R v Gerard CORTESE

The Agreed Facts 6Tendered before her Honour was a statement of the agreed facts for the offences. The document appears to have been the product of discussions between the Crown and the defence. Nothing in this judgment should be taken as discouraging such an exercise. Communication and discussion between the opposing legal representatives outside of Court produces significant benefits in terms of the efficient use of Court time and judicial resources. Moreover, if complete or substantial agreement can be reached over the facts surrounding an offence, it can save the victims from having to give evidence in a contested environment and avoid the defence having to make the difficult forensic choice of cross examining the victim at a sentence hearing. That said, it was common ground that the agreed facts in this case were problematic. 7In describing the events up to and including the commission of the offence the agreed facts stated: "At the end of May, 2011, the [respondent] met [the victim], a twenty year old female, while she was working at the Kings Court massage parlour, Broadway. During the next few weeks [the victim] and the [respondent] commenced a relationship. The relationship was fine up until 15 July 2011 when [the victim] told the [respondent] that she wanted to end the relationship. The [respondent] was then unhappy and would not accept the relationship was over. On Thursday 21 July 2011 the [respondent] picked [the victim] up from her unit for the purpose of discussing their relationship. The [respondent] drove to his residence in Drummoyne which he shares with his brother. During the drive to Drummoyne the [respondent] and [the victim] argued about their relationship and the fact that the [respondent] didn't want it to end. The [respondent] threatened to tell [the victim]'s family, if she ended the relationship, that she worked at a massage parlour, which she had been hiding from them. The [respondent] also threatened to contact Centrelink, stating [the victim] had not declared all of her earnings and that she could go to gaol for fraud. Once at the [respondent's] residence the [respondent] and [the victim] continued arguing about their relationship with the [respondent] becoming nice and trying to get physically close to [the victim]. When [the victim] did not change her mind the [respondent] became aggressive and threatening. This continued for a couple of hours. The [respondent] started making sexual advances towards [the victim] which were rejected by her. The [respondent] lent [sic] over and attempted to kiss [the victim] but she moved away telling the respondent 'no'. The [respondent] lent [sic] over and placed his right hand between [the victim]'s legs and started rubbing her vagina on the outside of her track pants. [The victim] pushed his hand away, again saying 'no'. The [respondent] continued to try and rub [the victim]'s vagina with [the victim] rejecting the [respondent's] advances to the point she became angry and said 'Fuck off and don't touch me'. The [respondent] became more persistent and aggressive as [the victim] continued to deny him any affection. [The victim] told the [respondent] she wanted to go home, however, he told her she was staying the night and had no choice. [The victim] walked out to the balcony of the unit and realised she couldn't leave by jumping as the balcony was too high. She was scared and realised she was unable to leave so she went into the [respondent's] bedroom. The [respondent] placed her belongings including her clothes on a high shelf in his wardrobe. [The victim] was naked without her telephone, wallet or clothes. Eventually she went to sleep crying. It was late at night, at some time between midnight to 2am. [The victim] woke the following morning [at] about 10:30am. The [respondent] was out in the lounge room and [the victim] walked out and saw him sitting on the lounge. She quickly returned to the bedroom. The [respondent] noticed her and followed her into his bedroom. [The victim] was under the covers and the [respondent] laid on the top of the covers. The [respondent] left the room and [the victim] decided she would record their conversation for her protection. She pressed the record button on her Apple iPod. When the [respondent] returned they began arguing again before the conversation turned to a sexual nature. The [respondent] and [the victim] continued to argue about sex when the [respondent] said 'Don't make me rough you around, I'm going to get rough with you' and 'I'll rip your legs apart'. He also said, 'I'm going to hurt you'. The [respondent] lay on his back and grabbed hold of [the victim]. His knees were bent and he forced her on top of him. [The victim] was still saying, 'No' while he continued to threaten her. He was saying, 'We are going to have sex'. The [respondent] and [the victim] continued to argue which was still being recorded. He said, 'I'm going to get rougher and rougher until I get it'. He then forced at least two fingers into her vagina and said 'I'm going to rip it, put my dick in or I'm going to rip it off'. [The victim] kept saying 'Ged, stop it'. The [respondent] forced his penis into [the victim]'s vagina and he continued to have penile/vagina intercourse without consent from [the victim]. She told him he was disgusting and to get off her. When the [respondent] had finished [the victim] moved away from him and fell asleep. When she woke, a couple of hours later, the [respondent] told her to get out, and handed back her belongings. [The victim] dressed and went to leave when the [respondent] insisted he drive her home. On the way he said 'that's enough of what happened, I'm a good guy, things will be normal now'. [The victim] said 'You can't get away with this'. To which he replied, 'Nobody will believe you, you will be the one going to gaol'. Upon returning home [the victim] disclosed to her friend [...] that the [respondent] had forced her to have sex with him, that he had raped her. [Her friend] told her to go to the police but [the victim] said she couldn't because he would tell her family and the ATO and she would go to gaol." (emphasis added) 8The conduct of the respondent in rubbing the complainant's vagina despite her demands that he stop on the evening of 21 July 2011 was the basis for count 1 of the indictment. His rape of the victim on the morning of 22 July 2011 satisfied the element of count 2 of his having sexual intercourse with the victim without her consent. The aggravating circumstance involved him depriving her of liberty by preventing her from leaving his residence from the evening of 21 July 2011 to the morning of 22 July 2011 ("he told her she was staying the night and had no choice"). 9At this point I note three matters about these facts. First the agreed facts contain no explanation of how the victim came to be naked on the evening of 21 July 2011. The narrative moves from stating the respondent indecently assaulted her by "rubbing her vagina on the outside of her track pants" in one paragraph, to stating that she was "naked without her telephone, wallet or clothes" in the next. In argument in this Court counsel for the respondent, Mr Buchen, submitted that it could be inferred that the victim removed her clothes voluntarily and thus indirectly suggested that at least the initiation of sexual contact was consensual. I do not agree, but equally I note that there is no basis for inferring that her clothes were removed involuntarily either. The base statement that the victim was naked is a neutral, unexplained aspect of the narrative. 10Second, after describing the indecent assault, the agreed facts include the statement "[t]he [respondent] became more persistent and aggressive as [the victim] continued to deny him any affection". This statement is difficult to understand. In context the reference to "affection" appears to be a reference to denying sexual advances, but it is not clear and that would be an awkward use of the word "affection". Also the reference to him becoming "aggressive" is unclear. In the absence of any further details it cannot be read as a reference to him being physically aggressive or making physical threats. 11Third, there is nothing in this part of the narrative to support any suggestion of any prevarication on the part of the victim as to whether she consented to any sexual contact with the respondent on either 21 or 22 July 2011. The stated purpose of their meeting and initial discussions concerned her determination to end their "relationship" and the respondent's refusal to accept that. Whether or not the reference to the "relationship" was only a reference to their having sex or something broader does not matter, although an exchange of text messages on 18 July 2011 that was before her Honour suggests that the respondent was upset about them not engaging in the former but had accepted the breakdown of the latter. In any event the description of events reveals the victim as unwavering in not consenting. The only matter put against that was the reference to the victim being naked which I have already addressed. 12The balance of the statement of facts concerns the events after the offence. It states: "Since the 22nd July 2011 [the victim] and the [respondent] were still in contact, however, [the victim] tried to tell the [respondent] numerous times that the relationship was over. He continued to threaten that if she left him he would tell her family about her employment and report her to Centrelink for not disclosing her earnings and continued to call her wanting to know her whereabouts when they weren't together. She continued to see him because of her concern he would ruin her family. [The victim] has said they continued to have sex as she was too scared to say no after what had happened on 21 and 22 July 2011. In early August 2011 [the victim] attended Legal Aid, Castlereagh Street and was referred to a domestic violence centre at Redfern. She attended and was then referred to a domestic violence officer at the Downing Centre. On 17 August when the [respondent] had gone to the snow [the victim] obtained advice from the Domestic Violence Liaison Officer for City Central Police, where she was advised to go to the police. 17 August 2011 [the victim] also moved residence with the [respondent] not knowing. On Saturday 20 August, 2011 [the victim] reported the matter to police where a typed statement was obtained. Police also obtained and listened to the recording made by [the victim] on the morning of 22 July, 2011. About 8:30am on Monday 22 August, 2011 police attended [the respondent's residence] where the [respondent] was arrested, cautioned and conveyed to Burwood Police Station where he was introduced to the Custody Manager, Sergeant JOHNSON. The [respondent] was ... electronically interviewed. During the interview the [respondent] made admissions to being the person on the recording. The [respondent] also admitted to picking up [the victim] and returning to his residence, and demanding sex with her, also to threatening to tell her family about her work and Centrelink for not declaring all her earnings. When the audio recording was played to the [respondent] during the interview the [respondent] requested it be turned off and stated 'One stuff up will ruin my whole life'. During the whole of the relationship between the [respondent] and [the victim] the parties engaged in consensual sexual activity (except for what occurred on 21 and 22 July) at a very high frequency. Aggressive language was not used during consensual sexual activity. Prior to 15 July 2011 the [respondent] and [the victim] talked about the possibility of improving her life by leaving her occupation and joining him in a serious long term relationship." (emphasis added) 13In so far as this part of the agreed facts concerns the relationship between the respondent and the victim after the offences were committed, it is also confusing. The first paragraph refers to them continuing to have sex in this period but asserts that he coerced her. However, the last paragraph refers to them having "consensual sexual activity" for the "whole of the relationship" except on 21 and 22 July 2011, which appears to extend to the period after the offences and not just the preceding period. Moreover, the last sentence of the first paragraph refers to what the victim "said" was the reason she resumed having sex with the respondent. As counsel for the respondent correctly submitted, that passage did not involve an admission by his client that what she "said" was true, and the sentencing judge was not required to act on that basis. There was some additional evidence concerning the events in this period which I will address below.

The Respondent's Subjective Case 14The respondent was born in 1979. He was 32 at the time of the offences and 33 as at the date of sentencing. He came from a stable and supportive family. Her Honour described him as having a close relationship with his parents and siblings. 15The respondent left home at the age of 23 and lived for a period in the United Kingdom before returning to Australia. At the time of sentencing he lived in an apartment with one of his brothers. He ran a business that was originally started by his father of making purpose-built covers and coverings of sailcloth for boats and trailers. The respondent had trained as a marine trimmer, worked in that business for seventeen years and started running it when he was 21. As at the time of sentencing the business was in some difficulties. It had accrued debts of around $120,000.00 and his parents had taken out a loan secured by a mortgage over their home to assist him. Thus there was a real possibility that they would lose their home should he be incarcerated and become unable to work off the business debts he had incurred. 16His criminal record only included some minor traffic matters. Her Honour found that he should be treated as a person of good character. Tendered before the sentencing judge were a number of references. The respondent was described as good natured, hard working, reliable and loving. The authors stated that his offending conduct was out of character. It seems that her Honour accepted that evidence. 17The respondent gave evidence before her Honour. He described his feelings of shame and remorse and the terrifying experience of being detained on remand for around three weeks after he was arrested. 18Two reports from a psychologist, Ms Nasr, were tendered at the sentencing hearing. Ms Nasr also gave oral evidence before her Honour and was cross examined by the Crown. I will refer to Ms Nasr's evidence in more detail, but at present I note that her Honour summarised a number of aspects of her evidence in the sentencing judgment. In particular her Honour noted that Ms Nasr recounted the respondent stating that he met the victim in April 2011, and describing the volatility of her moods and the relationship which he said left him "confused, rejected and emotionally distressed". Her Honour also noted that Ms Nasr considered his remorse to be genuine and observed that he had a significant history of depressive symptoms. Ms Nasr assessed the respondent as not having any indication of sexual deviancy, a matter that was challenged in cross examination. Using various risk assessment tests, Ms Nasr assessed him as having a low risk of re-offending. In her first report she suggested that individually based psychological treatment was appropriate for the respondent, but in oral evidence she stated that there were suitable group programs available as well.

The Sentencing Judgment 19I have already set out the agreed facts which her Honour reproduced in the sentencing judgment as well as the evidence concerning the respondent's background and character, all of which her Honour accepted. I note the following further points about the sentencing judgment. 20First, her Honour recorded that the respondent was entitled to a 25% discount by reason of his early guilty pleas. 21Second, her Honour noted that he had served a period of 22 days on remand following his arrest and found that he suffered "considerable hardship" while in custody. 22Third, having regard to Ms Nasr's evidence her Honour found that the respondent suffered severe and chronic depression and that a custodial sentence "would bear more heavily on him". 23Fourth, her Honour seems to have accepted Ms Nasr's assessment of his risk of recidivism. Her Honour stated that "I do not believe that the [respondent] is at risk of re-offending". 24Fifth, her Honour appears to have found that the victim suffered some harm or trauma as a result of the offences but that, at least from August 2011, she did not suffer any ongoing harm or trauma. I discuss this finding and the basis for it below. 25Sixth, her Honour accepted that the circumstance of aggravation for the purpose of the offence under s 61J, ie count 2, was "less serious" and noted that it was not accompanied by physical force or violence. Otherwise in assessing the seriousness of the criminality involved in count 2, her Honour found that the offence was "at the bottom of the range of objective seriousness". The Crown challenges these findings and that challenge is at the heart of their appeal. The challenge is addressed below (at [34] to [58]). 26Seventh, her Honour also found that count 1 involved conduct "towards the bottom of the range of objective seriousness". I address this below (at [59] to [61]). 27Eighth, her Honour noted that the Crown conceded that a finding of special circumstances was warranted.

Finding of No Harm to the Victim 28One matter that was debated during the appeal was whether it was open to her Honour to make the finding that her Honour did concerning the harm occasioned to the victim by the offences. 29In the sentencing judgment, her Honour accepted that "because of the nature of the offence harm was caused to the victim, at least for a period". However in terms of ongoing harm her Honour found: "In respect of the harm to the victim, counsel for the offender relies on the text messages sent on 4 August 2011, where the victim seeks to initiate sexual contact and submits that this flies directly in the face of an inference that the victim was suffering some form of ongoing trauma or harm. Despite the agreed fact that the victim remained in a relationship which involved continued sexual contact because of her fear of being exposed to her parents and Centrelink, I accept that that there was a high level of consensual sex during the whole of the relationship, including after these offences, and find the text messages of 3 and 4 August to be of some significance. I accept counsel for the [respondent's] submission that the fact that the victim initiated sexual contact on 4 August displaces an inference that the victim was at that time suffering ongoing harm or trauma." (emphasis added) 30The emphasised portion of this passage uses the phrase "at that time". In context I construe this as being by way of contrast to the period that preceded it. Later in the sentencing judgment, her Honour referred to the "evidence suggesting that the victim did not suffer ongoing trauma or harm". Taken together, these passages mean that, in effect, her Honour found that at least from 4 August 2011 the victim was not suffering ongoing harm. 31The passage extracted in [29] refers to text messages sent on 3 and 4 August 2011. There was evidence that a text was sent by the respondent to the victim on 3 August 2011 proclaiming his love for her and expressing his wish to have the relationship resume. The victim responded on 4 August 2011 with a text that read "[p]ick me up, I need sex". The Crown had objected to this evidence as being inconsistent with the agreed facts. It follows from the observation at [13] that I do not consider that there was any necessary inconsistency. However, there was no other evidence concerning whether or not the victim was suffering ongoing harm. The agreed facts did not advance the matter. They suggested that there was consensual sexual contact after the offence but, at the very least, that statement was heavily qualified by the agreed fact that the respondent threatened to tell the victim's family and Centrelink of her occupation and her contention that that was the reason she continued. The "tender" of a victim's impact statement by the Crown was objected to and rejected by her Honour. Her Honour's reasons for its rejection were not placed before us. The Crown did not seek to agitate any matter concerning that rejection on the appeal. 32In the end result, I have considerable misgivings about whether the material was capable of supporting such an extreme finding about the lack of ongoing trauma. On any view, the facts of the rape of the victim were shocking. Before one could positively conclude that there was no ongoing trauma to the victim from such an act, there would need to be compelling evidence to that effect. Instead there was only a single text sent by her in which she initiated sexual contact with her attacker. At the time of that text she was already seeking help. Within weeks of that text she had approached the police and changed her address to avoid him. The victim was only twenty years old at the time of these events and the respondent was 32. At best for the respondent, these matters suggest she was confused and possibly torn between some residual feelings for him and the pursuit of justice for the wrong done to her. They may have warranted a sentencing judge not making any finding as to ongoing harm, but I have difficulty in seeing how they could support a finding of no ongoing harm. 33However, even though the basis for this finding was debated during the appeal, none of the Crown's grounds of appeal expressly challenged this finding of fact. In Crown appeals the Court will insist upon a clear identification of the supporting grounds. A challenge to a primary finding of fact should not occur by way of a sidewind to the grounds of appeal that are raised. Despite my misgivings about the sentencing judge's finding on this matter, I will approach the balance of the appeal on the basis that it survives despite its tenuous support in the evidence.

Crown Appeal on Count 2 34For each count the Crown raised the following three grounds of appeal: "Ground 1: The Judge erred in her assessment of the objective seriousness of each offence. Ground 2: The Judge erred in allowing her favourable assessment of the subjective features to result in inadequate attention to the objective circumstances resulting in the imposition of sentences that are not reasonably proportionate to the gravity of the offending. Ground 3: The sentences are manifestly inadequate." 35The Crown's submissions were almost exclusively directed to count 2 and addressed these grounds together. As the argument developed it was clear that ground 2 was merely a corollary of ground 3. 36Her Honour's reasoning concerning the relative seriousness of count 2 can be conveniently broken up into three steps. First, her Honour addressed the circumstance of aggravation: "[Counsel for the respondent] submits that the circumstance of aggravation in the second offence, being that of detaining the victim for a period before the sexual intercourse was a very low level of detention. He pointed to the fact that there was no application of force or violence in order to achieve her detention but that the detention was achieved by placing her belongings on a high shelf. There is no suggestion that the victim came to the offender's apartment prior to the incident involuntarily and there is no suggestion that the victim came to be naked involuntarily. I accept that of the circumstances of aggravation as defined in s 61J(2) this circumstance is less serious than some other circumstances in that section and also accept that the nature of the deprivation of liberty was not accompanied by physical force or violence." 37Her Honour's conclusion at the end of this passage appears to follow her acceptance of the submission that precedes it. The terms of that conclusion are unobjectionable. However, in reciting the submissions of the respondent's counsel her Honour has omitted to mention that the respondent told the victim that, contrary to her wishes, she was staying the night and "had no choice". This occurred in a context where the respondent had just indecently assaulted her and had become "more persistent and aggressive" as she denied him "affection" (see [10]). This took place against the background of the respondent's refusal to accept her statement that the relationship had ended. It would be very surprising if the victim had not construed his assertion that she had no choice but to stay as one that was accompanied by at least the possibility of a threat. His capacity to become violent was, of course, borne out by the circumstances of the rape. 38Second, her Honour addressed two decisions of this Court which discussed the potential relevance of the fact that there was a relationship between the respondent and the victim of a sexual assault to an assessment of the objective seriousness of the offence, namely NM v R [2012] NSWCCA 215 and R v Hendricks [2011] NSWCCA 203. Based on those decisions her Honour concluded that in this case the "prior sexual relationship [between the respondent and the victim] is an important mitigating factor". I address this aspect of her Honour's reasoning below. 39Third, her Honour concluded: "In all the circumstances of the aggravated sexual intercourse offence, those circumstances including that there was a relationship between the [respondent] and the victim at the time, albeit that the victim expressed a wish to end the relationship, that the relationship was emotionally and sexually a highly volatile relationship, that the relationship involved aspects of consent, withdrawal of consent, sexual closeness, withdrawal of sexual closeness and that this resulted in some confusion or perceptual difficulties in the offender, the limited amount of violence and the absence of significant physical or emotional harm to the victim, I find that it lies to the at the bottom of the range of objective seriousness." (emphasis added) 40It is an essential aspect of the sentencing process that there be an assessment of the objective gravity of an offence (R v Ehrlich [2012] NSWCCA 38; 219 A Crim R 415 at [85] per Johnson J). There is nothing objectionable in that task being undertaken according to a scale of seriousness (Zreika v R [2012] NSWCCA 44 at [45] per Johnson J (citing R v Koloamatangi [2011] NSWCCA 288 at [18] to [19] per Basten JA), McClellan CJ at CL agreeing at [1] and Rothman J not addressing that point (see [128] to [130])). However, in Koloamatangi at [19] Basten JA noted that in relation to offences in respect of which there is a standard non-parole period: "What remains in doubt, however, is whether the sentencing court is required or permitted to classify, or prohibited from classifying, the particular offence by reference to a low, middle or high range of objective seriousness." 41No contention was made that her Honour's reference to the offence being at the "bottom of the range of objective seriousness" revealed that her Honour was undertaking an inquiry that is no longer permitted after the decision in Muldrock v R [2011] HCA 39; 244 CLR 120. Instead the argument proceeded on the basis that her Honour assessed the respondent's relative culpability as at the lowest level for an offence under s 61J. There is no doubt that that assessment was critical to her Honour's decision to impose a sentence of two years and then wholly suspend the sentence. 42Counsel for the respondent correctly submitted that an assessment of the objective seriousness of an offence is an evaluative judgment, and is only reviewable on the basis of the principles stated in House v R [1936] HCA 40; 55 CLR 499 (see Mulato v R [2006] NSWCCA 282 at [46] per Simpson J; R v Fahda [2013] NSWCCA 86 at [4] per Simpson J and at [90] to [96] per Fullerton J; R v KB [2011] NSWCCA 190 at [53] per Bathurst CJ). However I consider that her Honour did commit an error of the type described in House at 503 to 504, namely her Honour mistook the facts and acted on a wrong principle. 43I have already addressed the first step in her Honour's reasoning (at [37]). With the third step her Honour conflated the evidence as to the volatility of the "relationship" between the respondent and the victim with the question of whether there was any volatility or prevarication in the consent of the victim to having sex with the respondent. As I will explain, there was some evidence that the "relationship" was volatile in the sense that it was sometimes on and sometimes off. In that sense the victim could be said to have offered and then withdrawn "sexual closeness". However there was no evidence that at any point, including on 21 and 22 July 2011, the victim had ever offered consent and then withdrawn it, or that there were any "perceptual difficulties" on the part of respondent as to the consent of the victim. 44The evidence concerning this topic was as follows. Ms Nasr's first report contained the following statement concerning the nature of the relationship between the victim and the respondent: "In April 2011, [the respondent] reported that he met his most recent partner who was also the victim in the current offences. He stated that the relationship lasted three months and ended as a result of his offending behaviour. He stated that his partner was a sex worker, having met her in a massage parlour and eventually formed a relationship with her. [the respondent] described being in a 'positive space in my life, new apartment and things were looming [sic] up'. He described becoming immediately attracted to his partner due to her 'being mature and intelligent for a young girl (aged in her early 20's]'. Within several weeks of their relationship, [the respondent] reported that his partner informed him she had been diagnosed with Bipolar Disorder. He acknowledged that he experienced difficulties understanding his partner's moods, whereby she was allegedly 'nice and charming to me, very sexual and then disappearing and ignoring me for days for no reason or she would act out of control, throwing drinks around the place'. Consequently, [the respondent] described feeling confused, rejected and almost emotionally distressed as 'I just wanted to see her more and felt things I never did before'. When he questioned his partner's motivations to himself and his peers, he stated that he ignored the warning signs that the relationship was beginning to be unstable." (emphasis in original) 45Under the heading "The Offending" Ms Nasr's first report also stated: "... According to [the respondent], his offending behaviour occurred within the context of a three month relationship with the victim, where he blurred the sexual boundaries as 'one minute she was really sexual and she wanted me to be rough with her and the next minute she would say I am just using you for sex - you are my sex toy'. [The respondent] claimed that he wanted to pursue the relationship with the victim and when he received 'mixed messages', he ignored these in the hope that she would eventually demonstrate consistent emotional and sexual behaviours. He described himself as chaotic and 'not knowing if I was coming or going', impacted by the victim's dysregulated [sic] mood and eventually, responding impulsively to his feelings of frustration, confusion and hurt when the victim rejected her affection from him." (emphasis in original) 46The respondent gave evidence before the sentencing judge. He was referred to Ms Nasr's first report and asked: "Q. The report talks about you being in an emotionally volatile state during the course of this relationship? A. Yes correct. Q. Is that an accurate portrayal? A. Yes it is." 47This was the extent of his evidence on the topic. Nothing in this evidence suggested that there was any "sexual volatility" in the relationship if that was meant to refer to instances where the victim offered consent and then withdrew it. Nor was there any evidence that the respondent had any difficulty in perceiving whether she was offering consent or withdrawing it. At most the evidence reveals the victim expressing different feelings for him from time to time and the respondent asserting that was confusing and distressing. In the critical passage from the sentencing judgment that I have extracted in [39] above, her Honour elided the important difference between the relationship being off and on, assuming that is what occurred, and the victim offering and withdrawing consent in respect of which the evidence was all to the contrary. The respondent never asserted that he ever had any "perceptual difficulties" on that issue. Even if he had, that had nothing to do with the events of 21 and 22 July 2011. No confused sexual boundaries were in play during those events. Instead, the agreed facts reveal the victim consistently saying "no" to sexual contact over a sustained period of time. 48In relation to the second step noted in [38], there is no doubt that the authorities support the proposition that a pre-existing relationship between an offender and victim may diminish the level of criminality involved in a sexual assault, but that is not necessarily the case. The critical issue is why that is so and whether that rationale was relevant to the respondent's conduct in this case. 49In NM, Macfarlan JA at [56] to [58] reviewed a number of decisions, including the judgment of this Court in Bellchambers v R [2011] NSWCCA 131, which supported the proposition that a pre-existing relationship may operate to diminish the level of criminality involved. His Honour concluded (at [59]): "In the present case, the complainant suffered considerable pain as a result of the forced anal intercourse and her text messages of 1 and 2 May 2009 indicate that she suffered considerable emotional trauma as a result of the sexual assaults. However, in light of her lengthy prior sexual relationship with the appellant and the intermittent sexual relationship that still existed at the time of the offences, I do not consider that the offences can be equated to those involving sexual assaults by strangers, which must almost inevitably give rise to extreme terror and fear in the mind of the victim. Here, the victim had been prepared until moments before the assaults to have sexual intercourse with the appellant, and the complainant had indeed, only three minutes before the appellant's arrival at her home, invited him over for that very purpose. My view is that in these circumstances the sentencing judge erred in characterising the offences as falling within the mid-range of seriousness. They were in my view well below that, although not at the bottom of the range." (emphasis added) 50In NM Macfarlan JA identified the existence of a pre-existing relationship as an ameliorating factor in circumstances where it revealed some prevarication or at least initial consent on the part of the victim. Hence his Honour contrasted the circumstances of this case with an assault by a stranger where no such potential prevarication could be present. 51The other decision cited by her Honour was R v Hendricks [2011] NSWCCA 203. At [86] Garling J recited certain agreed facts concerning the pre-existing and post-offence relationship between the offender and victim. However, his Honour only stated that they were of particular importance to the issue of concurrence and accumulation in that case, as they indicated that there were significant elements of commonality for the two sexual assaults in question which were eight weeks apart (at [85] to [86]). There was no occasion in Hendricks to consider whether the pre-existing relationship was relevant to the assessment of the seriousness of the offences per se. 52In Bellchambers, Hoeben J (as his Honour then was) referred to the relevance in that case of the relationship between the offender and his victim (at [47]): "There was also a difficulty in his Honour's failure to review the facts, both relating to the circumstances of the offences and in relation to the applicant's personal and medical circumstances. A review of the offences would have revealed that while serious they occurred in a domestic relationship which involved considerable ambivalence on the part of the complainant. Whilst sexual assault even within the confines of a continuing relationship cannot be condoned, that fact and the comparatively low level of violence are matters of relevance to the objective seriousness of the offences. Regrettably, that comment is made against the background of sexual assaults which come before this court involving very considerable threats and violence." (emphasis added) 53The reference by his Honour in this passage to "considerable ambivalence" was to the circumstance that one aspect of that relationship was that the victim would be reluctant to have sex but would ultimately consent (at [9]), and that, for at least one of the offences, the offence was accompanied by an initial statement that she did not consent, but no further continual complaints to that effect (at [10]). 54To this discussion should be added the judgment of this Court in Stewart v R [2012] NSWCCA 183. In Stewart the offender had been in a relationship with the victim for a number of years. The victim advised him that the relationship was over and he became jealous after she communicated with other men on Facebook. He ripped a phone from her hand, held her down and digitally raped her (at [9] to [10]). In relation to this, Button J stated (at [69]): "However, I consider that this was a serious example of an offence against the section. The matter can be sharply contrasted with a case where two persons are engaged in intimate contact by consent, and one of them fleetingly goes too far. The digital penetration in this case was not fleeting, and it was preceded by a physical assault upon the victim. Throughout the sexual offence the victim was making her lack of consent abundantly clear and struggling to put an end to the invasion of her body. Most importantly, his Honour found that the offence was an attempt to demonstrate dominance over a young woman who was in truth free to engage in Facebook contact, or any other kind of contact, with whomever she wished. An offence of sexual penetration that is motivated by a desire to dominate the victim, because he or she has failed to comply with the expectations of the offender, will very rarely be anything other than a serious offence." [emphasis added] 55These cases confirm that the mere fact that there was a pre-existing relationship between an offender and a victim does not mitigate the criminality involved. Needless to say, each case will depend upon facts, but one common circumstance in which a pre-existing relationship has been found to diminish the seriousness of the offence is where it suggests some prevarication or at least initial consent on the part of the victim. Thus, if sexual contact is initiated by the victim or initially consented to by the victim, then the ensuing offence may be considered less serious. However that had no relevance to this case. As in Stewart, the agreed facts in this case reveal that the victim repeatedly expressed her lack of consent throughout the evening of 21 July 2011 and into the next morning. The pre-existing relationship between the offender and the victim did not diminish the seriousness of the conduct involved in count 2. 56Once the errors in the passage from the sentencing judgment in [39] are exposed and when the pre-existing relationship between the respondent and the victim is properly seen as not diminishing the respondent's culpability, then it follows that her Honour's assessment of that culpability was clearly erroneous. What was involved was the raping of a young woman involving threats of violence ("don't make me rough you around"), as well as aggressive and humiliating language. It came after she was detained overnight following her agreement to accompany him to explain her decision not to see him. His offending conduct was undeniably serious. 57The respondent's conduct was clearly not at the lowest level for an offence under s 61J(1). Conduct involving lesser periods of detention, "prevarication" in relation to consent (as in Bellchambers), no threats of violence, a lesser level of aggression in raping the victim or no use of aggressive and humiliating language while doing so can be envisioned that still constitutes an offence under s 61J(1) aggravated by the circumstance identified in s 61J(2)(i). Of course the experience of this Court is regrettably such that far more serious cases can be envisaged as well (see Bellchambers at [47]). I accept that the circumstances of this offence would probably fall below the mid range for offences of this character, especially having regard to the variety of factual circumstances that could fall within the definition of an aggravated circumstance in s 61J(2). However I do not accept that it would be very far below that range and certainly not "at the bottom of the range" in the sense that phrase was used by her Honour. Her Honour erred in finding to the contrary. 58It follows that I consider that ground 1 of the appeal is made out in relation to count 2. As I have said, her Honour's assessment informed the sentence imposed on count 2 and the decision to suspend the sentence. It follows that, subject to considering the residual discretion, the respondent will need to be re-sentenced. It is not strictly necessary to address ground 3 but, even if I had rejected ground 1, I would have still upheld ground 3 to the extent that her Honour wholly suspended the sentence on count 2. Even if the level of criminality for this offence was correctly assessed as being at the "bottom of the range" and with a finding of no ongoing trauma to the victim, the features of this case including the respondent's subjective case were not so unusual as to warrant him avoiding serving a period of custody. Assuming against my finding that the offence was at the "bottom of the range", that range still concerned a very serious offence. It is only an "unusual or exceptional case" that could avoid the imposition of a full time custodial sentence for an offence of this kind, and this was not one (Sabapathy v R [2008] NSWCCA 82 at [71]).

Crown Appeal on Count 1 59The grounds of the appeal as recounted at [34] all extend to the indecent assault offence which was the subject of count 1. However the Crown's written submissions did not address this offence. In oral submissions the Crown Prosecutor contended that had the sentencing judge "correctly assessed the significance of the relationship" between the respondent and the victim then it would have been found that the "overall objective seriousness" of count 1 was "more serious". Nevertheless it was accepted that the Crown has some "difficulty" in successfully arguing that a non-custodial sentence could not have been imposed for that offence. 60As I have stated her Honour also found that this offence falls "towards the bottom of the range of objective seriousness" for indecent assaults. Unlike count 2, I consider that that assessment was open to her Honour. While distressing, the degree of violation was relatively low for this type of offence in that contact occurred outside her clothing and appears to have been of short duration in time. The respondent's conduct appears to have ceased, at least temporarily, after the victim made her objection to his actions emphatically clear. In light of the respondent's subjective case, it was open to her Honour to impose a non-custodial sentence for this offence. This Court's function is directed to the correction of error, and I do not discern any error in her Honour's sentence concerning count 1. 61Condition 3 of the bond imposed under s 9 of the Sentencing Act for this offence was that the respondent advise the Registrar or Clerk of the Court of any change of residential address. Condition 5 of the bond was that the respondent accept supervision and obey all reasonable directions of the Probation and Parole Service, including as to counselling and treatment. In light of the conclusions reached in relation to re-sentencing on count 2, these conditions will need to be deleted. It is not appropriate that the respondent be subject to those conditions while in custody.

Residual Discretion 62Counsel for the respondent pointed to four matters that he submitted warranted the exercise of the Court's discretion to refuse to intervene in the sentence imposed. 63The first was said to be the "limiting purpose" of Crown appeals. Counsel for the respondent cited a passage from Green v R [2011] HCA 49; 244 CLR 462 at [35] to [36] to the effect that the "primary consideration relevant to the exercise of the residual discretion" is that the purpose of the Crown appeals under s 5D is to "lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons". However, this wider purpose is often achieved by re-sentencing an applicant to reflect the reasons of the Court for interfering unless some basis for not intervening is apparent. In Green that basis was to avoid creating an "anomalous disparity" as a result of the Crown's "selective invocation of the Court's jurisdiction" in only appealing some sentences and not others (see [37]). No consideration of that kind arises here. 64The second factor was said to be the extent to which a return to custody would interfere with the post-sentence rehabilitation of the respondent. Counsel for the respondent referred to Green at [2] and [43] and R v Murrell [2012] NSWCCA 90 at [64]. The third matter relied on, citing Director of Public Prosecutions (DPP) (Cth) v De La Rosa [2010] NSWCCA 194; 243 FLR 28 at [175], was that upholding this appeal will result in actual distress to and psychological destabilisation of the respondent. 65An affidavit was read on the appeal from the respondent. He describes his efforts to rebuild his business since being sentenced. He states his desire to earn income to repay his family for their contributions to his legal fees, living expenses and his business loan. He also describes his dealings with the probation and parole service pursuant to the conditions of his s 9 bond and further attendances upon Ms Nasr. He states that he now spends more time with his family and friends and has ceased consuming prohibited drugs. A Community Corrections Service Progress Report confirmed that the respondent had attended upon the service, complied with the treatment and counselling conditions of his bonds, and expressed "pro social goals and his remorse and aversion to the behaviour that has brought him before the criminal justice system". 66Also tendered on the appeal was another psychologist report from Ms Nasr concerning the respondent. The report stated that since being sentenced the respondent had attended four further treatment sessions. The report also states that the respondent "has continued to struggle with depressed mood and is working at improving this through structure, routine, familial support and challenging distorted thoughts ...". 67In response the Crown submitted that the respondent's rehabilitation could be advanced through his participation in sex offender programs in custody. It was also submitted that the recovery of his business post sentencing is only at an early stage at this point. 68It is difficult to gauge the relative impact on the respondent's progress towards rehabilitation of his being incarcerated compared with his remaining in the community. In any event, the respondent is only at an early stage of his post-sentencing regime. In my view, concerns about interfering with the respondent's rehabilitation diminish once it is accepted that any sentence imposed on the respondent will involve a substantial parole period during which supervision and treatment can occur. This is so because there should be a variation of the usual ratio that the non-parole period bears to the full term consequent upon a finding of special circumstances. Consistent with its position before the sentencing judge, the Crown did not oppose such a finding being made. 69Otherwise it can be accepted that incarcerating the respondent will cause him significant distress and destroy his efforts to resume his business with consequent hardship to his family. These consequences are the type of effects that almost invariably follow from incarceration, whether following sentence at first instance or after a Crown appeal. While I accept that they are real, I do not accept that they justify the exercise of the residual discretion in the respondent's favour. The disparity between the criminality involved in count 2 and the sentence imposed is so stark that in my view re-sentencing is required. 70The fourth matter relied upon was said to be the injustice caused by the conduct of the proceedings by the Crown before her Honour. Counsel for the respondent contended that before her Honour it was submitted on behalf of his client that a head sentence of no more than two years was within the permissible sentencing range for the sexual intercourse offence, and the Crown Prosecutor did not express any opposition to that submission. I do not accept that that is an accurate or complete description of what occurred. 71Before her Honour the respondent's counsel noted that, as an intensive corrections order was not available for this type of offence, then her Honour's choices were reduced to "imposing full-time custody ... or a suspended sentence". In that context it was submitted on the respondent's behalf that a "head sentence of two years or less is certainly within the range for this offence". Counsel for the respondent referred to two years because any sentence for a longer period could not be suspended (Sentencing Act, s 12). The Crown submitted that it was not open to impose anything other than a custodial sentence (i.e. one which was not suspended). This did not involve any implicit acceptance of the range identified by Counsel for the respondent. As I have said, that range was only mentioned as part of a submission directed towards achieving a suspended sentence. The Crown's opposition to a suspended sentence was consistent with it either rejecting two years as an appropriate length of sentence, or that it was open to suspend a sentence for a lesser period, or both. In those circumstances no "injustice" in the sense alleged is occasioned to the respondent by re-sentencing him to a head sentence that exceeds two years.

Re-sentencing on Count 2 72I have described the relevant findings of the sentencing judge at [19] to [27] above. Those findings remain apposite to the re-sentencing process, subject to four matters. First, as I describe at [65] to [66], the evidence concerning his personal situation and supervision has been supplemented. Second, despite its tenuous basis, the finding of no ongoing trauma to the victim survives for the reasons given above. Third, the appropriate characterisation of the relative seriousness of the offence is to be found at [56 to [57] above. Fourth, as noted above, it is accepted that a finding of special circumstances is warranted given that the respondent has never previously been incarcerated and has very good prospects of rehabilitation. 73Having regard to those matters, I consider that the appropriate starting point for the sentence is one of four years imprisonment. With a discount of 25% to reflect his plea of guilty at the earliest stage, the total sentence becomes one of three years imprisonment. Having regard to the finding of special circumstances, I propose that the non-parole period be eighteen months. The sentence should be backdated to commence on 4 June 2013 to allow for the period the respondent spent on remand. 74Accordingly I propose the following orders: (i) Crown appeal allowed in part; (ii) The sentence imposed on the respondent by the District Court on 1 March 2013 in respect of the offence under s 61J(1) of the Crimes Act 1900 be quashed; (iii) In lieu thereof the respondent be sentenced to imprisonment for three years commencing on 4 June 2013 and expiring on 3 June 2016, with a non-parole period of eighteen months expiring on 3 December 2014. (iv) Direct that the respondent be released at the expiration of the non-parole period. (v) Set aside conditions 3 and 5 of the bond imposed by the District Court on 1 March 2013 pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 in respect of the offence contrary to s 61L of the Crimes Act 1900; (vi) The Crown appeal against the sentence imposed on the respondent by the District Court on 1 March 2013 in respect of the offence under s 61L of the Crimes Act 1900 be otherwise dismissed.

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: 26 June 2013