R v Mattiusi

Background

1. The victim said that she had been in a relationship with the offender from a point soon after she had met him in February 2020 and things were going well for the first few weeks. However, five or six weeks into the relationship, the offender had a chance encounter with Ms Sarah Robertson, his ex-partner, with whom he had two children. The victim gave evidence about the deterioration in their relationship and her opinion as to why. This involved regular 'begging' by Ms Robertson, apparently, for the offender to return to her.
2. The victim referred to the circumstances as to how and why Ms Robertson was invited to the victim's home at Paxton on 10 April 2020. She said in her evidence that the offender had told her that by engaging in a 'threesome' and, by treating her, in particular, as a 'princess', he could demonstrate to Ms Robertson the strength of his commitment to the victim. The means of supplying such demonstration involved his engaging in penile-anal intercourse with Ms Robertson whilst engaging in penile-vaginal intercourse with the victim. The victim was agreeable to this proposal: she believed that it might show Ms Robertson that her regular begging was not effective in persuading the offender to go back to her. In order to persuade Ms Robertson to engage in the threesome, so the offender told the victim, he would tell Ms Robertson that he had split up with the victim; and he predicted to the victim that by the time Ms Robertson realised that this was not true, but being under the influence of ice, she would continue with the sexual activity.
3. The victim said that Ms Robertson came around to her home. It was dark at that point. She recalled that Ms Robertson left the next morning, when it was light. The victim said that, in the period in which Ms Robertson was there, it was most likely that all three of them were under the influence of drugs, and it appears that this was a reference to ice. Earlier the victim said that at this point in her life, she was a regular ice addict (using it most days) and the offender was taking ice daily as well. Based upon her observation of Ms Robertson's demeanour, she believed Ms Robertson was also under the influence at around this time although, in her case, she could not specifically recall her being intoxicated by ice on 10 April.
4. The victim gave an account of consensual sexual activities engaged in by all, in a threesome, on 10 April and, it appears, 11 April 2020. This appeared to be stimulated by the watching of pornography on the television in addition to the taking of ice.
5. The victim was displeased with what occurred. Contrary to the offender's promises, she saw him engage in penile-vaginal intercourse with Ms Robertson; and not only anal sex. She glared at the offender and, she sensed that he did not like her response.
6. When Ms Robertson left the home the next morning, the victim was sitting on the lounge room floor. The offender stood in front of her. The offender complained that he had not 'come'. She indicated to him that she was planning on going to bed.
7. At trial, the victim alleged that the offender sexually assaulted her, after pushing her onto her stomach, forcing her down, and then forcing his penis into her anus for at least 5 minutes. This was count 1 on the indictment. However, the offender's case was that this encounter was consensual and the jury acquitted the offender on this charge.
8. Nevertheless, having regard to the way in which the first of the two sexual assault offences (count 2) occurred, to which I will shortly turn, I am satisfied beyond reasonable doubt that the offender and the victim had engaged in the act of sexual intercourse which the victim had said occurred; namely that the offender had inserted his penis into the victim's anus. The Crown submitted that the Court would reason that the basis for the offender's acquittal of this charge was that the jury was not satisfied, to the requisite standard, that the offender did not know that the complainant was not consenting. Alternatively, it was possible that the Crown may not have been able to discharge its onus on the element of a lack of consent for count 1, given a comparatively less forceful communication and her lack of responsiveness at the time he had penile/anal intercourse with her. At this hearing, the offender's Counsel submitted that the acts subject of count 1 occurred, but there was reasonable doubt as to the offender's knowledge that the complainant was not consenting; in the context of their prior sexual relationship.
9. In my view it is unnecessary to speculate why the jury acquitted the offender on Count 1.

The offence for count 2

1. The victim recalled that after the offender withdrew his penis from the victim's anus, he stood up and told her to get up and go to the bathroom and get into the shower. The victim did this, after she went to the toilet. Asked why she did not go to bed, the victim said that the offender was 'fitter and stronger' than her and she did not have a choice; even though she felt 'disgusted' at this time.
2. She said that the offender went into the shower recess, leaning against the door, standing naked. She said he pushed her shoulders down and forced his penis into her mouth. She said she tried to pull away but felt his hand pulling against the back of her head whilst he pushed his penis into her mouth. She estimated that this lasted for about a minute. She tried to get away and tried to remove his penis from her mouth. She tasted something disgusting. She identified the source of the disgusting taste when she saw faeces under the foreskin of the offender's penis. As she was crying in the shower recess, spitting and vomiting, the offender laughed at her; telling her that she had "deserved" what he had done to her.

The offence for count 3

1. As the victim remained in the shower, and facing the shower door, whilst still spitting and dry retching and vomiting after the sexual assault, the offender picked up a large dildo (a photograph of which was Exhibit A at the trial, whose length was approximately 28cm and circumference approximately 5-6cm) that was located in the shower recess and told the victim that this was "going to go in your arse". The victim did not say anything. He pushed her so that she was on all fours and forcefully inserted the dildo into her anus. This hurt the victim (no lubricant was used), who was crying, and she told the offender to stop, but he continued. She estimated that this lasted for minutes. It ended when the victim said to him "that's enough". The offender stood up and threw the dildo at her. For a time, she remained in the shower, in a state of shock. The offender said to her words to the effect "Fuck you for making Sarah (Robertson) squirt, when I couldn't". The victim interpreted these words as being a reference to her being punished for performing a sexual act on Ms Robertson resulting in the latter being 'squirted'; whereas the offender had been unable to achieve that result. After this event, the victim got out of the shower, dried herself before going to bed for a short period, feeling upset and humiliated.
2. Later that day, however, she got up to drive the offender to Ms Robertson's place to visit his children.

Background

1. After the offender had returned from Sarah Robertson's place after the visit to his children, on 12 April 2020, the victim confronted him whilst he was showering, and told him "If you ever do anything like that again, I'll bury you!" This was a reference to the recent sexual offending, but sets the context for the next offence. She recalled him sarcastically responding "Yeah?"
2. The same day, the offender suggested that they take a picnic at Kearsley and the victim agreed to that. She explained that she was wary of the offender, but did not want to upset him. She packed cigarettes and a jumper in the bag for the hike, as well as her mobile phone. The offender removed the phone, however, telling her that she would not need the phone. But when he was out of the room, she hid it under the jumper and put both items in the bag. She explained that his demand that she not take her phone set off 'alarm bells', regarding her safety, which was why, when she had the opportunity along the drive, as the offender stopped off to get some hot chips, she turned on her 'locator' on her phone. (The hot chips were purchased at about 2:57pm on 12 April 2020 at a shop in Wollombi Rd, Cessnock). She was not aware of the offender packing anything and, as she later said, she was not aware of a shovel being put in the boot of the car (the shovel belonging to the shed at her home).
3. As she switched her phone into locator mode, the offender came back to the car. She did not have the time to put it back in the bag so, instead, hid it under her leg. It went off as they were at Aberdare. It turned out to be a message from the offender's mother. The offender heard this and said to her "you couldn't listen to me" and seized her phone.
4. After the noise on the phone, the car pulled over at Aberdare. The victim said that she wanted to go home. But the offender told her to keep driving to Kearsley. She said to him that she did not want to. In her evidence to the Court, she explained that she said this as she was scared.
5. They arrived at Kearsley. The car was parked across the road near bushland. The victim said that the offender told her to get a shovel out of the boot. This was the first time that she was aware that a shovel had been brought. But the victim refused to touch the shovel. The victim did not have her phone with her: she said she was unaware what the offender had done with it.
6. The victim and the offender left the car, the offender carrying the shovel, and walked down the road towards the bush. The victim said she asked him why he had the shovel and the offender's response was "You'll see". They walked further along the road, into the bush, with the offender in the front and to the victim's right side. She recalled that he was swinging the shovel and singing "run, rabbit run". She sensed that the offender had wanted to scare her.
7. They passed the point where they were beyond eyesight of their car and approached a large pond. The victim recalled them standing there for a period and the offender recalled times from his childhood. She feared that she might be pushed into the water. At a point, they reached a wombat hole and the victim recalled the offender putting the shovel over the hole. They then had a conversation. She asked him (again) why he brought the shovel. This time, the offender said "Why do you think? You can dig your own grave! You threaten to bury me? I'll bury you first!" She recalled him saying this in a condescending tone. He stood behind her and kept coming closer to her. The victim became scared that he was going to push her into the water. The victim said she felt terrified.
8. The offender told her to sit down and to share some of the hot chips, which she did; though she felt on edge.
9. She recalled that a silver motor vehicle pulled up, which had driven through the bush. She saw a male driver emerge and observed the offender approaching him to have a conversation. She could not hear what the offender said to the man but saw them approach the boot of the silver vehicle and saw that a bag was pulled out, before seeing the offender looking inside it.
10. She recalled walking away through the bush, back to her own car. When the offender saw this, he ran back towards her and she recalled him saying words to the effect, "You think you've got trauma issues now? I know that man. He was the one with the chainsaw that's going to cut you up into a million pieces!" The victim asked him "Why would you want to do that?", but did not recall him responding.
11. Although she was travelling in what she thought was the direction of her car, the offender told her that she was actually going the wrong way. Nevertheless, she travelled far enough to be in a place where houses and other cars were visible.
12. She recalled the offender grabbing her and asking her whether they could go back home and have a nice day. By this stage, she recalled that she was crying. But they got in the car and went back home.
13. Police arrested the offender 5 or 6 days after the trip to Kearsley. The victim recalled having had an argument at Sarah Robertson's place. She said she called the police and told the police about the alleged offending. She ceased to have a relationship with the offender from that point.
14. The Crown argued that the jury may reasonably have rejected count 4 on the indictment (the take for advantage charge) based on doubt as to why the complainant went with the offender to Kearsley and/or doubt about whether the offender knew she did not consent to going with him.

Assessment of the objective gravity of the offending

The sexual assault offences

1. The objective seriousness of the offence of sexual assault depends on all the circumstances of the case and is not confined to the nature of the act committed by the offender. While the form of intercourse "is an important factor, it is not to be regarded as the sole consideration": R v Hibberd (2009) 194 A Crim R 1 at [56]. Other relevant matters in deciding where on the continuum of seriousness an offence lies include: "the degree of violence, the physical hurt inflicted, the form of the forced intercourse, the circumstances of humiliation … the duration of the offence": R v Hibberd at [56], cited with approval in R v Daley [2010] NSWCCA 223 at [48]. In R v Daley at [48], Price J (Hodgson JA and Fullerton J agreeing) clarified what was said in R v Hibberd about the duration of an assault: "the short duration of a sexual assault would not ordinarily be considered as a factor which reduces the objective seriousness of the offence. Most sexual assaults will not be prolonged as the offender will seek to avoid apprehension. On the other hand, a sexual assault of an extended duration will necessarily add to the seriousness of the offending as the suffering and the humiliation of the victim will be increased." The context in which the offending occurs is an important part of determining the objective seriousness of a particular offence.
2. The Crown submitted that the Court would find that on count 2, the offender knew that faeces were on his penis. On count 3, the Crown emphasised that the forced use of a large dildo, without lubrication, was not something that had previously been part of the sexual relationship between the offender and the victim.
3. The Crown submitted that both sexual offences approached the mid-range of objective seriousness. The offence for count 2 involved the use of physical force; involving both thrusting and the holding of the victim's head in place.
4. The Crown argued that it did not assist the offender that his offending occurred in the context of an existing sexual relationship. In itself, the offending constituted a form of domestic violence and had multiple potential consequences (SC v R [2019] NSWCCA 25).
5. In relation to the two sexual assaults, the Crown argued that the circumstance of forcing the victim to engage in fellatio when there was faeces on the underskin of his penis, and repeatedly inserting the dildo into the victim's anus, involved significant degradation, humiliation and distress. In the former sense, the offender was well aware about the presence of faeces on his penis. In the latter sense, it is not so much the pain inflicted as a result of the assault which aggravates the offending, since sexual assaults very often involve the infliction of pain, but rather the offender's commentary immediately following the insertion of the dildo after visible signs of distress were apparent in the victim and which he articulated his motive of revenge consistent with a desire for revenge. The Crown argued that the offender was motivated to punish and degrade the victim, as well as asserting dominance and control over her in a domestic relationship.
6. The Crown submitted that any of the mental states (actual knowledge, recklessness, honest belief without reasonable grounds) would be consistent with the jury's verdicts. Of course, the offender did not give evidence. The Crown submitted that it was unnecessary to make the most favourable finding to the offender on this point, whilst acknowledging that there was a need to make a finding of his mental state beyond reasonable doubt if the particular matter was to be used in a way adverse to the offender.
7. The offender submitted that the sexual assaults were of an apparently short duration; but at least not of an extended duration. Reference was made to the victim's own estimates of the duration of each form of sexual activity: at least a minute for count 2 and minutes for count 3. Although violence was inflicted, that matter had to be seen in a context of a 'sexually adventurous' relationship. The conduct which had comprised count 1 on the indictment - in respect to which the offender was acquitted - was a continuation of the consensual sex that occurred in the course of the threesome. As to the offender's mental state, it was submitted that for count 2, it was one of recklessness or an absence of reasonable grounds as to the absence of consent.
8. I disagree with the proposition that the conduct comprising count 1 was a continuation of the consensual sex that occurred in the course of the threesome with Ms Robertson if it is suggested that the conduct can be objectively characterised in that way. There was a clear break in time between the consensual activities involving Ms Robertson and the conduct comprising count 1. Most obviously, Ms Robertson had left the scene. The victim indicated that she wanted to go to bed. That said, it is more accurate to say that there was a linkage between what had occurred with the sexual activities with Ms Robertson and the offending against the victim in a subjective sense: it was the offender's dissatisfaction with what had occurred in Ms Robertson's presence which contributed to his state of mind when assaulting the victim. In my view, this hardly assists the offender, for reasons I am now about to explain.
9. In my view, the offender's mental state, in relation to both counts, is most accurately characterised as actual knowledge: so pent up was he with fury - a reflection of his insecurities - that he desired to punish the victim by inflicting sexual violence. As to count 2, he knew that the victim would not consent to oral sex with his having faeces on his penis: that was evident when he laughed at her subsequent distress and taunted her afterwards. In this regard, I accept the Crown's submission that subsequent conduct can illuminate the offender's state of mind at the time of the offending (R v Mostyn (2004) 145 A Crim R 304 at [135]). Contrary to the offender's submission, it is not to the point that the victim did not see the faecal matter on the offender's penis prior to the oral sex commencing. As to count 3, about which no specific submission was made on the offender's behalf regarding his mental state, the victim had already been degraded and humiliated, and her distress was evident before and after he inserted the dildo. But the offender's desire for revenge and the infliction of 'punishment' was still not satiated.
10. Generally, the offender's verbal reference to 'punishment', in both cases, betokened his awareness or consciousness that he was doing something that he had no right to do; that he was doing something exceptional, in the circumstances as he perceived (however grotesquely) them to be. He was exerting his dominance and evinced a belief that he was entitled to override the victim's wishes.
11. But even if I am wrong in so finding that the mental state of the offender was one of actual knowledge of an absence of consent, it does not appreciably assist the offender. In my view, following the example of what Simpson AJA determined (Bellew J and Wilson J agreeing) in Kiss v R [2021] NSWCCA 158 ("Kiss") at [75], I would have found that the level of his recklessness was of such a high order as to amount to knowledge; and, certainly, a finding of recklessness as distinct from actual knowledge would not diminish the assessment of objective gravity of either of the sexual intercourse offences.
12. The 'shortness' of duration of the offences does not lessen the objective gravity of the offending. As Adamson J recently explained in Kelly v R [2022] NSWCCA 189 at [33] sexual offences measured in minutes rather than, say, hours, can still have lifelong effects.
13. For both offences, it is not a mitigating factor that the offending occurred within an existing relationship: Bussey v R [2020] NSWCCA 280 per Harrison J (Hoeben CJ at CL and Bellew J agreeing); also Kiss at [80] - [102]. Thus, I reject the proposition that any prior sexually 'adventurous' relationship between the offender and victim effectively conferred some sort of licence, or otherwise diluted the gravity of the appalling acts of sexual violence inflicted by the offender.
14. As to the offending the subject of count 2, there was force exerted by the offender against the victim, by his holding her head whilst he inserted his penis into her mouth; although there were no enduring effects of physical violence as a result of the sexual intercourse itself. It was degrading to the victim, especially as the sexual activity continued, although the worst effects emerged only after she had learnt of what the offender had done, when she saw the faeces on his penis. I accept the Crown's submission that the offending approached the mid-range of offending of this kind.
15. As to the offending the subject of count 3, the context for assessment was the victim's discovery and coming to grips with what the offender had done in relation to the offending which is the subject of count 2. The offender had already violated and humiliated the victim, but was insisting upon prolonging that. He then demanded, against an already degraded victim, that she sustain the infliction of further indignity, by penetrating her anus with a dildo. This physically hurt the victim, she protested, but for a time, he still did not stop; further exacerbating her distress. I also accept the Crown's submissions that the offending approached the mid-range, but was more serious than the offending for count 2.

Aggravating circumstances for sexual offences

1. In relation to both of the sexual assault offences, the Crown submitted that they occurred in the victim's home and therefore engaged the aggravating factor in s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('CSP Act'). The offender's Counsel disputed this, arguing that the location of the offending did not aggravate its seriousness with regard to the necessary implication of the jury's verdicts. His Counsel did not articulate what the supposed necessary implications were. As a matter of incontrovertible fact, the sexual offences did occur in the victim's home.
2. There are cases where the bare circumstance that an offence occurred at a victim's home is not aggravating (e.g. Patel v R [2019] NSWCCA 170). It may be accepted that part of the background to the offending, in a general sense, was consensual sexual activity in the same home where the offender assaulted the victim. This submission is effectively a reprise of the argument, which I have rejected, that the sexual offending was a continuation of the consensual sexual activity. To accept the argument would controvert the jury's verdict that the sexual activities comprising the offending were not consensual and that the offender knew that they were not consensual. The victim was no less entitled to feel that she was in a safe place - her home - where her bodily integrity would not be violated than would have been the case if the offender was an intruder. I find that the aggravating factor is engaged.

The intimidation offence

1. In Cherry v R [2017] NSWCCA 150, Johnson J at [78] (Macfarlan JA and Harrison J agreeing) said: "It is undoubtedly the case that the criminal law, in the area of domestic violence, requires rigorous and demanding consequences for perpetrators for the purpose of protecting partners, family members and the wider community".
2. In Yaman v R [2020] NSWCCA 239 at [135] Wilson J (Fullerton and Ierace JJ agreeing) said: "The right of all women to determine their own path in life must be protected and upheld by the courts. Where a woman's right is ignored or disregarded by an offender, that right must be vindicated, including by punitive and strongly deterrent sentences where necessary."
3. The intimidation offence is a species of "domestic violence offence" and is defined in s 11(1)(c) of the Crimes (Domestic and Personal Violence) Act, being an offence (other than a personal violence offence) the commission of which is intended to coerce or control the person against whom it is committed or to cause that person to be intimidated or fearful (or both). As such, in addition to the general sentencing considerations in s 3A, the penalty for this offence is affected by the matters referred to in s 4A of the CSP Act.
4. It has been said that a domestic violence offence like s 13(1) highlights "the centrality of coercion and control in domestic violence … [illustrating] that domestic violence is about exercises of power, in which physical violence is but one manifestation" (E Buxton-Namisnyk and A Butler, "What's language got to do with it? Learning from discourse, language and stereotyping in domestic violence homicide cases" (2017) 29 Judicial Officers' Bulletin 49 at 50).
5. The Crown submitted that the offence fell above the mid-range for offences of this kind. The offender went to significant lengths to scare the victim and make her think he was going to kill her, have her body cut into small pieces then buried in a favoured childhood spot in the bush. There was planning in all that had occurred. His conduct evinced a desire to dominate and control the victim.
6. The offender's Counsel submitted that it necessarily followed from the jury's acquittal on count 4 that either the jury did not accept (beyond reasonable doubt) either or both of the elements that the offender knew that the victim consented to not being taken, or that he had any intention to attain a psychological advantage. So much may be accepted.
7. The offender then argued that not everything that occurred during the trip to Kearsley amounted to criminal conduct. Rather, it was suggested, his offending on count 5 might be broken down into components. The first involved the offender's use of a shovel and the offender's explanation for why he had it. The second aspect was the threatened use of the chainsaw. His Counsel argued that the words that were spoken, at least in respect to the chainsaw, were uttered spontaneously and opportunistically.
8. In my view, for count 5, it is inappropriate to slice and dice the conduct into component parts. The offender's conduct had to be seen overall. The offender only selects the worst aspects or features of the circumstances, whilst asking the Court to pass over contextual matters such as his exertion of control in taking the victim's mobile phone and determining the place where he proposed to take the victim - with which he indicated to the victim that he was familiar with. Matters were tense between the two people even before they stepped out of the vehicle into the bush. Once contextual matters such as these are taken into account, I agree with the Crown that the offending involved planning and was chillingly calculated to instil great fear in the victim. There was a deliberate intention to inflict mental harm. I agree with the Crown that the offending was above the mid-range.

Victim impact statement

1. The Crown relied upon, and the victim read out in Court, a victim impact statement written by the victim. It was primarily directed towards the offender. It spoke movingly, of a sense of having failed her children. She referred to having spent 30 weeks in a mental health facility to help deal with her trauma, and consequent exclusion from her children. She referred to various diagnoses regarding her mental health, including, without limitation, PTSD and depression. She has put on a lot of weight. She spoke of being consumed with thoughts of what had occurred when the offender's crimes were perpetrated upon her.
2. The Crown emphasised that psychological harm would inhere in the offences, but disclaimed - correctly in my view - any reliance upon emotional harm as an aggravating factor (per s 21A(2)(g) of the CSP Act).
3. The Court is well aware of the serious and damaging, sometimes life-lasting, effects of assaults such as this and the process required after making a complaint. The victim spoke eloquently of her trauma and I will take it into account. The Court is well aware that such trauma is frequently the result of offences such as this. The legislature has recognised this by mandating significant penalties.

Age, background

1. The offender was 26 years of age at the date of the offending.
2. It was apparent at the trial that at the date of offending, the offender had two young children, under 10 years of age, with Ms Robertson. In his Counsel's written submissions, it was noted that he had a longstanding addiction to prohibited drugs, especially methylamphetamine. But although there was evidence of drug use during the consensual sexual activities involving Ms Robertson, there was no evidence of the offender being actually under the continued influence of ice at the time of the offending, such that it could be fairly said that his drug addiction contributed to his offending.

Antecedents

1. For a relatively young man, the offender has had a lamentable criminal history, stretching back to serious offences committed whilst he was juvenile. Particularly pertinent are the personal violence offences (featuring common assault, assault occasioning actual bodily harm) and previous domestic violence offences (stalking or intimidation with an intention to cause fear, and contravening prohibitions or restrictions in AVOs). He has generally been sentenced in the Children's Court and thereafter the Local Court. It is notable, however, that this will be the first time he will be sentenced for sexual assaults.
2. The offender's record indicates a pattern of disobedience or disregard of the law. I agree with the Crown that the offender's record of domestic violence offences operates to deprive him of leniency.

Remorse/contrition

1. There was no evidence of this. But consistently with general principle, the absence of a mitigating factor is not aggravating.

Rehabilitation prospects

1. The offender's Counsel was silent on this issue in his written submissions.
2. The Crown submitted that the offender's antecedents, the escalation of the offending that occurred and the absence of any evidence to indicate that he had addressed his drug addiction; combined with a lack of remorse all point to an offender with poor prospects of rehabilitation. I agree.

Instinctive synthesis

1. I take into account the maximum penalties of the offences generally and, for the sexual assault offences, the statutory non-parole period.
2. I have also had regard to each and all of the considerations in s 3A of the CSP Act and, to reiterate, for the intimidation offence, I have also had regard to s 4A of the CSP Act.
3. Overall, the subject offending featured significant sexual violence in a fraught domestic relationship. For such offending, considerations of general deterrence, holding the offender to account, retribution and denunciation and recognising the harm sustained by the victim, and the indignities inflicted upon her, are very prominent considerations. In the circumstances of this offender, and given his record, there is also a strong need for specific deterrence. The absence of contrition, his record before and after the index offending, and his poor prospects of rehabilitation also elevate the concern about the need to protect the community. He is a violent man; especially in the context of domestic relationships. The offending here follows a lamentable pattern. His prospects of rehabilitation, being already poor, have a very subsidiary role to play.
4. I intend to impose a period of imprisonment and it was not submitted to me that anything else was appropriate in the circumstances. I am therefore satisfied that, as s 5 of the CSP Act provides, no penalty other than full time imprisonment is appropriate. An aggregate sentence is appropriate.
5. The offender's Counsel furnished some sentencing statistics on the offences, where pleas of not guilty were entered. However, no narrative was supplied as to either the objective gravity of the offending, aggravating or mitigating factors nor the subjective circumstances of the offender were made apparent. Without this, the bare citations of statistics has extremely limited, if any, utility. As Simpson AJA said in Kiss (at [102]), the range of circumstances in which sexual offending takes place is "almost infinite". This is no less so for the intimidation offence.
6. The indicative sentences are: Count 2: 3 years and 6 months' imprisonment (non-parole period of 2 years, 5 months' and 13 days) Count 3: 5 years' imprisonment (non-parole period of 3 years, 6 months') Count 5: 2 years and 6 months' imprisonment
7. I am mindful of the principle of totality. It has two aspects. Firstly, the two sexual assault offences could be regarded as one continuous course of offending, over a relatively short period of time, thereby suggestive of a substantial measure of concurrency as between those offences. This would, however, understate the discrete nature of the sexual offences, involving discrete acts of sexual intercourse and, progressively, being committed in circumstances where the victim was manifestly getting increasingly distressed. Whilst there should be some concurrency, a measure of accumulation should occur as between the two sexual assault offences to reflect the criminality overall. To this, of course, there is additional accumulation to reflect the offence on count 5 which was a very different (albeit related) offence occurring on a different day and which involved a not insignificant degree of planning.
8. The second aspect to the issue of totality is the fact that since he has been in custody, the offender has been sentenced to imprisonment for two separate sets of domestic violence offences, and those sentences are partly referable to the present proceeding. He has been in custody for a period of 1 year, 2 months and 1 day that is solely referable to the subject offending. But the Crown fairly conceded that sentencing for the other sets of domestic violence offences are at least partially referable to the events for which he is now sentenced.
9. For this latter aspect of totality, the police facts (relied upon for sentencing purposes) of other offending that occurred, respectively, on 17 April 2020 and 18 April 2020. It will be noted that the offending on 17 April 2020 occurred only a week or so after the index offending for which the offender now appears for Court for sentencing. This offending featured an assault (occasioning actual bodily harm), including grabbing the victim by the throat, against a man and an expressed threat to kill. The man had asked the offender to stop yelling at his daughter. This occurred at Ms Robertson's home.
10. The offending also occurred on 18 April 2020. It occurred against the same victim who was the victim of the index offending, after the offender had been released on bail after being charged with the index offending. By about 3pm on 18 April 2020, he was served with an ADVO benefitting the victim. One of the requirements was that he not contact her, in any way, unless it was through a lawyer. In breach of that requirement, only about half an hour later however, he rang the victim whilst she was in hospital (receiving medical treatment).
11. The aggregate sentence is intended to reflect my assessment of the offender's criminality overall to cover all offences, reflecting, principally a sentence that is proportionate to the gravity of the offending, as well as the other considerations alluded to earlier in these remarks.
12. I take into account the period in which the offender has been in custody by reason of the subject offending and the other sentences, to comprehend his overall criminality.
13. The offender's Counsel submitted that special circumstances apply; arising from his drug dependence and need for rehabilitative opportunities; together with a loss of opportunities for interventions that were available under parole periods.
14. Not without some hesitation, I am persuaded that special circumstances apply, having regard to some loss of opportunity for rehabilitation during periods of parole served (during the pandemic) and the offender's patent need for rehabilitation prior to his return into the community. But the reduction in the statutory ratio is small.

Sentence

1. Mr Mattiusi, please stand.
2. You are convicted of counts 2, 3 and 5 on the indictment.
3. I sentence you to a term of imprisonment of 7 years and 6 months, commencing on 9 March 2021 and expiring 8 September 2028, with a non-parole period of 5 years, 3 months and 2 days, expiring 10 June 2026, after which you are eligible for release on parole.
4. The Crown submits that by s 39 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), upon a finding of guilt to a 'serious offence', a final order for an Apprehended Violence Order is to be made, unless satisfied that it is not required. By combination of ss 4, 11 and 40 of that legislation, it is common ground that the index offending satisfies that expression.
5. The offender consented to such order.
6. I accept the Crown's submission. I order that Mr Mattiussi: 1. must not do any of the following to [redacted], or anyone whom she has a domestic relationship with: 1. assault or threaten her; 2. stalk, harass or intimidate her; 3. intentionally or recklessly destroy or damage any property that belongs to her; and 1. must not approach [redacted] or contact her in any way, unless such contact is conducted through a lawyer.
7. The final Apprehended Violence Order is of 3 years' duration.

Endnote

1. The sentencing hearing scheduled for 12 August 2022 was adjourned as a result of industrial action. 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: 09 September 2022