Mr Matthew David Copas is before the Court for sentence for an offence under s 51J of the Crimes Act 1900, being an offence of sexual intercourse without consent, in circumstances of aggravation, namely, that at the time of the offence the victim was under his authority. That offence carries a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years is specified.
In addition, the offender asks that in sentencing him for that offence I take into account on a Form 1 three other offences under s 61KD of the Crimes Act 1900, to which he admits - being three offences of sexually touching the victim without consent, in circumstances of aggravation, in that, at the time of the offences, the victim was under his authority. The maximum penalty for each of those offences is seven years imprisonment and a standard non-parole period of five years is specified. The maximum penalties and the standard non-parole period are of course important legislative guideposts to which I have had regard in determining the sentence.
The offender pleaded guilty to the offence at the earliest opportunity and is entitled to a discount of 25 per cent on account of the utilitarian value of that plea.
[2]
FACTS
The facts for the purposes of sentence are the subject of agreement and in summary are as follows.
The offender and his wife operated a cleaning business named Snowie's Aussie Cleaning. In about September 2018, the business posted an advertisement on Gumtree for a position as cleaner. The victim, a 28 year old woman, answered that advertisement and an arrangement was made to meet with the offender and his wife. After performing a trial shift on 4 September 2018, the victim commenced work in the offender's business.
Prior to commencing that job, the victim had been living out of her car but, after gaining employment, was able to obtain residential accommodation in Nelson Bay through a Women's Crisis Centre. The victim has an intellectual disability and has receptive and expressive speech delay. She usually worked six days a week and there were three properties that she would clean alone but the remainder would be cleaned together with the offender, occasionally with the assistance of his wife.
Shortly after commencing employment the victim began to feel uncomfortable due to comments made by the offender about her appearance, such as, "You're hot and sexy". Despite her discomfort with these comments, she continued in the job as she was unsure how to deal with the comments and she needed to keep her job.
During the first weeks of her employment, while the victim was assisting the offender and his wife in a cleaning job, the offender approached her and said, "I think you're hot", to which the victim replied, "Excuse me, what did you say?" After this, the victim went into one of the rooms and started using a vacuum cleaner and was approached by the offender, who showed her a message on his telephone which he had apparently written, which said, "You're hot and sexy but don't tell my wife".
Over the following months, the offender engaged in conduct where he would nudge the victim or push her playfully and attempt to flirt with her. This included sending her a text message with an emoji image of a fox with love hearts in its eyes. This made the victim uncomfortable, and she did not reply. In December 2018 when speaking with the victim the offender said, "I want to have sex with you. I have had one-night stands before. I had sex with the neighbours. When I am at work I want to touch you". And, "We can empty your car out and have sex in your car and I know other places. I think you are hot and sexy".
To this, the victim said she did not want a relationship but just wanted to work and get her kids back. She told the offender, "I don't have relationships with married men. I don't want to lose my job. I really need this job". The offender replied, "I guarantee you will not lose your job if we do something".
The offending conduct occurred on 17 December 2018. At about 11.40am that day, the offender collected the victim in his car and they drove to a house at Lemon Tree Passage that was to be cleaned that day. They arrived there at about 12.30pm. Upon arriving at the house, the victim commenced cleaning, in accordance with the offender's instructions, in the kitchen. While she was doing so, the offender came in and out of the room, smoking and smiling at her and trying to start conversations with her.
The first offence in time is that described in the sequence 3 charge which is to be taken into account on a Form 1 document. After the victim completed her work in the kitchen, she moved to other parts of the house in order to carry out some dusting. While doing this work, the offender came up behind her, wrapped his arms around her chest, taking hold of her breasts with both hands and pulling his hands across her breasts. The victim did not know what to do and said nothing, after which the offender smiled and walked away.
The second offence in time is that described in the sequence 4 charge which is to be taken into account also on a Form 1 document. This offence involved the offender approaching the victim, slapping her on the bottom and rubbing her vagina with his hand, on the outside of her clothing. At this point the victim, in effect, "shut down" as she was unsure what to do.
The next offence in time is that described in the sequence 6 charge, which is the third offence to be taken into account on the Form 1 document. After completing her cleaning work, the victim sat on a lounge, waiting for the offender to complete his work. At that time the offender said to her, "Do you know how much I want to have sex with you right now?" The victim froze and did not know how to respond. The offender approached her and sat on her lap and in response, the victim said, "I just want to get this done. Hurry up". Shortly after this, the victim went to an office area in the house where she was approached by the offender from behind, who wrapped his arms around her chest, grabbing her breasts in each hand. The offender also, through his clothes, rubbed his erect penis against the victim's buttocks while the victim was squirming and attempting to move away. The victim felt panicked and sat on a lounge while the offender continued to clean.
The facts of the substantive offence for which the offender is to be sentenced, are as follows. While the victim was seated on the lounge, the offender approached her and said, "We still have time". He then took hold of the victim's hand and placed it on the outside of his clothing, on top of his erect penis. He then sat on the victim's lap, and when the victim suggested that the lounge might break, the offender laughed and pulled her to the floor.
He then commenced kissing her and the victim was scared and felt unable to move or say anything. The offender then partially removed the victim's tights and underwear, while continuing to kiss her on the lips and face. The offender eventually removed the victim's pants and underwear from one leg and then pulled down his own pants and underwear. He then had penile/ vaginal intercourse with the victim, to the point of ejaculation. He was not wearing a condom.
During this intercourse the victim lay still, not moving or saying anything. She did not consent to the intercourse and did nothing to indicate that she was consenting. After ejaculating, the offender stood up and put his clothes back on. The victim was aware that he had ejaculated inside her as she could feel some liquid coming out of her vagina. After this, the offender continued to use the vacuum cleaner and was not saying anything to the victim. After completing their work inside the house, the victim and the offender went to the offender's car and they left at about 2.30pm.
The offender then drove to Salamander Bay where he withdrew $50 from an ATM, which he gave to the victim for fuel, to enable her to attend the next day's cleaning job. The victim was crying on the drive home but tried to conceal this from the offender. During that trip, the offender said to the victim, "It shouldn't have happened". The victim did not respond, but pretended to look at her phone. Upon arriving home, the victim washed her clothes and showered, and was crying.
At about 4pm that day, she sent a text to the offender saying, "I did not give you permission to grab me or grope me or have sex with you. I was scared and frightened today". The offender replied by text, "I'm sooooo sorry. I didn't know that you were scared. Okay, I'll pair you with others from here on in!" The victim sent a copy of these text messages to her female neighbour and then visited and told her neighbour that the offender had raped her. Her friend observed that the victim was very upset and was shaking and crying. Later that day, the victim received a text from the offender which said, "I want to do everything to fix this". To this the victim replied, "You raped me. How can you fix it?" And also, "You can't. You have ruined me". The victim afterwards went to Nelson Bay Police where she provided a statement. The victim's friend also provided a statement to police about the complaints made to her by the victim.
Police attended the offender's home and placed him under arrest. The offender was interviewed and made full admissions to having sex with the victim. He agreed with police that he was aware of the importance to the victim of retaining her employment and was also aware of her personal circumstances, of where she had been living and her desire to have her children returned to her.
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OBJECTIVE SERIOUSNESS
There is no doubt that the offence of aggravated sexual assault is inherently serious. This is reinforced by the very substantial maximum penalty and the standard non-parole period which are each, as I have said, guideposts in the sentencing exercise.
While the Crown initially submitted that it must have been abundantly clear to the offender that the victim was not consenting to sexual contact, this submission was later abandoned given that the plea of guilty was entered, on the basis that the offender was reckless as to consent. In assessing objective seriousness, I therefore approach the offending on the basis that the offender acted recklessly as to whether or not the victim had given consent.
The offence involved a limited use of physical violence in which the offender pulled the victim to the floor. But of course, it also involved the violence inherent in the unlawful sexual assault itself. While the duration of the offending was relatively short, that is not a matter which mitigates the offence and is a relatively common feature of this type of offence.
The offence is made the more serious by reason that the offender did not use a condom and ejaculated into the victim's vagina, with the obvious risk of pregnancy, disease and heightened sense of invasion and degradation that this would have created in the victim: see KAB v R [2015] NSWCCA 55.
The Crown also relies on the fact that in the days and weeks preceding the offending the offender engaged in sexualised comments towards the victim such as telling her she was "hot" and "sexy" and that he wanted to have sex with her, which persisted even though the victim did nothing to encourage this behaviour. While the offending occurred on a single day, the actions which preceded it show that the offender had, in effect, pursued the victim for a sexual relationship which she had not encouraged in any way. It cannot be said therefore that the offender's actions on the day of the offence involved a temporary lapse in otherwise appropriate conduct.
There can be no doubt also that the offence involved the exploitation of the victim, who was heavily dependent on her employment, and in a somewhat isolated position at the time of the offending.
These matters highlight the power imbalance between the victim and the offender and made the victim more susceptible to tolerating the unwanted sexual attention and less likely to complain when the offender acted on his sexual desires. I am conscious however, that the fact that the offender's status as the employer of the victim is an element of the offence and I have been careful therefore to avoid any double-counting with regard to this aspect of the offending.
Having regard to the matters I have referred to, I treat the objective seriousness of the sexual assault offence as lying slightly below the middle range of objective seriousness. The offending is aggravated, as counsel for the offender accepted in oral submissions, by the fact that the victim was a vulnerable person by a reason of her intellectual disability and speech problem.
The Court has had also the benefit of a Victim Impact Statement, which was read by the victim and which, as the Crown submitted, succinctly and eloquently sets out the effect that the offending has had on her. The Crown, however, does not submit that the Victim Impact Statement should be treated as aggravating the offence and I do not treat it in that way. However, I have no doubt that the offence was a terrifying and degrading experience for the victim. The after-effects which she describes are largely consistent with the experience of courts in dealing with the consequences of offending of this kind.
[4]
SUBJECTIVE MATTERS
The offender is 35 years of age and was 33 at the time of the offending. He has no prior criminal history and, as the Crown accepts, is a person of prior good character. His background has been placed before the Court by a means of the report from a forensic psychologist and clinical neuro-psychologist Dr Susan Pulman. Dr Pulman interviewed the offender and administered a number of psychological tests. Her report also records a history of Attention Deficit Hyperactivity Disorder from the age of about five or six years and that the offender barely passed his Year 10 School Certificate.
He left school and had a variety of jobs, including as a cook, process worker and as a waiter. He described having commenced the cleaning business with his wife in about 2013.
The offender gave Dr Pulman a history of extensive exposure to domestic violence during his childhood and teenage years, and described physical and sexual violence between his parents, who were both heavy drinkers. He reported that his father would frequently call out to his mother, wanting sex, and that when his mother reluctantly went along with his father's demands, they would have sexual intercourse, leaving the bedroom door open for the children to witness. Dr Pulman's report refers to literature studies indicating that children who grow up with violence in the home tend to learn early and powerful lessons about the use of violence in interpersonal relationships and that, as a result, they might even be encouraged in the use of violence, in social interactions. She states that exposure to domestic violence is associated with an increased risk of psychological, social, emotional and behavioural problems which may continue into adulthood.
Dr Pulman's testing of the offender indicated his intelligence to be in the low average range of about the thirteenth percentile, meaning that 87 per cent of Australia's population would perform better than him. Testing placed him in the severe range for depression and anxiety and Dr Pulman concluded that the offender likely meets the criteria for Post-Traumatic Stress Disorder due to his early exposure to family violence.
Dr Pulman was also asked whether the offender may suffer from Foetal Alcohol Spectrum Disorder, due to his mother's abuse of alcohol when she was pregnant. But Dr Pulman concluded that the current neuro-psychological condition of the offender is more consistent with the reported history of ADHD and exposure to domestic violence. She says, "He continues to meet the criteria for ADHD". She also reports that the offender described having a high sex drive and difficulties in managing this and told her that he "Needs help".
She said he was remorseful about the commission of the offence, acknowledged the impact on the victim, and intended to seek treatment. Dr Pulman suggests that the offender should participate in sexual offending treatment programs in custody, if available. Or if not, that this occur upon his release, due to her conclusion that his background is such that he has likely developed, to some extent, a distorted view of sexual relations.
The family history of domestic violence described by the offender is given some support by the offender's older sister, Laura. In her letter to the Court, she described her parents always fighting and drinking too much and that they would sometimes throw things and push each other. She described verbal abuse by her father towards her mother and also towards the offender, as the most serious things. She said her father frequently used put-downs towards the offender and that the offender had few friends and was often picked on at school. She moved out of home with her mother when she was aged 14 and when the offender was aged about 11. She further said that later in time when she was aged 17, when the offender would have been aged about 14, the father "kicked" her and her mother out of the house, although they subsequently returned due to the mother's financial insecurity. She said her mother was "black and blue" when her parents collected her from the airport after she had been overseas for about three years, this being when the offender was aged about 15 years.
She also confirmed in essence, the history given by the offender to Dr Pulman, namely, that due to the mother's drinking, she developed sclerosis of the liver and had a liver transplant when the offender was aged about 14 or 15. However the offender's mother subsequently recommenced drinking and eventually died in 2011, when the offender was aged about 25. The sister described the offender as not quite "getting" the social cues that others might, but that he was always kind, caring and loving, and meant well.
She said that she was very surprised about the offending and she remains supportive of her brother. She says he also has the support of his father, who is prepared to provide accommodation once the offender is released from prison.
In accordance with authority, I have approached the report of Dr Pulman with some caution, given that it is based heavily upon the offender's self-report, in circumstances where no evidence was given by the offender.
Nonetheless, the report is, in part, based upon psychological testing and part of the offender's history is also supported by the letter from his sister. The conclusions in Dr Pulman's report are therefore, in my view, entitled to some weight. It has been recognised by the Courts in a variety of cases that exposure to family violence as a child has a potential to operate in mitigation of sentence, given the potential impacts of such a background on an offender's capacity to exercise control and demonstrate sound judgment.
However, as was noted by Fullerton J in Perkins v R [2018] NSWCCA 62, at para 100, "The effects of social deprivation and its weight in the sentencing exercise is a matter for individual assessment". In this case, the Court is faced with a 35 year old man who, until committing this offence, had never come before a court, and who apparently has managed his life, including his marriage, work and business, without significant difficulty.
While I accept that his early family background is of relevance, the evidence does not satisfy me that I should regard his moral culpability as being reduced to a large degree. The offending was, after all, not a spur of the moment urge, but the culmination of a course of conduct in which the offender pursued the victim for sexual purposes.
The diagnosis of ADHD and Dr Pulman's findings as to likely Post-Traumatic Stress Disorder, and her findings also as to the offender's intellectual functioning, while not in my view causally linked to the offending, are of relevance to the extent that they require some moderation of the sentence to be imposed.
The Court has also received a letter from the offender's wife, who describes herself as his "ex-wife". She confirms in that letter that she had been in a relationship with the offender for 12 years and married to him for 9 years. She says that since his being in custody they have been separated but that she speaks with him regularly and still stays on good terms with him. She remains supportive of the offender throughout this process and says that she regards the offence as really out of character.
[5]
REMORSE AND PROSPECTS OF REHABILITATION
There has been some expressions of remorse by the offender. For example, to his sister and to the psychologist, to whom he described his disgust at his father's behaviour during the offender's own childhood, and his shame as to his own offending. I accept that there is some level of remorse. Given his prior good character and good work ethic, as well as the supports that the offender still has via his wife and family, I conclude that his prospects of rehabilitation are reasonably good. This conclusion is supported also by the offender's acknowledgment to the psychologist that he needs help and is prepared to engage in treatment and counselling to prevent similar offending in the future.
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DETERMINATION
In sentencing the offender, I take into account that his current custody is being served during the present pandemic and that for some months now, and likely for some time to come, that custody has been and will be somewhat more onerous due to the restrictions on visits by family and friends. Given that a significant portion of the offender's custody was served prior to the pandemic, however, this is not a factor which to my mind requires a large reduction in the sentence that would otherwise be appropriate.
I have had regard to the three matters on the Form 1 document which essentially, involve other offences leading up to the offence for which the offender is to be sentenced. In my view, the matters on the Form 1 document must operate in this case so as to increase the penalty that would otherwise be appropriate for the substantive offence. Especially due to the importance of personal deterrence and the community entitlement to retribution for serious offences.
In my view the only appropriate sentence in this matter is one of full-time imprisonment. In reaching that view, I have had regard to the purpose of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999, including, importantly, the need for personal and general deterrence.
For the offence of aggravated sexual intercourse without consent and taking into account the matters on the Form 1 document, I impose a head sentence of five years, six months. I find special circumstances for varying the ordinary ratio, between non-parole period and head sentence based upon this being the offender's first time in custody. I impose a non-parole period of three years, six months. Each of those will date from 18 December 2018. The head sentence will expire on 17 June 2024 and the non-parole period will expire on 17 June 2022.
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Decision last updated: 04 February 2021