and she asked to be driven home.
I accept from other material, namely the history given by the offender to Dr Nielssen, that the victim herself did not drive at the time and that the offender was the person who drove her wherever she needed from the farmhouse where they lived.
At her request that morning he drove her to the home of a female friend in Jindabyne. Whilst there she told her friend that she had asked the offender to stop during sex but he did not and kept going. She appeared nervous to her friend who comforted her. She offered to take her to police but the victim declined. According to the facts, the victim felt scared and had previously not had good experiences with the police. There is nothing in the facts to indicate that any fear she had was because of anything the offender either said or did.
Later that day, namely the day following the offence, the offender and victim had a Snapchat conversation together. During the course of that conversation, as appears in paragraphs 22 and 23 of the facts, this occurred.
The victim said, "I didn't want to keep going. I felt like you didn't exactly listen to me. I'm not meaning to say anything bad but that's how it felt because we kept going".
The offender replied, "I thought that you said stop coz you needed a break".
The victim then said, "No, that's not what I meant".
The offender then said, "Okay, well, that's my fault then, sorry".
There was other conversation and the offender then said, "Yeah, that's my fault. I kinda accidentally got caught up in the moment".
In his subsequent statement to the Court tendered on sentence and, of course, in the agreed facts the offender acknowledged that the victim asked him to stop, that he did not do so and continued to have sexual intercourse with her for a couple of minutes and that he accepted that he should have stopped immediately rather than allowing himself, in his own words, to get "caught up in the moment". He confirmed that what he had said to the victim the day following the offence was the truth. That Snapchat exchange between them is relevant to take into account when considering the significance of the fact that the offender's knowledge here was actual knowledge of lack of consent, not recklessness nor any of the other bases on which knowledge of lack of consent might be established.
On the basis of these facts, I accept that the following are relevant matters to take into account when determining the objective seriousness of this offence:
1. This was a continuation of sexual intercourse, namely penile vaginal intercourse which commenced with the consent of the victim but changed after she withdrew her consent. This, of course, falls within the definition of sexual intercourse for the purposes of s 61I of the Crimes Act 1900 but the continuation of sexual intercourse non consensually after commencing consensually has been recognised as objectively less serious by the Courts in a number of cases referred to by the Crown in their initial written submissions at footnote 11 on page 2, including the decision of Bellchambers v R [2011] NSWCCA 131, NM v R [2012] NSWCCA 215, R v Cortese [2013] NSWCCA 148 and Stewart v R [2012] NSWCCA 183. That is a relevant factor when determining objective seriousness of this offence.
2. The continuation of sexual intercourse was for a short period, only for one or two minutes or a couple of minutes as described by the offender. The only evidence about that comes from the statement of the offender himself at paragraph 19. I accept that to be the truth and, in any event, it would appear to coincide with what he said to the victim the following day in the Snapchat message of him being accidentally caught up in the moment.
3. There is no evidence that there was any force used by the offender or any violence in addition to the violence inherent in all sexual assault offences. There is no evidence about the length of time over which the consensual penile vaginal sexual intercourse had been occurring before the victim withdrew her consent but more probably than not, the short period of non-consensual continuation of sexual intercourse was a relatively short part of the overall sexual contact in the circumstances of the overall act described in paragraphs 7 to 10 of the agreed facts.
These three overall factors place this offending very low in terms of objective seriousness for offences capable of being charged under this section and very much at the bottom of the range for such offences.
The Crown, in their written submissions, has argued that the objective seriousness of this offence is below the mid-range but not at the lowest end of objective seriousness on the basis of a number of other factual circumstances which it is argued elevate the objective seriousness. As I understand those arguments, they are the following:
1. The offender's state of mind was one of actual knowledge, not recklessness or any of the other bases on which knowledge of lack of consent can be proved. That is, of course, a relevant consideration in determining objective seriousness. The actual knowledge of lack of consent however must always be seen through the prism of the actual surrounding circumstances which have been referred to earlier when assessing the factual matrix. The offender's actual knowledge of lack of consent should be tempered by the other admission he made the following day that he accidentally got caught up in the moment. He has not sought to rely on that as either a defence or something which perhaps might equally be viewed as recklessness but nonetheless, I accept his statement to be true. He agrees by both his statement and his plea that he heard the victim say "stop" but did not because he got caught up in the moment.
Analysis of facts in cases such as this do not benefit from a second by second retrospective analysis of what was a very short event. The Court is here trying to analyse a very quick continued interaction between the offender and the victim, not as an armchair observer but with some understanding that human interactions are not usually black and white but are often nuanced and subtle. The offender's actual state of knowledge here is a matter which somewhat increases the objective seriousness but, in this case, given the overall surrounding circumstances, not to a great extent in my view.
1. That the nature of the intercourse, namely penile vaginal intercourse, falls into a category more serious than some of those other interactions falling within the definition of sexual intercourse. Whilst that is, of course, the case and the basis of case law in the past, the reasons for such categorisation are simply not present in this case. One is that penile vaginal intercourse carries a risk of pregnancy or contracting a sexually transmitted disease and is more likely to do so than some of the other forms of sexual intercourse. That is not the case here. The offender was wearing a condom so that is not an issue which increases the objective seriousness.
Perhaps more importantly, in my view, is the fact that penile vaginal intercourse is an intrusive sexual act involving actual penetration and thus involves a significant invasion of bodily integrity in the way that some, at least, of the other forms of sexual intercourse, may not. However, it seems to me that where the act of penile vaginal intercourse is a continuation of that act which commenced consensually, this consideration is largely irrelevant.
In any event, the nature of any particular act of sexual intercourse, is not the sole determinant of the objective seriousness of any particular offence. To the extent that the Crown in paragraph 7 of its first written submissions is asserting that this particular offence is rendered objectively more serious because it is penile vaginal intercourse, I reject that submission for those reasons.
1. I reject the Crown's submission that the sexual intercourse was sustained. Of course, these matters may well just be semantic but the only evidence there is that the continuation of sexual intercourse lasted for a couple of minutes. I have already categorised that issue when looking at the duration of the offence. It is not correct to categorise this as being an act of sustained sexual intercourse on those factual findings.
2. I reject the Crown's submission that the evidence here would allow for a finding that the offender, whilst being aware that the victim had withdrawn her consent, nonetheless simply dismissed that and demonstrated a disregard for her and prioritised his own desire. This submission it seems to me infers that the offender was acting somewhat callously towards the victim. That is not borne out by the evidence in my view in large part, because of the very short period of time after which the offender became aware that the consent had been withdrawn up to the time he ejaculated and the answer he gave to the victim the very next day that he thought she said stop because she wanted a break but, in any event, it was his fault because he accidentally got caught up in the moment. These two comments do not indicate what this submission seems to contemplate as a somewhat callous disregard for the victim in favour of his own needs but rather, that he really was not thinking at all for the very reason he articulated, namely being caught up in the moment for a very short period of time.
3. The Crown has made a submission that the objective seriousness is increased because of the age difference between the offender and the victim. The submission is that the age difference is not insignificant and increases the objective seriousness of the offending.
The age difference between the offender and the victim here is 3 years and 9 months. The offence occurred on or about 31 August 2021 when the offender was aged 20 years and 5 months and the victim was aged 16 years and 8 months. On anybody's reading that is two young people who are close together in age. There is some evidence by way of history given by the offender to Dr Nielssen that at the time the victim came to live with him she had left school, did not have a job but was planning to go to TAFE. She did not drive and apparently did not have a good relationship with her mother at the time and so for the period that they were living together somewhere between a few weeks and few months, she relied on the offender for transport and income.
There is nothing in the material in this sentence to indicate that the victim was anything other than a young adult woman, four months away from turning 17 who made a decision to move in with the offender about a week after meeting him and who was, up until this event, engaged in a relationship with him as a live in girlfriend and boyfriend which they both apparently enjoyed. There is no evidence that she was vulnerable or naïve or more likely to have her will overborne by somebody who was a little bit older than her. As a young woman she exercised and was entitled to exercise agency over her own life and as such she was permitted to consent to sexual activity with the offender, which she did, just as she was entitled to withdraw that consent in the way that is the subject matter of this charge.
Just because he was a young man, a little less than four years older than her, does not mean that she was in any way in a relationship of unequal power or that this age difference, which in any event in my view is not significant, played any part whatsoever in the commission of the offence, let alone in a way which would be properly open to the Court to find that it increased the objective seriousness of the offending. Further I find the Crown's submission in this regard to be at the very least somewhat curious and undermining of the rights of young women and falling into the trap of perpetuating gender biased views about women being weaker than men.
The evidence is also that neither of them was apparently more or less powerful than the other. If anything, the offender I accept from the psychiatric report of Dr Nielssen presented as being just an ordinary young man, not given to excesses, not particularly preoccupied by sex, with some relatively minor sexual history with other people but never previously having a live in girlfriend and who commenced the relationship with the victim via a FaceTime request that she become his girlfriend which strikes me as being somewhat naïve and not particularly sophisticated. They present on the evidence as being equals. I completely reject the Crown's submission that this is a matter in this case which increases the objective seriousness of the offending. I note that it was a submission only, not supported by any evidence to the Court.
When all of that is analysed, this is an act involving the continuation of penile-vaginal intercourse for a couple of minutes in the context of an ongoing relationship between the offender and the victim in which at least on the agreed facts he had actual knowledge that she had withdrawn her consent but continued for a couple of minutes in circumstances where, in his own words, he accidentally got caught up in the moment.
The analysis of sexual behaviour between individuals is something that regrettably these Courts must do as part of determining the objective seriousness of such offending and which juries also must do when determining whether or not knowledge of actual consent is proved beyond reasonable doubt. However, it can never be overlooked that what is being analysed is human behaviour involving sexual contact and there needs to be a common sense approach taken to factual findings. On any objective assessment of this act of continued sexual intercourse, I find it is very much towards the bottom of the range in terms of objective seriousness, if not at the very bottom, only elevated to a limited extend because it involves actual knowledge not recklessness. On that finding, and also taking into account the plea of guilty, the standard non-parole period does not strictly apply but of course I must always bear it in mind as a guidepost.
Objective seriousness is only one matter to take into account however when determining the appropriate penalty. The Court must also determine whether any of the statutory aggravating or mitigating factors referred to in s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) are present in deciding whether or not any particular offence is rendered more or less serious because of the presence of those factors. In making that finding I have read and taken into account the victim impact statement, apparently compiled by the victim some time before March 2023 when the matter was first in Court. It is short and I accept that she would appear to have suffered some exacerbation of what was apparently pre-existing anxiety and depression and there would appear to have been some form of reconciliation with her mother which presumably is a positive impact.
The Court has knowledge and takes into account the fact that victims of sexual assault almost invariably suffer some adverse psychological consequences because of the offending and that would appear to be the case here. But there is nothing more recent than the victim impact statement and very little detail. There is nothing that would amount to an aggravating factor and there is nothing of that type argued by the Crown. It is to be hoped that the victim will continue to improve, and certainly the offender's almost immediate acceptance of responsibility and subsequent pleading guilty, so that she did not have to come to Court to be cross-examined, hopefully has had some positive impact towards her improvement.
There are none of the aggravating factors present here referred to in s 21A. There are a number of mitigating factors as follows:
1. This was not part of a planned or organised activity but was in its own terms entirely spontaneous;
2. This is a plea of guilty at the first available opportunity to which I have already referred;
3. The offender comes to Court as a person now aged 22 with no prior criminal convictions who has not committed any other offences since being charged;
4. The offender has shown appropriate remorse from the very day after the offence, and continuing, as evidenced in his statement to the Court, statements by his referees, statement to Community Corrections for the Sentence Assessment Report and the history given to Dr Nielssen;
5. For reasons which will be expanded soon he has excellent prospects of rehabilitation.
Section 3A of the Crimes (Sentencing Procedure) Act 1999 sets out the purposes which must inform any sentence imposed by this Court. That includes preventing crime by deterring the offender and others from committing similar offences, s 3A(b). Also, the offender must be adequately punished for having committed the offence, must be held accountable for his actions and the sentence must also operate to denounce his conduct. I have taken those purposes into account when determining the sentence to impose ultimately in this matter.
There is no evidence here that the community needs to be protected from this offender in the light of his lack of criminal convictions and ongoing good behaviour and character since being charged and remaining on bail in the community.
Clearly sentences for sexual offences must recognise the harm done to the victim, a matter referred to earlier when dealing with the victim impact statement here. They must also recognise any harm done to the community. Whilst there is no direct harm to the community as a result of this offence, the fact is that any sexual offence diminishes the community generally, at least to some extent. There is regrettably an apparent increase in sexual offending in the community. Sentences for those offences must both denounce that conduct, recognise that the community at large is diminished when women are victimised in this way and also send a message that such offending is likely to end in periods of full-time imprisonment. This was clearly the intention of the legislature as well when setting the maximum penalty for this offence and the standard non-parole period, both of which I take into account when dealing with the appropriate sentence.
Of course, these purposes must also be approaching bearing in mind the particular offence for which an offender is being sentenced and the particular circumstances of the offender. Sentencing is a nuanced and instinctive process by judicial officers individualised to the circumstances of a particular case.
One other purpose of sentencing, of equal importance, which must be taken into account is s 3A(d) of the Crimes (Sentencing Procedure) Act 1999, namely that there should be a sentence that promotes the rehabilitation of the offender. This is a matter which must be given specific weight in the case of a young offender, as the offender before me is, where appropriate weight should be given to the need for rehabilitation.
I now turn to the subjective factors surrounding the offender in addition to those already canvassed. Those latter factors include his age, now 22 and the lack of any criminal convictions before the offending and continuing good behaviour whilst on bail. Further, I accept that he continues to live in the Snowy Monaro region having moved back to live with his parents. His father is a serving member of the New South Wales Police Force. The offender achieved the HSC at the age of 17 and started working as an apprentice mechanic and is a qualified mechanic.
After the family moved to the Monaro region, just before he was 18, the offender worked in hospitality and then started his own mechanics business. There were challenges to that business as a result of the 2019 bush fires in that region of New South Wales, but he started working as a traffic controller which is his current occupation as a subcontractor. His principal has provided a reference to the Court indicating him as honest, of fine character who has demonstrated a high sense of responsibility in all tasks within the company. He attests to a strong work ethic and is always committed and reliable in his day to day duties. There are two other character references tendered which speak highly of him and both indicate that the offence before the Court is very much out of character for the young man who they have known, in each case for about ten years.
These opinions are apparently honestly offered to the Court and, on the basis of the content of Dr Nielssen's report and also the statement provided by the offender himself to the Court, I accept their opinions as accurate. I accept that this offending is very much out of character for this offender. Dr Nielssen found him to be around the bottom of the normal range for overall intelligence, but not to be demonstrating any form of psychological disorder or condition. He does not have a history or pattern of antisocial conduct, or any form of substance use disorder. He did not demonstrate to Dr Nielssen any kind of abnormal sexual interest.
There is a sentence assessment report before the Court undertaken by Community Corrections which equally found the offender to be a person without any demonstrated antisocial behaviour who acknowledged his guilt and showed appropriate remorse, who engaged well with them and was forthcoming with information, and who had the benefit of a supportive prosocial family which had a positive influence on him. They assessed him as a low risk of reoffending, albeit at the stage of the report without having conducted a full psychological assessment.
Dr Nielssen did so, using the Static 99R actuarial risk assessment tool which I accept is a tool which would equally have been used by Community Corrections had they had the time to do so before preparing the report. On the basis of the score obtained using this actuarial tool, and on his clinical assessment of the offender, Dr Nielssen assessed him as carrying a low risk of further offending. I accept this opinion by Dr Nielssen and find that the offender in fact is a low risk of any further offending including sexual offending.
I accept the opinion of Community Corrections in relation to the need for some supervision, and note the plan which would be implemented, which of itself would further increase his prospects of rehabilitation. His subjective case is thus a very good one, and one where clearly, he has worked well towards rehabilitation since committing the offence, and since being charged and placed on bail. A sentence which continues this situation, especially with some ongoing supervision as suggested by Community Corrections, is thus more likely to promote this ongoing rehabilitation.
Dr Nielssen expresses the opinion at page 8 of his report that this offender is likely to find the experience of imprisonment more onerous than it might be for other offenders. Whilst the Crown has argued that this is an opinion not supported by any evidence which should be rejected. I do not accept that submission on behalf of the Crown. It is well known to the Courts that family members of serving police officers are not treated well in the New South Wales prison system, and almost invariably for that reason and other reasons including his youth, this offender I accept more probably than not, if going to gaol full time, would be placed on protection for all of his term of imprisonment.
That of itself would render his experience of custody more onerous and mean that his ongoing rehabilitation would come to a halt. It would certainly not promote his ongoing rehabilitation.
The Crown here has argued that notwithstanding all of these factors, and of course in circumstances where they have argued for findings in relation to objective seriousness which I have rejected, that this offender must nonetheless go to gaol because the threshold for imprisonment provided by s 5 of the Crimes (Sentencing Procedure) Act 1999 has been crossed when all factors have been taken into account, and when taking into account the purposes of sentencing. In particular, to support this submission, the Crown refers to the decision of the New South Wales Court of Criminal Appeal, Kramer v R; R v Kramer [2023] NSWCCA 152.
The Crown does not do so by way of arguing that it is a comparable case, because the case here is a far less serious case factually than was Kramer, which itself in addition was a matter where the offender was convicted after trial, but rather to draw attention to the principles elicited from that Crown appeal. In particular, the Crown refers to the statement by Hamill J at [125] after his Honour referred to having surveyed statistics published by the Judicial Commission for sentences pursuant to s 61I of the Crimes Act 1900 and following. His Honour's statement in particular is as follows:
"However, the survey demonstrates consistent with the statistics provided by the appellant and referred to by McNaughton J that the imposition of a penalty other than imprisonment is rare for offences under s 61I."
With respect, I accept that to be the case. However, sentences for something other than imprisonment would not be unique, as is also clearly demonstrated from the analysis undertaken in that case of the JIRS statistics. I have also undertaken that analysis. Between September 2018 and December 2022, sentences imposed in this Court for this offence as recorded by those statistics indicate that 4% were dealt with by way of conviction and a Community Corrections Order. That was from a sample size of 302.
As McNaughton J pointed out in the Kramer decision there is little known of the facts of most of those 12 cases and for those for which there was a judgment, namely two, they were apparently easily distinguishable from the facts in the Kramer decision and not of great use in deciding whether or not in that case a Community Corrections Order sentence was manifestly inadequate. The dissimilarity between the facts in the two reported judgments and the case before me are not so easy to pinpoint but that is not of great moment. What is clear from that case is the fact that whilst a non-custodial term might be rare a sentence of less than full-time custody is not unique.
Section 5(1) of the Crimes (Sentencing Procedure) Act 1999 provides the following;
"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."
This consideration applies to all offences and will depend entirely on the individual circumstances of each offence as committed by any individual offender. There is no mandatory sentencing for New South Wales offences and even though a sentence other than full time imprisonment will be rare in offences of sexual intercourse without consent that does not mean that they are not available in the appropriate case depending on the instinctive synthesis of the facts and other relevant circumstances undertaken by the sentencing judge.
I have determined here that on the basis of the quite low objective seriousness of the offending, the lack of any aggravating factors, the presence of many mitigating factors, the overall subjective circumstances of the offender and the need for the sentence to promote his ongoing rehabilitation that the threshold for imprisonment is not crossed in this case and that this indeed is one of those rare cases of offences contrary to s 61I of the Crimes Act 1900 where something other than full-time custody is appropriate. That appropriate sentence in my view is a Community Corrections Order with conviction for a period of 2 years. It would be open for the Court to impose a CCO of up to 3 years but given that the offender has now been on bail for over 1 year with evidence of ongoing good behaviour, in my view 2 years is the appropriate length of the Community Corrections Order.
I do not overlook the fact that being on a such a bond for a period of 2 years will amount to an imposition requiring supervision from Community Corrections and carrying the risk that any form of offending would mean the offender's being called up for resentence with the inevitability it seems to me of a term of imprisonment being imposed. The fact that this hangs over the offender's head for 2 years from today of itself is a matter that the community ought to regard as a serious imposition and ought to send a strong message to the community and to this offender that this is a serious sentence which will continue with him for the next two years at least. Doing so denounces his conduct, operates as a punishment to him and ought to send a message to others about the seriousness of this conduct.
I am about to announce the sentence are the matters about which I have made any factual mistakes, anybody wants to draw to my attention so that I can fix it now rather than at some stage in the future?
I therefore make the following formal orders.
1. The offender is convicted.
2. He is sentenced to a Community Corrections Order of 2 years from today, 4 September 2023.
3. It is subject to the standard conditions plus a condition that he accepts supervision from Community Corrections for as long as deemed necessary by them. He is to report to the Cooma office of Community Corrections no later than 5:00pm on Friday, 8 September 2023 to allow the supervision to be commenced.
[2]
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: 30 January 2024