R v Dixon

Circumstances of offending

1. During the trial, as part of his address, the offender's Counsel more or less conceded that if the jury accepted that victim's account of what had occurred, it could find both an absence of consent in the victim and the offender's knowledge of that state of affairs. The jury's verdict plainly reflects its substantial acceptance of the victim's version of events and it is that version which I adopt when outlining the circumstances of the offending.
2. The Crown enumerated ten facts as being relevant to the circumstances and the offender responded to that statement. But the Crown's suggested facts require some further explication.

Background

1. The victim came to Australia in 2010. She met Mr John Parker through mutual friends in 2011 and entered into a relationship with him, which lasted until after the offending occurred. They moved in together in a unit in a single-bedroom residential premises in Redhead that was within the industrial area of that suburb. The victim and her partner came to regularly mix with a circle of friends. This included the offender.
2. On 27 July 2013, the victim and her boyfriend were at their home. They invited a few friends. The offender was one of those who attended.
3. The victim said that during the evening when the offending occurred, she felt uncomfortable when, sitting as she was on a lounge sofa in the open plan living area of the unit, the offender had crowded her space on a lounge. She had had a single drink during the party as she was required to be on call for work. She said she went to bed between midnight and 2am. She expected that visitors to the party would remain over in the unit.
4. An issue that assumed some significance was the extent to which the offender was intoxicated by alcohol. The offender complained that the Crown had subtly changed tack, from submitting at trial that he was heavily intoxicated, to arguing now at sentencing phase that he was only moderately so. The offender's position, now, as it was at trial, was that he was heavily intoxicated. In my view, the offender's submission as to the level of intoxication should be accepted. The Court should proceed on the basis he was heavily intoxicated.
5. The victim said she was vaguely aware when her partner, John Parker, came to bed, but she fell back to sleep. Other guests stayed overnight, sleeping in the loungeroom.
6. She said that she became conscious of a finger touching her on her vagina, stroking her clitoris. She became conscious that her underwear and the back of her tights were around her thighs. She said she then felt a finger stroking her, from the clitoris to the vagina. She said she thought that it was her partner who was touching her. She was half asleep at this point, with her eyes closed. But within 10 seconds, she recalled the extent of the sexual touching changed. She felt a finger inserted into her vagina and sensed that this did not feel right: it was going in and out. The victim said that she opened her eyes and looked towards John. He, however, was fast asleep and looking away in the opposite direction to her.
7. She recalled propping herself up on the bed and recalling that out of the corner of her eye she saw the offender's face. She indicated that ambient light in the bedroom enabled her to see both John and the offender.
8. The Crown and the offender disputed the period of time of the digital penetration. The offender submitted that it could not be found, beyond reasonable doubt, that it lasted for more than 30 seconds to a minute. I accept that submission.
9. She said that as soon as she propped herself up and turned, the offender removed his finger from her vagina, pulled his arm down and went down low to the side of the bed. She said she turned to her partner and tried to awaken him, by shaking him, but she 'froze' and could barely speak. Her partner woke up and initially surmised that she was just experiencing a bad dream. She recalled whispering to him that the offender had 'fingered her'. In response to this, John got up, pulled the covers off the bed and moved from his side of the bed to her side to look for the offender. Eventually the victim pointed her partner in the direction to underneath the bed. John saw the offender. He told him to get out but the offender did not do so. She recalled that John then grabbed the offender, pulling him from under the base of the bed, grabbed the offender's arm and ushered the offender outside the bedroom. She recalled conversation between John and the offender in which the offender effectively denied having done anything wrong.

Assessing the objective gravity of the offending

1. The objective seriousness of the offence of sexual assault depends on all the circumstances of the case and is not confined to the nature of the act committed by the offender. While the form of intercourse "is an important factor, it is not to be regarded as the sole consideration": R v Hibberd (2009) 194 A Crim R 1 at [56]. Other relevant matters in deciding where on the continuum of seriousness an offence lies include: "the degree of violence, the physical hurt inflicted, the form of the forced intercourse, the circumstances of humiliation … the duration of the offence": R v Hibberd at [56], cited with approval in R v Daley [2010] NSWCCA 223 at [48]. In R v Daley at [48], Price J (Hodgson JA and Fullerton J agreeing) clarified what was said in R v Hibberd about the significance to be ascribed to the duration of an assault: "the short duration of a sexual assault would not ordinarily be considered as a factor which reduces the objective seriousness of the offence. Most sexual assaults will not be prolonged as the offender will seek to avoid apprehension. On the other hand, a sexual assault of an extended duration will necessarily add to the seriousness of the offending as the suffering and the humiliation of the victim will be increased."
2. In Kelly v R [2022] NSWCCA 189 (Kelly), when affirming what had been said in Daley, Adamson J (Beech-Jones CJ at CL and Campbell J agreeing) at [33] explained that sexual offences of allegedly short duration, minutes, rather than hours, can have lifelong effects.
3. The Crown submitted that although the offending involved digital penetration, the nature of the sexual intercourse was not of primary significance. What was more pertinent was the circumstances in which it was committed. This featured her being sexually assaulted in her own bed, alongside her partner. As to the aspect of the location of the assault, I address this under the section dealing with aggravating circumstances below. The Crown continued by arguing that the offending was predatory. According to his own version of what had occurred, he waited until others in the unit were asleep. It could not be said that he acted impulsively; but rather, there was an aspect of premeditation. Although the Crown did not suggest that the aggravating factor of a breach of trust was involved (in the statutory sense), it contended that the Court should take into account the circumstance that the offender was a guest in the victim's house. The Crown acknowledged however, that no violence, coercion or intimidation was involved. In the circumstances, the Crown submitted that the offending fell just below the mid-range of objective seriousness.
4. The offender submitted that the offending fell between the low to mid-range of offending, though close to the lower end of the range of objective seriousness. No violence had been used. No coercion was involved. No physical harm was inflicted. The sexual offending was of short duration. It could fairly be characterised as opportunistic. As I noted earlier, although to a degree I find that there was a level of premeditation, the level of predatoriness was reduced on account of intoxication of the offender. Further, although not a factor that reduces the gravity of the offending per se, the offending involved digital penetration.
5. I agree that, objectively, the offending fell between the low to mid-range, but not as low as the offender submitted. The offender knew that she did not voluntarily and freely agree to digital penetration because, at the outset, she was asleep and he had taken no steps to ascertain whether she consented. As is now well-established, the form of the sexual intercourse is not of major significance. Adamson J also observed in Kelly at [34], the extent of violation of the complainant is not proportional to the degree of penetration or the part of the offender's body which is inserted into the victim's body.
6. As was observed in Fisher v R [2021] NSWCCA 91 ("Fisher") and again in Kelly, to initiate sexual intercourse with a stranger who is asleep is a particularly serious violation. I address this in a few moments when considering aggravating circumstances under the rubric of vulnerability and it is important not to conflate a circumstance that goes to the objective gravity of the offending with an aggravating circumstance. For present purposes, I refer to it here in answer to the offender's point that there was no threat of violence: there did not need to be any such threat because the complainant, being unconscious at the outset, was in no position to resist or defend herself.
7. There was no evidence of physical hurt to the victim; although plainly she was distressed and she continues to bear the mental scars of the offending. That was evident when she read out her victim impact statement in Court today. But as was explained in Kelly at [38] it would be wrong to reduce the objective seriousness of the offending because of an absence of actual bodily harm, or threat of harm. The offender was an acquaintance to her; with whom she had no close attachment. This added to a sense of violation in the victim. The offender did not, however, taunt the victim, or say anything to her which added to the sense of violation.
8. Although I accept that the offending was opportunistic, I also agree with the Crown that it cannot be said that there was a want of premeditation as previously discussed.

Aggravating circumstances

1. The offending occurred at the victim's home at Redhead. That is an aggravating circumstance (s 21A(2)(eb) of the CSP Act).
2. The Crown emphasised the aspect at the time, the victim was either wholly or partly sleeping or unconscious. That meant that, for all intents and purposes, the victim was helpless, and 'vulnerable' for the purposes of s 21A(2)(l) of the CSP Act. In Greenwood v R [2008] NSWCCA 64, Hoeben CJ at CL (Bathurst CJ and Adams J agreeing) described (at [32]) offending in those terms as representing "a disgraceful intrusive interference with the intimate personal integrity of the victim which must have caused her continuing humiliation and distress". At [14] and [37], his Honour commented upon the offender's exploitation of the victim's vulnerability. So too, in Fisher, Adamson J at [242] also noted the vulnerability of a sleeping, or unconscious, victim in the sense of being unable to resist or defend herself. The Crown submitted that it was unnecessary, for the purpose of establishing this aggravating factor, to establish any permanent disability. By this, I understood the Crown to submit that a victim may be what I would describe as 'situationally' vulnerable, as in the case of an intoxicated passenger stepping into a taxi at night who is thereafter assaulted.
3. The offender accepted that both of these aggravating circumstances are engaged. Nevertheless, on the aspect of vulnerability, he agreed to the Crown's submission with some qualification. He submitted that the victim was less vulnerable than might typically be the case, say, with a victim who was asleep, had been drinking, was intoxicated or was disabled in some other way. It was said that these circumstances were not applicable to this victim. That may be so, but it only served to show that there are degrees of vulnerability. The complainant, who was unconscious, having fallen asleep, was in bed with her partner.

Victim impact statement

1. The victim supplied this statement and read it out during the sentencing hearing. Its content was very moving.
2. The victim spoke of nightmares, anxiety and hyperventilating. She spoke of carrying the burden of memories of the incident occurring whilst she was at work and feeling triggered. She referred to diminished enjoyment of having sex and problems within her own family, to whom she has not disclosed the offending. She referred to her problems with the court process and even indicated suicidal thoughts.

Age

1. The offender was 22 years and 3 months old at the date of his offending. He is now 31 years and 4 months old.
2. The offender's Counsel argued that the offender's age, coupled with the level of social immaturity at the time of the offending, reducing his capacity to regulate his behaviour, mitigates his culpability: BP v The Queen (2010) 201 A Crim R 379 at [5]-[6]. I accept that submission, in so far as it goes. However, it is not a commonplace for socially immature people of the same age as the offender was to engage in offending of the instant kind. Nevertheless, I agree that, to a small degree, the immaturity mitigates his culpability.

Background

1. Much of the offender's background appears from what he informed a forensic psychologist, Ms Julie Dombrowski. Ms Dombrowski prepared a report dated 4 August 2022. After receiving a Graduate Diploma of Applied Science (Applied Psychology) before the turn of the century, she has practiced as counsellor and psychologist for over 20 years. Her curriculum vitae specifically identifies her experience in counselling both victims and offenders of sexual offences.
2. The offender's childhood, relating to his upbringing and schooling, was uneventful. He has had, and continues to have, supportive parents and siblings. His parents separated when he was 9 years of age. I would add that his parents (his mother and step-father) loyally attended every day of the trial in supporting him. The offender's father gave evidence in support.
3. He left school at the stage of Year 11. Thereafter he started, but did not complete apprenticeships as a carpenter and automotive electrician. The offender explained that he had endured sustained periods of unemployment as he is selective about his work. Since he was charged for the instant offending, his mental health declined and he has not worked since the middle of 2020 because of that. He has been a recipient of a government allowance for the last two years.
4. Ms Dombrowski referred to the offender having been diagnosed with ADHD from the age of 7, but he took medication to manage his difficulties with concentration. The offender informed her that he no longer has difficulty in concentrating but he continues to experience restlessness; the latter of which is managed by physical activity and cannabis use. Earlier in the report, Ms Dombrowski noted his history of drug usage, which also involved a sporadic use of MDMA and cocaine in social contexts since early adulthood.
5. The Crown submitted that none of the references in the report - a childhood diagnosis of ADHD, depressed mood, recourse to cannabis usage or excessive alcoholic consumption - materially reduced the offender's moral culpability. Whilst it was true that he was affected by alcohol, the offender's accounts - to the Court and to Ms Dombrowoski - were to the effect that he was only moderately intoxicated. Although, as noted, I found that he was considerably intoxicated on the evening of the offending. There is no evidence of the offender using cannabis in the lead up to the offending; even if there was a reference to that drug by two Crown witnesses. Such intoxication as there was could only have been self-induced, and that cannot be taken into account on the sentencing exercise: Fisher v R [2021] NSWCCA 91 per Adamson J (Fullerton J agreeing). Although that may be qualified to the extent that intoxication lessens the degree of aggravating circumstances.

Antecedents

1. The offender's record is not unblemished, however his other offences post-dated this offending. Very fairly, the Crown did not make anything of the offender's antecedents, describing them as irrelevant. Mr Dixon also gave evidence in the hearing.

Character references

1. The offender placed before the Court three references. One of those was from his father, whose content not only related to the offender's character, but was also relevant to a point about hardship which I will address below.
2. Two other references were from a childhood friend, indeed the step-father, of the offender, Doc Watson, and the other was from the offender's mother. It is always difficult for a sentencing judge to read testimonials from an offender's supportive parents. As is commonly the case with such references, each author has expressed shock at learning of the predicament of someone that they have loved and cared for, but to their credit, I thought the references were balanced, without exaggerated claims of the qualities of the offender.

Prior good character

1. I accept that the offending was at odds with what was otherwise good character.

Remorse

1. Ms Dombrowski recorded the offender reporting to her his intention to appeal against his conviction and maintenance of his belief in his innocence. The absence of remorse or contrition is not to be treated as an aggravating matter. Of course, the offender receives no benefit from the absence of remorse, or contrition, which, when expressed, can reduce the salience of specific deterrence.

Rehabilitation prospects

1. Ms Dombrowski administered both psychometric assessment, concerning the offender's emotional and personality functioning and risk assessment of sexual recidivism. As to the former, she found no evidence of severe personality pathology or psychiatric disorder. As to the latter, she placed the offender as being within the average risk category for a sexual offender.
2. She did not regard the offender as being anti-social and there was nothing to suggest that his offending was driven by any deviant or predatory sexual interest. She thought that the offending derived from alcohol and cannabis use, social immaturity and a failure to appropriately navigate sexual consent. As the Crown noted in its submissions, self-induced intoxication is not a mitigating factor. The Crown did not challenge Ms Dombrowski's evidence and accordingly, I accept it.
3. Using the Static-2002R scale, she assessed the offender as being at a relatively low risk of committing further sexual offences. Ms Dombrowski thought that his already low risk of sexual recidivism might be further reduced through treatment or participation enabling him to explore the factors allowing him to 'overstep moral and legal boundaries'; but acknowledged that that this would not likely be effective until the completion of any appellate processes he brings.
4. Although there is a concern about the offender's history of unemployment even before the offending, and what the offending might mean for his future employment prospects, I take into account the family support that the offender will likely continue to receive beyond the sentence imposed upon him which was confirm by Mr Dixon when he gave his evidence today.
5. The offender submitted that he holds excellent prospects of rehabilitation, manifested by the absence of relevant other offending, demonstration of his being a good citizen in the period since the offending had occurred and his family support.
6. I do not go quite as far as that. Having regard to the circumstances of the offending, I think there is cause to have some doubt in his awareness of the 'moral and legal boundaries'; in respect to which, his psychologist indicated he may benefit from further counselling. In fairness to the offender, this had followed her expressing the opinion that, in his consultation with her, the offender had demonstrated a sound understanding of sexual consent. However, I have to reconcile that opinion with the jury's rejection of a positive defence he had raised and maintained (as a 31 year old), that the victim here did consent to 'illicit' sex in bizarre circumstances involving the victim being in bed with her partner. Overall, with the passage of time, and an expected emotional maturing, I regard his prospects of rehabilitation as being good.
7. It was suggested, and I accept, that his prospects for rehabilitation would be enhanced by a sentencing option which would enable his access to treatment in the community.

Delay

1. The offending occurred in July 2013, but the offender was not charged until June 2020.
2. The offender's Counsel submitted that, regardless of the reason(s) for it, the delay meant that, as a 31 year old, he was being sentenced for a crime he committed at the age of 22. In the period of delay, he may be taken to have matured and his good behaviour in that period may evidence his rehabilitation prospects. It was suggested that, to a degree, he had been kept in a state of uncertain suspense and some recognition should be given in the present exercise to the fact that he has lived a decade of a still relatively young life before being exposed to the prospect of full-time custody for the first time.
3. The Crown accepted that delay could be potentially relevant if the offender could establish, on the probabilities, that he had been left in a state of uncertain suspense; and had demonstrated progress towards rehabilitation. The Crown accepted the general notion that sentencing for a stale offence carries with it a need for the adoption of some flexibility of approach. But an offender who remains silent in the hope that offending may not be detected would not satisfy the former of these two requirements.
4. Some of the matters which the offender's Counsel alluded to have been taken into account under other criteria. This includes his prospects of rehabilitation and allowance being made for the greater level of social immaturity in the offender at the time of the offending then at the time of sentencing. I am more sceptical of the significance of his being kept in a state of suspense in view of the offender's consistent denial of wrongdoing, manifested in his record of interview and running through to his election to give evidence in the trial. Nevertheless, delay has some mitigating effect.

Onerous custody because of COVID-19 restrictions

1. I accept the offender's submission that custody is likely to be more onerous due to the restrictions imposed because of the Pandemic. Although the incidence of the virus within the broader community has waxed and waned, there is no doubt that inmates at correctional centres are more vulnerable in that regard. Although there was no specific evidence of current restrictions, I accept that, generally, there have been and are likely to continue to be restrictions in visits, cancellation of rehabilitation programs, limitations on work opportunities and additional stressors to inmates. I do not mean to be exhaustive in referring to these matters.

Hardship to third parties

1. The offender's father provided a reference, in which he referred to his spinal condition and the effect of having a paralysed arm. He referred to his dependence upon the offender to act as his 'left arm' and pointed to practical examples of what he does. He elaborated on this in his oral evidence.
2. The Crown referred the Court to the well-established line of authority that posited the significance of hardship to third parties and how that relates to the sentencing exercise; in particular the importance of demonstrating that such hardship is 'exceptional' to what would ordinarily be presumed as being inconvenient effects upon relations of the offender following the imposition of sentence. In particular the Crown relied upon a decision of Flick v R [2012] NSWCCA 170, which involved not dissimilar facts (the offender being a carer for physically disabled parents) and the passage from Simpson J at [40] where her Honour said: "There was also some evidence in the form of a letter written by the applicant's stepfather, Wesley French. Mr French wrote of significant disabilities suffered by himself and his partner, the applicant's mother, and of the physical support previously provided by the applicant. While these matters give cause for sympathy, they are not such as can have any real bearing on the sentences to be imposed"
3. The Crown accepted, however, that the hardship to the offender's father was relevant to the making of a finding of special circumstances.
4. The offender's Counsel did not suggest that the hardship rose to the level required by the authorities. That was not to say, however, that it was not irrelevant. I agree that it is relevant, though in my view, it is germane to the issue of whether the non-parole period should be varied if a custodial sentence is imposed.

Statistics and alternatives to full-time custody

1. Counsel for the offender acknowledged that he "may" be sentenced to a period of full-time imprisonment, but submitted that an alternative and available sentencing option is the imposition of a community corrections order.
2. In anticipation of that submission, the Crown submitted that this option was inappropriate. It relied upon sentencing statistics addressed to the index offending where the victim was unconscious; only one of which indicated a sentence of anything other than a sentence of full-time custody. In that exceptional case (which was the Court of Criminal Appeal's decision in DPP v Burton [2020] NSWCCA 54) there were subjective features (guilty plea and admissions; an element of extra-curial punishment; an absence of premeditation and a basis to applying compassion) which were not present here. I note that although the Crown also supplied some other statistics more generally for the index offence, it cautioned the Court as to the reliance that might be placed upon them. Added caution is needed given the increase in the maximum penalty for the instant offence in 1991 and the introduction of the standard non-parole period for this offence from 2003.
3. Counsel for the offender provided some analysis of the statistics with the object of establishing that it is not inevitable that an offender of the index offence will have a sentence of full-time custody imposed on him, her or they. He singled out a number of cases where even with a plea of not guilty, offenders had received community corrections orders. Counsel referred to the potentially large number of conditions available under s 89 of the CSP Act for that particular sentencing option.
4. The Crown addressed two of the cases that the offender's Counsel had referred to, being The Queen v Hewitt and R v Francis, where community corrections orders were imposed for the index offence. There were, the Crown submitted, significant differences between those cases and the case now before the Court. I agree that those differences exist and they make a difference. I would also observe that whilst I acknowledge the desirability of consistency in sentencing for offences, there are real limits to the extent to which comparable cases or statistics bear upon the sentencing discretion. As Simpson AJA observed in Kiss v R [2021] NSWCCA 158 at [102], the range of circumstances in which sexual offending occurs is 'almost infinite'. That is no less so for the range of circumstances affecting each offender.

Instinctive synthesis

1. Aside from the maximum penalty and the statutory non-parole period, which are both legislative yardsticks, I take into account, and will try to balance, the competing sentencing considerations in s 3A of the CSP Act. To my mind, the most important considerations are general deterrence, retribution and denunciation and recognising harm to the victim; whilst also holding the offender to account for his offending. These considerations are only slightly mitigated by his youth and immaturity at the time of the offending. Given that this is a first instance of sexual offending, the absence of earlier offending of like kind and the low prospects of sexual recidivism there is a lesser need for a sentence reflecting the consideration of protection of the community. Notwithstanding the absence of remorse, these matters and his generally good prior character, together with the delay he has endured, also lessen the significance to specific deterrence. I make allowance for his good rehabilitation prospects; which have been evidenced by his good behaviour since the offending.
2. In my opinion, a community corrections order would not be an adequate option having regard to the gravity of the offence and the circumstances of the offending; particularly with reference to the aggravated circumstances that I have alluded to and my assessment of where the sentencing considerations in s 3A, taken together, gravitate toward. At the risk of repetition, primacy needs to be accorded to general deterrence, in particular, to indicate to the community that sexual assaults against victims who are fully or half asleep is intolerable. I find that the s 5 threshold is crossed.
3. As has been observed, the option of serving the term of imprisonment by intensive correction order is not available (s 67 of the CSP Act).
4. There is no pre-sentence custody to be taken into account.
5. At the outset of the sentencing hearing, the Crown withdrew the offence on the s 166W certificate.
6. This will be the first time that the offender will be incarcerated. I take into account the evidence of his psychologist of his mental deterioration or decline since he was charged, which may be expected to worsen during his period in custody and his already good prospects of rehabilitation. I also take into account the hardship his father will endure during the offender's period of incarceration, as well as the offender's youth and antecedents. I consider that special circumstances are established.

Sentence

1. Mr Dixon, please stand. On the offence of sexual assault against [redacted], you are convicted.
2. I sentence you to a term of imprisonment of 3 years commencing 15 September 2022 and expiring on 14 September 2025. The non-parole period is 1 year, and 9 months expiring on 14 June 2024, after which you will be eligible for release on parole.
3. I note that the back-up offence on s 166 is withdrawn.
4. I will hear from Counsel whether there is anything arising.

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: 15 September 2022