R v Junior

District Court of NSW|2020-02-03

OFFENCES

On 11 February 2020, the offender was convicted on 3 Counts of intercourse without consent under s 61I of the Crimes Act 1900 (NSW). The maximum penalty for each Count is 14 years imprisonment. There is a standard non‑parole period for each Count of 7 years imprisonment.
The offending occurred in early hours of 28 October 2018.
There are no Form 1 matters.
The offender has no antecedent criminal history.
The offender was born in April 1993 and was therefore 25 years of age at the time of offending and is now 27 years of age. He was arrested for the subject offending on 28 October 2018. Bail was granted on 29 October 2018 and he was immediately taken into immigration detention and remained detained as a High Security detainee under the executive powers of the Commonwealth government until his convictions. From 11 February 2020, he has been imprisoned under the authority of the NSW Department of Corrective Services.

THE INCIDENT

At some point after ejaculating, the offender left the sunroom to go to the bathroom. He then entered M's room where the victim was in bed.
It is common ground that the offender did not ejaculate during the offending conduct.
It is to be observed that the circumstances of the offender going to the victim's bedroom included that he was aware that she was in a vulnerable state of mind because he knew she had left the tavern alone, self‑harmed when she got home and had removed herself from the activity in the sunroom. He knew that she had taken herself away to M's bedroom to sleep.
The offender got onto the bed behind the victim and between her and the wall. The victim was laying on her right side. He moved the blanket down towards her lower legs and pulled her tights down. No words were spoken by the offender or by the victim. The victim thought the person on the bed behind her was S, who had come to care for the superficial, self-harm cuts on her upper legs.

COUNT 1: SEXUAL INTERCOURSE WITHOUT CONSENT - DIGITAL/VAGINAL

The victim's evidence of what occurred from the point of someone laying behind her on the bed, who she thought to S, was as follows:

She did not open her eyes;
The person moved the blanket from the lower half of her body;
The person briefly "caressed" her hips, then her bottom and then her thigh in a "soft" way;
The person then pulled down her tights and underwear to around her knees;
She did not react in any way, thinking "maybe it was my aunty coming to check on me and my legs, to possibly see if I'd cut anywhere else other than where I'd told or shown her, and to see if my tights had aggravated it at all, because tight clothing on marked or scratched skin can sometimes rub";
She felt a hand rub her between her legs and in the area of the outside of her vagina at which point she thought she was having a really bad dream and that she was asleep;
She then felt a finger actually enter her vagina and at around this time she realised that she was not asleep and that the person behind her was not S. She described the event in the following terms at transcript page 46 lines 36 to 45: "Q. So after you felt a finger enter into your vagina, what did you feel? What could you feel? A. Not a - a lot, but just a little bit of - little bit of pain. It was just being pushed in and pushed out. And I was - I felt stuck. I don't know if it's familiar for anyone, when you're in a dream, when you just can't run fast enough, but I felt paralysed, like I couldn't move. And I thought, "You'll wake up soon. You'll hear your alarm for work. You'll be fine. Just - it's your dream. Try and stop it." And when I felt the repetitive movement, I thought, "Snap out of it. Snap out of it. Wake up." I couldn't."
The repetitive movement was the offender's finger penetrating her;
She did not actively react but froze because she felt paralysed; her evidence was that she did not move any part of the body, her eyes were open and staring at the wall, she did not turn around and she did not make a sound. She remained inactive, quiet and still. The person did not say anything to her either;
One of Coco or Cortes came out of the sunroom and walked to the bathroom. When this happened the offender rolled away from the victim and into the shadow near the wall but remained on the bed. The light spilled from the sunroom into M's room. The victim noticed the light and heard the person walk past the open doorway of M's room to the bathroom. She did not move or make a sound. She did not reposition her clothing or pull up the blanket. Her eyes remained open. The sunroom door remained open as the young woman walked through the laundry, past the open door to the bathroom and whilst the half of the bed toward the centre of M's room was not in shadow;
Immediately after the bathroom door closed, the offender rolled back toward her and put his finger inside her vagina again;
Not long after the offender had recommenced digital vaginal penetration, the sunroom door again opened and light again spilled into M's room. This time it was the second of the young women leaving the sunroom to go to the bathroom. Again her course was to walk immediately past the open door to M's bedroom in order to get to the bathroom. When the sunroom door opened, the offender quickly moved from the bed and stood at a position between the foot of the bed and the wardrobe. In this position, he was out of view from a person passing M's bedroom door.
On hearing the bathroom door close and both young women inside the bathroom giggling, the offender removed his pants and laid down behind the victim and again inserted his finger into the victim's vagina;
During the time between the offender leaving the bed and coming back onto the bed, the victim remained quiescent of voice and movement, including that she did not cover herself with the blanket.
It was the entirety of this continued conduct of digital penetration of the victim's vagina which was included in Count 1. The victim described the duration of the first period in terms of "It couldn't have been long"; the second in terms of "a little bit"; and the final in terms of "shortly". In total the Count 1 offending was of relatively short duration.

COUNT 2: SEXUAL INTERCOURSE WITHOUT CONSENT - DIGITAL/ANAL

The offender removed his finger from the victim's vagina and inserted it into her anus. The offender moved his finger back and forth which hurt the victim. The victim described the total duration of the offending activity as "in and out a few times". The offender removed his finger from the victim's anus. The victim remained quiescent of voice and movement.

COUNT 3: SEXUAL INTERCOURSE WITHOUT CONSENT - DIGITAL

The offender used one of his hands, placed in the area of the victim's vagina, to hold her vagina open. The victim then felt rubbing on the outside of her vagina and what she described as "I could feel him try and push inside me. But he was soft, I guess". The victim gave the following evidence of what she sensed (transcript page 51 line 20 to page 52 line 1): "Q. Could you tell that is [sic] was his penis, for example, and not something else that was being pushed against your vagina at that stage? A. It felt like he was holding it in his hand. I could feel his fingers as well around it, but I could, I could tell it was the tip of his penis he was rubbing. Q. Now, you say he was trying to penetrate you. Did he manage to penetrate you to any degree? A. Not, not fully with his penis. I don't think he tried, but it might've been just the tip, the tip of his thumb. I couldn't tell. Q. So, when you're saying it might've been just the tip of his thumb, do you mean it might've been the tip of his thumb that penetrated you at that stage? To some, at least to some degree? Is that what you're describing? A. Well, he's trying to push himself in me, yeah. Q. When he was trying to push himself into you, did he manage to, at least to some degree, penetrate you? A. Something went in, yeah. Q. I take it from what you're describing to us, is you're not suggesting that it was fully penetration of your vagina at that stage? A. No. Q. But at least some type of penetration. It certainly didn't remain outside you at that stage, could I use that comfortable expression? A. Yeah. Q. So there was at least some degree of penetration. A. Yes. Q. How long did that part of the incident continue for? A. Maybe a minute."
The parties agreed that the offender was attempting to penetrate the victim with his penis at this point. The victim described feeling something penetrate her vagina, but was uncertain whether what was penetrating her was the offender's penis or perhaps a finger or thumb. What she described was consistent with at least some degree of penetration. Her uncertainty only extended to what part of the offender penetrated her. The actual, physical penetration was relatively very minor.
At around this point, both the offender and the victim heard the floorboards in the lounge room creaking, meaning somebody was moving in that area. The offender immediately jumped off the bed and pulled up his pants, albeit the victim never asserted that she actually saw him pull up his pants. The victim opened her eyes and saw the offender walk towards the door of the bedroom.
At this time, S met the offender at the bedroom door. The offender said "there you are, I was just looking for you", which the offender asserted in his evidence was a reference to the fact that he had initially entered M's bedroom looking for S. S did not challenge him about being in M's room.
S noticed the two other women were in the bathroom and walked back into the sunroom with the offender. The two young women returned shortly thereafter. S stayed together in the sunroom with them.
The victim said that she was scared when S came out of the lounge room and she could see her in the doorway of M's room. She remained on the bed with her tights and underpants down to her knees. She had not moved.
During cross-examination, as to her quiescence during the sexual intercourse of each Count, the victim gave the following evidence (transcript page 89 line 11 to line 47): "Q. Of course, the third time that it stopped is when it stopped completely and wasn't resumed? A. Yeah. Q. Correct? A. Yeah, yeah. Q. So what I just want to focus on is the two periods where the conduct stopped in between, before the conduct finished completely and he left the room. A. Mm-hmm. Q. Do you understand? A. Yep. Q. On both of those occasions when he rolled onto the bed, rolled into the shadow and got up off the floor, onto the floor and into the cupboard? A. Yep. Q. Both of those occasions you stayed on the bed. Correct? A. Yes. Q. Both of those occasions the tights were still down, you say? A. Yes. Q. Neither on those two opportunities did you pull your tights up? A. No. Q. Neither in those times did you get out of the bed? A. No. Q. Neither of those two times did you leave the room? A. No. Q. Neither of those two times did you pull the blanket back over you? A. No."

COMPLAINTS

The Crown relied on the victim's contemporaneously made complaints, firstly by telephone to her friend and work colleague, Mr P, and after her walking to the nearby home of her Aunt L, to her.
When the offender left the victim, she decided that she would give herself a countdown from 100 before she would leave. On reaching 0, she pulled up her pants, put on a shirt (which she said was probably one of M's shirts), and left the house. Once she was outside on the driveway, she immediately telephoned Mr P and complained to him about the offender's conduct. He described hearing the victim's obvious distress in his call and he was concerned for her welfare at that point. Whilst speaking on the telephone with Mr P, the victim walked and ran to her Aunt L's home.
At about 5:00am, Aunt L opened the door to the victim, who was crying and they hugged.
The victim said "He is not a good guy", referring to the offender. Aunt L told her to come inside and they walked into the living room. The victim, who was still crying, curled into a ball on the couch. The evidence of their conversation given by Aunt L in the trial was that the victim did not spontaneously complain of "rape", but that she believed the victim was "leading up to that" by what she was saying, so Aunt L asked the victim "Did he rape you?" and the victim affirmed that he did.
Aunt L obtained further details from the victim and noticed that the victim was ignoring calls from Aunt L's sister, S. Aunt L called S and told her that the victim had complained that the offender had raped her. The offender was party to the conversation but S ended the call at that point to speak to the offender.
Back at S' house, sometime after the victim had left, the offender left the sunroom to go to the toilet and noticed that she was no longer in M's room. He alerted S and S called the victim's mobile phone. The victim ignored those calls because she did not want to speak to either S or the offender.
After speaking with the offender, S called her sister back and told her that the offender had denied raping the victim. Aunt L indicated that she was going to take the victim to the police station. S said that she and the offender would also attend the Police Station.

CROWN SUBMISSION - LIES TOLD IN CONSCIOUSNESS OF GUILT

The Crown relied on a text message typed and forwarded by the offender from S' mobile phone to the victim, after the victim had contacted the police. The text read as follows: "Hey [K], it's [J]. I'm sorry for whatever you think that I have done but I swear I didn't do anything inappropriate with you last night, we've been down to the station as well and stuff but if you need me to do anything else to help you or whatever you're going through, then please just talk to me or even [F], CZ, [sic] I was with the other girls the whole night till 5.00ish this morning, honestly hope you're doing OK, TK." ["K" is a reference to the victim; "J" is a reference to the offender; and "F" is a reference to S].
The Crown relied upon the content of this text message, in combination with what it asserted the offender earlier said to S when the allegation was first raised, as lies told in consciousness of guilt. The Crown asserted that this was a lie, because it was not simply a denial of "rape" (as in penile/vaginal intercourse) but a denial of any sexual contact occurring between the victim and the offender on that night.
During oral evidence, S conceded that her statement made to police whilst in a state of anxiety recorded that the offender had said to her "Baby, I'm telling you, I did not touch her. When? How?"; but steadfastly maintained that she recalled the offender having actually said to her, not the words contained in her statement, but rather: "I didn't do it. When? How?"
The Crown submission of lies told in consciousness of guilt invited the jury to determine the lie in the above quoted text message, particularly the words "I was with the other girls the whole night till 5.00ish this morning", to be that the offender was denying any sexual contact with the victim, as he also was when saying to S "How? When?".
Given that the Crown submission as to lie made in consciousness of guilt in the text, was argued at trial with the argument that S's statement to the police (which she refused to adopt) was accurate; in my opinion, it was open to the jury to think that the words "I didn't do anything inappropriate with you" in the text and "I didn't do it" spoken to S were expressed in the context of responding to the allegation of "rape". This was my impression when I listened to the evidence and when I listened to the Crown's submission at trial. There was some evidence of an understanding that "it" meant penile/vaginal intercourse. That was the complaint of "rape" conveyed by Aunt L to S. Evaluation of the Crown's submission that those words denied any sexual contact, being lies made in consciousness of guilt, required application of the offender's moral code in his expressions of "it" that he didn't do and as to what was "inappropriate". Whilst during closing address, the Crown pressed the denial in the police statement "I did not touch her", S's evidence that those words were an error in the statement, was open to be believed by the jury. The whole of the text, including the words speaking of being with the "other girls the whole night", at trial fell short of proving beyond reasonable doubt lies motivated by a consciousness of guilt of other sexual contact.
Without conceding the factual point; during the sentencing hearing, the Crown did concede that the denial of inappropriate conduct in the text is more relevant to subjective considerations on sentence.

POLICE

At about 7:00am, the victim attended Mt Druitt Police Station and outlined what had occurred. Arrangements were made for the victim to be taken to hospital for an examination. Evidence of that examination was given in the trial. The victim had not complained of injury, albeit she did describe some level of pain associated with penetration, particularly of her anus. No injuries of relevance were observed by the medical practitioner. The medical examination was unremarkable. Several swabs were taken for later analysis.
Later, on 28 October 2018, the offender attended the police station after arrangement had been made for him to do so. He was arrested and conveyed to Riverstone Police Station. The offender was afforded the opportunity to be interviewed but declined, as he was entitled to do, following legal advice. The offender participated in a forensic procedure.
Subsequent forensic analysis identified a mixed DNA profile from a swab taken from the top tip and underneath the nail of the offender's left little finger. The victim's DNA profile could not be excluded as a contributor in that mixture.
A mixed DNA profile was also obtained from a swab taken from the external labia of the victim. Semen was found on this swab. The major profile obtained matched the offender's DNA profile. That DNA evidence could not assist the jury on the issue of penetration, as the DNA consistent with the offender's was recovered only from the external swab of the victim's genitalia. However, the DNA evidence confirmed that if the offender, in his conversation with S and in the text sent from S's phone to the victim had been denying any sexual contact occurred between him and the victim; then, that was a lie.
The offender conceded the sexual intercourse described in Counts 1 and 2 but denied the sexual intercourse in Count 3 occurred at all. The defence was that he understood the victim consented. In the evidence which he gave before the jury, he said that he was very drunk and having to support himself by hand on the walls as he walked into M's room, to check again on the victim. He said that when he entered the room, the victim grabbed his hand and pulled him over her onto the bed and then placed his hand between her legs, following which the sexual intercourse described in Counts 1 and 2 occurred. Plainly, the jury rejected his evidence and accepted the victim's evidence including regarding Count 3.

THE OFFENDER'S KNOWLEDGE THAT THE VICTIM DID NOT CONSENT

The Crown proved beyond reasonable doubt the element of the offender's knowledge that the victim was not consenting to the sexual intercourse described in each of the offences.
Where, following a trial by jury a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rests upon the judge and not upon the jury: R v Isaacs (1997) 41 NSWLR 374 at 377-378; Cheung v The Queen (2001) 209 CLR 1; HCA 67 at [14].
The trial judge must determine the facts upon which he/she should assess the degree of culpability of the offender in order to sentence him. This is achieved by the judge reviewing the evidence and determining for himself, upon the criminal onus, what facts he should act upon. The view of the facts adopted by the trial judge for the purposes of sentencing must be consistent with the verdict of the jury: R v Martin (1981) 2 NSWLR 640; Isaacs supra; Cheung supra; R v Pisciuneri [2007] NSWCCA 265 at [57] to [58].
It is available to the sentencing judge where he is not able to determine the facts upon which the jury convicted, that is where the jury's verdict is ambiguous as to the facts, to list the one or more possible bases put to the jury by the Crown as a reason for finding the offence: see Pisciuneri supra at [66].
In Martin supra [4]‑[5], the Court of Criminal Appeal said: "[4]… a second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt … [5] There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender. … However, the practical effect of [4] above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender …".
Those comments were approved in Cheung supra and in Pisciuneri supra at [64]; See also Strbak v The Queen [2020] HCA 10 at [32].
The jury's verdict was unambiguous as to finding that the element of knowledge was proved beyond reasonable doubt; however it is difficult to determine the facts upon which the jury were satisfied as to that element of each offence. It is possible that the jury came to this finding following consideration of the offender's earlier relationship with the victim, that having been platonic, friendly and in the context that she was the niece of his girlfriend S. Further, the victim had distanced herself from the others at the tavern and left the tavern alone, had self-harmed and was asleep when they arrived at the home and had retired to M's room for the purpose of sleep. Those facts invited finding the offender was aware of a reasonable possibility that the victim was not consenting. The offender took no steps to ascertain that the victim consented. The evidence was: 1. The physical contact commenced with brief welcome soft "caressing" and then removal of her tights and underwear whilst she believed S was in bed caring for her, in the early part of the Count 1 digital penetration to the point at which the evidence I have quoted above identified as when she realised that she was not dreaming and the person was not S; and 2. Thereafter, her eyes were open and she remained quiescent.
In these reasons, I have described the victim as quiescent in the true meaning of that word, being that she did not actively by voice or movement oppose or protest against the offender's sexual contact with her during Counts 1, 2 and 3. That the victim did not protest or attempt to escape by leaving the room, for instance; are not factors weighing against easy acceptance of the juries' finding that she did not consent. The victim was a compelling witness and her evidence about what she experienced and that she remained still because she felt frozen or paralysed was believed. The law, of course, does not require a victim to protest or fight when they do not consent: Rao v R [2019] NSWCCA 290; Morgan v R [2020] NSWCCA 51 per RA Hume J at [2], Adamson J at [11] and Ierace J at [99].
The verdicts show that the jury were satisfied beyond reasonable doubt that the offender did not honestly believe that the victim was consenting. The jury's conviction of the offender on Count 3, which sexual intercourse he denied occurred, shows the extent of their rejection of his evidence. In the surrounding circumstances, described above, the offender must have known that the victim who was of low mood such that she had self‑harmed and had removed herself from the activity of the sunroom in order to sleep privately in M's room, was in doing so, seeking S' care and the security of S's home, which was the victim's home. The evidence established when the offender's level of intoxication was ignored, that in committing the offences, he acted opportunistically in M's room, away from S's observation and in that sense, predatorily.
On the whole of the evidence, and resolving reasonable doubt in favour of the offender; in my opinion, the offending is to be assessed on the essential element of his knowledge that the victim was not consenting during each Count, when considered separately; as he having realised the possibility that she was not consenting, he went ahead regardless of whether she was consenting or not. The jury were directed that the offender's state of mind was to be considered as though he was not affected by alcohol at the time.

OBJECTIVE SERIOUSNESS

Identical particulars of each Count were stated in the Indictment in the following terms: "On 28 October 2018, at Tregear in the State of New South Wales, did have sexual intercourse with [victim], without the consent of [victim], knowing she was not consenting."
The offences involved two different natures of sexual intercourse as defined in s 61H(1) of the Crimes Act 1900 (NSW). Separate consideration of objective seriousness in relation to each Count contemplating the physically different characteristics of sexual intercourse, is to focus on the "heinousness of the conduct". At law, there is no hierarchy between them for the purposes of assessing objective seriousness: Ibbs v The Queen (1987) 163 CLR 447; R v Hibberd (2009) 194 ACrim 1 at [56].
During submissions on sentence and particularly during oral submissions, the defence submitted that each offence fell toward the upper end of the low range but not toward the mid‑range. The Crown conceded that, in the event of the Court assessing that the essential element of the offender's knowledge that the victim was not consenting during each Count, when considered separately, was that he, having realised the possibility that she was not consenting, went ahead regardless of whether she was consenting or not; then, the offending in each Count fell not within the mid‑range, but below the mid‑range. The Crown pressed that there was significant recklessness in the offender's going ahead given the surrounding circumstances.
In each of the 3 Counts, the offending was opportunistic and whilst impulsive, it was predatory and for self‑gratification; but, not more so than is inherent to the nature of offences of this type. There were no threats or coercion on the one hand; but, the offender proceeded without regard for the vulnerability of the victim on the other hand. He was aware of her vulnerability because he knew that she had self‑harmed and had sought the security of M's bedroom in the house which was her home, away from the offender and the activity in the sunroom. The whole of the offending was devoid of affection. Those qualities of disregard for the welfare of the victim, who had sought the safety and security of M's bedroom to sleep, are aggravating factors describing the criminal culpability of the offending in each of the Counts. The offending, Counts 1, 2 and 3, shows a continuum of sexual attack which was escalating. The offending continued despite the interruptions of persons coming past M's bedroom door. The offender's attempt at penile/vaginal intercourse, which was digital penetration in Count 3, only ceased when S came to the door of M's bedroom and re‑engaged with the offender.
Whilst the offender's self‑induced intoxication was at a high level of drunkenness; that does not mitigate the assessment of objective seriousness: s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 ('CSP Act'); DPP NSW v Burton [2020] NSWCCA 54.
In my assessment, the objective seriousness when viewed with offending of this type was, unlike in another case, not a planned predatory attack and whilst devoid of a sense of responsibility for the feelings of the victim, was otherwise without malice or intent to hurt or cause injury.
Obviously, injury and distress are not only inherent in this type of offending; but evidence of the victim's complaints to her friend and colleague, Mr P and to her Aunt L, prove beyond reasonable doubt that she did personally suffer great distress.
In relation to each Count, the nature of the offender's recklessness in proceeding when he realised the possibility that the victim was not consenting, places the objective seriousness in a lower range than had, for instance, the offender been actually aware, perhaps by protest of the victim, that she was not consenting but with force, proceeded to have sexual intercourse.
In relation to the first Count, the digital penetration was of short duration and a persistence which bridged the two interruptions during persons coming past M's bedroom door and, he having removed himself from the bed. Albeit no medically discernible injury was found and this indicates not more violence than is inherent to the offence of digital penetration occurred, the victim did suffer humiliation, discomfort and pain in her experience of that digital penetration.
In my opinion, the Count 1 offending falls into the higher end of the low range for offending of this type.
In relation to the second Count, insertion of the offender's finger into her anus caused the victim discomfort and pain, but not medically discernible injury. This offending was of very short duration. It was a step in escalation between the initial vaginal digital penetration and the offender's subsequent, Count 3, attempt at penile/vaginal intercourse. I assess the Count 2 offending as of slightly less objective seriousness than the Count 1 or Count 3 offending because, whereas the Count 1 digital vaginal penetration persisted across interruptions and involved more physical invasion of the vagina than Count 2 offending did of the anus, and the Count 3 offending was an escalation by failed attempt at penile/vaginal penetration; Count 2 was episodic. In my assessment, the objective seriousness of Count 2 falls into the middle‑low range for offending of this type.
Count 3 offending, involved less physical invasion by digital penetration of the victim's genitalia than did Counts 1 and Count 2. It was also of short duration. But beyond reasonable doubt, Count 3 carried with it for the victim, the fear of penile/vaginal intercourse. At the time, she considered that to be the meaning of "rape". She was fearful that she was about to be "raped". In her complaint to Aunt L, the victim was stoic in her description but Aunt L, not unreasonably, interpreted it to be and reported it to S to be, action toward "rape". These observations are not to be confused with a finding of a degree of penile/vaginal penetration; but rather, an assessment of the nature of the event in which the offending by digital penetration occurred.
The offending in Count 3 falls into the category of the upper part of the low‑range. The actual penetration was minor. Count 3 does not fall in the middle‑range for offending of this type.

OTHER FACTORS

The Crown bundle (Exhibit A) incorporated a Sentencing Assessment Report dated 20 April 2020, authored by Ms Tremain, Community Corrections Officer, which annexed the Pre‑Sentence Consultation Report authored by Senior Psychologist, Andrew Redden, and Provisional Psychologist, Mark Wright, dated 6 March 2020. The Redden/Wright report provided an actuarial assessment of sexual recidivism risk.
The Community Corrections Officer reported that the offender had worked as a fulltime labourer with a family friend and been employed as a casual and seasonal worker in Australia during the past "10 years" (Department of Home Affairs records indicate 8 years). There is no known history of antisocial behaviour.
To his credit, the offender took responsibility for his actions to the extent that he said his state of intoxication was not a contributing factor to the offences and did not cloud his judgment. But, the offender disputed in consultation with the Officer, the extent of the sexual contact with the victim and the Officer reported: "During interviews Mr Junior verbalised pro‑social attitudes, however, he is yet to demonstrate an understanding of what it entails to have boundaries and consent". On the topic of the offender's insight into the impact of his offending the officer reported: "Mr Junior accepts responsibility for having had contact with the victim, however, he lay part of the blame on the victim by claiming she led him on and exaggerated what occurred".
The Officer's assessment was that each of the offences appeared to be of an opportunistic nature and I note that this meets with the impression I gained during the trial.
The claim that nothing inappropriate had happened between them in the offender's text message quoted in the above recount of facts, is entirely consistent with the Officer's observation that the offender did not demonstrate an understanding of consent and its boundaries and did not take full responsibility or have full insight into the impact of his offending. This is also consistent with the evidence which he gave of the sexual contact with the victim, which the jury wholly rejected. The offender did not give evidence during the Sentencing Hearing. Testimonials were not put in evidence on his behalf. On the evidence before me, I find that the offender significantly lacks remorse appropriate for his offending because his judgment of boundaries of consent is lacking.
Whereas the Officer assessed risk of reoffending at a "Low risk" according to the Level of Service Inventory - Revised (LSI‑R), this was overridden by an assessment of the offender's overall risk of reoffending to assessment at Tier 3 Medium because of the actuarial assessment by Psychologists Redden and Wright. Those authors applied the "moderate[ly] predictive accuracy" of actuarial testing based on recidivism estimates and relative rankings between groups of individuals which "not necessarily directly reflect the recidivism risk of an individual offender". He was assessed as being at "Average Risk" relative to other male sex offenders for men over 17 years of age who had been convicted of a sexual offence taking into account his age, the nature of the offending and the victim characteristics.
Redden and Wright advised that in order for him to have the opportunity to access treatment whilst in custody, he would need a minimum period of 2 years' sentence. Further, that if he participates in a custodial sex offender program upon release from custody, he may be recommenced to participate in a community‑based maintenance group that is designed to ensure that the gains made in treatment are supported and reinforced once released into the community. The authors recommended that, if assessed as suitable for a community based sex offender treatment program, then he should be referred to Forensic Psychology Services for weekly counselling sessions over a program of between 6‑12 months. If the offender is to receive supervised probation, they recommended that he be referred to CSNSW Psychology Services for further assessment and assistance with the development of a risk management plan in consultation with his Community Corrections Officer.
The Community Corrections Officer reported that the offender is willing to undertake interventions, including counselling, in order to avoid this situation from occurring again and that he is willing to undertake community service work. Her report set out a Supervision Plan, in the event that the Court makes a supervision order.
In the updated Sentencing Assessment Report of Ms Tremain, Community Corrections Officer, dated 20 July 2020, the supervision plan was not altered but the comment made that during the COVID‑19 pandemic, the level of service delivery may be reduced or altered such as by reporting by telephone. The Officer's assessment that the offender remained suitable to undertake community service work continued, but the comment was made that community service work had been suspended due to the COVID‑19 pandemic and that during the pandemic, he would be credited with 7 hours per week until work resumed.
The Tier 3 recidivism risk assessment is both immediately relevant to consideration of supervision of the offender in the community and places the Officer's LSI‑R assessment of his recidivism as a low‑risk within the average range for men of his age with a history of commission of sexual offence of the nature of Counts 1‑3 with a female of the victim's characteristics.
Crown Bundle (Exhibit A) included the Victim Impact Statement dated 14 April 2020. This is a document truly worthy of comment in this sentencing judgment. Just as the victim was stoic in her evidence and did not attempt to exaggerate events; so her victim impact statement reads well of a conscientiously well‑adjusted person. She reports having gotten on with her life, including having formed a live‑in relationship with a partner and having ceased her self‑harming behaviour. She stated: "Despite all that has happened, as a direct result of what he did, I am okay. There was a point in time where I thought I wouldn't be, and I won't downplay it, it was one of the hardest times of my life". Whilst recognising the personal hardship suffered by the victim as a result of the offending and the emotional and attitudinal result she has commendably achieved, these factors do not ameliorate in the sense of lessening the objective seriousness of the offending or, but for consideration of harm done to the victim, significantly impact the purposes of sentencing listed in s 3A of the CSP Act.
It was common ground that the s 5 CSP Act threshold had been crossed. I concur that, having considered all possible alternatives, no penalty other than imprisonment is appropriate. Whilst not directly informing this result because the offending in this case is to be considered distinctly, I note that imprisonment in all but exceptional cases is appropriate for offences under s 61I of the Crimes Act 1900 (NSW) according to JIRS case statistics; and see DPP (NSW) v Burton [2020] NSWCCA 54 per Basten JA at [4]. The maximum penalty and the standard non‑parole period are goal posts for the seriousness of offences under s 61I set by the legislature. I have determined that on the basis of objective seriousness alone, Count 1 falls into the upper end of the low‑range, Count 2 into the low‑range and Count 3 also into the upper end of the low‑range for the broad range of offences falling within the section.
By their nature, the offences require specific deterrence and this is a significant consideration because of the offender's qualified remorse, inadequate appreciation of the boundaries of consent shown in his victim blaming and failure to accept full responsibility for the offending. General deterrence is also important because the offences committed are offences of significant prevalence in our community. It is important that the community and the offender understand that criminal conduct of this type causes harm not just to the victim, but to the community generally.
This being his first offending after 8 years living in the local community, the offender is entitled to some leniency and mitigation of sentence. This being his first crime‑based incarceration is a special circumstance justifying some degree of leniency. Other mitigating factors include: that the victim's physical injuries caused were not substantial for this type of offending; that violence, intimidation or coercion other than as are inherently in the nature of the offence, were not involved; and the offending was not a planned or organised criminal activity. These factors, which were considered in assessment of objective seriousness, are relevant to sentencing for offenders within the ranges determined. Accepting the risk assessment identified above, the offender is entitled to the benefit of the significant prospects of rehabilitation available to him should he participate in a supervised plan implemented by Community Corrections.
The three offences were part of a single course of criminal conduct. Whilst they are discreet offences, applying principles of totality and proportionality; there should be substantial concurrency between the offences: Pearce v R (1998) 194 CLR 610 per the plurality at [45].
In my opinion, an appropriate sentence for Count 1 is 2 years and 9 months imprisonment. The offender is not entitled to any discount on the utilitarian basis that he conceded the physical act of offending because the victim was required to give evidence, the offender gave evidence of different participation by the victim which version was rejected and the time, expense, inconvenience and distress of the trial was not minimised. This was particularly because the issue of consent and specifically the question of his knowledge of whether or not the victim was consenting was fully litigated.
In my opinion, an appropriate sentence for the Count 2 offending is a period of 1 year imprisonment and the offender is not entitled to any discount on the utilitarian basis for the same reasons as given in relation to Count 1.
In my opinion, the appropriate sentence for the Count 3 offending is a period of 3 years' imprisonment, the sentence being slightly more than for Count 1 to recognise the higher degree of fear and distress that the victim was about to be "raped" (as she understood that term to mean penile/vaginal intercourse) caused to her.
It is appropriate to proceed pursuant to s 53A of the CSP Act, the circumstances being a single course of offending and in order to apply the principle of totality whilst allowing the public at large to understand the level of seriousness with which the community regards these offences. For that purpose, each of the appropriate sentences stated above is indicative. In my opinion, an appropriate aggregate sentence of 3 years and 3 months would properly reflect application of principles of totality and at the same time, allow the public at large to understand the level of seriousness with which the Court has regarded the offences.

NON‑PAROLE PERIOD

For the purposes of s 44(2A) CSP Act, a single non‑parole period for all offences is to be determined. The term of the sentence that will remain to be served after the non‑parole period must not exceed one‑third of the non‑parole period, unless the Court decides that there are special circumstances for it being more: s 44(2B).
After conviction on 11 February 2020, the Sentencing Hearing was listed for April 2020 and then adjourned on application made by the Defence to 27 July 2020. Judgment was then fixed to be delivered on 8 September 2020, being a date suitable to the parties and the Court.
Special circumstances require consideration of adjustment of the ratio of sentence that will remain to be served after the non‑parole period set for the aggregate sentence of imprisonment.
The special circumstances are that: 1. The offender, who arrived in Australia on 24 December 2010 as the holder of a 3 month Tourist Visa (and thereafter remained in Australia as an unlawful non‑citizen), lived in the community for approximately 8 years free of criminality up to the date of offending; Exhibit 1 Department of Home Affairs Minutes dated 11 December 2018; Exhibit A nil antecedent history. He is therefore a person who, up to the time of the subject offending, lived lawfully in his interrelationship with the community of this State, but of character compromised, to the extent evidenced in the Department's records, that he remained within the community as a citizen of Fiji without a Visa entitlement to lawfully remain here. 2. He is a 27 year‑old adult who has prospects of rehabilitation which would be assisted by a longer parole period achieved by reduction of the non‑parole period, during which he be supervised by Community Corrections and participate in cognitive behavioural change and self‑awareness treatments toward better managing his impulsivity, as assessed by the Community Corrections Officer in her Sentencing Assessment Report dated 20 April 2020. 3. This will be his first incarceration in punishment for criminal offences. 4. His incarceration is likely to be more arduous because he will be away from family and friends in Fiji.
On the other hand, his refusal to accept full responsibility and his qualified remorse for his offending weigh against leniency and in favour of specific deterrence when considering adjustment of the non‑parole period.
His risk of recidivism, after taking into account both the individual assessment by the Community Corrections Officer in her report of 20 April 2020 and as assessed by psychologists Redden and Wright in their report dated 6 March 2020, weighs in favour of sentencing reflecting adequate specific and general deterrence but also his prospects of rehabilitation.
The offender's immigration detention since the grant of bail on 29 October 2018 and until conviction on 11 February 2020, when he entered State imprisonment, was High Security Restrictive Detention. The Defence submits that the immigration detention was "in relation to the offence" and must be taken into account by backdating the commencement date for sentence.
Documents tendered within Exhibit 1 show that on 14 November 2018, NSW Police were informed by the Australian Department of Home Affairs that the date on which the offender would have been removed from Australia had been "pushed back" to 22 February 2019 from an earlier contemplated date of 23 November 2018, apparently because of the offender having been charged with the subject offences. On 23 November 2018, the Department advised the Office of the Director of Public Prosecutions (NSW) that the offender was subject to removal from Australia as soon as reasonably practicable. On 30 November 2018, a Criminal Justice Stay Certificate was issued by the Director of Public Prosecutions (NSW) staying the removal pursuant to s 148 of the Migration Act 1958 (Cth). On 11 December 2018, the Australian Department of Home Affairs determined to refuse the Criminal Justice Stay Visa and assessed that the offender be involuntarily removed from Australia. On 7 January 2019, bail was varied to include additional conditions that the offender was not to apply for removal from Australia pursuant to s 198(1) of the Migration Act 1958 (Cth) and was to surrender his passport to police. Obviously the offender was not in fact removed from Australia.
Section 47(2)(a) CSP Act empowers the Court to direct that a sentence of imprisonment is taken to have commenced on a day occurring before the day on which the sentence is imposed. Section 47(3) provides that in deciding whether or not to make a direction under subsection (2)(a) and deciding the day on which the sentence is taken to have commenced, the Court must take into account any time for which the offender has been "held in custody in relation to the offence" or in the case of an aggregate sentence of imprisonment, any of the offences to which the sentence relates.
The chronology of immigration detention, described above, shows indeed that Commonwealth government executive power effected immigration detention including a determination for removal from Australia on rejection of the grant of the Criminal Justice Visa. That course showed the delineation jurisdictionally between Commonwealth immigration detention and detention under the laws of this State. Factually, the relationship between these offences and the immigration detention is obvious, in that the offender was granted bail on 29 October 2018 but placed in detention because of his unlawful status and subsequently because his removal from Australia and therefore his release from immigration detention was delayed consequent of these offences.
The Defence submitted that, pursuant to s 47(2)(a), the commencement date should be backdated to 29 October 2018 or, if I was against that submission, then to the Criminal Justice Stay Certificate dated 30 November 2018. The Defence submitted that to do otherwise would be to fail to recognise the immigration detention related to this offending was a deprivation of liberty for a period whilst the offender would have otherwise been in the community and subject to bail. The Crown accepted that there was some connection between the immigration detention and the offences and that it was therefore appropriate for the Court to take the immigration detention into account as a special circumstance but not as a basis for backdating.
Exhibit 1 documents, in particular the 11 December 2018 determination by the Department of Home Affairs, to refuse the Criminal Justice Stay Visa, strongly infer that detention in High Security immigration was consequent of charges for these offences in combination with the offender's past history of dealing with the Department resulting in his being assessed as a "High risk of harm to the community and a medium risk NOT engaging with the Department".
In my opinion, the immigration detention was not "custody in relation to" the offences within the meaning of s 47(3) because it was not solely the result of the charges but partially resulted from his past poor dealing with the Department. The proposition that the offender has a "legitimate grievance" is reasonably put so far as the context goes that because of the charges he was detained by the Commonwealth Department of Home Affairs rather than have been deported to Fiji. But, the legitimacy of that claimed grievance is severely diminished in the circumstances of his detention being also consequent of his non‑compliant dealings with the Department. Save in exceptional cases, the general principle is that although when a person is being sentenced for an offence, a period which he has already spent in custody in relation to that offence should be taken into account; a period which a person has spent in custody in respect of an unrelated offence should not be taken into account: R v Niass (unreported NSWCCA 16 November 2018); R v John David (unreported NSWCCA 20 April 1995); R v Chen [2004] NSWCCA 369; Kerr v R [2008] NSWCCA 201; Hampton v R [2014] NSWCCA 131.
The applicant in Parhizkar v R (2014) 245 ACrimR 515; [2014] NSWCCA 240, in relation to sentence, argued that the time of his immigration detention, during which he was held in more restrictive conditions of incarceration because of his offending, should be taken into account in his sentencing. The Court of Criminal Appeal (Basten JA at [70], Price J at [93] and McCallum J at [98]) agreed with the approach of the trial judge of taking into account "in an unquantifiable sense" the exacerbation of time the offender was kept in immigration detention by the fact that there were pending criminal proceedings against them. In R v Dadash [2012] NSWSC 1511, where, like the subsequent case of Parhizkar the offending occurred during immigration detention, the trial judge did back‑date the sentence for the whole of the period of immigration detention following his return to detention before imprisonment for his offending because it was "referrable to the fact that he was charged with" those offences: R v Dadash [2012] NSWSC 1511 at [28].
There is no evidence of the hardship of the conditions of immigration "High Security" detention compared with State imprisonment.
In my opinion, the exacerbation of the period of immigration detention and that it was served in High Security, because of its factual, as opposed to lawful, connection with the pending criminal proceedings is a special circumstance warranting a substantial discounting of the non‑parole period. However, because his immigration detention was imposed both because of his prior unlawful status and non‑compliance with the Department and not just because of the subject offending; there is no precision available for quantification of the discount.
The overriding principle is, however, that the non‑parole period must reflect the criminality involved in the offending: R v McDonald (1998) 28 MVR 432; (1998) 5 CrimLN 82.
In regards to the appropriate Non‑Parole Period in this matter: 1. In my opinion, adjustment of the ratio of non‑parole period and parole period provided for in s 44(2B) of the CSP Act, on account of special circumstances, requires adjustment down of the non‑parole period for the total aggregate sentence of imprisonment of 3 years and 3 months. 2. I acknowledge that s 54B(4) CSP Act requires indicative Non‑Parole-Periods for each indicative sentence be outlined. Pursuant to s 43 CSP Act and with the consent of the parties, I consider the following to be appropriate indicative Non‑Parole Periods in relation to each offence respectively: 1. Count 1 - A Non-Parole-Period of 1 year and 3 months; 2. Count 2 - A Non-Parole-Period of 5 months and 16 days; and 3. Count 3 - A Non-Parole Period of 1 year, 4 months and 17 days.
Allowance must be made for prior custody of two days during 28‑29 October 2018 and this will be achieved by back‑dating the commencement date.

ORDERS The orders I make are as follows: 1. The offender is convicted on Counts 1, 2 and 3. 2. The offender, Usman Junior, is sentenced to a term of imprisonment of 3 years and 3 months commencing on 9 February 2020 and expiring on 8 May 2023. 3. The non‑parole period is to expire on 8 August 2021 and the balance term is to expire on 8 May 2023. 4. I direct the offender accept the supervision and guidance of Community Corrections Services and obey all reasonable directions of that service, including in regard to referral to CSNSW Psychology Services, Forensic Psychology Service or general practitioners for any mental health assessments and participation in cognitive behavioural change modules targeting self‑awareness, managing impulsivity and environment.

Amendments 12 October 2020 - Paragraph 114 amended, with the consent of the parties and pursuant to s 43 CSP Act, to determine indicative non-parole periods for each offence as is required under s 54B(4) CSP Act. This amendment does not vary the orders for sentence imposed on 8 September 2020. 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: 12 October 2020

Crimes Act 1900(NSW)s 61I

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