R v Humphreys

District Court of NSW|2021-06-21|Before: McHugh JJ, Callinan J

Introduction

The Offender presented at trial on 21 June 2021. He was arraigned on an Indictment containing 6 counts (count 6 being an alternative to count 5). Counts 2 and 3 were not left to the jury and verdicts of not guilty were entered by direction. The jury found the Offender not guilty on counts 4 and 5 but guilty on count 1 and count 6.
Count 1 was a charge of sexual intercourse without consent in breach of section 61I of the Crimes Act 1900 (NSW). It carries a maximum penalty of 14 years' imprisonment with a standard non-parole period of 7 years' imprisonment.
Count 6 was a charge of assault occasioning actual bodily harm in breach of section 59 of the Crimes Act, and carries a maximum penalty of 5 years' imprisonment.
The maximum penalties and the standard non-parole period are guideposts for a sentencing judge, and reflect the seriousness with which the community, through Parliament, views the offending.
The standard non-parole period is a matter to be taken into account as part of the determination of sentence. It applies to an offence found within the middle of the range of objective seriousness for such an offence, taking into account only objective factors, and without bringing to account matters that are unique to the Offender or the class of the Offenders. Ultimately, though, the standard non-parole period is but a factor to be taken into account in the sentencing exercise, together with the objective and subjective matters which are considered in synthesis.

Facts

In Savvas v The Queen (1995) 183 CLR 1 at 8, Deane, Dawson, Toohey, Gaudron and McHugh JJ referred to the principle that "a sentencing judge may form his or her own view of the facts, so long as it does not conflict with the jury's verdict". Fact finding following a jury verdict is affected by the inscrutability of a jury verdict. In Cheung v The Queen (2001) 209 CLR 1 the High Court (in the joint judgment at [14]; Callinan J at [169]) cited the decision of R v Isaacs (1997) 41 NSWLR 374 with approval on the question of fact finding following a jury verdict. The joint judgment summarised the law at [14]. I have had regard to those principles in finding the following facts.
The Offender was employed as an interstate truck driver. On 4 April 2019 the Offender contacted the victim via a social media app called "MeetMe", suggesting that she may be interested in a phone call. The victim agreed. The victim and the Offender were previously not known to each other. The Offender suggested that they meet up, about which the victim at that stage was unsure.
The Offender and the victim continued to talk on the phone. From the evening of Saturday 6 April 2019, into the early hours of Sunday 7 April 2019, the Offender contacted the victim again suggesting that they meet, and that he was coming to collect her. The victim agreed to meet with the Offender (T27). At some time between 2am and 3am the Offender picked the victim up in his truck nearby to her residence in Leichhardt and drove in a direction away from the city (T28.30). Along the way the Offender stopped at a Caltex Service Station for a period of about 5 minutes (Exhibit F para 4), where the Offender purchased a coffee before continuing on. Upon arrival at Eastern Creek, the Offender parked the truck in an industrial area opposite Sony Australia, which is located at the address 41 Eastern Creek Road, Eastern Creek NSW (Exhibit F para 5).
Once parked the Offender and the victim got into the rear of the cab of the truck. The Offender offered the victim methamphetamine. She replied "I don't know how to do it", to which he replied "you just suck, and I'll do it for you". At this time the Offender assisted the victim in smoking methamphetamine (T32.4). In cross-examination the victim agreed that prior to meeting with the Offender she had been smoking marijuana, before she left home. She took smoking apparatus for that purpose with her and, according to her evidence, after taking the methamphetamine offered to her by the Offender, she also smoked cannabis (T56.32).
Shortly after the drugs were consumed the Offender and the victim commenced having consensual, unprotected sexual intercourse in the cab of the truck, which involved both digital vaginal penetration and penile vaginal penetration (T33.1). The cab of the truck is a reference to an area behind the seats in the driver's section of the truck where a small bed-like area is located. The victim was lying on her back, and the Offender was on top of her. This sexual intercourse lasted for a period of about 45 minutes, and concluded with the Offender ejaculating.
The victim's evidence was that a short time after this ended, the Offender said "Maybe I might slip it in your arse". The victim replied "no, I don't like it up the bum, please don't" (T33.39).
The Offender then commenced having penile-anal intercourse with the victim. That is count 1, being sexual intercourse without consent. At this time the victim was still lying on her back, while the Offender remained on top of her. While this was occurring, the victim was saying "no, can you stop? Please stop" (T34.12), to which the Offender replied "all you women are the same. Youse (sic) are never satisfied" (T34.15). At this time the victim replied "please, can you get off me?" or "no, no, I don't like it up my bum because of my past" (T34.35).
The anal intercourse lasted for about one minute (T42.17), at which time the victim sat up and the Offender's penis slipped out of her anus. The victim was crying at this time, again stating "I don't like it up my bum, because it hurts. I don't want it up my bum" (T35.8).
The Offender gave evidence that he accidentally penetrated the victim's anus and stopped when told to do so. It is apparent from the verdict that the jury preferred the victim's evidence. The sentence will proceed on that basis.
At some stage while the victim and the Offender were in the truck, the Offender grasped both of the victim's arms and pinned them to the ground of the bed area above her head, so that she could not move or resist (T43.36). As a result of the victim being pinned, she suffered bruising to her arms. That is count 6, being assault occasioning actual bodily harm.
Once the Offender had finished assaulting the victim, the victim put her leggings back on and the two began to argue in the back cab of the truck. During the course of this argument, the Offender told the victim to "fuck off" and to leave the truck, to which the victim responded "how am I going to get home? I don't know this area" (T45.24). The Offender responded "I don't give a fuck. Make your own way home" and told the victim that he would arrange for other truck drivers to pick her up or something similar (T45.26).
The victim then collected her phone, shoes and bag and exited the truck. After exiting, she went to the closest building, that being Sony Australia, which was located at 41 Eastern Creek Road, Eastern Creek NSW.
Upon arriving at that address, the victim was able to attract the attention of Mr Nasir Nawaz, security guard. At this stage the victim appeared scared and was crying, and said "please help me, let me in" (T75.41). At 5:56am Mr Nawaz dialled triple-0 (Exhibit F para 1), sat the victim down and offered her a bottle of water. After roughly 20 minutes, during which time the victim had calmed down somewhat, Mr Nawaz asked the victim what had happened, she replied "The truck driver, someone raped me". When Mr Nawaz again asked who, the victim replied "the truck driver" (T77.8).
At 6:27am Mr Nawaz called triple-0 a second time to advise that they were still waiting for assistance (Exhibit F para 1). About 40-45 minutes after the first phone call, police arrived on the scene (T82.24).
After making some enquiries with Mr Nawaz and with the victim, Senior Constable Sarah Matusz went across the road to the truck, where the Offender was located. At this time police asked the Offender some questions as to how he knew the victim (T89.14).
Senior Constable Matusz and Constable Nicholls then arrested the Offender, at which time he was conveyed to Riverstone Police Station (T90.8). The Offender elected to participate in an electronically recorded interview at Riverstone Police Station, at which time he denied all of the offences.
Those are the relevant facts as I find them to be, consistent with the verdicts of the jury.

Aggravating and Mitigating Factors

Turning to consider any aggravating factors under section 21A of the CSP Act. The following factors arise for consideration: 1. the offence involved the Offender causing the victim to take an intoxicating substance, being methamphetamine. I have reservations about the extent to which the offending was aggravated by this factor given that the victim was voluntarily consuming and under the influence of another illegal drug, cannabis, which she brought with her, together with smoking apparatus. Further, in the matter of R v Crickitt (No 2) [2017] NSWSC 542, Hoeben CJ at CL considered that s21A(2)(cb) "applies to situations where the administration of the drug or other substance is an aid to the occurrence of the primary offence". Given that there was a period of consensual activity between the use of drugs and the ultimate commission of the offences, I am not prepared to make the finding beyond a reasonable doubt that that the administration of methamphetamine was an aid to the occurrence of this offending. Accordingly, I decline to find this aggravating factor; 2. the Offender has a record of a previous conviction which relates to facts bearing a striking similarity to the facts in the present case. It involved the use of alcohol and drugs, and the Offender seeking sexual gratification which he took against the will of the victim, in that case being his sister. The Offender was sentenced in that matter on 13 June 2003 to a term of imprisonment of 5 years and 6 months. Given that this offending occurred some 16 years prior to the subject offending, and without any other convictions in between, I decline to find it as a statutory aggravating factor but, instead, I find that the Offender is not a person of good character and is not entitled to any leniency which may otherwise be available to him; 3. I find that the victim was a person placed into a position of vulnerability, by reason of geographical isolation. She was taken from her local neighbourhood to an area unknown to her in Western Sydney. After the altercation with the Offender, the victim was left stranded without any means of returning home. The vulnerability created by those factors are an aggravating factor under section 21A(2)(l); 4. the Crown submitted that I ought to find that the damage caused by the offending was substantial in light of the previous trauma of the victim. Whilst the evidence would point in that direction, I am not satisfied that it has been made out to the requisite degree, that is beyond a reasonable doubt, in order to give rise to it as an aggravating factor under the CSP act; and 5. the Crown submitted that the offending involved a series of criminal acts. Whilst I may have been inclined to make that finding if all of the counts on the indictment were made out, I am not prepared to find that aggravating factor based upon the guilty verdicts in respect of count 1 coupled with count 6, which may have in fact occurred simultaneously.
None of the mitigating factors under section 21A(3) apply.

Objective Seriousness

I find the objective seriousness of the offending giving rise to count 1 to fall just below the mid-range, having regard to the clear and unequivocal refusal of consent to anal intercourse, the fact that the Offender continued regardless, the isolated location within which the offending took place, and the duration of the offending (about one minute).
I find the objective seriousness of count 6 to be at the low end of the range, having regard to the nature of the bodily harm (bruising) and the comparative transience of such harm.

Subjective Case

The subjective evidence is limited and informed only by the Sentencing Assessment Report dated 16 June 2021. The Offender has limited family support. He told the author of the report that he maintains a small circle of supportive pro social peers. In terms of employment, the Offender has been employed in the truck driving industry for about 4 years, and he intends return to that industry upon his release. The author of the report formed the opinion that the Offender had a history of antisocial behaviour involving driving and drug-related offences, as well his historical offences of a sexual nature.
The Offender maintains that he is innocent or, rather, not guilty. He asserts that the victim fabricated the assault. He attributed blame for his incarceration to the victim and downplayed his own involvement, saying that his only mistake was telling her to leave rather than driving her home.
The Offender had a methamphetamine addiction which commenced in about 2016. He was using between 0.5 grams and 1 gram weekly at the time of the offending. He identified a link between his substance abuse, trust issues and his offending behaviour, and stated that they contributed to him historically turning to crime.
Whilst he expressed sympathy for the victim, it was not because of the offending, but rather due to her history of being sexually assaulted. He also identified himself as a victim. The Offender was assessed as being at a medium risk of reoffending.
The Offender has not shown any remorse for his offending, which is consistent with his position in respect of the conviction. Remorse cannot be found as a mitigating factor. That does not mean that the absence of remorse is an aggravating factor.
I adopt the conclusion in the Sentencing Assessment Report that the risk of reoffending is medium. There is no evidence which would permit a favourable finding as to the likelihood of successful rehabilitation. Given his history of like offending, and the offending said to have been committed whilst on bail, which I understand is accepted by the offender subject to a dispute about age, his prospects of rehabilitation could only be assessed as poor.

Formulation of Sentence

In considering the sentence outcome, the court must not sentence an Offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. In respect of the offence of sexual intercourse without consent, I find that no penalty other than imprisonment is appropriate. In respect of the offence of assault occasioning actual bodily harm, whilst it may be that other sentences would, in complete isolation from the other count, be appropriate, the fact that the Offender will be sentenced to imprisonment in respect of count 1 renders unavailable to him other sentencing options which may have seen him serve the sentence for the assault count in the community. However, the circumstances in which the offending occurred alone justifies a sentence of imprisonment for count 6. Accordingly, I find that in respect of the assault occasioning actual bodily harm, no penalty other than one of imprisonment is appropriate.
Further, I intend to impose an aggregate sentence with a term which would make the prospect of serving any sentence other than by way of full time custody not possible.
In determining the sentence I have had regard to the purposes for sentencing in s3A of the CSP Act. Both specific and general deterrence are important. As is recognition of the harm which the Offender's conduct has had on the victim and the community.
As I intend to impose an aggregate sentence, I am required to provide indicative terms, and for count 1 an indicative non-parole period.
For count 1, being sexual intercourse without consent, I provide an indicative term of 4 years imprisonment, and an indicative non-parole period of 3 years. I have had regard to the Standard Non-Parole Period, but have not applied it as I found the offending to be below the mid-range and, further, to impose it would result in an overall sentence which would be excessive in the circumstances.
For count 6, being assault occasioning actual bodily harm, I provide an indicative term of 6 months.
There is no evidence which would permit a finding of special circumstances. Accordingly, the statutory ratio of parole to non-parole will be applied, with the non-parole period rounded down by 7 days.

Conviction and Sentence

Mr Humphries you are convicted of the following offences: 1. sexual intercourse without consent in breach of section 61I of the Crimes Act 1900; and 2. assault occasioning actual bodily harm in breach of section 59 of the Crimes Act 1900.
For those convictions you are sentenced to an aggregate term of imprisonment comprising a non-parole period of 3 years 2 months, commencing 4 November 2020 and expiring 3 January 2024, at which time you will be eligible for consideration to be released on parole. The balance of term is 1 year and 1 month, resulting in a head sentence of 4 years and 3 months, which expires on 3 February 2025.

I certify that the previous 44 paragraphs are the reasons for the Remarks on Sentence of his Honour Judge D Wilson SC. J Bailey Associate 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: 13 July 2021

Crimes Act 1900(NSW)ss 59, 61I

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