R v Pender

Facts

1. I had, as I am sure did the jury, little difficulty in accepting the victim's version of events and rejecting the version given in evidence by Mr Pender. In brief summary: Mr Pender had met the victim and it would appear they knew each other vaguely because both are members of the local Aboriginal community in the South Coast town where they resided. On the night in question in February 2020, the complainant was at her home where she had only recently moved after separation from her partner. Her children were away with the partner. She was an occasional methylamphetamine (ice) user. Text exchanges indicate that the offender had some 'ice' and an arrangement was made for him to bring it to her home.
2. It is not entirely clear what either party expected would then follow but the offender made himself at home. He used her computer. He used her phone. He used her bathroom and had a shower. He was there for many hours. During the time he was there the attitude of the victim was made clear by the attempts she made to contact friends and relatives to get someone to come to her home to help her in what she described as a scary and unfamiliar predicament. She was not at all comfortable with having the offender in her house. She was not at all comfortable with having him in her bedroom.
3. After several hours, during which he raised matters of a sexual nature, he put his hands on her. She moved away. She said, "I don't want to do this". At trial transcript (TT) 19 she was asked, "Q. What's the next thing that happened?" She said, he said, "Relax." He then he proceeded to pull her pants down, kiss her leg and engage in a very short act of oral intercourse before standing and placing his penis in her vagina for a short time. He then ejaculated outside of her. Some of the ejaculate went on to her. She did not do anything overt to stop him doing what he was doing. She lay there very scared.
4. After this she said he was saying things that she did not have a clue he was talking about. She went and wiped herself. He left just as a friend arrived in response to her calls.
5. She was challenged in cross-examination, and she kept to that account. I accept her account.
6. In submissions, Mr Fraser, who appeared at trial and on sentence, submits that, giving Pender the benefit of the doubt so far as a matter in aggravation is concerned, that he was reckless as to lack of consent because of her unresponsiveness during the acts of intercourse. Given the amount of time he was in the home and the possibility that there was a gap in time between her, rejecting his advances by saying "I don't want to do that" and the acts of intercourse themselves, it is open for me to make such a finding
7. In making my assessment, I must, as the jury were directed, discount the fact he had been using methylamphetamine that day. Although alternatives were put to the victim in front of the jury, my understanding of the evidence and my review of that evidence today, is that she was clear and unequivocal. She did not want what was done to be done to her. She kept saying, "No." She did not say, "Yes." She told the jury at TT 58, "I was too scared if I fought it that I would get hurt and I might have been injured or bleeding by the end of it." Pender's behaviour was not reckless. I find beyond reasonable doubt he knew she was not consenting.

Objective seriousness

1. Matters relating to the objective seriousness must be taken into account. Those matters must be determined in the light of all the facts and circumstances. These crimes were not just an act for sexual gratification, they involved an exercise of coercive power and control over the victim.
2. The events occurred in her home late at night. There was no-one else around. She was vulnerable. His ice use made the offender's behaviour unpredictable. He was in her home for a lengthy period. The act of oral intercourse was very brief, as was the act of penile/vaginal intercourse. No condom was used.
3. It is, as both counsels submissions note, erroneous to attempt to rank forms of sexual intercourse into some form of hierarchy but, in a case such as this, the penile/vaginal penetration took longer, and it can be taken to be more serious than forced cunnilingus because of the time it took and the associated risks of pregnancy or disease accompanying the act.
4. Mr Fraser points to the absence of aggravating features commonly associated with crimes such as this being; threats of violence, terror, that the offender was not a stranger and there was no overt violence and there was no indication of any physical hurt or pain. I do not accept the Crown submissions there was deliberately degrading conduct as I could not find that the act of ejaculation per se was intended to humiliate.
5. I must evaluate the acts, in context, using the guidance of the maximum penalties. In doing so, I must give content to the standard non-parole period. There are reasons here for a substantial departure from the standard non-parole period, but it is a matter that should be considered.

Criminal record

1. The offender is no stranger to criminal activity. He has been in and out of gaol since 1998. Since 2018 he has been in gaol almost continuously. He is not entitled to the leniency given first offenders. Although I accept that it is his first and perhaps only sexual offence, community protection remains an important consideration in this sentencing exercise.
2. Pender was released to parole on 21 February 2019. It appears he kept to his parole, which expired in August 2019. He was, however, arrested for other offences and he was bailed on 31 January 2020. Shortly after being granted bail this offence occurred on 9 February 2020. That breach of bail is an aggravating factor on sentence. It is fundamental to an application for and a court granting bail that an offender make a promise to be of good behaviour and not commit further offences. He was on conditional liberty at the time of these offences.
3. The offences occurred on 9 February 2020. He was arrested for unrelated breaches, as I understand it, on 14 January 2020. He was formally charged in custody on 6 April 2020. He has been in custody in relation to this matter since that date. A new sentence was imposed by Nowra Local Court, then subject to appeal to the Nowra District Court, on 18 June 2020. That sentence of two years and six months had a non-parole period of one year three months, indicating a substantial finding of special circumstances. It was dated from 27 January 2020. He became eligible for release to parole on 26 April 2021.
4. He has been in custody solely in relation to this matter since that date. He asked that I backdate this matter to 6 April 2020. To do so would mean that only a very short portion, four months, of the Nowra Local Court sentence would be served. More time is required.
5. I must consider the principle of totality. I must take the guidance of the Court of Criminal Appeal when I determine when this sentence should commence. In my view, it should commence nine months after he first went into custody. I will date the sentence from 14 October 2020.

Victim Impact

1. The victim wrote a letter to the Court as a Victim Impact Statement. She told me that, after his offence, her home, which she had recently set up for herself and the children, no longer felt safe. She said she still remains fearful; she still remains hypervigilant. She has had some family support and has moved home with her mother. She told me that she does not want this experience to control her life but she knows it will be with her for a very long time to come.
2. Her statement was a reminder of the human impact of crimes such as this. Her statement was in keeping with the expectations of the Court based on experience and recent psychological research. It attests to the kind of harm that might be expected of the offences in question. There is no difficulty with my accepting its contents: R v Tuala [2015] NSWCCA 8.

Subjective case

1. The offender has served his sentence during the period of the COVID pandemic. He says that he is grateful to Corrective Services for their efforts to keep the virus out of the gaol. He did say that for a period of two and a half months he was in effective lock down at Parklea Gaol. He now has a job that requires him to get out and about, for which is grateful.
2. He is also grateful for the improvements made to Correctives Services' administration by providing prisoners with computer type tablets. They allow him to have video contact with his children on a regular basis. He remains very worried, as any parent would, about the risk COVID poses to his children during the present pandemic. One has already contracted COVID thankfully without too serious a consequence.
3. A Sentencing Assessment Report for the 2020 offences was tendered. It notes that he had little insight into his offending behaviour and had, prior to the offending, little engagement with Community Corrections. He claimed family support but there was little evidence of it. He was effectively homeless at the time of these matters.
4. I also have a report from Ms North; a respected forensic psychologist. As I have come to expect, it was an informed professional opinion. I have little difficulty in accepting it.
5. Mr Pender gave evidence today. He told me he was truthful as to his background when he spoke to Ms North. He maintained, as is his right, his innocence of the offences. He said that, given his experience of being sexually assaulted when he was a child, he could not have done what he is alleged to have done.
6. He took me through the details of the offence against him when he was a child and the impact on him of that abuse. He said that thereafter he coped with the trauma by drinking; to such an extent that, at 16, he was diagnosed with pancreatitis. He said that while he did stop drinking, he abused other drugs to excess. He says he still suffers from the trauma and his drug use, consequently, has continued. It is that drug use and his inability to deal with it that has meant that he has not been able to take up treatment previously offered.
7. It is clear from all the material before me that he must address his drug and alcohol problem. Although he tells me and I accept that he has remained drug free while in custody, the real test will be when he is released into the community.
8. Ms North's report notes that Pender needs considerable assistance. He requires psychological counselling to deal with both the underlying trauma of his childhood, which includes not only the sexual assault but also includes exposure to violence and alcohol and drug use the continuing impact of that drug and alcohol use on him. These are commonly referred to under the rubric of Bugmy factors: Bugmy v The Queen (2013) 249 CLR 571; [2103] HCA 37. The report will accompany the warrant. Until Pender comes to grips with his drug and alcohol use, it is unlikely he will be able to deal with the trauma that he has suffered.
9. Ms North puts forward a treatment plan. He should engaged in; substance abuse treatment, the EQUIPS Addiction and drug and alcohol counselling, both in an out of custody. As soon as practicable he should be referred to a psychologist, both in custody. That should continue when he is in the. He should be referred to Victim Services for appropriate treatment. While in custody he should be referred to the sex offender program for further assessment. On discharge he should be supervised and monitored for as long as practical, particularly so far as his drug and alcohol use is concerned.
10. Pender is an Aboriginal man. Growing up he had limited contact with his parents. His mother had substance abuse issues. He was raised by his grandparents and, although it was a loving family, he was exposed to alcohol abuse and domestic violence in the home. The sexual abuse incident that he described occurred when he was about nine years old. At that time he was living between family members. He was living independently from the age of 12. He left school in year 7. He has not worked, apart from supplementing social services by abalone diving.
11. He has, as I have noted, used alcohol, and other drugs since he was very young. He has seen psychologists in the past, but they have all focused on dealing with his alcohol problem before the trauma issues can be addressed. I must take into account his history of deprivation as a child, lack of engagement with schools and the child sexual assault.
12. Sadly, such disclosures are often made in sentencing proceedings, often too late to be independently verified and often not on oath. Here, the evidence given on oath. I am prepared to accept that there was earlier disclosure to other psychologists. The damage done to children who are the victims of sexual assaults is well known and, after the findings of the Royal Commission, can be assumed: R v MJB [2014] NSWCCA 195 at [103]

Moral culpability

1. When matters of an offender's moral culpability are raised, the offender's background and the history must be taken into account in mitigation. Trauma suffered when a child frequently precedes the commission of crime and can result in an assessment that an offender's moral culpability is reduced: Nasrullah v R [2021] NSWCCA 207. There are matters here which indicate that, in general, Pender's moral culpability must be less than that of a person who did not suffer the trauma, or the childhood deprivation detailed in the reports and the evidence before me. His early life was impacted and, in such cases, a causal connection between the crime and the factors that reduce moral culpability is not required.
2. That principle stems from the recognition that in sentencing decisions social disadvantage, childhood deprivation, exposure to violence, alcohol abuse and trauma, including as a victim of crime, frequently precede the use and abuse of illicit drugs and alcohol and frequently precede the commission of crime. In such cases, it has been well said that an offender who has the start in life that the particular offender did cannot be held to have equal moral responsibility with one who had what might be termed a normal upbringing: Millwood [2012] NSWCCA 2; Nasrallah v R; Kennedy v The Queen [2010] NSWCCA 260; Muldrock v The Queen [2011] HCA 39; 244 CLR 120; Bugmy v The Queen. I will take all those matters into account in mitigation of sentence.
3. I cannot accept Pender's assertions of innocence. I must also be cautious in accepting everything he said his history, given the jury verdict and my finding of fact about the crime. It seems clear that his drug use has impeded his perception of events, particularly so at or about the time these offences occurred. I am however prepared to accept what he told me so far as his background and what his intentions are. He has used this period in custody; to find work in the gaol, to come to grips with his drug problems and to formulate a plan for how he deals with it in custody and on release. I will give him that opportunity by a finding of special circumstances. There must also be some adjustment because of the process of accumulation of sentences.
4. Whether he is released or not will depend upon the finding of State Parole Authority as they will have to assess community safety before he is released. That assessment may require setting conditions that make it unlikely he come in contact with his victim as they have family in the same area where she lives. To his credit he has, at least tentatively, a plan to avoid that risk. He tells me he will engage inside and outside of custody in treatment. Obviously, that is a matter that the State Parole Authority will consider. If he keeps to the promises, he has made to himself, his family and the Court then there are some prospects for the future.
5. While he is now a sex offender, as Ms North says, his risk of reoffending, should he keep to the plan, is "average." It would appear from his past behaviour that he has a powerful incentive when unaffected by drugs not to commit further sexual offences.

Submissions

1. I have had the advantage of written submissions from Mr Coulton, Crown Prosecutor, and Mr Fraser, Public Defender. I have discussed them with counsel and have sought to incorporate those discussions and those submission into this judgment. I am indebted to them both.

Synthesis

1. The Court must take into account all material facts. Some will aggravate, some mitigate; there is no golden rule: R v Geddes (1936) 36 SR (NSW) 554; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25. Giving weight to conflicting purposes of punishing is what makes the exercise of a sentencing discretion so difficult: Veen v The Queen (No 2) (1988) 164 CLR 465 at 476. This is particularly when offences which offend against an individual member of the community occur and protection of society from further offending assumes great importance.
2. Synthesising all those matters. I take into account the matters raised in mitigation. They do operate to reduce the otherwise appropriate sentence, but what was done to the victim here cannot be excused. It involved the commission of two serious criminal offences. Any woman living with her children, who thankfully were away for the weekend, needs economic, social and physical security. The victim here lost all of that because of the commission of these offences. This crime had impacts beyond the physical. Her dignity must be vindicated. What was done to her by must be denounced and appropriate retribution extracted.
3. A community must not put a burden on women in situations such as hers. Other witnesses blamed her. She was subject to innuendo and humiliation by members of her community. She should not be blamed. She was the victim of a crime. She played no role in the commission of this crime. The jury accepted her. And, they rejected Pender's version. She made decisions which were exploited by Mr Pender, but she was the one who was exploited. She should not blame herself. I wish her well on her progress towards recovery.
4. Until Pender takes responsibility for his behaviour, his ingrained attitudes towards others means there is a risk that further offending will continue. But I am heartened by Ms North's report and his evidence today and that he is taking steps to address the underlying trauma that he suffered and the underlying matters, particularly his illicit drug use, that have led him time and time again to offend against the community.
5. Ultimately, I must formulate a sentence which reflects all those factors. I will take into account and be sympathetic to the case for Mr Pender and his background. But there must a penalty in this matter that signals to others in the community what will happen to them if they do as he did to his victim concerned that Appropriate punishment is required.

Orders

1. In accordance with the jury's verdicts, you are convicted.

Indicative sentences

1. In relation to count 1, act of oral intercourse, as it carries a standard non-parole period, I indicate a sentence of five years imprisonment with a non-parole period of three years.
2. In relation to count 2, sexual intercourse without consent as it carries a standard non-parole period, I indicate a sentence of five years six months imprisonment with a non-parole period of three years three months.

Aggregate sentence

1. The aggregate sentence will be one of six years. It will commence on 14 October 2020. The non‑parole period will be one of three years six months. He will be eligible for consideration for release to parole on 13 April 2024. There will be a parole period of two years six months. The total sentence will expire on 13 October 2026.
2. So, there is a six-year sentence accumulated after nine months, a substantial finding of special circumstances. The minimum term to be served is three years six months and, if you add it all up, four years three months since he first went into custody.

Amendments 03 February 2023 - [16] Typographical error - context amended to content 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: 03 February 2023