R v Elsworth

The offender's evidence

1. The offender tendered a bundle of documents which became Exhibit 1.1 - 1.7.
2. Exhibit 1.1 was a report of Ms Anita Duffy, Psychologist, dated 21 July 2021. The report was prepared following interview and assessment via video link on 16 July 2021. During the four hour session, the offender was administered a number of tests. The author set out the offender's background. He was born on 8 September 1982 and is 38 years of age. He was the youngest of four children and grew up in a close family environment. The offender attained the HSC in 2000 and a Bachelor of Arts degree in 2004. He also completed a Certificate IV in Small Business Management and a Certificate in Risk Management.
3. The offender met his first wife in Melbourne in 2009 and followed her to Germany where they married in 2010. They moved back to Melbourne in 2011 and he completed a Masters in Security Management in 2012. He and his wife returned to Germany in 2013 where he had employment, however, they separated in 2015. He continued to live and work in Berlin however returned to Australia in September 2018 when a former boss offered him an executive job. He had a good employment history and, having made full disclosure of the charges he faced, remained in his employment until the Guilty verdict.
4. After he was charged, the offender consulted Mr R Fullerton, psychologist, in November 2019 on a weekly and then fortnightly basis. He had addressed topics such as the bereavement caused by the deaths of his sister and father and had gained considerable assistance in dealing with the trauma of his arrest and feelings of shame and avoidance.
5. Under the heading "Drugs and Alcohol", the author reported a high tolerance to alcohol. Recently he had reduced his alcohol consumption. The author reported: "It was noted that Mr Elsworth tended to minimise possible adverse effects of excessive alcohol consumption, asserting that he never experienced the symptoms of acute intoxication. He did acknowledge that despite not showing such symptoms, nevertheless his judgment may have been impaired and that his behaviour may have been less inhibited than if he was sober."
6. The author took a sexual history from the offender. He had engaged in "forceful sex" prior to his marriage and had engaged in mutually consenting dominating/forceful sex with his wife, with her requesting that he assume the dominating role. Following their separation, he had a number of relationships with women with whom he swapped dominating/submissive roles. The author noted that these activities were conducted only after both parties discussed them and consented to them, either before or during sex. The application of pressure to the neck was part of these sexual foreplay procedures.
7. The offender initially avoided any sexual contact with women following his arrest and charges, however, he met his current partner on a dating site in January 2021 and she had been supportive of him during his trial.
8. Under the heading "The offences", the author took a history from the offender of what occurred on 20 October 2019. That history did not include that the victim had told him, prior to going back to her place, that there would be no sex and that he had agreed. Rather, the author reported the following: "He reported that the last drink occurred a couple of hours before coming back to the complainant's apartment and engaging in kissing, hugging and consensual foreplay, and performing oral sex on her."
9. Mr Elsworth thought she was a willing sexual partner until he applied further pressure on her neck/throat. She immediately "went from 0 to 100" and panicked. Mr Elsworth stopped, they talked and she conveyed information regarding a previous traumatic incident, such that her panic was "triggered" by the pressure to her neck.
10. Mr Elsworth acknowledged that prior to their sexual activity, he had not discussed this behaviour with her and that he was "in the flow of hooking up" before she reacted so strongly.
11. The offender went on to state that he had not "read the room" and should have checked with the complainant beforehand about more dominant sexual practices.
12. Following assessment, the offender was assessed as a low risk of reoffending when dynamic factors are examined. The author opined that he has a high-level of protective factors against further offending: "He has demonstrated intelligence in his education and employment achievements at a responsible, executive level; he had a secure family environment in childhood and supportive relationships with parents and siblings; he has enduring friendships; he has emphatic and supportive relationships with family and his partner as well as former partners; and he initiated psychological counselling and treatment when he perceived a need for professional intervention after he was charged in October 2019."
13. The author also opined that he was suffering an Adjustment Disorder with anxiety in response to his current circumstances however he showed no significant psycho-pathologies.
14. Finally, Ms Duffy reported that if a non-custodial alternative was considered for the offender, he could continue with his psychological counselling, and if deemed eligible, undertake a community based sex offender program through the corrective services psychologist.
15. Exhibit 1.3 was a report from Dr R Fullerton dated 10 August 2021. Dr Fullerton reported that the offender had had 41 individual psychotherapy sessions between 12 November 2019 and 4 August 2021. The offender had been actively engaged in therapy and had demonstrated a consistent commitment to the process. The treatment had largely focused on processing his complex grief history, reducing and managing his intake of alcohol, increasing mindfulness and grounding skills, building resilience and taking more value-guided actions. Dr Fullerton had observed over time a reduction in symptoms of depression, anxiety and stress and also an increase in insight, commitment to values, aligned actions on a consistent basis, increased resilience and leveraging of internal self-regulation skills and development of external social supports to maintain his well-being.
16. Exhibit 1 also contained the following testimonials. Exhibit 1.4 was a letter from Mr C Haynes who was the CEO of the corporation for whom the offender was employed up until his conviction. He described the offender as a valued member of the executive team who made a significant contribution to the strategic direction of the business. He also commented that the offender "has consistently demonstrated remorse, maintained his willingness to accept responsibility where due and his determination to prove his innocence where the allegations were denied."
17. Exhibit 1.5 is a letter from Mr T Gallagher dated 9 August 2021. Mr Gallagher had known the offender since childhood and had forged a close friendship with him through a mutual love of basketball. The offender had made an early disclosure to him about the allegations made by the complainant. He noted that the offender has "maintained a dignified and respectful attitude towards his accuser and ultimately towards the system of justice that will determine his fate". He also had a wide supportive network of friends.
18. Exhibit 1.6 is a letter from the offender's sister Claire dated 4 August 2021. She speaks highly of the offender's character and of his, "caring demeanour around women".
19. Exhibit 1.7 is a letter from Ms S J Holmes dated 9 August 2021. She had first met the offender at work in 2011. She spoke highly of his work capacity, stating that he "engaged easily with all staff and was respectful and well-liked by peers and management. Benjamin was loyal and fulfilled all his work commitments with integrity." Ms Holmes was informed of the matters now before the court in July following his conviction. She described him as "a gentle giant" stating that in her experience he was always respectful of women in the workplace.

The Crown submissions

1. The Crown relied on a written outline of submissions in which it acknowledged the offender was entitled to a 5% utilitarian discount in respect of Count 1, having regard to the fact that he pleaded Guilty on the first day of his trial.
2. The Crown submitted that the offence contrary to s 59(1) of the Crimes Act 1900 was a serious offence. The Crown submitted the degree of violence is a material consideration in sentencing and deterrence is an important sentencing consideration. Here, the victim sustained multiple injuries (petechial haemorrhaging, bruising to the left shoulder, a bite mark to the right buttock and a bruise to the inner lip). In assessing the objective seriousness of the offending, consideration should be given not only to the nature of the injuries but also to the surrounding circumstances in which the injuries were occasioned. The victim was a 21 year old woman who weighed 73 kilos. The assault occurred in her bed in her own home, where she lived alone, in the early hours of the morning. The offender on the other hand was 6'5" man who weighed 105 kilos and whom she barely knew; notwithstanding she had allowed him into her home. At no time did the offender ask the victim whether she wanted to be bitten or have any application of force to her neck. Hence the Crown submitted the offence could not be regarded as falling at the lower end of the scale of objective seriousness.
3. The Crown submitted that the court would find the relevant injuries were occasioned to the victim in the manner she described in her evidence. It was submitted that the jury's verdict of Not Guilty on Counts 3 and 4 did not necessarily mean that the jury did not accept the victim's account of events. Rather, those verdicts reflected that the jury had a reasonable doubt as to whether the Crown has proved each of the elements of each of the offences contrary to s 61I beyond reasonable doubt.
4. The Crown submitted that the expert evidence did not damage the credibility of the victim's account and it would not be inconsistent with the jury's verdict to find that the injuries were caused in the way the victim explained.
5. In respect of the assessment of objective seriousness of the offending in Count 2, sexual intercourse without consent, the Crown set out well established principles referring to Simpson v R [2014] NSWCCA 23 at [30] and R v King [2009] NSWCCA 117 at [36]. The nature of the act committed by the offender, namely, the particular mode of penetration is to be considered with all other circumstances of the case including the degree of violence, the physical hurt inflicted and any circumstance of humiliation as well as the duration of the offence. The Crown submitted that here, digital penetration of the victim's vagina occurred "without warning". It occurred in the victim's bed, in the early hours of the morning in circumstances where the victim was half asleep/half awake and in the wider context of her having told the offender and the offender agreeing that no sexual activity would take place. The Crown submitted that the victim was entitled to expect that her wishes would be respected.
6. The Crown submitted that the offender took no steps whatsoever to ascertain whether the victim freely and voluntarily consented to the intercourse. Whilst the offending occurred over a short period of time, it was submitted that short duration is not ordinarily a matter which reduces the objective seriousness of the offence, relying on R v Daley [2010] NSWCCA 223 at [48]. The Crown characterised the offending as "a gross violation of the victim's body" and submitted there was a degree of deliberation in the conduct.
7. The Crown submitted that self-induced intoxication of the offender could not be taken into account in mitigation of sentence or to explain the offender's behaviour if such explanation effectively minimises the offender's moral culpability, relying on R v Fisher; Fisher v R [2021] NSWCCA 91 at [225].
8. Consistent with the jury verdict, the Crown submitted that the offender should be sentenced on the basis that he actually knew the victim was not consenting or was reckless to it, rather than having an honest but unreasonably based belief that she was consenting. In all of the circumstances, the objective seriousness of the offending fell just below the mid-range.
9. The Crown submitted there was no remorse and that no sentence other than one of full time custody was appropriate to reflect the objective seriousness of the offending and fulfil the purposes of denunciation and punishment together with specific and general deterrence.
10. It was an aggravating factor pursuant to s 21A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 ("CSPA") that the offence was committed in the home of the victim.
11. The Crown conceded that the offender was a person of good character at the time of the offending and that he had no previous convictions pursuant to s 21A(3)(e) and (f) of the CSPA. In accordance with KAB v R [2015] NSWCCA 55 at [48], the good character of the accused is a matter to be taken into account, however the weight to be given to it is a matter of discretion for the sentencing judge.
12. On the question of totality, the Crown submitted that the offences in Counts 1 and 2 are distinct, but occurred within the same criminal episode. There was however no rule that for offences committed as part of the same criminal enterprise, the sentences must be served concurrently, relying on Franklin v R [2013] NSWCCA 112 at [44] and Cayhadi v R [2007] NSWCCA 1 at [27].
13. The Crown submitted that it was open for the court to find special circumstances.
14. The Crown also annexed Judicial Commission statistics for offences pursuant to s 61I which showed a 93.9% rate of imprisonment, whilst noting that the statistics are of limited utility.
15. In response to the written submissions served on behalf of the offender which advocated a non-custodial sentence, the Crown referred to the Court of Criminal Appeal's decision in R v Fisher; Fisher v R, in which the court held a non-custodial sentence to be manifestly inadequate and exercised its residual discretion to sentence the offender to a term of imprisonment of five years with a non-parole period of three years.
16. In her oral submissions, the Crown rehearsed her submission that I would accept the victim's account of how the four injuries the subject of Count 1 were occasioned. The Crown submitted that the evidence of both Dr Lee and Professor Duflou was to the effect that only a moderate degree of pressure would be required to the neck for petechial haemorrhaging to occur. The Crown submitted that following consideration of the medical evidence and expert evidence, the victim's account as to how the injuries occurred was both an honest and credible account. Otherwise, the Crown rehearsed its written submissions. In respect of Count 2, the Crown submitted that I would reject the submission to be made on behalf of the offender that he held an honest but unreasonable belief as to consent, and accept that he knew or was reckless to the fact that the victim was not consenting. Having regard to the objective seriousness of the offending in Count 2, the Crown submitted the court would need to impose a term of imprisonment.

The offender's submissions

1. The offender also relied on a detailed written outline of submissions which set out the procedural history of the matter. In respect of Count 1, the offender submitted that the objective seriousness of the offending was such that it could be appropriately dealt with by the imposition of a Conditional Release Order with or without conviction pursuant to ss 9 and 10 of the CSPA. In respect of Count 2, it was submitted that the objective seriousness of the offending was such that the matter could be appropriately dealt with by the imposition of a Community Corrections Order or a fine. If the court was against that submission, a sentence of imprisonment of significantly less than 12 months was in order.
2. The offender referred to well-established principles relating to the fact finding on sentence that must follow a jury verdict.
3. In respect of the injuries the subject of Count 1, the offender referred to the victim's evidence that the petechial haemorrhaging occurred where the accused flipped her suddenly onto her stomach and pressed his hand down on the back of her head. At a point where he put his penis into her vagina and began to penetrate her (Count 3), the victim gave evidence that the offender brought his right arm and wrapped it around her throat "so tight that [she] couldn't breathe [or] speak".
4. The offender referred to the evidence of Dr Lee who observed petechial haemorrhaging on the skin over the left side of the face, between the eye and the ear and on the left upper eyelid. Dr Lee described it as being far more pronounced to his visual observation than it appeared in the photos (Ex 4), and further opined that it was "in keeping with the history" provided by the victim. In cross-examination, Dr Lee had explained that such haemorrhaging could result from even quite casual pressure applied to the neck, whether they are lying face up or face down, and did not tell whether there was choking or asphyxiation involved. He further agreed that the victim's haemorrhaging was equally consistent with pressure being applied from a single hand, in the hold described by the offender. The hold described by the offender was the pressure exerted on the victim's neck whilst he performed oral sex on her as she lay on her back in the bed. He gave evidence that the application of pressure around the neck lasted for a couple of minutes before the victim indicated that she wanted to stop at which point he immediately stopped. He described it to police as a "light choke" and denied choking her to the point where she couldn't breathe or say "stop" or "no". The offender denied ever strangling or choking the victim from behind. He admitted to police and affirmed in his evidence that the strangulation was introduced and initiated by him. He gave evidence that he intended to impart only light pressure and it was not designed to restrict oxygen, but rather was a symbol or display of power.
5. The offender relied on the evidence of Professor Duflou who had agreed that, at most, moderate pressure need be applied in order to bring about petechial haemorrhaging. The offender relied on Professor Duflou's evidence to cast significant doubt upon the credibility of the victim's account as follows: If the victim were choked in the manner which she described (which he explained is often called a "carotid sleeper" hold), then generally the vessels on the side of the neck are compressed without compressing the voice box (T 346.33 et seq), whereas the victim had described coughing, gasping for air and struggling to breathe: T 378.38; Despite professing to have coughed, gasped for air and struggled to breathe, symptoms which tend to arise from compression of the airway (as opposed to the neck vessels) there was no bruising or other injury to the neck, of which one would expect a greater likelihood in circumstances of compression to the airway: T 378.41; Compression of the airway impaired in a carotid-sleeper type hold results in a strong likelihood of unconsciousness (T 378.43) before there were problems with breathing for any length of time at all: T 387.34; The application of the forearm over the mouth and under the nose with upwards pressure would not result in a compression of the blood vessels and therefore is not a likely cause of the petechial haemorrhaging: T 384.31-37; A neck compression, especially when combined with a struggle or the upper body being moved up off the bed by the force of the hold, would likely result in injury to the neck (which was not complained of by the victim or noted in the victim by Dr Lee): T 346.46, and The application of a single hand to the victim's neck, while she was on her back, with fingers on one side of the midline and the thumb on the other, with no struggle by the victim or if immediately upon struggling all pressure was released, would be much less likely to result in bruising or tenderness than if there had been a struggle: T 382.20-30.
6. The offender submitted that the court would be satisfied on the balance of probabilities that the petechial haemorrhaging was occasioned in the manner described by the offender for three reasons. First, the victim said the choking took place during the commission of Counts 3 and 4, to which counts the jury returned verdicts of Not Guilty. It was submitted the jury did not accept the victim's account in respect of those counts and thus it would be inconsistent with the jury's verdict to accept that the injury occurred in that way. Secondly, the evidence of Professor Duflou was to the effect that it was unlikely that the victim was choked in the fashion in which she alleged. Thirdly, Dr Lee contemplated that the petechial haemorrhaging was equally likely to be occasioned in the manner described by the offender.
7. The offender submitted that the facts which should be found in respect of the bite on the victim's shoulder was on the balance of probabilities occasioned in the manner described by the offender in his evidence. First, the victim said that the bite to the shoulder took place during the commission of Count 3 and 4 of which the offender was found not guilty, hence the same reasoning applied. Dr Lee's evidence as to the origin of the bruise (namely, a bite from behind) was equally supportive of the version provided by the offender.
8. In respect of the bruise mark on the victim's buttock, it was submitted that the facts should be those described in the evidence of the offender. The same reasoning applied as to the injuries as outlined above. It was submitted that finding an aspect of the victim's account of something immediately following the events which had been rejected by the jury to be proved beyond reasonable doubt would be inconsistent, if not impossible to reconcile with the jury's verdicts. Again, Dr Lee's evidence as to the origin of the bruise was equally supportive of the version provided by the offender as that alleged by the victim.
9. The offender submitted similar reasoning should be applied to the bruise caused to the inner lip of the victim.
10. With respect to the assessment of objective seriousness of the offending in Count 1, the offender submitted that it fell at the lower end of the scale of objective seriousness. There was a low degree of violence involved and the section contemplates injuries of a significantly more grave nature than those suffered by the victim. None of her injuries were permanent or involved any surgical or medical intervention, hospitalisation or ongoing treatment, nor did they interfere with her freedom or commitments.
11. Also relevant was a lack of premeditation. Their plan to return to the victim's apartment was only agreed upon an hour or so beforehand. It was submitted "the offender had engaged in consensual strangulation and biting (including biting which would leave marks) in the context of many consensual intimate relationships in the past".
12. It was submitted that the evidence of the offender was that the whole of the heavy foreplay lasted between one and five minutes, whereas the victim was unable to provide any estimate of how long the entirety of the "alleged assault" lasted, saying she had "absolutely no concept of time" from the event. Finally, it was submitted the lack of flight or concealment of the offender's identity and his conduct of contacting the victim immediately after the event was relevant to the assessment of the objective seriousness of the offending.
13. In assessing the objective seriousness of the offending in Count 2, the offender's submissions set out the victim's evidence and the offender's evidence. It was submitted that the jury must have accepted the victim's account of digital penetration of her vagina by the offender as honest and credible. The jury must also have been satisfied that the victim was not in fact consenting to digital penetration by the offender and that the offender either knew that she was not consenting, was reckless as to her consent or had no reasonable grounds to believe that she was not consenting.
14. The offender submitted that the offender should be sentenced on the basis that he acted spontaneously with an honest belief that the victim was consenting but that such belief was not supported on reasonable grounds, which was consistent with the following facts and circumstances: That the victim had invited Mr Elsworth back to her house and had not asked Mr Elsworth to sleep on the couch or elsewhere; That after showering the victim got into her own bed, and did not protest when the offender got into bed with her; That the offender waited until the victim came out of the shower before getting into bed with her; That the victim did not object (or, indeed, say anything) when the offender came up behind her and started running his hands up and down her legs; The offender attempting to console the victim after what he described as her "big response" (MFI #8 A 29), after which she hopped back into bed with the offender; The offender telling the victim that he wanted to take her out another time (MFI #8, A 11); The offender sending the victim text messages in the hour after they parted ways stating "You don't deserve all this stress" and "For when life is less stressful", which he explained to the police in his ERISP was an expression of his hope that the two could meet up again, further their connection and explore a romantic relationship: T 278.45-279.10, and Expressing to Rahel Goldman his regret over having made the victim feel unsafe.
15. It was further submitted that there was no evidence to support a finding that the offender had, prior to leaving Bondi, already planned to have sex with the victim and to apply force to her neck, as was put to the offender in cross-examination.
16. It was submitted that the offence of sexual intercourse without consent was isolated. It did not involve any coercion, threats, use of force, degrading conduct or did occur in a context in which the complainant would be suborned over time. It was submitted that whilst the offence was aggravated on account of it occurring in the home of the victim, the victim was on her evidence "sober and alert and not helpless or vulnerable". It was submitted the offending was opportunistic and the victim did not describe any pain or discomfort either during the act or afterwards. For those reasons it was submitted that the offending fell at the low range of offending of this type.
17. It was submitted that the victim experienced a deal of distress and upset as a result of the offence, however, such emotional or psychological harm is not greater or worse than may ordinarily be expected for an offence of sexual assault.
18. The offender submitted that Count 1 cannot be taken into account in aggravation of Count 2 as this would amount to an offence against s 61J of the Crimes Act (aggravated sexual assault) and offend the rule in The Queen v De Simoni (1981) 147 CLR 383.
19. In respect of the offender's subjective case, the offender relied on the report of Ms Duffy and his testimonials as outlined above. He was entitled to a 5% discount on sentence in respect of Count 1. It was further submitted that he was entitled to a finding of contrition in respect of Count 1 based on the evidence of his conduct following the assault, for example, he replied to her message with a message reading "Holy shit. I'm so sorry". He had volunteered the fact of the victim's accusation to his friend Ms Goldman (Ex C) and accepted responsibility for all the injuries put to him in his ERISP. The offender had also used expressions of remorse to police during his ERISP, for example: "Q231 What are you sorry for? A231 Um, that she was made to feel that she was in danger and the shock of her having injuries." He had further consented to Ms Goldman passing on his messages with her to the victim and had volunteered his mobile phone and DNA to investigating police.
20. The offender also relied on statements of remorse during his evidence and his acceptance of accountability and remorse to the author of his SAR as outlined above.
21. It was submitted on behalf of the offender that he was a person of positively good character in relation to his respect for women and approach to consent in sexual relations, relying on the evidence given at trial of his former partners, together with the character witness testimonials.
22. The offender had been assessed as a medium-low risk of reoffending and Ms Duffy had formed the opinion that his risk of sexual recidivism was within the average range. Overall however, she had concluded that he exhibited a low risk of reoffending. It was further submitted that the court would find that he had strong prospects of rehabilitation, given his strong family support, his self-motivated pursuit of treatment and his consistent participation in treatment with his current psychologist since November 2019. It was submitted the court would conclude that it was highly likely he would remain offence-free and have confidence in his prospects of rehabilitation.
23. The offender referred to Judicial Commission statistics, acknowledging the limitations on the use of such statistics. He also referred to a number of comparable cases, whilst acknowledging that each case must be determined according to its own facts. It was submitted that the present matter bore some familiarity with R v Francis [2020] NSWDC 870, where a similar offence was dealt with by way of a two year Community Corrections Order.
24. In conclusion, as indicated above, the offender submitted that the offences could be appropriately disposed of by way of a lengthy Community Corrections Order with a community service component for Count 2 and a fine in respect of Count 1. It was submitted the court would be satisfied that the offender's sentence need not reflect protection of the community, given his advanced rehabilitation, nor denouncement of conduct and accountability to the same degree as it would otherwise be the case. As a result, a sentence of full-time custody was not the only option, given that he had no criminal antecedents and was a person of good character and the offence was a one-off, committed over a short period of time. If the court found the s 5 threshold was crossed in respect of Count 2 (or Counts 1 and 2), it was submitted that short sentence (namely, one of less than 12 months) would be appropriate and that special circumstances should be found on account of this being the offender's first custodial sentence.
25. In his oral submissions, learned senior counsel for the offender rehearsed his submission that the harm caused to the victim was no more than would ordinarily be expected to have been caused by the offending in Count 2. Counsel further submitted that I would reject the Crown submission that Count 2 could be differentiated from Counts 3 and 4 because there was some corroboration by the evidence of the offender that digital penetration took place. Given that the jury were directed that if the accused's account was accepted, or at least not rejected, then they could not convict, then the court could not now rely on the accused's submission that digital penetration took place whilst he was performing cunnilingus.
26. In respect of Count 1, it was submitted that the offender made clear to the jury that he accepted that he was reckless in causing actual bodily harm to the victim. The injuries themselves are uncontentious and not trivial. It was submitted that the injuries, even in combination, are towards the lower end of the range for the offence. Counsel submitted that across the range of offences dealt with under assault occasioning actual bodily harm, not just the injuries are relevant but also the potential risk of injury. Deterrence was therefore important in cases which take into account significant risk. However, that was not the case here.
27. Learned counsel then analysed the evidence of the complainant at trial so as to demonstrate that the injuries occurred as part of the sexual activity that constituted Counts 3 and 4. It was therefore impossible to rely on the narrative of the victim to base findings as to how the injuries were occasioned.
28. Counsel submitted that the evidence of the expert witnesses did assist in the fact finding process. That evidence was to the effect that the injuries were consistent with the account given by the offender and at least in respect of the petechial haemorrhaging, the evidence of Professor Duflou suggested it could not have happened in the way in which the victim alleged. Further, the offender's account had been given during his ERISP interview at a time before he was aware of the fine details of the allegations against him.
29. Counsel relied on the evidence of Professor Duflou to the effect that if the victim was coughing or gasping for air or gasping for breath, the compression of the airway would need considerably more force and he would expect with it a greater likelihood of bruising and other injuries to the neck. Further, a carotid sleeper type hold (which was known to cause petechial haemorrhaging) would not be expected to cause compression of the airway without there being a strong likelihood of unconsciousness.
30. Counsel submitted that the expert evidence suggested a greater likelihood of the offender's account of being the mechanism by which the injury occurred over the complainant's account. Counsel further noted in terms of the ultimate disposition of the matter, that the vast majority of charges under this section are disposed of in the Local Court.
31. In sentencing for Count 2, sexual intercourse without consent, counsel noted that any aspect of the assault occasioning actual bodily harm charge would be removed from the assessment of objective seriousness.
32. It was submitted that I would not be satisfied that the offence occurred without warning to the complainant. Such a finding could not be made beyond reasonable doubt because of the background facts during the evening where they had met at a restaurant, there was interaction between them, they flirted, he met up with her after the bar had closed and they went home and got into bed together. It was submitted that "it was in the course of consensual activity of a sexual nature that your Honour would find Count 2 occurred".
33. In having regard to those facts, the court would also have regard to the offender's character and the fact that it would be inconsistent with his character of prior behaviour for him to engage in this act without warning. Counsel did, however, acknowledge that the offence itself was inconsistent with the offender's prior character.
34. It was submitted that the fact the victim did tell the offender prior to their arrival at her unit that she did not want to have sex, went some way to explain the jury's verdict in respect of Count 2.
35. Counsel submitted: "In terms of understanding the jury's verdict, one could accept that the jury may have reasoned that the accused, whilst engaged in a level of sexual activity, or foreplay or whatever description one gives it, went a step further and engaged in digital penetration, in circumstances where perhaps, had there not been the earlier conversation, one might have concluded that the Crown had not proved beyond reasonable doubt that he had no reasonable grounds to believe she was not consenting."
36. Counsel went on to submit that given the conversation they had, before the offender formed any reasonable view as to what he was doing, he would have had to do something to "modify the contract between them". It was submitted the context in which they returned to the victim's home supported an inference that any relationship between the two of them had a sexual foundation, namely, that they were two people who were sexually interested in one another. In those circumstances, given the accused's character and his general attitude of respect towards women, would militate against a finding beyond reasonable doubt that the offence occurred without warning. Secondly, having regard to all of that background, what occurred in the lead-up was far closer to that suggested by the offender, namely, that there was consensual activity between the two of them.
37. It was then submitted that despite the consensual sexual activity that took place, when the offender went a step further and engaged in digital penetration, that crossed a boundary that had been set by the complainant early in the night, namely, that there was to be no sex. Consistent with the jury verdict therefore the accused could not have reasonably believed the complainant was consenting and the Crown excluded that possibility beyond reasonable doubt.
38. Counsel submitted that in determining the objective gravity of the offending one has to look at the whole of the circumstances of the particular case. Here, the penetration was by way of single digit, occurring in the circumstances of a mistaken belief in consent over a relatively short time. Immediately after, the offender sought to comfort the victim. The evidence of his conduct after the event which showed that he was hopeful of establishing an intimate relationship with the victim was entirely inconsistent with him having treated her as someone in relation to whom he could have sex, knowing that she was not consenting, or simply not caring whether she consented.
39. Here the offending took place over a relatively short period and counsel submitted that the duration was relevant to whether the offending was likely to cause greater distress. This indicated that the offending here was very much at the lower end of the scale of objective seriousness.
40. Learned counsel rehearsed his submissions regarding the offender's subjective case, submitting that the offender had a positive good character in a particularly significant respect, namely, his attitudes towards and his respect for women. It was a remarkable feature of the case that a number of his ex-partners were willing to give evidence on his behalf.
41. It was submitted that the offender was clearly sensitive to the complainant's distress, both immediately after the incident and thereafter. Given the context in which the event occurred, the plea of Not Guilty did not necessarily show a lack of remorse in the same way as it does where an accused simply disputes facts.
42. Learned counsel submitted there was no risk of the offender reoffending given his interaction with the criminal justice system and the psychologist's assessment.
43. Counsel referred to the maximum penalty of 14 years and the standard non-parole period in relation to Count 2. It was submitted that this case was not close to the mid-range of objective seriousness so the significance of the guideposts provided by the maximum penalty and standard non-parole period disappeared. Having regard to the low objective gravity of the offending and the offender's subjective case, the threshold in s 5 of the CSPA was not crossed.
44. Counsel referred to R v Fisher and submitted that the offending in that case was of an entirely different quality, namely, a more serious form of sexual intercourse without consent. The complainant in that case had been asleep and was intoxicated and the offender had taken advantage of her belief that another person was engaged in sexual activity with her. Counsel referred to the judgment of Adamson J at [241] where her Honour said, "To initiate sexual intercourse with a stranger who was asleep was a particularly serious violation", and she referred to the complainant there being "particularly vulnerable". The case was therefore in an entirely different category from the present case.
45. Counsel also referred to the decision in DPP v Burton [2020] NSWCCA 54 to distinguish the facts in that case from those in the present case. For example, in Burton there was an age differential between the offender (61 years) and the victim (18 years). Further, the offender had been issued a warning during the evening as to his interaction with the victim. Counsel also distinguished the facts in R v Hewitt [2020] NSWDC 566. In all of the circumstances it was submitted that this was an appropriate case to impose penalties that involve punishment other than by way of imprisonment.

Findings of facts upon which the offender is to be sentenced

1. The offender entered a plea of Guilty to Count 1 on the Indictment on the first day of his trial. It is common ground that that plea relates to four injuries sustained by the victim, namely, petechial haemorrhaging to the left side of her face, an injury to her inner lip, a bite bruise to her left shoulder and a bruise in the form of a bite mark on her right buttock.
2. The parties disagree as to the causation of those injuries, the Crown relying on the evidence of the victim and the offender relying on his own evidence at trial, together with medical expert evidence adduced by Dr Lee (on behalf of the Crown) and Professor Duflou (on behalf of the offender). What is clear is that the injuries were sustained by the victim during the sexual activity that took place, and to convict the offender on Count 2, the jury must have accepted the victim's evidence. Because the offender was found not guilty on Counts 3 and 4, which occurred at or about the same time as Counts 1 and 2, the court could only speculate about how the jury arrived at those verdicts.
3. In respect of Count 1, it is necessary therefore to set out the evidence relied on by both parties. The Crown relied on the following evidence of the victim: "Q. What happened next? A. So we arrived back at my apartment in Potts Point and we walked up the stairs, I let us in - and at that time Ben was just sitting in my living room and I said, "I'm going to go and get ready for bed" as I had said I will do, so I walked into my bedroom, into my bathroom, and just kind of did my nightly routine, had a shower, took my make up off, did my skincare routine, put on a pyjama T-shirt, a striped pyjama T-shirt and some new underwear and I came out of the bathroom and walked back into the living room and said, "I'm going to get into bed," and then Ben got up out of the living room and walked into the bedroom. I just grabbed a glass of water from the kitchen and turned all the lights off, made sure the door was deadlocked and walked into the bedroom, and turned off the light. I got into bed on the - so Ben was like kind of sitting, lying on the bed in just a white T-shirt and his boxer shorts, and I climbed into bed on the right-hand side, he was on the left-hand side, I was on the right-hand side next to the window, and I proceeded to plug my phone in and get - put my glass of water up on my windowsill, just kind of like my bedside table, and just rolled over and facing the wall went - put my head on the pillow to sleep. After a couple of kind of minutes Ben came up behind me and kind of put his arm around me to cuddle me, which was fine, I was pretty tired, didn't really take a whole lot of notice, then after about five or 10 minutes I think I was pretty much asleep, I kind of - kind of awoke almost, I was kind of half asleep, half-awake to him running his hand up and down my leg, which I became aware of, and at that time I just didn't really respond, I didn't want to engage in that so I kind of figured if I just stay kind of like I'm asleep and don't engage in it that he would stop, and after he'd been doing that for a while he kind of without warning just put his fingers into my vagina. Q. I'll just stop you there. Did you consent to that? A. Did I consent to him putting his fingers into my vagina? Q. Yes? A. No, and he - he put his fingers into my vagina and again I didn't engage, I didn't say anything to him, I just really wanted to, you know, I'd said I didn't want to have sex and I just wanted to continue to not engage and not give him any reason to think that I was interested or into it. After I think maybe one minute or two he then flipped(?) me over suddenly onto my stomach and he pressed his hand into the back of my head so that my head was like into like facedown on the mattress, and at some point he took my underwear off, I'm not sure when exactly that happened. He then put his penis into my vagina and began to penetrate me. As he did that he brought his right arm around, so that it was wrapped around my throat and it was so tight that I - I couldn't breathe, I couldn't speak and he was still penetrating me, I tried to - I started trying to kind of pull him off and loosen his grip around my neck. I actually remember I couldn't get any oxygen through and, yeah, he was just around really tight, and after a while he kind of let go and for a moment I just started to cough and just tried to gasp and get some air back into my lungs as much as I could, and noticing as he kind of let go he then re-engaged around the same way, except this time part of his arm, forearm, was over my mouth so that my teeth started to cut into my - like my not my lip but my kind of gums on the inside and I just remembered the pressure was so strong that it felt like all my teeth were going to be dislodged, kind of the socket and again I just couldn't - I couldn't breathe and I was just pulling, had my arms wrapped around his forearm and I was just pulling down as hard as I could to try and loosen his grip but it felt like the more I pulled it down just the tighter it got. … A. …So he had his arm, yeah, engaged as really, really tight. I started to feel very, like I was kind of starting to feel a bit, I don't know if weak is the right word but I just was struggling so much for oxygen and then eventually he disengaged his arm and again I was just coughing and gasping for air. He then grabbed the back of my head and pushed it back down into the mattress so that my face was forward and he bit my left shoulder and I struggled to get my head to the side so that I could breathe and get air in, and at that time he came from my right-hand side and pushed his ear - his tongue into my ear, and all his body weight was now on my legs and my arms were free and he moved down my body and bit my butt cheek and at this time I began to - because I could speak, I began to say like, "No, stop, please, Ben, stop," just repeating "No" and "Stop" as much as I could. I also was trying to fight him off by - my arms are free so I'm trying to from behind push his head to stop him from biting me and I was also trying to wriggle my legs around but his kind of whole body weight was on them so it was quite difficult and just kept repeating, "No" and "Stop" and just - just kept pushing and eventually I did - he let go and I kind of got free and crawled off the bed into the bathroom…"
4. The Crown also relied on the evidence of Dr Lee as to the history the victim gave him of what relevantly occurred as follows: "She told me that he put his arm around her neck from behind. This caused her difficulty breathing and made her frightened. She didn't lose vision and she didn't lose consciousness from this. She told me that he put his arm over her mouth and this caused pain when her teeth were forced into her lip. He bit her from behind the left shoulder and on the right buttock and that caused pain. He pressed her forcibly onto the bed while she was facedown and she was unable to get up although she wanted to…"
5. Dr Lee had examined the victim at Royal Prince Alfred Hospital in the early hours of 21 October 2019. He completed what is known as a sexual assault investigation kit in relation to her. He gave evidence of the abnormalities he found on examination. The first was on the back of the left shoulder. There was, on the skin, a red to blue coloured irregular but roughly oval mark, two centimetres long, which was tender when he pressed it and had the appearance of a bruise. On the skin of the lower right buttock, there were two carved red blue marks linear in shape and concave to the centre which covered about three by four centimetres with the appearance of a bruise and which were tender to pressure. On the left side of the victim's face and in particularly the area between the eye and the ear, and on the left upper eyelid, there were multiple small pinpoint red marks. They had the appearance of bruising known as "petechial haemorrhages". The final abnormality was in the inner surface of the lower lip, where there was an area of redness, slightly to the left of mid line which was tender to pressure and had the appearance of a bruise.
6. Dr Lee gave the following evidence about the observations he made of the petechial haemorrhages: "The presence of petechial haemorrhages when pressure is applied to the neck is sort of a classic sign, and it actually doesn't take a lot of pressure because the vessel that has to be obstructed is the jugular vein. And a vein hasn't - isn't like an artery. So an arm or a - a hand grasping the side of the neck would be enough, if enough pressure is applied, and it doesn't take that much, to obstruct the - the return flow, and as time goes on, you know, over a few seconds to minutes, some of the blood will leak out, and that's the mechanism for these haemorrhages. Can I just say that the photos are - do not represent clearly what I saw. The petechial haemorrhages were quite dramatic and marked when I saw them and when I reviewed the photos, even in the room on the small screen in the camera, I was disappointed that they didn't show up that well. I can see them on the photo here and I can identify the ones that are the petechial haemorrhages but during, during the examination with my eyes, they were more obvious."
7. The Crown also relied on the evidence of Professor Duflou who agreed with Dr Lee's opinion that in order to cause petechial haemorrhaging to an individual that only moderate pressure needs to be applied for those phenomena to occur.
8. Learned counsel for the offender noted in respect of Count 1 that the offender accepts that he was at least reckless, that is that he anticipated or had foresight, of at least the possibility of the injuries which he agreed were sustained by the victim. He also accepted those injuries are not trivial.
9. Learned counsel for the offender referred to the victim's evidence as set out above and submitted that it was a clear narrative which also included evidence relevant to Counts 3 and 4, for which the jury returned verdicts of Not Guilty. The offender submitted therefore that the court could not rely upon the victim's account of the infliction of the injuries, rather, it was submitted that the offender's account should be preferred given that it was not just his evidence but also the account he gave in his ERISP at a time before he was aware of the fine details of the Crown case and the allegations against him. Secondly, the evidence of Professor Duflou suggested it could not have happened in the way in which the victim alleged. The offender relied on the following evidence of Professor Duflou: "Q. And on the account - what I suggest to you is - on the account or the information that you were given from the complainant, noting as you have, that we don't have any scientific instruments by which pressure can be measured, only lay accounts, it's equally possible, isn't it, that there might not be injury to the neck, there might not be bruising to the neck, and there may not be tenderness to the neck? A. Yes. I suppose going - one of the things that does need to be considered, though, is that there was coughing and gasping for air, and an indicating that the complainant was struggling to breathe. Now, if that is the case, you'd concurrently think that there would be a degree of compression of the airway itself. After saying that, compression of the airway needs considerably more force and with considerably more force you expect a greater likelihood of bruising and other injuries. The other thing is that a carotid sleeper-type hold would not be expected to cause compression of the airway without there being a strong likelihood of unconsciousness. So there's some problems in terms of doing a full assessment based on the information provided. There are some inconsistencies there. But in general, yes, I would agree."
10. It was submitted based on that evidence there was a greater likelihood of the offender's account being the mechanism by which the injuries occurred over the victim's account.
11. In the fact finding process, facts found adverse to the interests of the offender must be established by the Crown beyond reasonable doubt. On the other hand, facts advocated on behalf of the offender may be established to the lower standard of proof, namely, balance of probabilities. Here, the context in which the charges arose is very relevant. Having informed the offender before they left Bondi that she would not have sex with him, with which the offender agreed, they returned to her apartment in Potts Point. After she informed him that she was going to bed, the offender got into the bed behind her. Relevant here is the jury verdict of Guilty to Count 2, namely, digital penetration. Consistent with that verdict, the jury must have accepted the victim's evidence that the offender digitally penetrated her without her consent, knowing that she was not consenting. The injuries were sustained either immediately prior to that offence occurring, contemporaneously with it or just after that offence. The sexual interaction commenced with the offender putting his arm around the victim to cuddle her from behind. After five or ten minutes she described herself as "half asleep/half awake" and she felt him running his hand up and down her leg but didn't respond or engage with him. Having regard to the whole of the evidence, I am satisfied beyond reasonable doubt that the injuries to the victim's left shoulder and buttock were caused by the offender biting her in those places when he was situated behind her. I am also satisfied beyond reasonable doubt that the petechial haemorrhaging and bruising to her lower lip were caused when she was lying on her stomach and he placed his arm around her neck when she started to cough and tried to gasp he let go and then re-engaged, except this time part of his forearm was over her mouth, causing her teeth to cut into her gums on the inside of her mouth.
12. It is on the basis of those facts that I intend to proceed to sentence the offender in respect of Count 1. They are consistent with the jury's verdict in respect of Count 2, by which they must have rejected the accused's version as to how he came to digitally penetrate the victim.
13. Rather, the jury must have accepted the evidence of the victim as to what occurred. That included her evidence that while she was "kind of like um asleep" and not engaging with him running his hand up and down her leg, after he had been doing that for a while, "he kind of without warning just put his fingers into [her] vagina".
14. Consistent with the jury verdict, it must have accepted the victim's evidence that she did not consent to him putting his fingers in her vagina, and the offender knew that she was not consenting, or was reckless as to whether she was consenting or not.
15. I do not accept the offender's submission that the sentence should proceed on the basis that the offender had a belief as to her consent, but there was no reasonable basis for that belief. I proceed on the above basis because the offender acknowledged that the victim had told him she would not have sex with him and he had done nothing to determine any change in that position. Even if the offender's contention was accepted, it would have no part in the assessment of the objective seriousness of the offending, although it may impact on any assessment of his moral culpability.

Determination

1. Section 3A of the CSPA sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community."
2. In assessing the objective seriousness of the offending in Count 1, I take into account the four separate injuries sustained by the victim as a result of the assault. The offender has accepted they were not trivial injuries and I find that they were transient in nature. The circumstances in which they were inflicted must be taken into account, namely, that the offender had been invited into the home of the victim on the specific premise that she would not have sex with him, that he was 6'5 and weighed 105 kilograms compared to the victim's 73 kilos, and given that she was half asleep, the victim was defenceless to what the offender had described as "heavy foreplay".
3. Those circumstances also included strangulation and choking of the victim which was causative of the petechial haemorrhaging and the bruising to her inner lip. It is not relevant to the assessment of objective seriousness, as was submitted on behalf of the offender, that he had engaged in consensual strangulation and biting in the context of many consensual intimate relationships in the past. Rather, the victim here was given no opportunity to consent to any sexual activity, let alone indulge the offender in his "kink". Further, his lack of flight or concealment of his identity in post-incident conduct are not relevant to the assessment of objective seriousness of the offending.
4. Having regard to the whole of the circumstance of the offending, I find that it was not at the lowest end of seriousness for an offence pursuant to s 59 of the Crimes Act 1900. That section does, however, encompass a wide range of offending and injuries, and whilst the offending was serious, it fell in the middle of the lower end of the range of objective seriousness for an offence pursuant to s 59.
5. The offending in Count 2 occurred in the same course of conduct, but the assessment of the objective seriousness of the offending must be determined without reference to the offending in Count 1. As outlined above, it involved digital penetration of the victim with the offender's fingers, although the evidence does not support a finding of the particular number of fingers involved. It is well established that there is no hierarchy of particular modes of sexual intercourse and any assessment of the objective seriousness must take into account all of the circumstances. They include here, the differential in height and weight of the offender and the victim, the differential of 16 years in their ages, and the fact that they had only met that night in circumstances where the victim was working at a bar and the offender and a group of his friends were being served by her. Notwithstanding her decision to allow him into her home on the agreed basis that she would not have sex with him, the offender was unknown to the victim as was his particular "kink", namely, his interest in dominating sex and forceful foreplay.
6. The fact that there was no actual violence perpetrated in the preparations for the act of digital intercourse or its commission is irrelevant in the assessment of the objective seriousness of the offending - see Fisher v R; R v Fisher [2021] NSWCCA 91 at [84].
7. The circumstances in which the offending took place involve the victim being "half asleep" in her own bed at a time when the offender commenced running his hand up and down the victim's leg. Consistent with the jury verdict, without warning, he put his fingers into her vagina without her consent and at the time he must have known, or was reckless to, the fact that she was not consenting. It was opportunistic offending, however it was also predatory in nature given the differences in age and size between them. The fact that the offending took place over a short period of time does not diminish its seriousness, given the nature of the offending - see Diaz v R [2018] NSWCCA 33 at [53]; Fisher v R; R v Fisher [2021] NSWCCA 91 at [86].
8. Having regard to all of the circumstances of the offending, I find that it fell below the mid-range for an offence pursuant to s 61I of the Crimes Act 1900 and towards the middle of the low-range for such an offence. It still constituted serious offending.
9. It was an aggravating factor, which I have not taken into account in assessing the objective seriousness of the offending, that the offending in both Counts 1 and 2 occurred in the home of the victim, pursuant to s 21A(2)(eb) of the CSPA.
10. I am also mindful of s 21A(5AA) of the CSPA which provides that in determining the appropriate sentence for an offence, the self-induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor. It is, however, a mitigating factor here that the offender is a person of good character pursuant to s 21A(3)(f) in two respects. First, he has no criminal conviction of any kind. Secondly, there is overwhelming evidence adduced both at trial and on the sentence hearing that he is generally respectful of women and in the past has only engaged in consensual sexual activity with those of his partners who gave evidence on his behalf. Given the nature of the offending, the offender's good character must be given some weight in the sentencing process, particularly as I find that he has good prospects of rehabilitation, having already made progress with that rehabilitation by his engagement with a treating psychologist who he has seen on a regular basis since November 2019.
11. I also find that the offender is a low risk of reoffending, based both on the assessment of that risk by Ms Duffy (Ex 1.1) and the experience he has been through with the criminal justice system. In respect of Count 1, I accept that the offender expressed some contrition for his offending after the event. His late plea of guilty entitles him to a 5% utilitarian discount on sentence but is no evidence of remorse on his part. Given his plea of not guilty to Count 2, I find that he has expressed no remorse towards the victim for his offending on that count.
12. It is well established that general deterrence is important in the sentencing process for prescribed sexual offences. A clear message must be sent to like-minded members of the community that Parliament has prescribed lengthy terms of imprisonment as maximum penalties for such offences and that the courts will impose condign punishment in appropriate cases. Specific deterrence is also important here in that the offender must understand that if he were to reoffend there would be serious consequences for him. I find however that its importance is diminished by the fact that the offender has progressed in his rehabilitation as referred to above.
13. I have taken into account the maximum penalty of 5 years imprisonment for Count 1, and the maximum penalty of 14 years imprisonment for Count 2 and the standard non-parole period prescribed of 7 years imprisonment. The maximum penalties for each offence and the standard non-parole period for Count 2 are guideposts in the sentencing process and they indicate the seriousness with which Parliament regards the offences.
14. I have also had regard to the VIS read to the court by the victim. The victim was 20 years of age at the time of the offending and she set out the psychological and emotional impact the offending has had on her personal, social and professional life. The courts have long recognised the psychological impact of sexual offending on young victims. Here, I accept that the VIS related to the whole of her interactions with the offender, of which he pleaded guilty to Count 1 and was found guilty by the jury in respect of Count 2 only. Further, it is unsupported by medical opinion and I have therefore not taken it into account so as to increase the offender's moral culpability for his offending. I am therefore comfortably satisfied that the emotional or psychological harm suffered by the victim is neither greater nor more deleterious than may ordinarily be expected from such offending - see R v Tuala [2015] NSWCCA 8.
15. The offender has a strong subjective case to be taken into account on sentence. Notwithstanding that the court must be very circumspect in accepting self-serving statements reported by psychologists which are not supported by evidence, I accept that the offender was brought up in a loving and supportive family, that he has an excellent employment history, that he has achieved tertiary qualifications and that his family members, employers, lifelong friends and former partners all speak highly of his character. His strong subjective case must be given weight in the sentencing process, however I am mindful that subjective considerations must not be allowed to cause inadequate weight to be given to the objective circumstances of the offending - see Kearsley v R [2017] NSWCCA 28 per MacFarlan J at [14].

Sentence

1. Having regard to the objective seriousness of the offending in Count 1, the subjective case of the offender and his entitlement to a utilitarian discount of 5%, I intend to convict the offender of Count 1 and order that he comply with a Conditional Release Order pursuant to s 9 of the CSPA. The term of the order is for a period of 17 months from today and will be subject to standard conditions, namely, that: 1. You must not commit any offence; 2. You must appear before the court if called on to do so at any time during the term of the order.
2. In assessing the objective seriousness of the offending in Count 2, I have been careful to not take into account any degree of violence or physical hurt in Count 1 so as to not breach the rule in The Queen v De Simoni. The offending was largely opportunistic given the victim had invited the offender into her home and the most favourable view on the facts is that the offender was reckless as to whether the victim consented or not. In all of the circumstances, the offender's conduct could not be properly characterised as motivated by a miscommunication, nor was it penetration of a minimal kind.
3. I am not satisfied, having regard to my finding as to the objective seriousness of the offending and the subjective matters set out above, that there are compelling or exceptional circumstances established here that would warrant a non-custodial sentence. Rather, giving full effect to the purposes of sentencing and in particular those of adequate punishment, deterrence, denunciation and recognising the harm done to the victim would not warrant such an order.
4. I am satisfied pursuant to s 5 of the CSPA, having considered all possible alternatives, that no penalty other than imprisonment is appropriate given the objective seriousness of the offending. The appropriate term is one of three years imprisonment. Having regard to the application of the principle of totality as outlined above, the sentence should be concurrent with the sentence for Count 1 in that both offences arose out of the same course of conduct.
5. I make a finding of special circumstances pursuant to s 44(2) of the CSPA on the basis that this will be the offender's first time in custody. I therefore intend to vary the statutory ratio between head sentence and non-parole period, and impose a non-parole period of 18 months imprisonment. I have also taken into account the hardship suffered by the prison population caused by the COVID-19 pandemic. Steps taken by Corrective Services to minimise the risk to inmates have had significant impacts on their well-being - see Valentine v R [2020] NSWCCA 116 at [60] and [61]. These onerous conditions, which include lockdowns, limitations on access visits and access to education programs are known to create additional hardship to both young and first-time offenders - see DPP (Cth) v Saadieh [2021] NSWSC 1186. I have taken this hardship into account in mitigating the offender's sentence.

Orders

1. I hereby make the following orders: 1. You are convicted of the offence in Count 1, that you, on 20 October 2019, in Potts Point in the State of New South Wales, did assault EB, thereby occasioning actual bodily harm to her, pursuant to s 59(1) of the Crimes Act 1900. 2. I sentence you by way of a Conditional Release Order, pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999. The term of the order is for a period of 17 months from today. 1. The standard conditions of the order apply: 1. You must not commit any offence; 2. You must appear before the court if called upon to do so at any time during the term of the order. 1. You are to comply with the administrative requirements to enter this order in the Registry within 7 days. 2. You are convicted of Count 2 on the Indictment, that on 20 October 2019, in Potts Point in the State of New South Wales, you did have sexual intercourse with EB without her consent and knowing that EB was not consenting, pursuant to s 61I of the Crimes Act 1900. 3. I sentence you to a non-parole period of 18 months imprisonment from today and terminating on 14 April 2023. 4. The balance of term will be 18 months, terminating on 14 October 2024. 5. You will be eligible for parole on 14 April 2023.

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 October 2021