R v Golding

OBJECTIVE GRAVITY

1. In R v PGM (2008) 187 A Crim R 152 at [26], Fullerton J observed: "While there is no hierarchy of sexual acts that constitute sexual intercourse for the purposes of the criminal law, it is generally accepted that some forms of sexual activity may be regarded as more serious than others. This is of course necessarily modified by the context in which the offence occurred, and other circumstances of the particular offending to which Simpson J referred in AJP at [24]-[26]."
2. In R v AJP [2004] NSWCCA 434 at [25], Simpson J (as her Honour then was) had identified, as relevant considerations, how the offences took place, over what period of time, with what degree of force or coercion, the use of threats or pressure before or after the offence to ensure the victim's compliance with the demands made, and subsequent silence, and any immediately apparent effect on the victim. It has been said that factors typically taken into account when assessing the objective gravity of sexual assault cases are "the degree of violence, the physical hurt inflicted, the form of the forced intercourse, the circumstances of humiliation…the duration of the offence": R v Hibberd (2009) 194 A Crim R 1 at [56], Simpson v R [2014] NSWCCA 23 at [30].
3. Non-consensual sexual intercourse by digital penetration is generally regarded as being less serious than an offence of penile penetration, but each case depends on its own facts, and the stated proposition is not mandated: R v Hibberd (2009) 194 A Crim R 1 at [56]. There is no rule that digital penetration, per se, is less serious: Doe v R [2013] NSWCCA 248 at [47]-[56].
4. One mitigating circumstance affecting the gravity of the offending is where there is conduct that suggests some prevarication or at least initial consent on the part of the victim: Bellchambers v R [2011] NSWCCA 131 at [47]; NM v R [2012] NSWCCA 215 at [59]; R v Cortese [2013] NSWCCA 148 at [55]. However, in light of the text messages from the victim, before and after the sexual assaults, and consistently with the jury's verdicts, I am unable to find on the balance of probabilities that there was any such prevarication, or initial consent, on the victim's behalf.
5. It is accepted that the fact that the offender and victim were known to each other, and had had a casual sexual relationship does not mitigate the offending: R v Cortese at [55]. Nevertheless, the circumstances of a prior casual sexual relationship are, for reasons I will shortly come to, relevant to assessing the element of the offender's knowledge, which the Crown has put in issue in this sentencing proceeding.
6. I find that the offender embarked on a pre-determined course to have sex because he wanted it, without reference to what the victim wanted. Although not a naturally violent person, I consider that he arrogantly felt that he could have his way with her; regardless of her opposition, manifested verbally and by her conduct.
7. For all of the offences, the duration of the sexual activity was not long. There were no threats to ensure the victim's compliance. Although there was, inherently, an affront to the victim's dignity, there were no circumstances of humiliation, degradation or cruelty. The degree of violence, or hurt, inflicted in each case was not severe. Other than two small scratches in the victim's left groin, no injuries were observed in her genital or perianal region when she was examined at hospital on the following day.
8. In my opinion, the gravity of the subject offending is affected by consideration of the offender's mental element of knowledge. At the trial, the jury was directed that any of the states of actual knowledge, constructive knowledge or recklessness would be sufficient. In this proceeding, the Crown submits that the Court should find that, for each offence, the offender actually knew that the victim did not consent. The Crown submitted, in particular, that even if there was a sense of 'just get this over with' in what was conveyed by the victim in relation to the third and fourth offences, the circumstance that the offender actually knew that she did not consent to the first and second offences meant that he also actually knew that she did not consent to the third and fourth offences.
9. I do not accept that submission. The Court must assess the offender's state of mind, separately, in relation to each of the offences. A finding of actual knowledge on the first and second offences does not dictate a finding of actual knowledge on the third and fourth offences.
10. I find that the offender actually knew that the victim did not consent to sex for the first and second charges. I am not satisfied beyond reasonable doubt that, for the third and fourth offences, the offender actually knew that the victim did not consent to the sex; but rather that he lacked reasonable grounds for belief; or, alternatively, that he was reckless about her absence of consent. I accept (consistently with the jury's verdict) that the victim's will had certainly been overborne, but in the context, including but not limited to his past sexual relations with the victim, and earlier (that is prior to the day of the offending) somewhat equivocal indications as to whether the victim wanted to have sex with him, the offender honestly, albeit unreasonably, believed that he could proceed. At least in relation to this element of the offending, the offender's conduct was marginally less culpable in relation to the third and fourth offences then the first and second.
11. I consider that all of the offences were towards the higher end of the low range of objective gravity.

Aggravating circumstances

1. Each of the offences was committed at the victim's home. The offender's Counsel contests that this factor automatically aggravates the offending. So much may be accepted, however, in my view, this factor has to be seen in the context of the victim clearly indicating that she did not wish to have sex with the offender as she was physically exhausted. She was, essentially, resting at her home as her sanctuary. That expectation was violated. I accept that this is an aggravating factor.

Harm to victim

1. The Crown relied upon a written victim impact statement from the victim. She spoke of difficulties talking to her family and a difficulty in obtaining counselling and, more seriously, suicidal thoughts after she reported to police in January 2020. For this reason she was taken to Gosford Hospital. She was prescribed antidepressants.
2. She spoke of the loss of her employment with Coastlink after the revelation of her case against the offender and, reportedly, an unsympathetic hearing she had received from its CEO.
3. She also spoke of the time off she needed from her more recent employment due to the trial and the stress that it placed on her. It appears that she still is employed, but is battling away after experiencing depression. She states that she feels better now, two months after the trial's conclusion. She speaks of current strain with family members and that she speaks of a difficulty in trusting people and a lack of motivation.
4. The offender's Counsel submitted that the Court should be cautious about the content of this statement: much of it represented purely subjective beliefs which might have been, but was not substantiated, by objective evidence, such as medical evidence. I accept that submission.
5. The Crown submits the victim impact statement should be taken into account but does not contend that any substantial harm to the victim arose which might elevate that to a statutory aggravating factor. It was an authentic statement of what the Court might otherwise presume might follow from the offending. I accept the Crown's submission.

Age and background

1. The offender was 31 years of age at the time of the offending.
2. Much of the following emerges from the report prepared by a psychologist, Ms Stephanie Bennett, based upon what the offender told her. Ms Bennett has impressive academic qualifications and 14 years of experience. She currently is the school psychologist at a prestigious secondary school for girls. She presented a balanced and objective report.
3. The offender was raised in the Central Coast by his mother and step-father. He has never met his biological father. He has a twin brother and, as I understand the position, two younger half-brothers. His upbringing was characterised by some struggle. Both his half-brothers have autism. His parents both worked but battled away. The offender told her that his parents showed limited affection or interest in him and, indeed, his step-father had acted violently towards his mother and even himself, including several assaults perpetrated upon him. His maternal grandparents were both involved in drug supply during his childhood. The offender left home when he was 18. The absence of close connection to family members is indicated by the offender's disclosure that it was only a matter of a few weeks ago that the offences which the offender committed were made known to other family members.
4. The offender had a relatively uneventful school career. He was an average student, and the offender denied any schooling difficulties. But from year 10, he started to engage in acts of truancy. A lack of attendance meant that he left school before completing his Higher School Certificate. After doing so, he completed qualifications as a security guard and he worked in that industry through his early 20s; although for some part of that period he was unemployed.
5. He commenced work in 2016 as a disability support worker, the occupation he was in at the time of the offending. Once he reported being charged with the subject offences, that employment was suspended and he thereafter resigned. Since then, he has worked as a bar worker; although that, of course, has been disrupted by the course of the Pandemic. He has since worked casually as a car detailer.
6. The offender had been living with his partner for 5 years, and been in a relationship with her for 6 years, but his partner has recently decided to end that relationship. He had two serious relationships prior to that, during which he was periodically unfaithful.
7. The offender told his psychologist that he had never associated with any criminal or drug using peer group. He also reported not having ever had a diagnosis of any medical condition or psychological complaints. He denied any history of problematic substance abuse.
8. Following her administration of psychometric testing, and specifically in relation to his personality, Ms Bennett perceived significant unhappiness, moodiness and tension. He had a discomforting level of anxiety and tension and borderline personality traits, including an unstable sense of self-identity. She thought he continued to be distressed by traumatic childhood. Later in her report, Ms Bennett referred to the offender developing a mental health condition, which she described as an 'Adjustment Disorder', but acknowledged that this had developed after the subject offending.

Bugmy

1. The offender's Counsel submits that on the basis of the account that Ms Bennett took from him, the principles in Bugmy v The Queen (2013) 249 CLR 571 are engaged so as to reduce his culpability. I do not agree. Although aspects of his younger life have been difficult, there was nothing in this offender's background indicating the sort of entrenched social or other disadvantage hindering his mental development of the kind apparent for example in Bugmy. For example, Ms Bennett noted that to the extent that he has any mental abnormality, it is only an 'Adjustment Disorder' which developed after the subject offending. The offender had, to his credit, gotten by in his employment and personal relationships with partners to the point that this offending occurred when he was 31. That history, as will be shown, works to his benefit when considering his character; but it evinces that his capacity to understand the wrongfulness of his conduct was not materially impaired by exposure to, or suffering from, domestic violence when he was a young boy.
2. I also accept the Crown's submission that most of the symptoms in the offender's mental health condition, as indicated by Ms Bennett, were not out of the range of what might ordinarily be expected from offenders. I do not ascribe material weight to the offender's upbringing in affecting his culpability.

Antecedents & good character

1. These considerations are related; in the sense that the Crown relies upon an offence committed by the offender after the subject offending to negate, or qualify a finding of good character as a relevant consideration.
2. The offender's criminal history is extremely limited, marked by only one offence of assault occasioning actual bodily harm, which post-dated the offending conduct, occurring as it did in December 2020 and that offence has been disposed of in the Local Court.
3. Although no written testimonials were provided by third persons the offender relies upon the circumstance of his former position as a carer in the disability and aged care sector betokens a person of prior good character. Further, the offender suggests that this circumstance reinforces the (relative) good record in serving to moderate the force of specific deterrence and enhance the prospects of rehabilitation.
4. I accept that a positive contribution to welfare sectors in the community can help to establish good character; although I note that no testimonial has been received from his employer assessing the value of that contribution. Nevertheless, I accept that they indicate a level of public spiritedness.
5. The Crown put into evidence the fact sheet that was before the Toronto Local Court in March this year, to deal with the offending in December 2020. That sheet indicates that the victim of the assault happened to be the offender's then neighbour. The fact sheet also recorded on-going tensions between the victim and offender stretching back over the previous 6 months. The assault comprised a punch, with a clenched fist, to the victim's face, which produced a cut lip.
6. It was common ground in the sentencing hearing, that a remark made by the victim to the offender in the incident in December 2020 alluded to the offences for which the offender is now to be sentenced.
7. Several things must be said in fairness to the offender about this incident. In my view, on the agreed basis, what the victim said to the offender was, taken in isolation, provocative to the offender. Secondly, he made full admissions to the police promptly. Thirdly, as was indicated by Ms Bennett's evidence in this proceeding, since the offending the subject of this proceeding, the offender had developed an Adjustment Disorder and at a time when his trial for very serious offences was hanging over his head in the not too distant future. Fourthly, and I think most significantly, in the knowledge of this incident, Ms Keown, in her note, favourably commented upon the offender's 'generally appear(ing) to exhibit good self-regulation'. The offender had told her, as he had told police, that he had felt frustrated by the victim talking about him to other people in the neighbourhood. This was also reflected in the fact sheet before the Toronto Local Court in March 2021 and the agreed reference to what the victim had said to him.
8. In determining the question of good character, for the purpose of sentencing, there are circumstances in which the court may take into account offending that occurs after the offence for which the offender is to be sentenced: see Nguyen v R [2007] NSWCCA 14 at [14], although, in that case, Howie J emphasised that the subsequent offences would be expected to be similar in character to the offence for which an offender is being sentenced.
9. I view a punch to a male neighbour occasioning a split lip after on-going tensions, and some provocation, as qualitatively less serious and different in character to sexual assault committed against a woman. Although the incident in December 2020 is certainly a blot on the offender's copybook, I regard that incident as being something of an aberration.
10. The Crown also refers to the circumstance that the offender is currently charged with an offence of contravening an ADVO. However, I do not consider it appropriate to take into account the current charge which, at this point, remains unresolved. That would be prejudicial to the offender.
11. Further, the likelihood of his reoffending and prospects of the offender's rehabilitation are more likely to be accurately gauged when assessing the underlying criminogenic factors, such as those considered by Ms Bennett; albeit that they were directed towards offending of the kind for which the offender is to be sentenced.
12. I think the significance of the other offending is to negate the suggestion that the considerations of retribution or denunciation are reduced on the basis that the offending was an isolated aberration.
13. Overall, I am prepared, but not without reservation, to accept that the offender is generally a person of good character. I accept the Crown's submission that whilst the offender does not now completely appear as a 'cleanskin', his general character and record are not such as to deprive him of all leniency.

Contrition and remorse

1. At the trial, the Crown relied upon apologies made by the offender as admissions. The first apology occurred in response to a text message sent to the offender by the victim in which the victim remonstrated with his having forced himself upon her. Further apologies were expressed by the offender to the officer in charge of the subsequent investigation, Detective Senior Constable Wyborn, which the offender sought to have passed on to the victim. However, that conduct is ambiguous on the aspect of whether he is remorseful in the requisite sense, being 'ownership' of criminality (Merrick v R [2017] NSWCCA 264 at [97]).
2. When interviewed by his psychologist, the offender maintained his innocence and declined to talk to her about the offences. After she raised some questions of him about notions of consent and the impact of a woman being sexually assaulted, the psychologist concluded that he had an 'unsophisticated understanding' of the impact of sexual assault and has difficulty empathising with victims.
3. In the very recent sentence assessment report, the community corrections officer reported that the offender's attitude to his offending is that he disputes the convictions as he considered that the sexual activities constituting the offences was consensual. In the psychologist's case report note appended to that assessment report, Ms Keown noted the offender's recognition that the victim "may have felt used". That represents the upper limit of his insight and I find that it was this belief which substantially explains why he made the apologies to the victim that he did.
4. The offender is entitled to his belief that the victim consented to the sexual activities and that he should not, therefore, have been found guilty. However, in the light of the jury's verdict, his belief is erroneous. I am unable to find genuine remorse reflecting the offender's acceptance of responsibility for offending. This, of course, does not aggravate the offending, but the absence of remorse undercuts to a degree the submission of the offender's Counsel that subjective deterrence should be a diminished consideration in all the circumstances.

Facilitating the administration of justice

1. The offender's Counsel cited the offender's agreement to limit disputed facts as a ground for invoking this mitigating factor. Specific reference was made to agreed facts about the nature and extent of the medical evidence the Crown relied upon. It was said that the offender's conduct spared the Crown the need to recall the victim to give evidence. Further, two statements of police officers were read in lieu of their being called as Crown witnesses.
2. The extent of reduction on sentence on account of this factor cannot exceed the lower limit that an offender might have received had he entered a guilty plea (R v Hines (No.3) [2014] NSWSC 1273 per Hamill J at [9], [111]. I recognise that the offender's conduct served to reduce the length of the trial to a degree, but it is a common place in a jury trial for uncontroversial police statements to be read in lieu of the Crown calling them to give evidence - and it may otherwise be to an accused's forensic benefit if they are not called. It might also have been to his forensic benefit that the victim not be recalled to give further evidence. This consideration is, however, primarily to be viewed from a utilitarian perspective.
3. I consider that an appropriate discount should be made but that it should be modest and I choose 3% as being an appropriate figure.

Likelihood of re-offending & prospects of rehabilitation

1. The offender obtained bail after being charged. He has not breached his conditions of bail.
2. Ms Bennett, the offender's psychologist, performed a risk assessment. This included, firstly, her use of the actuarial risk tool 'STATIC-2002R' to predict the risk of sexual recidivism. She found that the offender was placed in the 'Average' risk category, relative to other male adult offenders. Secondly, she utilised a 'RSVP', a clinical judgement tool which assessed static and dynamic factors relevant to risk. After weighing factors both for and against the prospect of reoffending, Ms Bennett regarded the offender as being in the average range of risk of reoffending, relative to other male sex offenders. Some of the factors in his favour were that this was his first sexual related charge, the absence of any history of being a victim of child sexual abuse and his capacity to establish non-intimate relationships. Some of the factors against him included difficulties navigating the complexity of intimate relationships, and maladaptive personality traits.
3. Ms Bennett referred to both community-based and custody-based treatment options for the offender.
4. The Crown argued, in its written submissions, that from Ms Bennett's assessment, it did not appear that the offender had a supportive family network. Indeed he recently applied for and obtained a variation on his bail because of a need for a residence separate to that which he had shared with his partner.
5. The Crown also submitted, in the written part of its submissions, that there were 'troubling' indications in what the offender told Ms Bennett about his insight into the offending, and especially its impact upon the victim. In fairness to the offender, Ms Bennett noted that he was receptive to clinical treatment and opined about his cognitive capacity to understand such treatment. The Crown submits that his prospects of rehabilitation are, at best, guarded.
6. Subsequent to the Crown and the offender preparing their written submissions on sentencing, the Crown obtained a sentencing assessment report from Mr Garside, a community corrections officer at the Lake Macquarie Community Corrections office. Mr Garside interviewed the offender, his former partner and employer and also took into account a 'case note report' prepared by a psychologist, Ms Keown.
7. That report by Ms Keown was prepared with the limitation that she had had no direct contact with the offender and the report did not purport to amount to a 'comprehensive' assessment of risk. The report disclosed certain sources of information, including consultations with other psychologists. Omitted from those sources was Ms Bennett's report, whose parts I have referred to. Nevertheless, there are substantial similarities between what Ms Keown opined and Ms Bennett's findings, including that on the basis of STATIC-99R analysis, he presented as an Average risk range (for sexual recidivism) relative to other male sex offenders. A common thread, in both opinions, was the finding that, at the time of the offending, the offender was using sex as a coping mechanism in response to intimacy deficits.
8. Returning to Mr Garside's report, the community corrections officer noted that the offender had been cooperative throughout the assessment process and indicated his willingness to engage in 'interventions' as might be made by the Court. Mr Garside assessed the offender as being at a 'Medium' risk of reoffending according to the Level of Service Inventory - Revised (LSI-R') criteria, but there was no explanation for how that criteria was applied.
9. The Court is concerned about the psychologists' views about the offender's apparent sexual preoccupation and use of sex to cope with his difficulties in forming intimate relationships. Nevertheless, the offender was not young at the time of offending, so has hitherto not committed any offences of the present character. Taking into account that this is the first time he has been convicted of sexual offences, and his willingness to receive psychological treatment, I regard his prospects of rehabilitation as being reasonable.

INSTINCTIVE SYNTHESIS

1. I have regard to the maximum penalty and standard non-parole period for the subject offence, as legislative guideposts. As to the standard non-parole period, as I have noted, I have found that none of the subject offences fall in or above the mid-range of offending.
2. I also have regard to all of the sentencing principles in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Most pertinent, to my mind, are the considerations of general deterrence, denunciation, holding the offender to account and recognising the harm to the victim caused by the offending; and especially the affront to her dignity. The offender had hitherto had a good record prior to the offending and, notwithstanding his pleas of not guilty, he showed some regret at the time; even if that was no more than a limited recognition that he had 'used' her. Subjective deterrence is relevant, since notwithstanding his contemporaneous expression of regret, he has shown no direct insight into his offending and, according to the psychologist who assessed him, has limited insight into the impacts on a woman who has been sexually assaulted. His prospects of rehabilitation, though a subsidiary consideration, are no better than reasonable. In view of the offender's denial of wrongdoing and the contemporaneous indications that he had a sexual preoccupation to deal with underlying issues in his intimate relationships, I consider that there is force to the need to protect society. The violation of community norms is reflected in the factors of denunciation and retribution I have adverted to.
3. In R v Shortland [2018] NSWCCA 34, Basten JA (R A Hulme J agreeing in this respect) said (at [7]) that would it be unusual or extraordinary to impose a non-custodial sentence in a case of sexual assault where there was no guilty plea or an accompanying finding that the offender was remorseful, at least for penile penetration. See also DPP (NSW) v Burton [2020] NSWCCA 54 per Basten JA at [4].
4. I am satisfied that the s 5 threshold has been crossed and the offender's Counsel conceded as much. Further, his Counsel correctly acknowledged that the offences are such that the Court could not entertain the proposition that his term could be served otherwise than by full-time incarceration, even if the aggregate term might have justified that option.
5. In my opinion, there is a scope for significant notional concurrency as between the sentences for each offence. As I have noted, all of the offences were completed, altogether, within about 10 minutes. They followed, virtually seamlessly; one after the other. Nevertheless, the sexual activities were of a different kind and to treat the sentences as wholly concurrent would not reflect the distinct acts giving rise to the offending and therefore comprehend the entire criminality of the offending. However, the extent of notional accumulation should be modest, to reflect the fact that all the offences occurred as part of a single course of conduct. The principle of totality requires that the effective sentence imposed on an offender represent a proper period of incarceration for the total criminality involved: R v AEM [2002] NSWCCA 58 at [69] per Beazley JA, Wood CJ at CL and Sully J. I am also mindful that the sentence must not be crushing.
6. I find that there are special circumstances that this will be the first custodial sentence that the offender receives. I also consider as relevant the recent diagnosis of his mental condition and the problematic circumstance, alluded to by both Ms Keown and Ms Bennett, that the offender may not receive the treatment he needs when incarcerated compared to what he might receive in the community. I also accept that, at the time of the sentencing, the State is in substantial lockdown because of the COVID-19 outbreak, which has particularly affected the Central Coast region and the limitations upon visitation rights are likely to make incarceration somewhat more onerous for someone with this offender's mental condition. Even without the restrictions caused by the recent outbreak, I would have found that he is likely to find incarceration more burdensome because of his mental condition. His prospects of rehabilitation may only be reasonable, but he will likely benefit, in the longer term, from a reduction in the minimum term and a longer period of supervision on parole to assist his reintegration into the community.
7. I take into account the period of custody which the offender has previously served that is referable to the offender's offending, being 5 days.
8. The indicative sentences (taking into account a 3% discount for his facilitating the administration of justice in each case) are: Count 1: 1 year and 11 months' imprisonment (with a non-parole period of 1 year & 2 months) Count 2: 1 year and 10 months' imprisonment (with a non-parole period of 1 year & 1 month) Count 3: 2 years & 5 months' imprisonment (with a non-parole period of 1 year & 5 months) Count 4: 3 years & 4 months' imprisonment (with a non-parole period of 2 years)
9. Mr Golding, please stand.
10. You are convicted of the offences on counts 1, 2, 3 & 4 on the indictment.
11. Taking into account the discount I alluded to when stating the indicative sentences, I sentence you to an aggregate term of imprisonment for 4 years, commencing on 11 July 2021 and ending on 10 July 2025; with a non-parole period of 2 years, 4 months and 25 days expiring on 5 December 2023; after which you will be eligible for release.
12. I direct that the report of Stephanie Bennett, dated 9 July 2021, containing treatment plans, be brought to the attention of those within the corrective services who are responsible for the offender's supervision.

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: 19 July 2021