R v KR

Standard non-parole period

1. The approach that both parties adopted in respect of the standard non-parole period was that it was to be considered a guidepost in the same way as the maximum sentence may be considered a guidepost. I accept that is the position. The parties were also in agreement that it is relevant in matters after there has been a trial and not in matters where there has been a plea. I am not persuaded that is the position; there is nothing in the Division 1A CSPA provisions to that effect, nor am I aware of support for that proposition coming from Tepania v R, [2018] NSWCCA 247, a decision which discusses the amendments made to the division after Muldrock v The Queen [2011] HCA 39. The view of counsel emanates from the decision of R v Way [2004] NSWCCA 131, where the Court of Criminal Appeal had held that the standard non-parole period only applies to sentencing for an offence after conviction at trial. This point was noted in Muldrock at [23]. Then at [29] of Muldrock it was said that Division 1A requires sentencing judges to state fully the reasons for arriving at the sentence imposed. In discussing what was required by section 54B(4) which was to the same effect as the current section 54B(3), the Court said that "the obligation applies in sentencing for all division 1A offences regardless of whether the offender has been convicted after trial or whether the offence might be characterised as falling in the low middle or high range of objective seriousness for such offences". The obligation being referred to was the central purpose of division 1A, to require sentencing judges to state fully the reasons for arriving at the sentence imposed.
2. The basis for the view adopted in R v Way was that the CSPA allowed the sentencing judge to impose a lesser sentence due to the fact of a plea of guilty.
3. The result in my view is whether the view of counsel is adopted or the view I am suggesting is adopted, in line with what I understand to be the authoritative position, the result may not change. In complying with the obligations of Division 1A as I am attempting to do here there will be noted the fact of the early guilty plea. The reasons for a variance from the standard non-parole period will include that fact and the other subjective matters of the offender discussed below and which I accept. Notably, some of these factors would not have been so prevalent in a matter determined by a trial such as for example recognition of wrongdoing, contrition and remorse which I note all matters which are prominent in the present case.
4. The result in my view is that I do need to take into account in this case the standard non-parole period. As aptly put by counsel for the accused that period is a guidepost and not a tram track. The matter is to be taken into account together with the maximum penalty as part of the instinctive synthesis process; see Muldrock at [27]. Thus it is a matter to be taken into account with all others with the requirement upon me to set out the reasons why I determine the non-parole period to be something other than 5 years.

The facts

1. The Crown bundle was tendered without objection and became exhibit A. It included a statement of agreed facts. Without detracting in any way from the seriousness of these facts they can be reasonably shortly stated. On 25 May 2019 the victim together with her mother and the victim's friend visited other friends for a dinner party ("the hosts"). The offender and his partner lived nearby. The offender and his partner, according to unchallenged evidence of the offender given at the sentencing hearing, knew the hosts who had in fact been to the home of the offender. According to the offender the relationship was such that dropping in of an evening unannounced was within the bounds of the relationship. On this evening that is what the offender did, despite never having done so before. He called in between 10 and 11 PM through a sliding door into the lounge room where the victim and her friend were and which was to be where they would sleep, and at the time they were on mattresses watching videos. The offender made a comment about it not being his home and they asked who he was. The offender joined the adults in the garage saying he thought they were having a party. The offender was intoxicated at this time slurring his words and stumbling. He stayed for 2 drinks before everyone went to bed and he was asked to leave and he left by the same sliding door. It is not said what time this was but it is 2 drinks after approximately 11 PM so perhaps sometime between midnight and 1 AM. At about 3:30 AM he returned to the home of the hosts. The victim woke up to a feeling of someone kissing her neck, her lips and the left side of her face. She felt someone taking her underwear off and touching her vagina and felt fingers inside her vagina and then someone licking her vagina. These last 2 mentioned acts form the serious indictable offence of the charge under section 112 and the Form 1 offence respectively. From the facts it is apparent that the two acts occurred close in time. When the victim opened her eyes she saw the offender straddled on top of her his face very close and grabbing her breast and when she screamed and swore at the offender (as did her friend) the victim rolled the offender off her at which point she noticed his pants around his ankles.
2. Both the victim and her friend swore at the offender to get out and the victim punched the offender in the crotch to which he said he was just trying to have a few beers with mates and began looking for his thongs. The offender called the friend a dog and asked him if he wanted to fight. The offender went outside and was still there when the hostess found him outside. He made a comment about looking for his thongs. The next day at 10:40 AM the offender returned to the scene of the crime looking for his mobile phone. The police were called.
3. The offender spoke to police and said he did not remember being at the property but remembered going home and going to bed with his partner. He had said they had drunk probably half a bottle of gin, a couple of margaritas and a few beers before then. When he was interviewed he said he had no memory of part of the evening.

The form one matter

1. The Form 1 matter was in my view a serious sexual assault. As is noted above in fact has a higher standard non-parole period than the section 112 offence, though a lesser maximum sentence of 14 years. In accordance with the approach to the Form 1 procedure the penalty in respect of the section 112 offence must, albeit with the constraints of totality and proportionality, almost certainly be greater than it otherwise would but for this Form 1 offence. I do not think it assists the offender a great deal to submit that this was not a sexual assault of the most serious kind. That suggests that penile/vaginal intercourse is more serious than cunnilingus. There is no set hierarchy of the forms of sexual intercourse. The seriousness of this offence is that it is a repetition of sexual assault having just been carried out. It demonstrates a degree of concerted effort on the part of the offender to carry out sexual assault upon the victim.
2. I accept however the submission that this offence was committed as a continuation of the almost immediately prior conduct of the section 112 offence. In taking this matter into account I am conscious of the principle of totality and the need for the sentence to reflect the criminality of the 2 offences bearing in mind the limitations of the Form 1 procedure in that regard.

Objective seriousness

1. It is important to assess this factor conscious of the offence being an offence under section 112(2) and not the offence of sexual assault. Commonly offences under this section involve the serious indictable offence of larceny. As counsel for the offender properly pointed out a section 112(2) offence need not involve any violence. It follows that this adds to the objective seriousness of the offending.
2. The seriousness of the offending is added to by the fact of the offender carrying out the offence on an unaware indeed sleeping person and, without speculating on what may have been intended, was in a state of semi-undress with his pants around his ankles which would have a real likelihood of heightening the already great sense of fear and alarm of the victim.
3. As noted above there was no dispute between the Crown and the accused that this is in the mid range of objective seriousness. I justify that assessment based on the above matters.
4. Further in addition to the matter of violence just noted, the offence was carried out in the presence of the victim's friend who was also age 16 and was thus a child. It is also an aggravating factor that the offence occurred in a person's home albeit not the home of the victim. I take these matters into account, and have been careful not to double count them.

Sheehan report

1. This report is dated 20 December 2009. Its stated purpose is to assess the psychiatric or psychological mitigating circumstances. The offender was described as cooperative, contrite and earnest. Generally his mood was composed though he referred to preoccupation with factors relating to the suicide he referred to as occurring in his cell but which in evidence seems to have occurred in the showers at the prison.
2. The offender was born in Scotland and is now 56 years old. He had a stable home life and an unremarkable experience of education. His development appears in all respects unremarkable and he had no behavioural problems and a normal social adjustment. He left school in year 10 and commenced an apprenticeship. He has had consistent employment. He intends to return to the workforce on his release.
3. Similarly there were no problems with his early social development nor as I read the report, with his sexual development. He is not a victim of any abuse. There was nothing in his sexual history that could provide insight into the commission of the offences.
4. He is an irregular user of cannabis but reported moderate to heavy use of alcohol throughout adulthood. He described his consumption as being approximately 3 drinks most days and approximately 8 drinks on weekends. He denied any history of aggressive behaviour or impaired sexual boundaries when intoxicated, prior obviously to the subject offending. He reported consuming approximately 20 standard drinks and a cannabis cigarette on the night of the offence.
5. He has never had any form of alcohol counselling and accepts the best strategy now would to remain abstinent from alcohol.
6. His health history both physical and psychiatric was unremarkable. Mr Sheehan doubts that a diagnosis of alcohol use disorder is justified but ventures the view that the nexus between alcohol use and the offending suggests the offender should abstain from alcohol use in the future
7. At paragraph 23 of the report the offender said:
8. I have caused unbelievable harm to the young girl and her family. It's the worst thing I could imagine to have done to a person. I'm so completely sorry. I beat myself up for it and ask why but I have no answer. I can't explain why it happened I can't fathom it. I know I'm going to pay for what I've done and I need to pay for it."
9. Mr Sheehan considered this was genuine. Similar words were spoken by the offender in his evidence before me and I also considered him to be genuine in what he was saying.
10. Mr Sheehan concludes that the offender is a low or average risk category for sexual reoffending when considered against actuarial factors. His score will drop to the below average range upon his 60th birthday. He has very few of the dynamic or changeable risk factors such as antisocial personality traits and has a functional relationship history stable living conditions and solid employment history. The one dynamic risk factor is the substance use. Intervention was recommended in this regard including the EQUIPS program

Testimonials

1. Exhibit 2 was 5 testimonials in support of the character of the offender. All of the testimonials speak fondly of the offender. He is described variously as extremely fair, a devoted father and honest; a man with good morals and values. A Mr Ewart refers to his extreme remorse which is consistent with the matters referred to above. His former wife and mother of his 2 children from whom he has been separated for 10 years says that the 2 children, both daughters, spend every second weekend with him and there had never been any indication of untoward behaviour.

Stress

1. Exhibit 3 was a PTSD checklist. This goes to show that the offender does not suffer from that condition but does show him moderately bothered by unwanted memories of the stressful experience, that is the suicide, and feeling upset about it and feeling distant and most notably of feeling super alert. He described it as occurring both when showering and when his cellmate is sleeping.

Covid 19

1. It was submitted that this was relevant for the next 3 to 6 months as making life in jail more stressful. The argument is that the sentence should be shorter because the sentence will be a more trying experience as a result of not only Covid 19 but also because of the level of stress reflected in Exhibit 3. To some extent the stress relating to Covid 19 is not much different to what the rest of the community is experiencing save that it is an open view to fear that the risk is higher when in the confined prison system. I take these matters into account.

Guilty plea

1. I find the offender is entitled to the 25% discount for entering his plea at the earliest time. There is no dispute on this point.

Good character

1. As noted above there is no criminal history. The offender is 56 years old. The testimonials demonstrate a person of good character. I accept that the offender is a hard-working family orientated man with good community ties.
2. This of course gives rise to the imponderable as to why he conducted himself the way he did on this evening. There is nothing in his upbringing or the way in which he has lived his life that was suggest that he would act as he has this evening. The answer in my view sadly is alcohol.

Unlikely to reoffend

1. In my view the fact that the offender has made it to the age of 56 without having any criminal history is reason enough to suggest that there will not be a great prospect of any reoffending. I have taken this into account. It is to be hoped that he will be as good as his word in his intentions to become alcohol free. I am not prepared to take that into account on the likelihood of reoffending. My view is that is simply too speculative. I am prepared however when I come to consider special circumstances to take that into account as a basis for the need for supervision to be longer than they otherwise be the case.

Remorse and contrition

1. I accept this offender is genuinely remorseful and contrite and I have commented on this above.

Good prospects

1. The offender has clear community supports and a solid working background. He has a firm intention to continue working upon release. His prospects I consider to be good.

Intoxication

1. It is plain from the offenders material that he was significantly intoxicated at the time of this offending. In my view by reason of the provisions of section 21A (5AA) this cannot be taken into account as a mitigating factor. I do not understand the submission of the accused to be that it should be taken into account as a mitigating factor.
2. One way in which it may be relevant however is in assessing the likelihood of reoffending. The previous subjective matters outlined suggest the offender is a low risk of reoffending. The evidence also supports the view that there is a connection between the intoxication and the offending. As noted that does not mitigate the offending. It does mean however that should the offender succeed in his ambition to abstain from drinking hereafter that the prospects of reoffending become even more remote. The problem for the offender however on this point is that for me to conclude to the necessary standard that he will not drink again is far too speculative. If the amount of drink consumed on the night of the offending is anything to go by, an amount drunk at the age of 55, there is reason to think that the offender's laudable ambition to become abstemious is easier said than done.

Victim impact statement

1. The victim in this case provided a written Victim Impact Statement which formed part of exhibit A. It was also read to the Court by the victim. The victim showed great courage in composing herself in reading out in open Court albeit by CCTV, but with the offender visible to her on the screen, her statement. In that statement she recounted the degree of hurt and the marked impact this event has had on her. As an observation I was concerned that part of the statement suggested that the victim in some way held herself somehow responsible in some way for the offence when nothing could be further from the truth. Against that however the victim concludes her statement by saying she will not allow the event to define her. By section 30E of the CSPA I must consider the statement and make any comment on it that I consider appropriate. I do not take into consideration the comments made about the impact on the victim's friend who was present at the time of the offence. I have considered the statement of the victim.

Comparable cases

1. I was referred to a number of comparable cases. Two cases in particular were commented upon by Counsel namely Lewis v R [2011] NSWCA 206 and BB v R [2017] NSWCCA 189. Lewis was a case of a young offender with a limited record and he was a chronic alcoholic. He was sentenced in respect of 4 offences one being break and enter and commit a serious indictable offence, namely indecent assault, secondly intimidation, thirdly break and enter and commit serious indictable offence namely larceny, and fourthly sexual intercourse without consent. In respect of two of the offences there was in each case a Form 1 matter also to take into account and in respect of a third of the charges there were two related goods in custody charges for which the offender was sentenced. The aggregate sentence imposed was a non-parole period of 5 years and 6 months with a balance of term of 3 years 4 months. A discount for the guilty plea of 16.6% was applied. The Court of Criminal Appeal considered the sentence manifestly excessive. In favour of the offender was the short period of time over which the offences occurred and the lack of a relevant criminal history. The sentence was reduced to a non-parole period of 4 years and 2 months with a balance of term of 2 years 9 months. The facts of the sexual intercourse charge was digital penetration of the vagina.
2. In BB the charge was under section 112(2) with a serious indictable offence being an indecent assault and not a sexual assault. There was a 25% discount for the guilty plea. The facts have some similarity to the present case in that the offender here entered the premises through an unlocked door removed his pants and underpants and began kissing the victim while she slept and when she protested he placed his hand over her mouth and touched her breast and rubbed her vagina. He had not been previously imprisoned but had priors of offences of violence, driving offences and indecent assault.
3. The sentence of a non-parole period of 4 years and a balance of term of 3 years was not considered manifestly excessive. The Court noted that the comparative authorities relied upon in that case could be distinguished in their objective circumstances and by the subjective circumstances of the offender.
4. That of course is the case here also. The section 112 offence in our present case in my view is objectively more serious. The subjective case of the current offender is far more compelling than that of BB.

Sentencing considerations & special circumstances

1. There is no argument but that there is no more appropriate sentence than a full-time custodial sentence; section 5 of the CSPA.
2. Section 3A sets out the purposes of sentencing. They are in short: 1. to ensure the offender is adequately punished; 2. both general and specific deterrence; 3. to protect the community; 4. to promote rehabilitation of the offender; 5. to make the offender accountable for his actions; 6. to denounce the conduct; 7. to recognise the harm done to the victim and community.
3. The purposes that attract the most attention in the present case in my view are punishment, general deterrence and denunciation, and the harm done to the victim should also be recognised. Given my conclusions as to remorse and prospects and likelihood of reoffending the need to protect the community does not loom large in the current calculation. As to rehabilitation I accept the submission made for the offender that a longer period than would otherwise be allowed under the legislation on supervision on parole should be allowed to assist him to either remain alcohol free if the offender is in that state upon his release, or alternatively to become that way.
4. The standout feature of this case is how at odds this behaviour is with the character and history of the offender. To accede wholly to that view by imposing a minimal sentence would however result in a lack of adherence to the principle of proportionality. I need to determine a period of custody that reflects the seriousness of this offending. In arriving at that period I also need to take into account the range of matters detailed above. I also need to take into account the fair and proper concession made by the Crown that this is a case where there are special circumstances so as to justify a variation on the statutory ratio of the non-parole period to the overall sentence. Those special circumstances are firstly that this is the first time in custody of the offender and secondly the need for a lengthier than usual period of supervision to assist in the rehabilitation of the offender in changing his alcohol habits. In my view there is a third basis for special circumstances as I consider that by a combination of the stressful experiences of the offender which were evidenced, namely witnessing suicide and his heightened alertness arising therefrom, together with at least in the short term heightened concerns as to the impact or possible impact of the Covid 19 virus on the prison population, mean that the period of imprisonment will be more arduous than might otherwise be the case.

Orders

1. Taking all of the above matters into account, including the Form 1 matter and the 25% discount for the guilty plea, I arrive at a non-parole period of 3 years and 9 months with a balance of term of 1 year and 9 months.
2. I make the following orders: 1. [The offender] for the offence charged under section 112(2) Crimes Act you are convicted. 2. I sentence you to a non-parole period of 3 years and 9 months to commence from 26 May 2019 and expiring on 25 February 2023, with a balance of term of 1 year and 9 months expiring on 25 November 2024.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 April 2020