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]).