HIS HONOUR: These are ex tempore reasons in relation to the facts to be found and the reasons for the sentence that I am going to impose on Mr Bussey in circumstances where I considered evidence and written and oral submissions yesterday, first, on 5 June 2020 and against yesterday and then adjourned the matter overnight just to consider some of the factual issues. A relevant short chronology of the matter is that the offender was arraigned on an indictment averring four counts before me and pleaded not guilty to each of those counts. A jury trial commenced on 3 March 2020.
The jury commenced to deliberate about lunchtime on 20 March 2020 and, after I gave a majority verdict direction on the afternoon of 24 March 2020, the jury returned verdicts of not guilty in relation to count 1, count 2, and count 4 on the indictment, and found Mr Bussey guilty of count 3, which is an offence in breach of s 61J(2) that for that matter is provided a maximum penalty of 20 years' imprisonment and a standard non-parole period has application. I will have regard to both of those as benchmarks or guideposts in the way contemplated by the authorities and, in due course, I will articulate in short some of the reasons that I have departed significantly from the standard non‑parole period, notwithstanding that this was a verdict after trial.
The fact-finding exercise in this matter is made, it is accepted by the parties and articulated by me, quite difficult in circumstances where the jury found Mr Bussey not guilty of counts 1, 2, and 4. The indictment averred events in a chronological order, which meant that Mr Bussey was acquitted in relation to an offence in breach of s 61L, said to have been committed first in time and then acquitted in relation to an offence in breach of s 37(2) of the Crimes Act, being an allegation that he choked the victim so as to render her unconscious with the intention of committing an indictable offence, namely, sexual intercourse without consent, knowing that she was not consenting.
R v Bussey [2020] NSWDC 802 | Case summary | Zoe
He was then found guilty of count 3, an offence that he had sexual intercourse with the victim without her consent, knowing that she was not consenting to the sexual intercourse in circumstances of aggravation, namely, that he deprived the victim of her liberty for a period before the commission of the offence and then was acquitted in relation to count 4 in identical terms, which episode of sexual intercourse was alleged to have happened very shortly after the sexual intercourse relied on for the purposes of count 3.
There are some matters that uncontroversially can be found in relation to the matter. The particular issues for determination relate to what can be divined about the offender's state of knowledge consistent with the jury's verdict, what deprivation of liberty can be found for the purposes of count 3, and what findings are available as to the provenance of some slight bruising noticed on the victim's neck at the time that she complained to police, and whether that material can assist in relation to fact finding in relation to the deprivation of liberty issue.
Uncontroversially, the offender commenced a relationship with the victim in about March 2016 and that relationship ended in October 2018. On 3 November 2018, the offender attended the victim's apartment, which was in the North Sydney area, after some telephone contact between them initiated by the offender. In due course, the offender had sexual intercourse with the victim and, on the basis of the jury's finding, without her consent, but the sexual intercourse lasted for up to ten minutes and included, during the passage of intercourse, the offender saying things such as, "I bet you miss this cock," and the victim responding, "Yeah," although her evidence was that she said that because she, "Just didn't want to be abused anymore." That was at transcript 46 and following.
In terms of the issue of deprivation of liberty, the Crown contended that the Court be satisfied beyond reasonable doubt against the interest of the offender that the deprivation of liberty commenced at a time when the victim asserted that the offender took hold of her near the front door of the premises. The contention for the offender was that the only actions of the offender that could satisfy the Court beyond reasonable doubt consistent with all of the jury's verdicts that the offender deprived the victim of her liberty at a time before the commission of the offence was at a time when the victim was on the bed in the bedroom and, after the offender entered the bedroom, asked whether she was "going to fight him" to which she replied "no", and that the offender then kneeled on the bed with his knees either side of but not on the victim's legs and dragged her down by her feet before commencing to remove her pants either with or without the victim's assistance, as the case may be.
The principles in relation to fact finding after trial are that it falls to the sentencing court to determine what facts on which the offender is to be sentenced, taking into account the jury's verdicts, facts which are consistent with those verdicts and facts proved beyond reasonable doubt. I note that the Court is not bound to adopt the view of the facts that is most favourable to the offender, see Filippou v The Queen [2015] HCA 29at paras [70] and [72] and Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 at para [20].
It is accepted that facts adverse to the offender must be proved beyond reasonable doubt, but those to be taken into account in his favour must only be established on the balance of probabilities. It is also a matter of principle that while the Court is not required to take a view of the evidence most favourable to the offender, that reasonable doubt must, of course, be decided in the offender's favour, see R v O'Neill [1979] 2 NSWLR 582 and R v Olbrich (1999) 108 A Crim R 464 at paras [24] to [28].
It is also a matter of principle that an offender is to be given the full benefit of the acquittals in relation to counts 1, 2, and 4. The acquittals in relation to counts 1 and 2 have some work to do in terms of the fact finding issue both as to the provenance of any bruising and what facts can be found in relation to the deprivation of liberty. One of the difficulties with accepting the Crown's submission that the Court could be satisfied that the deprivation of liberty commenced relatively early in the facts asserted by the victim in her evidence, she gave evidence that the offender held her by the neck and waist and forced her into the bedroom. She was then pushed to the bed, where her pants were pulled down by the offender and that was the evidence relied on to sustain count 1.
The victim then asserted that after the commission of the acts relied on for count 1 that she feigned a need to go to the bathroom, that the offender permitted her to do so, but followed her, that she effectively made a break for the front door and that the offender restrained her, choked her, and started to move her towards the bedroom at a time that she then lost consciousness. It was that material that was relied on in relation to count 2 and was the subject of an acquittal. The victim's evidence was then that she came to and was not able to effectively say what was operating on her mind or had happened for a short period since she was choked.
The Crown case at trial was that the deprivation of liberty at the latest commenced at the time that the offender took hold of the victim at but inside the front door of her apartment. The Crown, in its careful written submissions, posited bases on which the jury may have had doubts about issues in relation to count 1, 2, and 4 that did not involve a rejection of the complainant's evidence, the defence contentions were that those acquittals must necessarily flow from a rejection of some central aspects of the victim's evidence in relation to those counts.
Without saying more about it, given that the matter is going to be the subject of a conviction appeal in the Court of Criminal Appeal, as I understand it, it may be that either of those possibilities is correct. It is very hard, given the apparent inconsistencies between the verdicts, to reach a firm view about that and that will fall to others to determine. It is possible, given that the offender gave evidence and conceded having penile-vaginal intercourse with the complainant on one occasion but in different circumstances to those alleged by the complainant, that the jury were satisfied as to the fact of sexual intercourse because of that evidence, but then gave more weight to the complainant's evidence as to what surrounded that event than the evidence given by the accused.
In any event, it is my view, having thought about the matter carefully overnight, that to rely on a deprivation of liberty immediately before events that resulted in the acquittal on count 1 could not properly satisfy me beyond reasonable doubt. Similarly, to rely on a deprivation of liberty immediately before events relied on in relation to count 2, which was the subject of an acquittal, could not satisfy me beyond reasonable doubt. I will return to the issues of the bruises shortly, but, having considered the matter carefully, I am not persuaded that the existence of the bruises, when noticed sometime after the events in question, can fortify any decision about an earlier period of deprivation of liberty.
The facts that I find in relation to the deprivation of liberty are that, at the time that the victim was on the bed in her bedroom, the offender said words to her, "Are you going to keeping fighting me?" and the victim said, "No," and that thereafter the offender straddled the victim's legs, having his knees held either side but outside of her legs and proceeded to pull her down the bed. Those actions were committed before the offence, Mr Crown properly concedes that the offence commenced at the time of the commencement of penetration and those actions were consistent with depriving the victim at that time of her liberty. I can be satisfied of that beyond reasonable doubt.
The Crown contended that I could use the conversation I have just referred to as being consistent with the offender having some knowledge of earlier resistance by the victim, I am not persuaded I can safely act on that. Very properly, Mr Crown conceded, of course, that I could have regard to the victim's evidence and my view of it. It seems that Ms Goodwin for the offender put a range of matters availably in relation to her criticisms of the victim's evidence, which included some focus on demeanour, internal inconsistencies in her account, and inconsistencies both as to her account of complaint and her account of the events, which differed significantly from complaint evidence led by the prosecution and most particularly from Mirjana Echeverria.
It is at least a possibility, given the verdicts, that the jury rejected significant portions of the victim's evidence of events on 3 November 2018. I share some disquiet in placing particular reliance on aspects of her evidence, particularly those that relate to counts on which the offender was acquitted. Inferentially, the victim contended that the marks on her neck resulted from the offender's actions towards her on 3 November 2018 and, inferentially, were sustained either at the time she said he took hold of her neck to take her to the bedroom before the events relied on for count 1 and/or when he took hold of her neck on her evidence and choked her before she lost consciousness, which were the events relied on for count 2.
Although the victim said this did not operate in relation to the events of 3 November 2018, she agreed that her relationship with the offender had included instances of consensual choking in an erotic context, consistent with sexual intercourse between the two of them. The accused, at transcript 522, 14 to 15, and point 19 to 21, indicated in the context of what he said was a consensual episode of sexual intercourse that he took hold of the victim's neck during intercourse and squeezed the front part of her neck and then ultimately considered that the pressure was too great and removed his hand. That is my summary of the effect of his evidence.
Although he did not necessarily accept that that material caused bruising, by inference, on the accused's case, that is the likely provenance of the marks on the victim's neck seen the next day. For the bruises to be seen as an artefact of either of the other episodes would involve me being satisfied beyond reasonable doubt that the offender choked the victim on either one, other, or both occasions consistent with the victim's evidence and I am unable to be satisfied against his interest beyond reasonable doubt that that is how the bruises were caused.
That said, I am unable to be satisfied in favour of the offender on the balance of probabilities that the bruises resulted as a result of consensual choking during the sexual intercourse or choking during the sexual intercourse relied on in relation to count 3. I simply cannot be satisfied either way. In terms of the offender's state of knowledge, the Crown relies on the victim's evidence to sustain a submission that the offender actively knew that the victim was not consenting to the sexual intercourse. It is effectively put by the offender that the Court could not really be satisfied whether there was actual knowledge of lack of consent or recklessness, given the way the case was run by both the parties. I am ultimately persuaded that that is the correct position: that I cannot be satisfied beyond reasonable doubt as to whether it is consistent with the jury's verdict that there was actual knowledge in the offender that the victim was not consenting or whether the jury's finding was as a result of recklessness. Once again, I cannot properly find as a fact between those two possibilities, each of which are consistent with the jury's verdict.
The sexual intercourse for the purposes of count 3 was penile-vaginal intercourse undertaken without the use of a condom. The sexual intercourse was up to a maximum of ten minutes, although the victim conceded it could have been less than that. The offender ultimately ejaculated, but at a time after he had removed his penis from the victim's vagina and he ejaculated on the back of her thigh. It is a statutory aggravating circumstance for the purposes of s 21A that the offence was committed in the victim's home. There were no other identifiable circumstances of aggravation over and above the circumstance of aggravation that is an element of the offence.
Whilst an absence of other poor behaviour or aggravating circumstances does not serve to mitigate an offence, there will be additional characteristics of this class of offence that will render it more objectively serious, for instance, the use of threats, reports of pain, some resulting physical injury, actions in degradation of the victim over and above the sexual act itself. Factors that can properly increase the objective seriousness of an offence such that it will be at or above the mid-range include, for instance, the use of weapons, lengthy periods of detention, including at night, offences being committed in front of child, a significant degree of actual violence, substantial injury of a physical kind, or a psychological kind to the victim, infliction of actual bodily harm, although that is one of the statutory aggravating elements for the purposes of s 61J(2).
None of those circumstances are identifiable or found in this case. Given the finding that I was obliged to make in relation to deprivation of liberty, that element of aggravation falls towards virtually the very lowest end of the range of objective seriousness, limited to that element alone. I should not be understood as saying that in relation to the offence itself. I also accept the submission made on behalf of the offender that, as to the range of circumstances that can be in statutory aggravation, deprivation of liberty and particularly of the kind found is far less serious than some of the matters that can be relied on by the prosecution to prove that particular offence.
The offence was relatively brief. Although there was ejaculation after sex without a condom, it was external to the victim's body. Although the Crown perhaps contended for a finding of greater objective seriousness, the offender contended that the gravity of the offending lay "at the very bottom of the end of the scale for offences of this type". I do not accept that submission, but, when one looks at all the circumstances that attach to objective seriousness, the objective seriousness of this offending was in the low range and towards the top of the low range, but before the commencement of the mid-range of objective seriousness.
Matters that mitigate in a statutory sense for the purposes of s 21A are that the offender has no prior criminal record. He was of prior good character, and I note that, in this circumstance, s 21(5A) does not apply. On the basis of findings that I am going to articulate in due course, the offender is unlikely to reoffend and he has good prospects for rehabilitation. It will be clear, because the matter was found proved after trial, that there is no need to consider any utilitarian discount and there is no other circumstances that would warrant a discount on a different basis in this case. It is explicit in the circumstances that, in the case and the way the offender's position is maintained, as I understand it, there is no issues of remorse to be taken into account.
Moving to matters that are personal to the offender, he is now 26 and approaching in some time his 27th birthday. The offence was committed on his 25th birthday. He, was at the upper end but still relatively youthful at the time of the commission of the offence, in part, because of some parlous circumstances in terms of his education and mental state as a teenager. His absence of a criminal record before this matter means that he can be afforded leniency that would not be available to somebody with criminal antecedents.
The offender relied on two sets of expert material. One was a careful assessment including some psychometric testing by Dr Richard Furst, who is a preeminent psychiatrist. Although the offender did not give evidence on sentence, I am prepared to accord more weight than would sometimes be the case to Dr Furst's report, partly because some of the material that he relies on has been verified from other records, partly because there is a concordance between some of his observations and material that was either led in the case before the jury or arises from other subjective material, partly because some of the opinions are on the basis of either a demonstrated past psychiatric history and psychometric testing, but also because the report does not contain self‑serving statements from the offender that attract more careful consideration of the principles expressed in R v Qutami [2001] NSWCCA 353 and other cases that follow it.
I will return to the report of Dr Furst shortly. The other body of expert evidence relied on by the offender was a report from Dr Andrew Ellis, forensic psychiatrist, commissioned by Legal Aid New South Wales to assay the effect of restrictions on prisoners generally as a result of changes in prison discipline consonant upon the COVID-19 pandemic and, additionally, an expert opinion prepared by the Kirby Institute in relation to the impact on prisoners of the COVID‑19 restrictions.
I have had regard to that material. I accept that, in a generalised sense for those imprisoned in the Corrective Services system at the moment, there is likely to be a heightened level of anxiety because of the close conditions in which prisoners are constrained. Additionally, there is a clear policy to not enable prisoners to have personal visits from family, which necessarily makes imprisonment more onerous for at least a significant part of the prison inmate cohort. I have had regard to those materials, they have some mute impact, given the current circumstances where there seems to be a general easing of restrictions and anxieties. I do take it into account as part of the general instinctive synthesis of the sentencing exercise, but it should not be seen as having particular weight in my considerations.
Before I return to Dr Furst's report, the offender, who has been well supported by family through the currency of the trial and through the sentencing procedures, also relied on a number of helpful non‑formulaic character witnesses. Ms Angela Hafner is a long-term family friend, who considers him to be of good character, and that she has only seen the offender "treat his girlfriend and female friends with the utmost respect". As the mother of two girls, Ms Hafner is prepared to offer accommodation to the offender should he ever need it.
Steven Sollars is known to the offender because he is in a relationship with one of the offender's sisters and has been for some six years. He describes the offender as somebody who gets "along with everyone and never initiating any conflict". He describes him as having shown great care towards the wellbeing of former partners. In circumstances in which the offender and the victim got to know each other when the victim joined as a rhythm guitarist a band that the offender had founded and was, as I understand it, the vocalist and sometime guitarist, another band member, Josh Foster, considers that the offence of which the offender's been convicted as to be completely out of character. The offender is described as a "calm and caring individual".
Annie Crawshaw, as at 6 February 2020, was the offender's most recent partner. She describes him as being "kind, genuine, and intelligent". Gordon Lentholm is a director of Fast Flow Concreting, who is the current employer of the offender, indicates that, when able, the firm is prepared to continue to offer employment to the offender. He has described the offender as being "honest, reliable, and hardworking". Mr Lentholm indicates that he has never "seen any aggression, ill behaviour, or any disrespect towards myself or any clients".
Kate Dunlop is a family friend of the offender through her friendship with his other younger sister. Ms Dunlop describes the offender as friendly, honest, and optimistic. She describes him as always having shown her "courtesy and respect" and that he openly demonstrates love and appreciation of his family and friends. Within the bounds of having known him more closely over the past two years, Ms Dunlop describes the offender to be kind, caring, and would describe him as a person of good character, notwithstanding that she understands the seriousness of the case and the charge faced.
The report of Dr Furst finds that the offender meets the diagnostic criteria for each of the following mental disorders: persistent, depressive disorder; anxiety disorder; and attention deficit hyperactivity disorder. Although Dr Furst formed the view that his low mood as a result of the persistent depressive disorder is a chronic condition and that it is likely that he was suffering that mental health issue at the time of the offence, I am not persuaded that there is a significant causal relationship between that mental disorder and the commission of the offence such that it would make the offender a less appropriate vehicle for specific deterrence.
Although Mr Crown availably observes that many people either in custody or facing imprisonment will be suffering from anxiety and depression, the history of this offender makes it clear that he has suffered from that particular condition for a long time and, indeed, was admitted to a psychiatric facility as an inpatient for some days after 3 November 2018. Relevantly, against the backdrop of reported bullying and the difficulties that arose as a result of the offender's parents breaking up during his childhood, the offender was placed in the Boystown facility, which is a residential school for emotionally and behaviourally-disturbed children, being accommodated at the school Monday to Friday.
He was diagnosed with ADHD in either kindergarten or year one by a local paediatrician and was subject to medication between the age of six and 12 years. He ultimately left schooling in year 11. The difficulties with his low mood and anxiety seem to stem from at least the time that he was admitted to Boystown in about year seven, I do not think it is proper to characterise the offender's mental conditions as being just similar to most of those in custody or facing custody. I am prepared to find that the offender's time in custody will be more onerous, partly because, to a limited degree, of the COVID-19 restrictions and certainly because of his difficulty with anxiety and depression, long documented. Taking into account that he is a slight and somewhat idiosyncratic‑featured person without a great deal of height, I am prepared to find that those circumstances, too, will attach to make his time in custody more onerous than a more robust individual.
He has already had 14 days on remand in relation to this matter, which will find its way into a backdate in due course. Dr Furst opines, having tested Mr Bussey, that he has reasonably good prospects for rehabilitation. He sees his family support, his engagement in employment, and his passions and abilities for music as matters that are protective towards him and, on the balance of all the material, taking into account his prior good character and notwithstanding an absence of acceptance of the offending or remorse, I am prepared to assess that his prospects of rehabilitation are good and that he is unlikely to reoffend.
I can indicate to the parties that, apart from having some limited surveying of the JIRS statistics, I had regard to matters recorded on the Public Defender's sentencing table for this offence. Since the imposition of the standard non-parole period, there is such a variety of offending and so many of the aggravating behaviours are profoundly more disturbing than that are made out in this case, while I received some general assistance as to the range of offences available, divining anything that looked faintly like an analogue to this case was difficult.
The Crown did not want to be heard against a finding of special circumstances. I can indicate that I have not taken into account onerousness in custody as a special circumstances. It has an ameliorating effect on the length and disposition of the sentence. Accepting that at 25 the offender is towards the upper end of the range, given his disrupted educational background, some of the principles that relate to younger offenders have some application in Mr Bussey's case.
Although they should not been as having a predominant effect, I do take into account in a limited way the principles as expressed in R v GDP (1991) 53 A Crim R 112 at paras [115] and [116] and, more recently, observations by Schmidt J in R v Miller [2015] NSWCCA 86. Every sentencing exercise rests on its own facts and the particular circumstances. I have regard to what Mahoney ACJ said in R v Lattouf (Unrep. CCA NSW) 12 December 1996:
"It is … necessary that the law allow a sentencing judge a discretion to determine the sentencing judge a discretion to determine the sentence appropriate for the particular offence for a particular offender and the circumstances of the particular case."
Further, by Spigelmann CJ in R v Henry (1999) 106 A Crim R 149 at para [11]:
"A sentencing process must be capable of discriminating between cases. There is, as I've said, a public interest in punishment, but if the desire to punish results in a person who would otherwise, not becoming a confirmed criminal, becoming such, that sentencing process is inconsistent with public interest."
Those types of sentiments are often reserved for cases where a non‑custodial punishment is imposed, consistent with the notions of the exercise of mercy as set out in, for instance, Dinsdale v The Queen. They do not operate in that fashion here because, when I consider all the purposes of sentencing, 3A of the Crimes (Sentencing Procedure) Act, the need to give weight to each of those matters means that there must be a custodial punishment to be served full time imposed. I am satisfied - and really, nothing to the contrary was put by the parties - that the s 5 threshold was crossed in this circumstance.
The circumstances that ground a finding of special circumstances are that it will be Mr Bussey's first time in custody and that there is a need for a greater period of supervision in the community for him to make good his rehabilitation once he has his liberty. Just stand up, would you, Mr Bussey. In relation to count 3, you are convicted. You are sentenced to a term of imprisonment of four years and six months to date from 22 June 2020 and expiring on 21 December 2024. I fix a non-parole period of three years, which expires on 21 May 2023, which means that the earliest date of your consideration of release to parole is 21 June 2023. You can sit down for current purposes.
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Decision last updated: 12 January 2021