R v Hall

Crown material on sentence

1. The Crown tendered the following material on sentence:

• Exhibit A - Crown sentence summary consisting of the Notice of Committal and Charge Certificate, the statement of Agreed Facts, the Form 1, s 166 certificate, criminal histories of the offender from New South Wales and Queensland, a custodial history and a victim impact statement prepared by KE dated 6 February 2020;
• Exhibit B - Audio recording taken from the complainant's phone during the commission of the offence (approximate duration 14 minutes);
• Exhibit C - Crown written submissions;
• Exhibit D - Email from the Crown 9 April 2020 (further submissions);
• Exhibit E - Agreed Facts in relation to the offence on the 166 certificate of malicious damage;
• Exhibit F - Amendments to the Agreed Facts specifically, paragraphs 18, 19 and 25;
• Exhibit G - Crown submissions in response to Exhibit 1.

Relationship background

1. As at February 2019 the victim KE, 61 years of age, had been in an intimate relationship with the offender, 49 years of age, since around December 2017. The victim met the offender on "Plenty of Fish" dating website. The offender's profile on the website indicated he was an "alpha male dominant and polyamorous".
2. The offender told the victim that if she let him be in charge of their sexual relationship he would love her and look after her. The victim and the offender had previously had consensual anal intercourse. On one prior occasion, the offender had tried to use rope during their sexual activity, but the victim was not comfortable with it and the offender did not pursue it.
3. The victim was employed as a professional house sitter and would work in various locations around Australia. The offender had accompanied the victim to house sitting jobs in Tasmania, Melbourne and the Hunter Valley. There had been no prior violent incidents between them.

The events of 10/11 February 2019

1. On Sunday 10 February 2019, the victim and the offender were house sitting at residential premises at 12 Lakeside Drive, Macmasters Beach. The owner of the premises was due to return on 14 February 2019.
2. That day the victim and the offender had been out for a drive. They returned to the premises sometime in the afternoon and watched a movie together. The victim had a glass of wine. After the movie the victim felt tired. She told the offender that she did not feel like watching another movie and would go downstairs to read a book.
3. The offender told the victim that he wanted her to sit with him, that then he would prepare the chicken for dinner if she did the vegetables. At around 4pm the victim and the offender argued about the dinner preparation as the victim said she not feel hungry. During this argument, which the victim recorded on her mobile phone, the offender called the victim a "cunt". The offender said "I've been in a happy mood all day". The victim replied "I apologise, enough, stop, stop was our code word, I'm going to bed to read my book".

Sequence 6: Take detain person with intent to obtain advantage (occasion actual bodily harm) (s 86(2)(b) Crimes Act)

1. The victim went downstairs to her bedroom and started to read a book. A short time later, the offender entered the room. The offender grabbed the victim and twisted her arms up behind her back. The victim grabbed a glass from the bookshelf and smashed it on the side of the offender's head in an attempt to get away.
2. The offender then tied the victim's hands together with a piece of rope. The offender began to verbally abuse the victim and punched her to the face and slapped her multiple times.
3. An audio recording stored on the victim's mobile phone has been played to the Court (Exhibit B). The transcript of that mobile phone recording is extracted in the Agreed Facts. I do not propose to read it out in Court in circumstances where the Court has just completed listening to Exhibit B. I note that it goes for a period of approximately 14 minutes.
4. The offender then took the victim out of the room and to the upstairs level of the premises. The victim's mobile phone remained in the downstairs bedroom. Whilst upstairs the offender obtained a knife from the kitchen area. He then pushed the victim down the stairs. As she tried to get up at the bottom of the stairs the offender hit the victim to the face. The offender then took the victim into another downstairs room, referred to as a study or office. This room contained a single bed, a desk and a small table. The offender had his computer set up and running in this room.
5. The victim was detained by the offender from the time that he entered the downstairs bedroom at around 4pm on 10 February 2019 until the victim escaped from the premises at approximately 4.30am on 11 February 2019, that is a total period of approximately 12 and a half hours.

Sequence 7: Aggravated sexual intercourse (inflict actual bodily harm) (s 61J(1) Crimes Act)

1. Either upstairs or once inside the study, the offender used the knife to cut the victim on the right upper thigh causing a deep cut which extended down to the muscle. The offender told the victim that if she did everything she was supposed to do he would leave her tied up there and would not kill her.
2. The offender then forced the victim to perform oral intercourse. The offender made the victim suck his penis in a way that caused her to gag. This lasted for approximately ten to 15 minutes. The victim was dry retching and recalled wetting herself during this assault.

Sequence 22: Sexual intercourse without consent (s 61I Crimes Act) (Form 1)

1. The offender then "whacked" the victim across the head and told her she looked "ugly and disgusting". The offender took the victim into the bathroom and made her shower and wash her hair. The offender said words to the effect of "look at you, you fucking piece of shit".
2. The offender took the victim back into the study. The offender again forced the victim to suck his penis. The offender told the victim that if she did not do what he said she would die.

Sequences 9 and 12: Aggravated sexual intercourse without consent (threaten to inflict actual bodily harm with offensive weapon) (s 61J(1) Crimes Act)

Sequences 23 and 24: Sexual intercourse without consent (s 61I Crimes Act) (Form 1)

1. After sometime the offender took the victim to the garage of the premises where he obtained a pair of pliers and a hammer. The offender told the victim that if he felt her teeth on his penis he would either rip all her teeth with the pliers or break her toes with the hammer.
2. The offender and the victim returned to the study and the assault continued with the victim forced to suck the offender's penis (sequence 9).
3. The offender also digitally penetrated the victim's vagina with such force that it caused her to urinate (sequence 23).
4. The offender told the victim to defecate and then penetrated her anus with his penis (sequence 24).
5. The offender removed his penis from the victim's anus and put his penis inside her mouth (sequence 12).

Sequence 13: Sexual intercourse without consent (s 61I Crimes Act)

1. The victim recalled this episode lasting around four to five hours. During this time the offender made the victim put his penis in her mouth and forced the victim to swallow his urine (sequence 13). He did this a number of times throughout the four to five hour period.
2. Sometime after midnight the offender indicated that he wanted to purchase some cigarettes. The offender told the victim that he would put her in the car and she was not to speak or do anything. The victim's hands were still tied behind her back.
3. The offender retrieved the victim's car keys and went outside with her to the vehicle. He then tied the victim by the neck, back and feet and put a ball of material inside her mouth. The offender placed the victim in the rear section of the vehicle behind the rear seats and covered her with a blanket.
4. The offender drove to the 7-Eleven at Kincumber. At 2.24am the offender purchased a packet of cigarettes and a lighter. The offender then drove back to the premises and went inside with the victim. The victim asked the offender for a drink of water which he gave her.
5. The offender then made the victim sit on the floor of the downstairs study and smoke a cigarette. The victim was not a smoker and did not like cigarettes. When she asked the offender for an ashtray he told her to extinguish the cigarette on the floor.

Sequence 14: Sexual intercourse without consent (s 61I Crimes Act)

1. The offender again forced the victim to suck his penis. The victim soiled herself with urine and defecated herself. The offender again took the victim to the shower before taking her back into the study.
2. At this time the offender told the victim that she was not doing what he wanted. The victim said words to the effect of "I can't do anything with my hands tied behind my back". The offender agreed to untie the victim's hands, but told her if she reached for the knife or tried to get up "you're dead".

Sequences 15 and 16: Sexual intercourse without consent (s 61I Crimes Act) (Form 1)

Sequence 17: Sexual intercourse without consent (s 61I Crimes Act)

1. The offender then forced the victim to suck his penis until it was erect (sequence 15) at which time he penetrated her anus with his penis (sequence 16). The victim described the anal penetration as "so hard I thought I was going to break".
2. The offender then removed his penis from the victim's anus and put his penis inside her mouth (sequence 17). This occurred several times.

Sequences 18 and 19: Sexual intercourse without consent (s 61I Crimes Act)

Sequences 20 and 21: Sexual intercourse without consent (s 61I Crimes Act) (Form 1)

1. For the next two and a half hours or so the offender repeatedly sexually assaulted the victim. This included one act of penetrating her anus with his penis (sequence 18), penetrating her vagina with his penis (sequence 19) and digital penetration of her vagina (sequence 20) and her anus (sequence 21). These acts were repeated over the two and a half hours.
2. At around 4.30am the offender fell asleep and the sexual assaults stopped. The victim moved the offender from on top of her and heard him snoring. She took this opportunity to get up. She grabbed her jumper from near the front door, left the premises and ran down the street towards the beach.
3. As she ran she saw a light on in a house in the next street, being Daniel Close, Macmasters Beach. The victim jumped over a fence and entered a house at 8 Daniel Close. Inside the house the victim saw a young girl aged ten years to whom she said "Please don't be frightened, I'm not here to hurt you, but can you get mum and dad".
4. The adult occupants of the house were awoken by their daughter who was standing in the doorway of their bedroom. Their daughter said there was someone inside the house. The victim who was standing behind their daughter said "I've been raped and beaten for 12 hours".
5. The parents assisted the victim and gave her a glass of water. The victim was asked what happened. She said she had been raped, beaten, stabbed and "hog tied" by her partner at the address at Macmasters Beach. The victim was wearing only a loose grey jumper.
6. At 4.49am the residents of that address contacted triple-0. They told the operator that they were with a lady who had been raped and bashed, stating "She's in a pretty terrible way".
7. The victim spoke with the operator and said that the assault had started at 5pm the previous afternoon. She said "I got out when he fell asleep on the floor. He had tied me up the whole time". The victim told the operator that the offender had sliced open the top of her thigh, threw her down the stairs and punched her.
8. Police officers arrived at 8 Daniel Close at around 5am. At this point the Greenaways turned on the lights in their premises. It was then observed that the victim's eyes were bruised and she had a deep gash in her upper thigh. The victim had what appeared to be dry blood on her face and feet.
9. A short time later more police arrived at the location, including Senior Constable Chris Miller. Senior Constable Miller observed the victim's eyes were almost completely closed due to serious swelling. He noticed the victim was shaking and crying.
10. Senior Constables Miller and Clarke drove around the corner to her premises to try and locate the offender. The offender was not at the premises.
11. Whilst searching the premises for the offender, police observed traces of what appeared to be blood and clumps of hair on the floor in the downstairs bathroom.
12. Inside the downstairs bedroom police saw a beer can on the bed, some broken glass on the floor and a mobile phone on the bed.
13. Police then checked the downstairs study. This room was messy and police saw what appeared to be blood stains throughout the carpet and on the bed. Around the base of an office chair he saw what looked like rope or a thin cotton material shaped like a rope. Police established a crime scene at the premises.
14. Ambulance officers arrived at 5.26am to treat the victim. She was taken to Gosford Hospital.
15. Detectives Mitchell and Senior Constable Erickson attended the hospital and spoke with the victim. The victim told police that the offender had threatened to "go out with a bang".
16. Detective Mitchell and Senior Constable Erickson left the hospital and travelled to the premises where the offending had occurred, arriving about 6am.
17. In the downstairs study, Senior Constable Erickson observed a large amount of blood on the carpet. She also noticed the distinct smell of urine and saw purple coloured rope and a small glass bottle on the floor. On the desk was a laptop computer with a silver kitchen knife, a hammer and a pair of pliers nearby.
18. Detective Mitchell and Senior Constable Erickson then returned to Gosford Hospital and spoke further with the victim. She participated in a record of interview.

Arrest of the offender

1. An extensive police investigation was initiated to try and locate the offender, including the assistance of Polair and the police dog unit. Canvasses were conducted in the Macmasters Beach and Kincumber areas. Despite these efforts the police could not locate the offender.
2. At around 12.45am on 12 February 2019, the offender contacted emergency services via triple-0 from a public pay phone near the Caltex service station at Wamberal. The offender told the operator "Yeah it's not an emergency mate, I'm handing myself in for a crime". The offender said he had assaulted his girlfriend "rather viciously" the night before and wanted to hand himself in.
3. The operator asked the offender if the victim had needed an ambulance that night to which the offender said: "Mate I don't know, she probably did. I hit her a bunch, I cut her, she left and went to the next door neighbours and called the police and I absconded from the scene."
4. The offender told the operator that he was currently under the influence of alcohol. When asked for a contact number, the offender said he had thrown his mobile phone away.
5. A short time later Senior Constables Millar and Greening attended the vicinity of 2 Ghersi Avenue, Wamberal where they saw the offender sitting in the gutter. The offender was arrested and taken to Gosford Police Station and the offender indicated he wished to participate in a record of interview.

Record of interview with the offender

1. During the interview the offender made full and frank admissions to all the alleged offending conduct. A20: "I really don't know what happened, I just snapped and assaulted, viciously assaulted her. I cut her, I hit her repeatedly. I forced her to perform sexual acts. I threatened her life." A21: "I restrained her. I threatened her with violence. I threatened her with her life repeatedly. I forced her into the back of a car, then tied her up so I could go and get cigarettes."
2. The offender told police that he and the victim had been living together for a few months by house sitting at various locations. He described their relationship as a "beautiful loving relationship until and neither of us can stop drinking". He stated that the couple would often argue when intoxicated, but there had never been any violent incidents.
3. The offender admitted to cutting the victim's right thigh with a knife before any of the sexual acts began. He admitted saying to the victim "I know where to cut you so that I don't hit an artery".
4. He told police that he was "testing" the knife and did not mean to cut the victim in the way that he did. The offender admitted to pushing the victim down the stairs. The offender told police that after he tied the victim up with a rope he took her back to the study so that he could make her perform oral sex on him whilst he watched pornography.
5. The offender admitted to yelling, screaming and swearing at the victim as well as making multiple threats on her life if she did not do as he told her. The offender also admitted to threatening the victim with the hammer and a pair of pliers.
6. The offender admitted to urinating in the victim's mouth twice stating, "while my cock was in her mouth I pissed in her mouth…and I told her to drink it".
7. The offender admitted to forcibly penetrating the victim's vagina and anus. He told police that during the anal intercourse he was "rough and just aggressive".
8. The offender admitted to knowing that the victim was not consenting to the various acts of oral, vaginal and anal intercourse, stating: "In the past we've talked about her having a rape fantasy…I'm quite sure this wasn't part of her idea, but…most of the acts that happened did cause her to get moist which I think motivated me even further…but I'm quite fucking sure she wasn't interested in participating, no."
9. The offender also told police "There's no mistake, she didn't want any part of any of it", "I am sure at no point was she happy that any of this was going on".
10. The offender told police that he repeatedly punched the victim to the face "cause I was angry to stop her from talking to make her compliant". He admitted that the sexual assaults went on for "several hours".
11. The offender admitted placing the victim inside the rear portion of her hatchback naked with her hands and feet tied and a blanket covering her while he drove to the 7-Eleven at Kincumber and purchased a packet of cigarettes. He stated that when he arrived at the 7-Eleven he told the victim if she got out of the vehicle or raised any attention he would kill her.
12. When asked why he took the victim with him to the 7-Eleven he responded "I didn't trust the fact that she wouldn't get away, alert authorities while I was gone".
13. The offender admitted to committing further sexual assaults upon the victim in the study when they returned to the house stating "I got her to perform oral sex on me and then vaginally and anally raped her" and that the victim was on her knees in front of him while he was sitting in a chair.
14. The offender admitted to threatening the victim with a knife which he still had with him. The offender said that he eventually untied the victim and fell asleep. The offender stated that during the sexual acts the victim defecated herself "slightly" while he had his fingers inside her anus "and a couple of small blobs came out".
15. The offender told police that he wanted the victim to perform oral sex on him "without a clean anus" and while his penis was dirty. He admitted that the reason for this was "humiliation".
16. The offender told police that he did not ejaculate at any point during the assaults and did not use a condom when having sexual intercourse with the victim.
17. The offender told police that when he woke up and discovered the victim had escaped, he got dressed and left the premises on his motorbike. He said that he saw the police en route to the premises so he panicked and threw his mobile phone into some bushes before hiding his motorbike behind a shop. He stated that he purchased some cigarettes and razors from a service station and intended to kill himself "because I can't live with what I've done to her, I love the woman".
18. He told police that he walked into some nearby bushland and sat in a clearing for most of the day drinking a bottle of whisky and smoking cigarettes. The offender marked the location on a map provided by police. Police subsequently attended the location in Kincumber and found a clearing in between a pine tree hedge. Here they found a Honda key ring, an empty packet of mints, a plastic bag containing an empty bottle of whisky, an empty packet of cigarettes and several blue disposable razors.
19. At the conclusion of the interview the offender participated in a forensic procedure.

Injuries to the victim

1. On examination at Gosford Hospital, the following injuries to the victim were observed: 1. Transverse laceration approximately 80 millimetres down to the muscle over the right mid-thigh; 2. Bruises and abrasions on the upper limbs; 3. Periorbital ecchymoses (discoloration from subcutaneous bleeding) and swelling; 4. Bruised and swollen left maxilla; 5. Swollen right maxilla; 6. Multiple soft tissue injuries with bruising; 7. Bruised and swollen entire left third toe; 8. Transverse laceration approximately ten millimetres on the fourth finger of the right hand.
2. The laceration on the victim's right thigh was washed out and sutured in the Emergency Department and required ten stitches.
3. On the afternoon of 11 February 2019, the victim underwent a sexual assault examination. An examination of the victim's genitalia noted that it was red and painful and faecal matter was present. An examination of the victim's anal area noted the presence of dried blood and bleeding from a haemorrhoid. Various swabs and smears were collected from the victim during the examination.

Electronic evidence

1. On 14 February 2019, police located the offender's mobile phone in bushland in Kincumber.
2. On 19 February, Detective Senior Constable Mitchell attended the State Electronic Evidence Branch with the offender's phone and laptop computer and the victim's mobile phone.
3. An examination of the offender's laptop computer did not reveal any files of interest with respect to the investigation.
4. An examination of the offender's mobile phone revealed two video files of interest. Video one depicted the victim performing oral intercourse upon the offender. During this video the offender said "suck my dick you worthless fucking cunt".
5. Video two depicted the victim performing oral intercourse upon the offender. During this video the offender said "you're boring me, suck it" and "you've got 20 seconds to make me hard or I'm going to shove the wine bottle up your arse".
6. Towards the end of the recording, the offender instructed the victim to lie down on the floor saying "lie on your stomach now". The victim asked "on the floor?", to which the offender replied "on the fucking floor on your stomach". The victim complied.
7. In both video recordings the victim was naked and had visible injuries to her face and leg. The recordings also depicted the victim's hands tied behind her back.
8. Upon examination of the victim's mobile phone police were able to retrieve the audio recording which became Exhibit B in these sentence proceedings.

Facts in relation to the offence of destroy or damage property

1. The owner of the premises at 12 Lakeside Drive, Macmasters Beach returned to the premises on 15 February 2019. The following damage was observed to the premises as a result of the offences committed by the offender between 10 and 11 February 2019: 1. Several holes in the walls of the hallway; 2. Broken toilet door handle; 3. Blood staining on the carpet and rugs; 4. Other stains on the carpet and items of furniture. 5. The owner of the premises arranged for the premises to be forensically cleaned.

Assessment of objective seriousness

1. Those facts disclose very serious objective criminality. The conduct was a sustained, brutal and terrifying attack upon the victim that included multiple humiliating and degrading sexual acts. Such behaviour is wholly abhorrent and simply cannot be tolerated in a civilised society. Such conduct warrants a significant sentence.
2. The conduct was also an episode of domestic violence. Important factors in sentencing a domestic violence offender are specific and general deterrence, denunciation of the offending conduct and the protection of the community: see R v Edigarov (2001) 125 A Crim R 551 at [558] where Wood CJ at CL (Studdert and Bell JJ agreeing) stated as follows: "…such conduct is brutal, cowardly and inexcusable, and the courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence."
3. In assessing the objective seriousness of the offence of aggravated detain with intent to obtain advantage (occasion actual bodily harm), I have had regard to the general principles enunciated in R v Newell [2004] NSWCCA 183. I have taken into account the following factors: 1. The detention was for a period of approximately 12 and a half hours. 2. The advantage sought by the offender was to obtain sexual gratification. 3. During the period of the detention, the offender was abusive, aggressive and made degrading remarks towards the victim (telling her she looked "ugly and disgusting", "look at you, you fucking piece of shit"). There were also multiple threats to kill the victim and inflict very serious physical harm ("relax or I'll break your fucking jaw and pull your fucking tongue out, cunt", "Guess how much time I've got with you in this house to torment you and fucking torture you?", "If you make a sound above 1 decibel I'll punch you in the fucking face and break your fucking jaw", "if you raise your voice cut your fucking throat, you understand me?", "Settle down or I kill you now and just fucking rape your corpse", "The more noise you make, the quicker I am going to kill you, cunt", "you've got 20 seconds to make me hard or I'm gunna shove this wine bottle up your arse"). During the sentence proceedings the audio recording referred to in the agreed facts was played (Exhibit B). The manner in which the offender is heard speaking to the victim on the recording is angry and aggressive and can only be described as wholly terrifying. The victim is heard to be very significantly distressed. She is screaming and pleading with the offender saying, amongst other things, "I don't want to die". 4. During the detention the victim was fearful that she was going to die. 5. The nature and extent of physical violence inflicted upon the victim during the detention (excluding that which is specifically the subject of the offence of aggravated sexual intercourse without consent (inflict actual bodily harm)) which included the following: 1. Twisting the victim's arm behind her back; 2. The victim's hands being tied behind her back for a period of time; 3. Punching her to the face; and 4. Slapping her multiple times. 1. The nature and extent of the actual bodily harm occasioned during the detention. The injuries, (again excluding that which is specifically the subject of the offence of aggravated sexual intercourse without consent (inflict actual bodily harm)), included bruises and abrasions on the upper limbs, discolouration from subcutaneous bleeding and swelling, bruised and swollen left maxilla, swollen right maxilla, multiple soft tissue injuries with bruising, bruised and swollen entire left third toe, 10 mm laceration to a finger. 2. After having been detained for approximately 8 and a half hours, the victim whilst naked and tied by the neck and feet behind her back and with a ball of material inside her mouth, was placed in her vehicle covered with a blanket and driven by the offender in the early hours of the morning to purchase a packet of cigarettes at a local convenience store. The offender told the victim that if she got out of the vehicle or raised any attention he would kill her. 3. The offending is an episode of domestic violence.
4. Having regard to those factors, I assess this offence as being well above the mid-range of objective seriousness.
5. In assessing the objective seriousness of the offence of aggravated sexual intercourse without consent (inflict actual bodily harm), I have taken into account the following factors: 1. The offender obtained a knife from the kitchen area. He pushed the victim down the stairs. As she tried to get up at the bottom of the stairs he hit her in the face. Either upstairs or once inside the study, the offender used a knife to cut the victim on the right upper thigh. The injury caused was a deep cut of 8 cm (down to the muscle). 2. The type of intercourse was fellatio (recognising that there is no hierarchy of seriousness of offending based upon the type of intercourse alone). The offender made the victim perform fellatio in a way that caused her to gag. 3. This offending lasted for approximately ten to 15 minutes. The victim was dry retching during the offending and recalled wetting herself. 4. The offending is an episode of domestic violence.
6. Having regard to those factors, I assess this offence as being above the mid-range of objective seriousness.
7. In assessing the objective seriousness of each offence of aggravated sexual intercourse without consent (threatened to inflict actual bodily harm with an offensive weapon), I have taken into account the following factors: 1. The relevant offensive weapons obtained by the offender from the garage were a pair of pliers and hammer. 2. The threat made by the offender was that if he felt the victim's teeth on his penis he would either rip out all her teeth with the pliers or break her toes with the hammer. 3. The victim was then forced to perform fellatio (sequence 9). The offender, after removing his penis from the victim's anus, put his penis inside the victim's mouth (sequence 12). He told police during his record of interview that he wanted the victim to perform fellatio upon him whilst his penis was dirty. The reason for this was "humiliation". 4. Each of these offences is an episode of domestic violence.
8. Having regard to those factors, I assess each of sequence 9 and sequence 12 as being above the middle of the range of objective seriousness.
9. In assessing the objective seriousness of each of the five offences of sexual intercourse without consent, I have taken into account the following factors: 1. The type of sexual intercourse and the circumstances in which it occurred are as follows: 1. Sequence 13 - Fellatio. This episode lasted four to five hours and on at least three occasions the victim was forced to perform fellatio upon the offender. The victim was forced to swallow the offender's urine. During this time, the victim was naked with her hands tied behind her back. Sequence 13 is particularised as one occasion when the victim put the offender's penis in her mouth and he forced the victim to swallow his urine. 1. Sequence 14 - Fellatio. The victim was forced to fellate the offender. The victim soiled herself with urine and defecated herself. At the time of the commission of this offence, the victim's hands were still tied behind her back. 2. Sequence 17 - Fellatio. The offender, after removing his penis from the victim's anus, put his penis inside the victim's mouth. 3. Sequences 18/19 - Penile/anal intercourse and penile/vaginal intercourse. For a period of two and a half hours the offender repeatedly penetrated the victim's anus and vagina with his penis. Sequence 18 is particularised as one act of penile/anal intercourse. Sequence 19 is particularised as one act of penile/vaginal intercourse. 1. Each offence is an episode of domestic violence.
10. Having regard to those factors, in relation to sequences 13, 14, 17, 18 and 19 I assess the offences as being above the middle of the range of objective seriousness.

Victim Impact Statement

1. The victim provided a victim impact statement. Her description of the impact of the offending upon her includes the following: "I have become insular, suffered anxiety and panic attacks with a good measure of PTSD, unsure of the future. I never worried about the future and lived in the present. I have lost the ability to trust. I now live with two personalities. One I show to the outside world, strong and moving on. The other that just wants to be alone with no interference, no questions, antisocial and withdrawn."
2. The victim described that before the offending she was fit and active whereas now she lives with "injuries, physically and mentally every day". She further describes that those people she loves "can never grasp the depths of my despair, my sadness and the altered state of my reality".
3. The victim later states as follows: "even though it has been a year, it is like yesterday. My brain never stops, I am so tired. I don't sleep and I just scream on the inside".
4. The victim expressed her gratitude to her family, friends and professionals that have assisted and supported her since the offending.
5. Courts now well understand the devastating consequences of sexual assault and domestic violence upon victims. Most particularly, that such consequences are long-lasting and debilitating, robbing the victim of their otherwise normal lives.
6. The Court is hopeful that with the continuing love and support of family, friends and professional assistance, the victim can look forward to a more positive future.
7. One of the purposes of sentencing is to recognise the harm done to the victim (s 3A(g), Crimes (Sentencing Procedure) Act 1999 (NSW)).
8. I note that it was not submitted on behalf of the Crown that the harm suffered by the victim was an aggravating factor pursuant to s 21A(2), Crimes (Sentencing Procedure) Act.

Aggravating features

1. The Crown relied upon one aggravating feature namely, that all of the offences occurred in the home of the victim in circumstances where the victim and the offender were house sitting. I accept that aggravating feature is established.

Subjective circumstances

1. The offender is 50 years old. He was 49 years old at the time of the offending.
2. The offender has an adult criminal history commencing in 1988 when he was dealt with for an offence of malicious damage and was fined.
3. In 1989, he was dealt with for an offence of assault and received a bond.
4. In 1990, he was dealt with for an offence of malicious damage and stealing and received fines. He was also dealt with for steal motor vehicle and ordered to serve 200 hours community service. He was also dealt with for an offence of possess implements and was placed on a bond.
5. In 1992, he was dealt with for an offence of robbery with striking. At first instance he was sentenced to 12 months periodic detention. On appeal, a fixed term of 12 months imprisonment was imposed.
6. The offender also has a Queensland criminal history. In 1997, he was dealt with for an offence of found in enclosed area and no conviction was recorded. In 1998, he was dealt with for an offence of produce dangerous drugs and fined.
7. Having regard to the offender's criminal history, I am satisfied that it disentitles him to any leniency on sentence that would otherwise be available to a person of good character.
8. The following material was tendered on behalf of the offender during the sentence proceedings: 1. Exhibit 1 - Report of Ms Anita Duffy, psychologist dated 17 March 2020; 2. Exhibit 2 - Letter under the hand of Therese Hallinan undated; and 3. Exhibit 3 - Defence written submissions.
9. The offender's background is outlined in the report of Ms Duffy, psychologist.
10. Ms Duffy interviewed the offender on 24 February 2020 for a period of two and a half hours.
11. The offender was born in Sydney. He did not know the identity of his father. His mother was a sex worker. When the offender was four years old his mother formed a relationship with his stepfather Neville who had been one of her clients. The offender reported that when he was five years old his stepsister (then two years older) performed sexual acts upon him and made him perform sexual acts upon her.
12. The offender described both his mother and Neville as "alcoholics" who consumed excessive quantities of alcohol on a daily basis. Their relationship ended after approximately five years.
13. When the offender was about 14 years of age he went to live with his stepfather and his new partner Shirley. The offender reported severe physical and emotional abuse during this time and, in the opinion of Ms Duffy, "exposure to ambivalent sexual overtures from Shirley, which affected his emotional and psychosexual development."
14. The offender reported that he developed a fascination for Shirley, and frequently masturbated and fantasised about her.
15. Ms Duffy noted the following: "He was "best friends" with her, they did activities like swimming together when Neville was out, and, in his mind, she was acting seductively. She would come in and watch him showering, and he heard them having sex. However, she would also tell Neville about his misdemeanours and he would get a severe bashing. As reported earlier, he threatened Shirley with a knife, and demanded she take off her clothes, which led to sessions with a psychiatrist at Concord Hospital."
16. He reported that as a result of the severity of the physical violence he ran away from home at 16 years of age and resided in refuges or on the streets. He began getting into trouble whilst still a juvenile and reported he was in Mt Penang Juvenile Justice Centre for six months.
17. The offender's mother now lives in Queensland and has early onset dementia. He remains close to her and they are in regular phone contact.
18. The offender reported that he had previously been married and has three children now in their twenties. He remains in contact with two of the three children since his arrest.
19. After meeting his wife in 1990, he lived in Curl Curl before they relocated to Bellingen. He was employed at a saw mill until 1994 when he separated from his wife. After returning to Brisbane for a few years he then returned to Bellingen in 1999.
20. The offender reported that he became involved with the victim of the current offences from an online dating service in 2018. He reported that he fell in love with her a few months after they began dating. They lived together in various houses in circumstances where she was a professional house sitter.
21. In relation to the offender's attitude to the offending, Ms Duffy noted the following: "He has been unable to comprehend a level of violence that he subjected her to during the offence, and expressed horror at what he did to her. She was "everything" to him and said that if someone else had done what he did to her, he would have killed them. Every day he faces the knowledge that he badly hurt the woman he loved, and finds it unbearable."

Education and employment

1. The offender reported that he attended school in Canberra until year 9. He described having a number of behavioural issues. Whilst living with his stepfather and his partner Shirley, in Sydney he was employed by his stepfather as an apprentice carpet layer for about 18 months until he ran away from home.
2. He subsequently had a job as a second-class fitter.
3. At 20 years of age, he moved to Brisbane and commenced work as a forklift driver at a warehouse.
4. In 1999, he returned to Bellingen and found work as a stripper and also fruit picking and other casual employment.
5. In 2016 (aged 46 years) he moved to Newcastle and was employed as a salesman of solar panels up until 2019.

Medical history

1. The offender reported a heart problem since 2017. He was diagnosed with pericarditis and was prescribed medication that he never filled. Since being in custody he has been taking medication for heart failure, hypertension and insufficient blood flow to the heart. He reported he has sleep apnoea and also suffers gastro-oesophageal reflux.

Mental health

1. Ms Duffy reported that the offender described ongoing feelings of depression, low self-worth and suicidal ideation during his adolescence. Ms Duffy noted the following: "Since very young, Mr Hall recalled hearing two voices discussing him, as if they thought he could not hear them. They would make negative comments about him and say such things as "who does he think he is" and other commentary about his life. He had heard these voices since he was about 5 or 6 when he had a fever and was put into an ice bath. He said that cannabis helped block out the voices and he used the drug primarily as self-medication, to stop the internal commentary. He said that he resumed hearing voices in gaol after his arrest and has been prescribed Seroquel (antipsychotic) 150mg, Pristiq (antidepressant) 150mg since mid-2019 when he told the doctor about the voices. He said that the voices have diminished to a sort of "static" in the head, but if he misses the medication he hears them again. He described poor sleep patterns, with frequent awakenings. He said that he rarely dreams, but if he does they are either violent or involve him being chased."

Drugs and alcohol

1. The offender reported long-standing alcohol issues from his early teens. He described himself as an "alcoholic" and acknowledged that drinking had affected his health.
2. The offender reported that he used cannabis regularly from the age of 16 years in order to self-medicate. He also reported taking amphetamines during his teenage years.

The offender's account of the offending

1. The offender reported that on the day of the offending he had been on his computer when the victim said something to him and he became extremely angry. He reported that the victim had said "fuck off maggot". He said that he had been called a "maggot" by Neville in the past and that something snapped and he no longer felt in control of himself. He described that he watched what he did to the victim as from afar "like a passenger watching this shit happen".
2. I note that I give the offender's account of the commencement of the incident as limited weight in circumstances where that account was not given on oath.
3. Ms Duffy stated as follows: "He said that this attack was different from the usual bondage and other acts they performed to heighten sexual arousal. This was violent and degrading and, after it happened, he considered suicide. He has continued to feel horrified by what he did and wants to see her get the justice she deserves by his sentence. He wants to find out why he hurt her, and indicated readiness to undertake rehabilitation and sex offender programs. He is convinced that he will not survive gaol."

Personality and risk assessment

1. Ms Duffy conducted both a personality and risk assessment of the offender.
2. Ms Duffy was of the opinion that the offender displayed symptoms consistent with Major Depressive Disorder as well as Substance Use Disorder (currently in remission due to his custodial circumstances). In Ms Duffy's opinion, his symptoms of Major Depressive Disorder meant that he may be at increased risk of self-harm whilst in custody.
3. Further, Ms Duffy considered the offender has borderline characteristics where he has poor control over behaviour and emotions especially when disinhibited by alcohol.
4. In relation to the offender's family background Ms Duffy stated: "Mr Hall described a family background where he was exposed to aggression and coercive violence from his stepfather Neville, as well as parental alcohol abuse. His early life was unstable, he was a victim of physical, psychological and sexual abuse and mistreatment, leaving him with emotional instability, identity and sexual problems and a reliance on sex as a coping mechanism".
5. In the opinion of Ms Duffy, the offender's dysfunctional childhood "may have further disrupted psychological development and fostered aggression and controlling behaviour as a maladaptive response to conflict".
6. Further, in relation to the offending, Ms Duffy stated as follows: "There appears to be considerable pathology underlying his behaviour, a response to past abuse, as referred to in the recorded conversation during the offence, by his stepfather, and the repetition of the word "maggot" which apparently had been his stepfather's reference to him while beating him."
7. Ms Duffy was also of the opinion that the excessive violence during the commission of the offences was exacerbated by alcohol consumption. I note that self-induced intoxication cannot be taken into account as a matter in mitigation (s 21A(5AA), Crimes (Sentencing Procedure) Act).
8. Ms Duffy assessed the offender as being in the average range for risk of reoffending.

Future treatment

1. Ms Duffy recommended that the offender undertake a psychiatric review in relation to his long-term auditory hallucinations and that he attend the sex offender program (CUBIT) whilst in custody as well as the EQUIPS addictions program. She also considered that the offender will need support upon release into the community to assist him with the continuation of treatment, accommodation and reintegration.

Other material tendered on behalf of the offender

1. Exhibit 2 is the letter prepared by Ms Hallinan. Ms Hallinan has known the offender for two and a half years. For one year she was in a relationship with the offender. She indicates that at no time during her relationship with the offender had there ever been any violence or threatening behaviour towards herself. She regards the current offending as completely out of character for the offender. She remains supportive of him and has visited him whilst he has been in custody.

Submissions of the parties

1. In determining the appropriate sentences, I have taken into account the oral and written submissions on behalf of the Crown and the oral and written submissions of Ms Hall of Counsel on behalf of the offender.
2. In the Crown's written submissions the Crown helpfully particularised the factors relevant to the assessment of objective seriousness in respect of each offence.
3. The Crown also reminded the Court of the general sentencing principles with respect to domestic violence offences (relying upon Patsan v R [2018] NSWCCA 129 at [41] to [43]); kidnapping offences (relying upon R v Newell [2004] NSWCCA 183) and sexual offences (relying upon Simpson v R [2014] NSWCCA 23).
4. In relation to the question of totality, the Crown submitted that there should be some significant degree of accumulation between the offences.
5. In relation to the offender's subjective circumstances, the Crown submitted that the Court would be guarded as to the offender's prospects of rehabilitation and likelihood of reoffending in circumstances where he has had three previous episodes of violence (an entry on his criminal history for robbery was striking in 1992, evidence that in 1986 he was taken to Concord Hospital by his stepfather after he pulled a knife on his stepmother and demanded she take her clothes off and his report of acting violently before he attacked the man for assaulting a woman (referred to in Ms Duffy's report)).
6. With respect to the account of the offender's dysfunctional childhood, the Crown submitted that individually, or in combination, those factors did not create a nexus between his mental health and the offending and they should not be used to reduce his moral culpability.
7. Further, the Crown submitted it does not lessen the degree to which he is an appropriate vehicle for general deterrence. Nor is there any evidence that these factors would make his time in custody more difficult. I note at this stage there was no suggestion on behalf of the offender that his mental health was causally connected to the offending.
8. In relation to the question of a reduction in moral culpability on the basis of principles identified in Bugmy v The Queen (2013) 249 CLR 571, whilst the Crown acknowledged that there was no dispute in relation to his dysfunctional childhood, the Crown submitted that in the absence of systematic exposure to sexual abuse or deprivation and, having regard to a subsequent level of stability whilst living in the community, that the Bugmy principle is not applicable.
9. At the outset of written submissions, Ms Hall on behalf of the offender conceded that all the offences were serious examples of the various offence types. It was submitted that for all counts the objective seriousness would be assessed as being well above the mid-range.
10. In relation to the offender's subjective circumstances, it was submitted that in circumstances where it was the opinion of Ms Duffy that the offender's childhood experiences would have contributed to his offending conduct (noting the possible correlation between extreme violence that he was exposed to as a child and his own development of "aggressive and controlling behaviour is a maladaptive response to conflict") and his abuse of alcohol and cannabis throughout his life that, in accordance with Bugmy v The Queen, the Court would accept there is a reduction in the offender's moral culpability.
11. In relation to the offender's prospects of rehabilitation, it was conceded by Ms Hall that it would be difficult for the Court to be other than guarded. However, the Court may find some reason to conclude there is room for positivity given the lengthy gap in his criminal record. It was further noted that the offender continues to enjoy the support of a number of people in the community.
12. In relation to the question of totality, it was submitted on behalf of the offender that notwithstanding the number of offences, in circumstances where they are all properly characterised as being one episode of criminality, that there would be a significant degree of concurrency.

Form 1 matters

1. In sentencing the offender for the offence of aggravated sexual intercourse without consent (inflict actual bodily harm - Sequence 7), I have taken into account the seven offences on the Form 1 in accordance with the principles enunciated in Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146.
2. I am satisfied there is significant additional criminality in relation to the Form 1 offences.

Relevance of the offender's background

1. Having regard to the offender's background as outlined in the report of Ms Duffy, I am satisfied that the offender had a childhood characterised by early exposure to sexual behaviours, severe physical and emotional abuse and alcoholism.
2. I accept the opinion of Ms Duffy, inter alia, that there appears to be a connection between his behaviour during the offending and his experiences in childhood. This opinion is supported by the evidence of the offender's comments to the victim during the commission of the offences, as recorded in Exhibit B.
3. In such circumstances, I am satisfied that there is a nexus between the offender's childhood deprivation and the offending that warrants a reduction in his moral culpability in accordance with the principles enunciated in Bugmy v The Queen.

Relevance of the offender's mental health

1. It was submitted on behalf of the offender that the diagnosis of Major Depressive Disorder will result in the offender's time in custody being more onerous. I accept that submission and accordingly, I propose to moderate the otherwise appropriate sentences (see generally Director of Public Prosecutions (Cth) v De La Rosa (2010) 205 A Crim R 1 at [177]).

Remorse

1. The offender expressed remorse to Ms Duffy and has also expressed that he has accepted responsibility for his offending. The offender also handed himself into police on the day following the offending and participated in a record of interview during which he made extensive admissions. In such circumstances, I am satisfied the offender is remorseful for his offending.

Prospects of rehabilitation

1. At this stage, any view about the offender's prospects of rehabilitation must necessarily be guarded in circumstances where he has not undertaken any treatment in relation to sexual offending or substance abuse. I note that Ms Duffy assessed the offender as having an average risk of reoffending.
2. Whilst I cannot be satisfied at this stage that he has good prospects of rehabilitation, it is encouraging that the offender has expressed a willingness to undertake rehabilitation and sex offender programs. Also, the offender does have the continued support of a number of people in the community.
3. At this stage, I am unable to find that the offender is unlikely to reoffend.

Totality

1. I propose to impose an aggregate sentence pursuant to s 53A (1), Crimes (Sentencing Procedure) Act.
2. I am required to consider the question of totality in circumstances where the offender is being dealt with for nine offences.
3. The relevant sentencing principle to consider is whether the sentence for one offence can comprehend and reflect the criminality of the other. If so, the sentences should be concurrent but if not, there should be some accumulation (see Cahyadi v R (2007) 168 A Crim R 41).
4. I am satisfied that some partial accumulation is warranted in respect of each of the offences in order to reflect the total criminality, whilst recognising that all of the offending occurred during one lengthy episode.

Special circumstances

1. It was submitted on behalf of the offender that special circumstances are established having regard to the following: 1. The need for the offender to have assistance upon his release from custody to reintegrate into society; and 2. The continued need for the offender to receive treatment and counselling given the long-standing nature of his underlying issues.
2. The Crown submitted that in circumstances where the aggregate sentence imposed will be lengthy, the normal statutory parole period will be sufficient to address the offender's needs for a lengthy period on parole without a finding of special circumstances.
3. I am not satisfied that any variation in the statutory ratio is warranted in circumstances where applying the usual ratio pursuant to s 44(2B), Crimes (Sentencing Procedure) Act will give rise to a very lengthy parole period.

Determination

1. In determining the appropriate sentences, I have had regard to the purposes of sentencing as set out in s 3A, Crimes (Sentencing Procedure) Act.
2. Having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate for each offence with the exception of the matter on the s 166 certificate (s 5(1), Crimes (Sentencing Procedure) Act).
3. I have had regard to the objective gravity of each of the offences, the relevant prescribed maximum penalties, the prescribed standard non-parole periods in accordance with s 54B(2), Crimes (Sentencing Procedure) Act and the offender's subjective circumstances.

Indicative sentences

1. In accordance with s 53A(2)(b), Crimes (Sentencing Procedure) Act, the sentences that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence are as follows: 1. Aggravated detain (inflict actual bodily harm) (Sequence 6) Starting term ten years less 25% leaving a total term of seven and a half years. 1. Aggravated sexual intercourse (inflict actual bodily harm) (Sequence 7 taking into account seven Form 1 offences) Starting term of 13 years less 25% leaving a total term of nine years and nine months with a non-parole period of seven years and three months. 1. Aggravated sexual intercourse (threaten ABH) (Sequence 9) Starting term of eight years less 25% leaving a total term of six years with a non-parole period of four years and six months. 1. Aggravated sexual intercourse (threaten ABH) (Sequence 12) Starting term of eight years less 25% leaving a total term of six years with a non-parole period of four years and six months. 1. Sexual intercourse without consent (Sequence 13) Starting term of six years less 25% for the plea of guilty leaving a total term of four and a half years with a non-parole period of three years and four months. 1. Sexual intercourse without consent (Sequence 14) Starting term of six years less 25% for the plea of guilty leaving a total term of four and a half years with a non-parole period of three years and four months. 1. Sexual intercourse without consent (Sequence 17) Starting term of six years less 25% for the plea of guilty leaving a total term of four and a half years with a non-parole period of three years and four months. 1. Sexual intercourse without consent (Sequence 18) Starting term of six years less 25% for the plea of guilty leaving a total term of four and a half years with a non-parole period of three years and four months. 1. Sexual intercourse without consent (Sequence 19) Starting term of six years less 25% for the plea of guilty leaving a total term of four and a half years with a non-parole period of three years and four months.

Orders

1. Mr Hall, in relation to each offence you are convicted.
2. Taking into account the matters on the Form 1, I sentence you to a total aggregate sentence of 22 years imprisonment to date from 12 February 2019 and to expire on 11 February 2041 with a non-parole period of 16 years and 6 months to expire on 11 August 2035.
3. The earliest date upon which you will become eligible for parole is 11 August 2035.
4. In relation to the offence on the s 166 Certificate (damage property pursuant to s 195(1)(a) Crimes Act) you are sentenced to a community correction order for a period of 2 years. The standard conditions of the order apply. You must not commit any offences and you must appear before the Court if called upon to do so.
5. I direct that each of the offences be recorded as a domestic violence offence on the offender's criminal history in accordance with s 12, Crimes (Domestic and Personal Violence) Act 2007 (NSW).
6. Pursuant to s 39, Crimes (Domestic and Personal Violence) Act, the Court makes a final apprehended violence order for a period of five years from today with the following standard conditions: 1. That the offender must not do any of the following to KE or anyone in a domestic relationship with her: 1. Assault will threaten them, or 2. Stalk, harass and intimidate them, or 3. Intentionally or recklessly destroy or damage any property that belongs to, or is in the possession of, them.

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: 16 September 2020