• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

1. On 29 March 2022, Salvatore Incandela was found guilty by a jury of the offence of sexual intercourse without consent, contrary to section 54(1) of the Crimes Act 1900 (ACT). He now stands to be sentenced for that offence. The maximum penalty for the offence is imprisonment for 12 years. The facts

2. I am satisfied beyond reasonable doubt of the following facts.

3. The victim met a friend of the offender, Michael Neale, after matching with him on an online dating service called Zoosk. They agreed to meet in person. On 28 November 2020, Mr Neale collected the victim and took her to his home where she understood there was to be a barbecue. In fact, he offered her alcoholic drinks but no food.

4. The victim and Mr Neale talked for some time. Ultimately, he informed her that he was not interested in pursuing anything further with her. His evidence disclosed that he had in fact made that determination very early during their encounter based on her physical appearance, which he considered did not match her Zoosk profile.

5. At some point during the afternoon, Mr Neale received a call from the offender and invited him over to join them. The three sat talking on Mr Neale’s back deck for some time. At the point when Mr Neale told the victim that he was not interested in a relationship with her, she became upset. By that point she was feeling quite intoxicated.

6. Upset that things had not worked out with Mr Neale, and not having enough money for a taxi or ride-share home, the victim accepted an offer from the offender for a lift home. During the drive to the victim’s house, the offender stopped the car at a nature reserve in Spence. He got out of the car with his pants around his knees, walked around to the passenger side door and had anal sexual intercourse with the victim without her consent. The offender was rough, leaving significant bruising and causing the victim to bleed heavily. She believed the blood came from her vagina. However, a subsequent forensic medical examination revealed that she had suffered two perianal haematomas and a perianal laceration, indicating that the bleeding was caused by the anal penetration and came from the anal passage. Consistent with the victim’s observations in her victim impact statement, the medical examination also found bruising on various areas of the victim’s body, confirming her account of the roughness with which the offender handled her. Impact on the victim

7. Section 53(1)(a) of the Crimes (Sentencing) Act 2005 (ACT) requires the Court to consider the impact of the offence on the victim as explained in the victim impact statement provided by her. The content of the victim’s statement must be assessed in the context of other evidence before the Court concerning her, in particular, a report provided at the proceedings on sentence which recorded that she expresses herself in language and gestures typical of a person much younger than her age. I gained the same impression during her evidence in the proceedings, which was given with the assistance of an intermediary. Her child-like way and her vulnerability must have been apparent to the offender in the hours leading up to the commission of the offence.

8. The victim impact statement reveals that the offence has had a devastating impact on the victim. That is also confirmed by the impression I gained during her evidence in the trial. She described the physical effects of the offence, which included bruising and potential subsequent medical procedures. She also described the psychological effects of the offence, which led to suicidal ideation and actual attempts at suicide, symptoms of post-traumatic stress disorder, comfort eating and the sadly familiar phenomenon of self-blame. The victim stated that Housing ACT “had to move [her] because [she] did not feel safe in her home.” She also said that she does not feel safe travelling anywhere in the vicinity of the area of Canberra where the assault took place.

Objective seriousness

9. It will be plain from the facts and the impact of the offence on the victim that the offence is one of considerable seriousness. The long-term impact of sexual assault is well understood. Sexual assault is an invasion of bodily integrity and autonomy. As the victim records in her victim impact statement here, it impairs a person’s ability to move freely as a member of society without fear: see R v MT [2014] ACTSC 162 at [36].

10. The factors that inform the objective seriousness of such an offence were identified by the Victorian Court of Appeal in Jurj v R [2016] VSCA 57 at [80] as follows: whether the offence was premeditated; whether the offender acted alone or in company; how long the attack lasted and whether the victim was raped more than once; whether the offending involved violence or threats of violence; whether a weapon was used; whether the victim was injured in the course of the rape; whether the victim was humiliated or degraded; whether the offender used a condom; whether the victim was particularly vulnerable; and whether the offender ignored warnings or protests by the victim.

11. Of the factors listed there, a number are absent. As accepted by the parties, it is clear that the offending in this case was not premeditated but was opportunistic; that the offender acted alone; that there was no threat of violence or the use of any weapon; and that the period of offending was short.

12. However, as submitted by the Crown, a number of the other factors that increase the seriousness of the offence are established here. First, the forensic medical examination confirmed that the assault involved a considerable level of violence and that it caused actual injury to the victim. In the two days following the assault, she reported experiencing anal pain as well as anal and vaginal bleeding. The examiner could not conclusively determine the cause of those injuries but expressed the opinion that they were consistent with blunt force trauma to the anus caused by penile penetration. Having regard to all of the evidence I heard during the trial, I have no doubt that is the case. The examination also found significant bruising at various points on the victim’s body including her arms, thighs and buttocks.

13. The nature of the offending was such as to cause feelings of humiliation and degradation in the victim. The offending occurred in public within the view of multiple members of the public who gave evidence at trial. One recorded from a distance a part of the offence, and it was only the presentation of that recording that resulted in the offender making any admission about his involvement in the offence. The offender did not wear a condom or any other type of protection against sexually transmitted disease. The victim reported feeling helpless and blaming herself for the events that occurred, both in the evidence before the jury at trial and in her victim impact statement.

14. The final factor listed in the decision in Jurj is more difficult. It is whether the offender ignored warnings or protests by the victim. The Crown submitted that I should find that the offender knew that the victim was not consenting. The evidence on that issue is complex. One difficulty is that the victim’s evidence was silent as to how the incident began. I accept without reservation that she did not in fact consent, but the question I am now considering is the extent to which the offender ignored warnings or protests and whether the offender knew the victim did not consent or whether he was only reckless as to whether she consented. I accept that at the point where the victim saw that she was bleeding, she told the offender to stop and that he did not. To that extent, he ignored her protest and must be taken at that point to have known at some level that she was not consenting. The evidence does not establish how long the intercourse continued after that point, but it must have been a relatively short part of an incident the Crown accepts overall was short.

15. But before that point, I do not think I can be satisfied beyond reasonable doubt that the offender knew the victim was not consenting. The Crown’s submission that I should make that finding included a submission that the offender’s account to police initially during his interview and before he was shown the footage from the neighbour was “rubbish”. Without adopting that term, I agree that the account given by the offender must be disregarded. But I cannot fill the gap in the evidence and speculate as to what in fact did happen in the period before the victim remembers of the assault. For that reason, I do not think I can be satisfied beyond reasonable doubt that the offence began as one in which the offender knew that the victim was not consenting.

16. I do accept that, as submitted by the Crown, that the offender’s moral culpability is exacerbated in some degree by the vulnerability of the victim. There are aspects of her vulnerability which he could not have known. She left high school in year 10 and suffers from epilepsy. The forensic medical examination comments that, while she has not been diagnosed with any intellectual disability or learning difficulties, she “presented clinically as having reduced capacity to understand new information and expressed herself using gestures typical of a person much younger than [her age].” Having viewed the victim’s interview with police and the pre-recorded evidence at trial, I am satisfied beyond reasonable doubt that her vulnerability would have been obvious to the offender to some extent. Her vulnerability was further compounded by her inability to afford a fare home, as a result of which she relied on the offender for transport.

17. However, there is evidence before the Court that the offender also is a person who may have had some reduced capacity to read cues and interpret information. I will return to that issue.

18. The evidence clearly established that the victim was intoxicated at the time the offending took place. That is a factor which increased her vulnerability. If it were to be accepted that the offender knew the victim was intoxicated or the extent of her intoxication, the offender’s understanding of the victim’s vulnerability and in turn his moral culpability would be aggravated. The Crown submitted that the offender must have been aware of the extent of the victim’s intoxication. Evidence was adduced at trial to support the conclusion that the victim was exhibiting symptoms of intoxication. In particular, there was evidence that she vomited at the site of the offence. The Crown also relied on evidence by the victim’s daughter that she was visibly affected by alcohol. There was also evidence from Mr Neale that he was under the impression that she was intoxicated.

19. However, at the proceedings on sentence, Counsel for the offender, Mr Jackson, reminded me of evidence given during the trial by Senior Constable Cunningham that the victim did not show signs of intoxication, as well as CCTV footage which contradicted the victim’s daughter’s account that she required physical support while the two were at a shopping centre not long after the assault.

20. It is trite that the Court cannot take a matter into account as an aggravating factor unless it is both consistent with the verdict of the jury and proven by the Crown beyond reasonable doubt: R v Olbrich [1999] HCA 54; 199 CLR 270 at [31]. While I accept that the victim was intoxicated, and that the offender was aware that she had consumed some alcohol, the evidence does not satisfy me beyond reasonable doubt that the offender knew the victim was intoxicated to the extent she described. However, I am satisfied that he knew she was vulnerable in some degree and, as she later complained to Mr Neale, that the offender took advantage of her.

21. For those reasons, I am satisfied that the offence is one of considerable objective seriousness although it is plainly not at the most serious end of the scale.

Offender’s subjective circumstances

22. Turning to the offender’s subjective circumstances, the Court has a Pre-Sentence Report prepared after the jury’s verdict and before the proceedings on sentence, as well as a number of references provided to the Court by Mr Incandela’s family and friends.

23. The Pre-Sentence Report records that the offender’s childhood was disrupted and dysfunctional, characterised by parental abandonment and family violence. The offender was raised by his mother along with his three sisters in Queensland. However, upon returning home from school one day he found his mother to have abandoned him. He then went to live with his father in Sydney only to find that his father was in custody. The offender then moved in with his sister and her partner until he was aged 17.

24. He was exposed to violence from his father towards his mother during his childhood. His stepmother also indicates in a letter provided to the Court that the offender suffered emotional and physical abuse at the hands of his biological mother before she abandoned the family. The offender has two daughters but the relationship with the mother of those girls has failed, and he has not spoken to them since 2015. He has been significantly affected by not being in their lives.

25. The offender left mainstream schooling three weeks into commencing Year 8 after experiencing trouble with literacy and reporting a self-diagnosis of attention deficit hyperactivity disorder. Since leaving school he has been a steady and consistent worker in the construction and concreting industry. A reference provided to the Court by Mr Pesut, for whom the offender worked as a contractor, described the offender as a person who is highly regarded and hard-working, who has been trusted with leadership responsibility and shows compassion and patience with younger tradesmen.

26. The references from members of the offender’s family also speak with one voice as to his good character. He was described as being a caring and supportive family member. His brother noted that he moved to Queensland from Canberra in order to provide financial assistance and support to his brother and his brother’s children.

27. The offender has a history of depression, having used community services for mental health treatment after a suicide attempt in 2014. He has, according to the Pre- Sentence Report, expressed suicidal ideation since being in custody. Based on the content of the Pre-Sentence Report and my own observations of the sentencing hearing, he was marked as a prisoner at risk to himself.

28. The Crown accepted that the offender suffered some disadvantage during his childhood but submitted that it did not fall within the scope of the kind of profound disadvantage required to be established before the Court can take into account the principles set out in the decision of the High Court in Bugmy v The Queen [2013] HCA 27; 249 CLR 571. In particular, the Crown submitted that there was not established a causal connection between the offender’s childhood disadvantage and his offending in this case.

29. I do not accept that submission without qualification. In Bugmy at [44], the High Court said: “An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated, such that the offender’s moral culpability or the inability to control that impulse may be substantially reduced.”

30. I do not suggest that the offender’s moral culpability is substantially reduced in the present case. But I do think the childhood described in the material before the Court is one that would have deprived him of the kind of executive function and good decision-making ability that other members of the community may be expected to have.

31. Counsel for the offender accepted that, in light of the content of the Pre-Sentence Report, I could not find remorse. That concession was appropriate. I do understand that it can takes offenders some time to come to terms with the extent of their offending. But the Court must have regard to the attitude to offending expressed by an offender at the time of sentence. In the present case, the Pre-Sentence Report records that the offender expressed the belief that he was wrongfully charged and convicted. The author states: “He appeared to minimise his actions by reflecting on his conduct that took place during the current offence, and was adamant that the sexual encounter was consensual and at no point did he recall being advised by the identified victim of her assertion to stop.”

32. The report concluded that the offender “finalised his overall attitude towards his current offending behaviour by stating, ‘[t]he only thing I am guilty of is having sex in public’”. That characterisation of the offence cannot be accepted by the Court. Leaving aside the fact that it is of course inconsistent with the jury’s verdict, it is also not my assessment of the evidence, having seen the complainant.

33. I am nonetheless prepared to accept that Mr Incandela, although not remorseful, does have reasonable prospects of rehabilitation. He has a limited criminal history of minor theft, contravening a protection order, destroying or damaging property and driving-related matters including drink-driving. He was on bail and subject to supervision by ACT Corrective Services in December 2020. The author of the Pre-Sentence Report describes his compliance with that supervision as satisfactory. The Report describes him as being at a medium to low risk of general re-offending.

34. There is an assessment that he is at average risk of sexual re-offending, but that is in the context of the kind of static assessment that warrants further investigation. In the Pre-Sentence Report, the author records that the offender did express an intention to be more cautious toward engaging in sexual interactions in the future. It is probably correct to say that, until the offender can come to terms with and accept responsibility for his offending, his prospects for full rehabilitation will be impaired to some extent, but I am not prepared to discard his prospects of rehabilitation as being negligible. Sentencing purposes

35. The statutory sentencing purpose of general deterrence should be given some weight in this case. The circumstances of the offending reflect common characteristics of sexual offending, that is, a circumstance where a person takes advantage of another’s vulnerability for their own sexual gratification: cf Dean v R [2006] NSWCCA 341 at [52].

36. The offence is also one that warrants denunciation. That is also an object of sentencing: s 7(1)(f) of the Crimes (Sentencing) Act. The Court’s denunciation of the offence here should be understood to include disapprobation of the offender’s attitude to the issue of consent. A person’s consent to an act of sexual intercourse is not to be assumed or taken as given. Comparative cases

37. The Crown provided a helpful summary of comparable cases. I have had regard, in particular, to the decision in R v MT to which I have already referred. That was a case in which the offending was opportunistic, having occurred while the victim was asleep. The victim and the offender in that case were known to each other through a mutual friend. The offender was assessed as having excellent prospects for rehabilitation and had no prior criminal record. Refshauge J sentenced the offender to a term of imprisonment for two years with a non-parole period of nine months.

38. In R v Buda-Kaa [2013] ACTCA 26, the Court upheld a sentence of imprisonment for three years with a non-parole period of one year and six months, but noted that the sentence was lenient in the context of the offending in that case where the offender was a friend of the victim’s mother who had known the victim for quite some time and where the kind of intercourse was only digital penetration.

39. In R v Alabbasi [2017] ACTSC 231, a more violent kind of offending was considered by Burns J. His Honour sentenced the offender to 30 months’ imprisonment for a charge of sexual intercourse without consent. The offender there had been convicted of anally raping the victim while physically threatening her with a pair of scissors. The offender was however also convicted of other offences. The offending was mitigated by the fact that he had expressed remorse for his offending and had a dysfunctional childhood including being influenced by a brother who was involved in criminal activity.

40. In R v Stevens (No 3) [2016] ACTSC 297, the offender and the victim met on an online dating site. Prior to engaging in sexual intercourse, the victim had explained to the offender that anal intercourse was a “no-go area” and there was anal penetration nonetheless. There were other offences in that case, and the offender had a substantial criminal history.

41. I consider that the purpose of general deterrence and to some extent specific deterrence are important considerations here. As already explained, I am satisfied that the offence is one of considerable seriousness. Against that, I have regard to the relatively strong subjective case presented by the offender.

42. I am satisfied that the threshold in s 10 of the Crimes (Sentencing) Act is met and that no sentence other than a full-time custodial sentence is appropriate. I consider that the appropriate sentence is a term of imprisonment for three years with a non-parole period of two years.

43. Mr Incandela, please stand. (1) For the offence of engaging in sexual intercourse with the victim without her consent being reckless as to whether she consented, you are convicted. (2) I sentence you to a term of imprisonment for 3 years commencing on 23 March 2022 and expiring on 22 March 2025 with a non-parole period of 2 years expiring on 22 March 2024.

I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice McCallum. Associate: Date: