R v Hall

THE OFFENDING

1. The offender and the victim have known each other for over 18 years. Over those years the victim and the offender were involved in two separate sexual relationships. The first relationship commenced on or about 26 October 2004 and ended in October 2005. The second relationship commenced on 29 May 2010 and ended on 9 December 2016. They have three children together: SH aged 11, LH aged ten and RH aged six.

SEQUENCE 6 - SECTION 66C SEXUAL ASSAULT UNDER THE AGE OF 16

1. On 26 October 2004 when the victim was 12 and the offender was 17 she went to his home with others (GB and PC). She went into his bedroom. It would appear that GB and PC were having sex in one of the beds. The victim and the offender laid on the second bed in the room. The offender had taken most of his clothes off. The victim removed her pants and underwear. The offender attempted to put his penis in her vagina. Eventually he was able to put part of his penis into her vagina. The victim felt extreme pain. Thereafter, they had a relationship which included engaging in sexual intercourse. The relationship ended in October 2005.
2. On 29 May 2010 their relationship recommenced. Over time, they had three children. On 9 December 2006 the relationship ended. The victim and the offender co-parented their children. The offender regularly attended the victim's house to help with the children and carry out chores.

SEQUENCE 5 - SEXUAL INTERCOURSE WITHOUT CONSENT

1. On 16 October 2022 at approximately 7.30pm the offender gave the victim a lift to pick up a car. He had previously sent text messages asking for sex. The victim did not respond. They returned home at about 8.56pm and sat down on the couch to watch television. The victim fell asleep. At about midnight the victim woke up and noticed that her pants and underwear had been removed. She was naked from the waist down. The offender was on top of the victim. The victim could feel the offender's penis inside her vagina.
2. The victim tried to roll over in an attempt to get away from the offender. As the victim rolled over, the offender's penis came out of the victim's vagina. The victim said, "No." The offender replied, "Don't you want it? Can I finish?" The victim could tell the offender was not wearing a condom. The victim said, "No." The offender grunted and stood up and moved away from the couch. He walked up the hallway and went to the toilet.
3. The above facts I have found from the Crown Case Statement in relation to the matter, which, on this application, I am entitled to review so that the Court can be informed of the factual nature of the offending.

MS MENDES' SUBMISSIONS AND DETERMINATION

1. Ms Mendes submits that it does not follow that sequence 6 offence would result in an immediate term of imprisonment, nor the crossing of the s 5 threshold. She submits that the following factors are relevant in the sentencing exercise: 1. The offender was a child at the time of offending and the major sentencing consideration is rehabilitation. 2. The offender has an intellectual disability resulting in a reduction of his moral culpability. 3. The victim was a "willing participant" which is relevant in assessing the objective seriousness: Dawkins v R [2018] NSWCCA 278; Wakeling v R [2016] NSWCCA 33; Hogan v R [2008] NSWCCA 150 at [77], (2008) 186 ACrim 52. 4. Over 12% of offenders receive community correction orders post introduction of the standard non-parole period; before the introduction of the standard non-parole period over 18% of offenders received community correction orders.
2. Without hearing full argument, the submission has some force. The Court, as the bail authority, is to make an evaluative judgment as to the future matter, being the disposition of sentence, with respect to the convicted person. That involves the Court making a forward-looking assessment on the limited materials placed before the Court on the detention application.
3. The requirement of the condition in s 22B(1) that the Court be satisfied that the convicted person "will" be sentenced to full-time imprisonment involves a state of satisfaction as opposed to the fact. As this is an evaluative judgment of a future matter and not a fact to be proved, proof on the balance of probabilities is not the relevant standard.
4. Section 22B sets a high bar for the degree of satisfaction to be reached by the Court to engage the power to make a bail decision under s 22B. The use of the word "will" in the condition indicating future likelihood suggests what is realistically inevitable as distinct from what may happen or is likely to happen. That does not mean that "will" involves a state of absolute certainty.
5. I am not satisfied that on sequence 6 that it is realistically inevitable that the offender will be sentenced to imprisonment. I do so for the following reasons: 1. His age at the time of offending (he was a child). 2. The objective seriousness of the offending (the victim was a "willing participant"). 3. The reduction of the offender's moral culpability due to his mild intellectual disability and current sentencing practices.
6. I now turn to sequence 5, sexual intercourse without consent. The future likelihood suggests that it is realistically inevitable that the offender will be sentenced to imprisonment to be served by way of full-time detention. Ms Mendes submits that special or exceptional circumstances exist to refuse the detention application. The word "or" is used disjunctively. If the Court is satisfied that special circumstances exist, it should refuse the application. If the Court is satisfied that exceptional circumstances exist, it should refuse the application.
7. The words "special" or "exceptional" are not defined in the Act. "Special" means better, greater or otherwise different from what is usual. "Exceptional" means unusual, not typical. Harrison J discussed the meaning of "exceptional circumstances" in connection with s 15AA in R v Naizmand [2016] NSWSC 836 at [8]-[13]. See also R v NK [2016] NSWSC 498 at [26]-[28]. In the context of s 22B, special or exceptional circumstances should be given the same meaning as in s 22(1) (concerning bail where an appeal is pending in the Court of Criminal Appeal) unless there is a reason not to do so and to be determined on a case by case basis: DPP v Van Gestel [2022] NSWCCA 171 at [50] and [52].
8. It is a question of fact to be determined on the balance of probabilities with the onus falling upon the respondent Mr Hall. The concept of exceptional circumstances is necessarily a flexible one but it is clear it may be constituted by a combination of matters which, taken together, render the case exceptional: Haddara v Commonwealth Director of Public Prosecutions [2006] VSC 8 Osborn J at [5]. What must be shown is that there is some situation out of the ordinary in some respect that the respondent can point to as justifying the adjective "exceptional."
9. Exceptional circumstances may include personal or subjective circumstances of the respondent. Ms Mendes relies upon the affidavit of Mr Harrison and submits that as a matter of common humanity the respondent should remain on bail until the sentence hearing to be conducted on Thursday, 9 November 2022.
10. I am satisfied on the balance of probabilities that the matters set out in in Mr Harrison's affidavit in combination demonstrate special and/or exceptional circumstances to justify the refusal of the detention application. The application is refused.

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