Aggravated sexual intercourse without consent
Cases Cited: Ingham v R [2014] NSWCCA 123
R v Robinson [2002] NSWCCA 359
Veen v The Queen (No 1)(1979) 143 CLR 458
R v Harrison (1997) 93 ACRIMR 314
Category: Sentence
Parties: Crown (Regina)
David John Marlin (Offender)
Representation: Counsel:
Source
Original judgment source is linked above.
Catchwords
Aggravated sexual intercourse without consent
Cases Cited: Ingham v R [2014] NSWCCA 123R v Robinson [2002] NSWCCA 359Veen v The Queen (No 1)(1979) 143 CLR 458R v Harrison (1997) 93 ACRIMR 314
Category: Sentence
Parties: Crown (Regina)
David John Marlin (Offender)
Representation: Counsel:
Judgment (6 paragraphs)
[1]
Judgment
The offender, David John Marlin, appears for sentence following his pleas of guilty to one charge of aggravated sexual intercourse without consent (contrary to s 61J carrying a maximum penalty of 20 years imprisonment) and one charge of robbery contrary to s 94 carrying a maximum of 14 years imprisonment. He has requested that four further matters be taken into account on a form 1 schedule.
A summary of the agreed facts in the Crown bundle of documents, exhibit A, is as follows, and it is, of course, consistent with the CCTV footage which has captured the incident in its entirety. At about 11.35pm on 29 March 2014 the victim arrived at the Campbelltown Railway Station. She was intending to take a train to Wolli Creek and thereafter to proceed in the direction of either Bondi or Cronulla. She had previously been diagnosed with bipolar disorder, anxiety and panic attacks and was on twice daily Seroquel medication.
Whilst on the station platform, the offender observed her squatting next to a vending machine and adjusting her underwear. She was also listening to music through her headphones, something she did to keep calm. The offender approached her and said, "Hot babe", and then, "The train is here, honey". She said, "Thanks" and then got on the train. What happened from that point
on has been clearly captured on the CCTV footage (exhibits B and C) from within the carriage of the train. As I have indicated, the CCTV footage is broken up into what occurred downstairs in the train, which is exhibit B, and what occurred upstairs, exhibit C.
After entering the train, the victim moved to her right to the end part of the carriage and she stood in front of a seat facing a window. She was still listening to her music through her headphones. The footage shows the offender seated opposite. The victim was oblivious to his presence and continues looking into her reflection in the window, restyling of her hair, adjusting the hemline of her skirt, applying deodorant and adjusting her underwear exposing part of the buttocks. She still has her back to the offender and does not look at him at any stage. Her focus remains towards the window.
Whilst this was occurring, the offender is looking in her direction. He said words like "Hot arse", stood up and he then approached her. This confrontation was very brief as she said, "Get away from me. I'm not like that". He said, "I can give you $50". She immediately walked around him and moved to the upstairs section of the carriage. A young man was seated up in that section. The offender remained downstairs where he was earlier seated.
The CCTV footage shows the train stopping at Minto and then Ingleburn. It appears the young man seated upstairs near the victim got off the train at Ingleburn station. Shortly after the train leaves Ingleburn station, the offender stands and walks up the stairs. About three and a half minutes has passed since the victim walked past the offender and went to the upstairs section of the carriage.
The footage shows the offender approaching the victim who was standing between two seats with her back to him. The offender then reaches
out with his left hand as if to shake hands. She does not appear to look in his direction but merely puts out her right hand.
Without warning, the offender immediately launched into a vicious attack commencing with a king hit to her face, knocking her down into the seat. She called out, "Please don't hit me". He then forcefully kissed her on the mouth and sucked her neck. He then forcefully put his hand up under her skirt and inside her stockings and underpants. He forcibly kisses her on the mouth a second time and then delivers another blow to her face. She then puts her hands up to her forehead to protect herself. During the assault he called her a "prick tease" and said, "Kiss me". He forcefully kissed her on two more occasions. His hand was still under her skirt and her body can be seen moving on the seat from the force of the digital penetration.
During the act of digital penetration he pulled across her top and took her mobile phone that she had placed inside her bra. Whilst he was still pushing his fingers in and out of her vagina, the victim noticed that the train was pulling into a station (Macquarie Fields). She said, "Give me my phone". He refused. He then ran down the stairs and managed to exit the train just prior to the closing of the electronic doors.
The victim remained on the train. At Panania Station she activated an alarm. She said through the intercom, "I've been raped". She then got off the train. Police arrived and took her back to a police station.
On the morning of 31 March 2014 the victim was examined at Liverpool Hospital Sexual Assault Unit. The doctor noted bruising inside her upper and lower lips. There was a bruise on the left side of her neck consistent with the offender having sucked her neck. The doctor noted restricted movement in her neck, a small bruise on the back of her neck and a tender red area in the vaginal introitus.
Police then obtained stills from the CCTV footage. They were ultimately shown to the offender's mother who identified him. At 3.40pm on 31 March 2014 a search warrant was executed at the offender's unit in Cartwright. He was not home at the time. Police located the victim's phone on his bedside table and seized clothing consistent with those shown in the CCTV footage.
Later that day at 5pm the offender was arrested at Campbelltown Railway Station. He was asked, "Have you been told why you've been arrested?", he said, "Yes. Sort of. It's about Saturday night with that girl on the train".
He took part in a recorded interview. He stated that he had been out on that evening at Campbelltown RSL having a few drinks for his birthday. Later he was standing on Campbelltown station and saw the girl "Doing a pole dance to the chair and to the chip machine". He said there was no conversation prior to some discussion about which train to catch.
After getting on the train he said the girl "put her legs up on a seat and she was fixing herself up and then not long after that, she had a short black dress thing on and raised it and showed her backside and G-string". He gestured that she was reaching in the area of her inner thighs to correct her stockings.
He claimed the victim then said, 'Do you like what you see?" and he replied, "Cute arse, babe. Cute arse". He claimed she said, "If you want, come and get it". He then walked over to her and she said, "Not down here. Come up here", and she went and sat upstairs. He said he waited for the man sitting up there to leave and then he went upstairs. He said he asked her, "What's your name, babe?" and she said, "I don't have to tell you my name". He said he put his hands out and said, "I'm Dave", and then fell on her and "Yeah. We just started mucking about. Kissed her". He also said he felt her breasts. He said, "We just started kissing and playing around with her, touching her". He agreed he had inserted a finger in her vagina once. When asked if he thought there was anything "strange" about the victim, he said, "I think she was a bit off her head or something. I'm not sure but". When it was suggested that he hit her, he said, "I don't recall doing that. I don't recall hitting her".
The interview was then suspended and he was shown the CCTV footage. At the point where it shows him hitting the victim he asked for it to be stopped and said it was "disgusting". He agreed that the footage showed him hitting the victim causing her to fall to the seat, but claimed he had no recollection of that occurring. Even despite being shown the CCTV footage, he maintained the victim was kissing him as he kissed her. He was asked if he said words to the effect, "You shouldn't prick tease", he agreed he said, "Something like that". He explained that he meant "Just the way she was dressing and, you know what I mean, she did say to me, 'If you want it, come upstairs'".
[2]
OBJECTIVE SERIOUSNESS
His claim to the police that he had no memory of hitting the victim was clearly untrue. His version in the interview indicated a specific memory of conversation, of the victim's actions, of the victim allegedly giving him an invitation to consensual sexual conduct, of waiting until the male person got off the train before going to the upstairs section, of him putting his hand out and then falling on her on the seat and, of course, consensual kissing and sexual contact. Even after being shown the footage, as I have earlier indicated, he wanted to maintain that the victim said, "If you want it, come upstairs".
He later claimed to Dr Furst that he "had little memory" of the incident. It is simply not possible to accept such an assertion and it must be regarded as an attempt by him to avoid confronting the enormity of his offending conduct. He did acknowledge in the interview that he thought "that she was a bit off her head or something". It would have been readily apparent to any decent human being observing the victim on that night that she was clearly suffering mental health issues. An examination of the CCTV footage shows the extent to which the offender was prepared to lie to the police to convince them that all contact was consensual. Indeed, according to him, it was at the beckoning of the victim.
After getting on the train, the footage shows the victim facing away from the offender and never at any time has eye contact with him. When he approached her, she appeared startled and immediately grabbed her bag and moved away from him to walk upstairs once again avoiding eye contact. From the time the victim went upstairs, another three and a half minutes elapsed with the train stopping at Minto and Ingleburn before the offender also goes upstairs. He paused in the stairwell obviously making sure no-one else was in the upstairs section.
While the offence may be characterised as "opportunistic", the viciousness and brutality of what followed is clearly captured in the CCTV footage. Whilst it might be said that the attack takes place within a fairly short period of time, the sickening force of his digital penetration is amply demonstrated by the resultant movement of her body. The victim was a slightly built 34 year old woman alone in the upstairs section of the train and was clearly vulnerable. She was simply helpless to protect herself from this forceful, vicious and determined attack.
The Court of Criminal Appeal has consistently commented that there is no hierarchy in respect of forced sexual intercourse. Most recently in Ingham v R [2014] NSWCCA 123 the Court stated at para 41:
"I accept that there was no hierarchy of seriousness for a breach of s 66A(1) with penile penetration at the apex. Other means or mechanisms by which the offence can be committed may, in a particular case, be equally, if not more, objectively serious. I also accept, as was most and recently stated in Simpson v R [2014] NSWCCS 23, at paras 33 to 34, (Doe v R [2013] NSWCCA 248 at 54) that there is no authority in this Court which supports the proposition that digital sexual intercourse is of itself less serious than other forms of forced sexual intercourse"--
I will shortly deal with the offender's record of convictions for violence. I regard his prior conviction for an aggravated sexual assault with the use of a weapon for which he was given a five year sentence of imprisonment as an aggravating factor in respect to the present offence.
I have received and considered a victim impact statement. It was prepared on behalf of the victim by her mother. The victim has been a long time sufferer of mental illness and was simply not well enough to complete the statement herself. It said the "unprovoked and brutal attack" resulted in "devastating psychological and physical injuries…As a direct result of the attack she is constantly very disturbed fearing the perpetrator will hurt her again". Her mother also stated, "The consequences of this trauma and recovery for a person suffering from a mental illness is unpredictable". It is clear to the Court that the psychological injury and emotional harm will continue to affect the victim for some time to come. The matters articulated in this statement highlight the extreme seriousness of the offending conduct.
[3]
SUBJECTIVE CIRCUMSTANCES
I turn now to the subjective circumstances. The offender is now 54 years of age. His criminal record is not one that would entitle him to any leniency. Indeed, as earlier indicated, it contains numerous convictions for violence.
In 1984 he was convicted of assault and fined. In 1986 for assault occasioning actual bodily harm he received a deferred sentence, a S. 558 recognizance to be of good behaviour for a period of three years. In 1998 for an offence of malicious wounding he was sentenced to two years hard labour with a non-parole period of 18 months. On appeal in lieu of the two years sentence he received another deferred sentence, a S. 558 recognizance to be of good behaviour for a period of five years.
In 1997 for assault occasioning actual bodily harm he was placed on another s 558, deferred sentence recognizance to be of good behaviour for three years.
In 2000 he received a 100 hours community service order in respect of another charge of assault occasioning actual bodily harm. In 2002 he was convicted of four counts of contravening an apprehended domestic violence order and one count of assault occasioning actual bodily harm. He was sentenced to periods of imprisonment ranging from three to four months with each sentence being suspended under s 12 of the Crimes (Sentencing Procedure) Act. At the same time he was sentenced to 12 months for damaging property and that was also suspended under s 12.
In 2006 he was sentenced at the Campbelltown District Court in respect of a charge of aggravated sexual assault. He was sentenced to five years imprisonment with a non-parole period of three years. Regarding that matter, the agreed facts document has been included at tab 10 of the Crown bundle of documents, exhibit A. Briefly stated, he attended the victim's home on the evening of the day after their relationship ended. He had been to West Leagues Club at Campbelltown and he was intoxicated. He produced a knife and he threatened to inflict actual bodily harm. He took her first to a bedroom and then to a lounge room where he forcibly removed her underpants and nightie. He turned her on her stomach and said, "Hurry up. Spread your legs. I'm going to enjoy this even if you don't". He failed at his attempt to insert his penis into the victim's anus. He then digitally penetrated her vagina. She was then taken back to the bedroom where he, again, digitally penetrated her and asked her to perform oral sex on him. She refused. He then had penile/vaginal intercourse and ejaculated inside her. She managed to escape to a neighbour's house and obtained assistance.
Exhibit A also contains various probation and parole reports relevant to his applications for parole in respect of that sentence of imprisonment. In the pre-sentence report dated 17 July 2008 at tab 12 under the hand of Mr James Brennan, it was noted that in the then recent interviews the offender denied having non-consensual intercourse with the victim. It was noted that while the offender indicated a willingness to participate in the CORE (Low to Moderate) Program, his motivation "appeared to be his earliest possible release". The probation officer stated, "In summary, the offender presented as having limited insight into his offending conduct and questionable motivation to address it".
It was also noted that between 21 November 2007 and 30 January 2008 the offender attended five sessions of the PREP program. He reported exiting the program voluntarily for personal reasons. However, contact with the program facilitator suggested the offender had left the program to avoid disclosure of his offence and considered his exit a reflection on his poor motivation to address his offending. It was not recommended that he be released to parole.
Tab 13 contains a supplementary pre-release report dated 18 August 2008. Inter alia, the probation officer stated:
"While it appears Mr Marlin is unwilling to address his alcohol and drug issues, it is noted that the AOD staff remain in discussion with the offender in an attempt to resolve his issues of alcohol use."
Mr Marlin stated that he had been prepared to participate in the sex offender program since entering custody. The officer said:
"His refusal to accept offers into the CORE program, however, suggests otherwise. Since 17 July 2008 the offender has effectively declined two offers of entry into the CORE program, both at Kirkconnell Correctional Centre and the MSPC and as such remains an untreated sex offender."
Once again, parole was not recommended.
Tab 14 of exhibit A is the CORE treatment report dated 20 January 2010 prepared by Ms Gillian Boyer, Senior Specialist Psychologist. An examination of that report reveals that significant concerns remain. At p 5 Ms Boyer stated:
"During his participation in CORE Mr Marlin completed a victim empathy task that involved him writing a letter to the victim as well as a letter to himself from the perspective of his victim. In his first attempt he remained belligerent, denied the offence, he blamed the victim, but he came back and asked to redo his task after he heard others in the group do theirs. He realised he hadn't done the task very well and came back with another attempt."
Ms Boyer commented, "He did much better this time and took some responsibility for his behaviour".
It is hard to place much store in what he did thereafter as he simply seemed to take his cue from others in the group as to what might be acceptable. Other concerns, obviously, remained. On p 11 Ms Boyer stated:
"The extent to which Mr Marlin engaged in sexual behaviour to regulate negative mood was not established during treatment. However, his report that it was a need to have sex directly after argument with his partner indicated that he may have used sex as avoidance coping, to reduce stress, anxiety of rejection and negative mood states. His offence indicates that given sufficient levels of stress combined with loss of control due to alcohol abuse, Mr Marlin has potential to react in a sexually violent manner."
Under the heading "Attitude", Ms Boyer commented:
"During treatment Mr Marlin began to challenge problematic attitudes towards women and demonstrated an understanding of issues relating to consent for sexual contact. In terms of his attitude about aggression and violence, however, Mr Marlin acknowledged that at times he still engages in aggressive communication with others and occasionally made comments that appeared to collude with other group members' justifications of using aggressive behaviour to cope with conflict."
Ms Boyer then went on to recommend supervision conditions to assist in managing his risk to the community. Based on this report, his release to parole was recommended on 17 February 2010. His parole was later revoked and he re-entered custody on 13 July 2010 and served the balance of parole of two months and 18 days until his sentence expired on 30 September 2010.
Exhibit 1 is a report (dated 15 December 2014) of Dr Richard Furst, Consultant Forensic Psychiatrist. It contains the following background material: he has two elder sisters and one younger sister. His father was a truck driver and his mother worked in a factory.
Following his parents' separation when he was ten or 11 years of age he was raised by his father. There were no apparent learning difficulties at school. When in high school he apparently lost interest his studies. He began truanting and fighting with other students. He was asked to leave when he was 14 and ten months of age. After leaving school he worked in his uncle's plumbing business. He then became an apprentice greenkeeper for about three years. He has worked in factory positions and also as a truck driver. He has been married twice. His first wife died in 1986. He married again in 1988 and had three children. They separated in 2001.
He has had a significant problem with alcohol. His drinking had apparently escalated in the years leading up to the commission of this offence. Dr Furst noted that the offender claimed to have little memory of the offence. I have earlier referred to this issue. The offender referred to his viewing of the CCTV footage and reported feeling quite disgusted by his offending behaviour. He said to Dr Furst, "I'm sorry. I'm so sorry. I still cry at night. I hurt her. I heard the victim impact statement. I feel bad. I'm deeply sorry for my actions and what I've done".
Exhibit 3 is the offender's handwritten letter. At face value the expressions of remorse contained therein appear to be genuine. However, it is of some concern that it has been a long time coming. When dealing with the facts, I made reference to the offender's attempt to minimise his culpability by telling police a version that was palpably untrue, but for the existence of the CCTV footage, that version may well have been maintained.
Accordingly, it is difficult to accept his assertion that he only has partial recall of the events and it is also difficult to accept the contents of exhibit 3 as being an unequivocal expression of genuine remorse.
I have also noted that when before English DCJ in respect of the earlier matter, she found that consequent upon his expressions of remorse and his then willingness to engage in appropriate treatment, that he had "reasonably good prospects of rehabilitation". Accordingly, upon a consideration of his further offending and all of the above material, it is difficult for this Court to make any positive finding concerning prospects of rehabilitation.
In exhibit 3 the offender also set out a number of circumstances he claims to have contributed to his state of depression leading up to the commission of the present offences. Today the Court has had presented to it a further handwritten document (dated 19 September 2014 now marked as exhibit 3A) concerning his contrition and remorse. I take that into account and it is to be hoped that he now has true insight into his offending conduct that may well assist him in his rehabilitation.
Dr Furst had access to the various probation and parole pre-release reports to which I have already referred. Dr Furst concluded as follows:
"In my opinion, Mr Marlin's offences were probably largely driven by his intoxication with alcohol and the opportunity that presented itself at the time, the victim being the only other person on the carriage. His underlying personality vulnerabilities, anger issues, intimacy deficits - including feelings of isolation and rejection - attitudinal problems towards women and a tendency to cope poorly under stress are also relevant, mitigating/explanatory factors. It is noteworthy he accepted responsibility to his offences and expressed remorse."
I should comment that I do not regard the matters listed above by Dr Furst as "mitigating" factors. Dr Furst also stated:
"Mr Marlin acknowledged his offences and emotional problems. He does not have major mental illness and is open to further treatment and counselling. His risk of re-offending is high. However, the treatment measures outlined below may well be effective in managing this risk when next released to the community. His risk profile warrants community supervision when next eligible for parole, probably including ongoing psychological treatment and scheduling/monitoring measures as can be provided by the forensic psychology service run at Surry Hills run by Community Corrections.The offender's further participation in a high intensity sex offender treatment program, such as a further course of the CUBIT program commensurate with his assessed risk of future offending, which is a program of greater intensity and duration than the CORE program he completed in 2010."
[4]
PROTECTION OF SOCIETY
In this matter the need for protection of society is an issue that the Court must consider. In R v Robinson [2002] NSWCCA 359 at 45 referring to Veen v The Queen (No 1)(1979) 143 CLR 458, the Court observed as follows:
"Mason J with whom Aitkin J relevantly agreed said at 468 that the Court must in sentencing a person who has been convicted of a very serious offence involving violence, if his record and expert evidence demonstrate that there is a real likelihood of his committing that kind of offence again if he is restored to liberty, ensure that by the order which it makes that he will not be released whilst that likelihood be continues."
In Veen (No 1) the Court went on to state that protection of the community is not a conclusion to be reached lightly. It will only be established, if at all, by compelling evidence. In Veen v The Queen (No 2) the High Court said at 470:
"The obvious difference between Veen No 1 and the present case is that it was then uncertain but is now known that the applicant has a propensity to kill when he is under the influence of alcohol and stress."
In R v Robinson at para 49 the Court said:
"Giving weight in sentencing to protection of society against future re-offending must involve an assessment of both degree of likelihood and gravity of consequences. The likelihood must be a real likelihood, but certainty of re-offending can never be found. In looking to society's protection in determining the sentence, the probability of the offender remaining the source of danger to the community and the gravity of the danger as probability interact. Thus in R v Harrison (1997) 93 ACRIMR 314 it was emphasised at para 315:
"…that a sentencing judge is not required to be satisfied beyond a reasonable doubt that a prisoner will, in fact, re-offend in the future. It is sufficient if a risk of re-offending be established by the Crown."
Upon my consideration of the abovementioned material relevant to this issue, I am satisfied that a risk of re-offending has been established and that, of course, must be reflected in the ultimate sentence.
[5]
PLEA
He is entitled to have his plea of guilty taken into account in mitigation of penalty. This is done on two bases; to reflect the utilitarian benefit to the criminal justice system and also to reflect contrition. It was a plea entered at the earliest opportunity and, accordingly, I intend to reflect the utilitarian benefit by a discount of about 25%.
I have taken into account all of the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act. With regard to s 5 of that Act no penalty other than imprisonment is appropriate. On the question of totality, I have decided in the exercise of the Court's discretion that the sentence to be imposed in respect of the robbery charge, that is, the taking of the telephone, will be served concurrently. It occurred at the very end of the sexual assault and was really an indication of his total lack of regard and disdain for the victim.
Whilst this matter has been dealt with following a plea of guilty, in accordance with the decision in Muldrock v The Queen [2011] HCA 39, I am mindful of the two legislative guideposts in relation to a s 61J offence; namely, the maximum penalty and the relevant standard non-parole period.
However, in determining the appropriate sentence, I have taken into account all the matters referred to above in accordance with the approach described by McHugh J in Markarian v The Queen [2005] 228 CLR 357 at para 51.
In my view, there is nothing that can justify a finding of special circumstances.
Having been convicted of these offences, in respect of the charge of robbery, I sentence you to a fixed term of imprisonment of two years to date from 31 March 2014 and to expire on 30 March 2016. I have not specified a non-parole period as it will be subsumed in the sentence I am about to pronounce.
In respect of the charge of aggravated sexual assault, I sentence you to a non-parole period of nine years to date from 31 March 2014 and to expire on 30 March 2023.
I sentence you to an additional term of three years imprisonment to expire on 30 March 2026.
Accordingly, that is a head sentence of 12 years with a non-parole period of nine years and I have taken into account the four further matters on the form 1 in respect of that sentence.
[6]
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Decision last updated: 08 December 2015