R v Roberts

File Number(s): 2022/00195880

JUDGMENT

Introduction

1. Allen Roberts, the offender appears for sentence for the offence of sexually assaulting AB, the victim, without the victim’s consent knowing she was not consenting. The offender was found guilty after a trial by jury.

2. The maximum sentence is 14 years and there is a standard non parole period of 7 years. In relation to the maximum sentence and the standard non-parole period, those matters are taken into account as legislative guideposts. In relation to the standard non-parole period I note that in Muldrock (2011) 244 CLR 120 at [29] the High Court made clear that it has application even when the offending is not considered to be in the middle of the range of seriousness as that term is used in section 54A of the Crimes (Sentencing Procedure) Act (“CSPA”). The standard non-parole period, like the maximum sentence, is an indication of the legislative view of the seriousness of the offence.

3. The offence occurred on 28 January 2020. The offender was arrested on 6 November 2023. The jury returned its guilty verdict on 9 October 2025. The offender spent time in custody following his initial arrest, he was then on bail up to the verdict and has spent further time in custody since 9 October 2025. The total time in custody exceeds nine months and the parties are agreed that the sentence imposed should be backdated to have a start date of 26 May 2025 and the sentence imposed will commence on that day.

The facts

4. Accompanying the Crown bundle was a statement of facts that were said to be in line with the jury’s finding. The offender did not take issue with the Crown statement of facts. The offender did however make submissions suggesting the possibility that there had been a sexual encounter between the victim and the offender earlier on the night in question, before she fell asleep. The offender set out some short parts of the evidence from the offender’s ERISP and his evidence at trial supporting this contention. So far as the evidence relied on from the offenders ERISP is concerned it amounts to saying that he does not remember whether the victim gave him a head job nor could he remember her saying whilst his penis was in her vagina that she did not want to do this and that “it hurts”. The evidence from the trial relied upon indicated the offender did not have a good recollection of events and had quite a few drinks. The offender also referred to the expert evidence as to alcoholic blackout that may have been suffered by the victim. That evidence was relied upon to suggest that the victim may not have appeared very intoxicated to the offender and that as a result the submission of the Crown as to the victim being vulnerable in a general sense as opposed to the aggravating factor in section 21A Crimes (Sentencing Procedure) Act (CSPA)should be given less, if any weight.

5. Beyond those two issues there was no challenge to the facts as set out in the Crown facts. In respect of those two issues raised I am not satisfied to any necessary standard that there was an earlier occasion of sexual intercourse and do not consider the mere possibility that something might have occurred is sufficient to satisfy any relevant standard, in this instance on the balance of probabilities given that it is something the offender seeks to rely upon. Nor am I satisfied that the victim in the circumstances described below could have appeared as anything other than a vulnerable young woman, disorientated, alone, in the middle of the night and based on her evidence which I accept in line with the jury accepting her version of events, in a state of distress.

6. The victim was born on 3 September 1999 so that at the time of the offence she was 20 years old. She is a Canadian citizen and was in Australia on a working/traveling holiday. The offender was born on 22 September 1983 and so was 36 years old at the time of the offence.

7. The offence occurred in Byron Bay. The victim had arrived there as part of a tour group. On the night in question she had been drinking alcohol with the evidence suggesting that from 7:30 PM she drank about 60% of a bottle of Proseco and then at a hotel from about 9 PM drank about 6 gin and tonics before leaving at about midnight. The victim returned by Uber to her hostel and then walked towards the beach known as the Belongil which is north of the Byron Bay township and sat on the sand with a companion talking. Other members from the group she had been with at the hotel had walked from the township along the beach to go back to the hostel, and they ran into each other and they continued talking on the beach until about 1 AM. The victim described herself as heavily intoxicated. In that state she walked away from the group to Facetime her boyfriend in Canada. They argued and spoke for about 20 minutes when her phone battery died. At this point the victim realised she was lost. She did not know in which direction the hostel was and found it to be pitch dark on the beach. Although no submission was made about it on sentence, there was evidence at trial from a police officer that from the location in which the victim was estimated to be the lights of the town would be visible. I accept that may be so but that does not detract from the degree of disorientation and sensation of being lost experienced by the victim who started to panic.

8. The victim went looking for help and found a house where no one was home. She found a second house, but the people inside did not help her. She found a path, followed it and found herself in what she described as an “RV” section (that is, recreational vehicles, or vans) and two men around a fire. Her evidence was that “I was very frantic so I started crying because I finally you know found somebody and I was just telling them how I had lost my way and so they told me to stay so I did”.

9. At this point therefore these facts, which I accept, support the view expressed above of a young intoxicated female, on her own, appearing in distress and seeking assistance.

10. The victim’s next memory was waking up in the bed of the van, naked and being able to feel the offenders penis inside her vagina. When she got to her senses she said more than once words to the effect of “I don’t want this”. The victim also said to the offender that it hurt her to which he responded “come on I know you want this” and “just do it for me”.

11. This intercourse preceded for number of minutes whereupon the accused changed positions to be on top of the victim and again pushed his penis inside her vagina. This caused the victim a lot of pain and she again said it was hurting her.

12. The offender’s answer to this was to say “if you want me to stop you can suck my cock instead” to this the victim agreed and the offender ejaculated into her mouth, and the victim promptly spat the ejaculate out.

13. Subsequently the victim asked where the beach was and the offender pointed to a tree line and said it was behind the tree line. She then left and gained some further directions from people she met on the beach.

14. The victim returned to her hostel and made immediate complaint to a number of people and attended the Byron Bay hospital. The following day, 29 January she attended the Byron Bay Police Station.

15. The offender remained in the area for a few days following this event. The reason for the delay in his arrest was an inability on the part of the police to locate him and his ultimate arrest on 6 November 2023 arose from a DNA match occurring from evidence obtained in this matter with his involvement with police elsewhere so that a link was made.

16. When confronted with the allegations the offender denied ever having sexual intercourse without the victim’s consent and denied having sexual intercourse in the morning after she had slept in his van. He maintained that the victim was not that intoxicated.

Objective seriousness

17. For reasons that are not at all clear on the available material there is only one charge in this matter and therefore only one matter that can be the subject of sentence. That comment is made in the light of the fact that the oral sex would seem also to have not been an exercise of free will on the part of the victim, of which the offender was very likely aware, based on the facts set out above. The Crown however despite not pressing that as a charge seeks to rely on the oral sex as some indicator of the degree of humiliation of the victim. The offender says that I should not take it into account in that way.

18. In my view the sentence needs to be on the basis of the one act of sexual intercourse without consent of which the offender has been found guilty. Of course other matters not constituting an offence can be taken into account in determining matters relevant to the offence; for example had the offender spoken in an offensive way or acted in some way not the subject of a charge that was humiliating, perhaps by spitting upon a person for example, then that could be taken into account. Yet here the oral sex is such a significant matter which is not alleged to constitute an offence, that it could only be viewed for purposes of sentencing as being treated as consensual by her agreement to do it, albeit in circumstances that cry out for a conclusion of acting under duress. I am therefore constrained to act in line with the submission made on the behalf of the offender.

19. The conduct the subject of the charge is the continuation of the sexual intercourse after the victim had told the offender to stop, amongst other things. This is also a surprising position to take as it is clearly open to be inferred that the intercourse commenced whilst the victim was asleep. Nevertheless the Crown case has not been put that way and thus the sentence must be on the basis as just indicated. I would add that I have highlighted these matters not so that it may be thought I have taken them into account adversely to the offender; to the contrary they are highlighted to emphasise I am aware of them, and expressly put them aside as matters that could be taken into account adversely to the offender.

20. The respective positions of the offender and the Crown on the question of objective seriousness is that it is slightly below the mid level of objective seriousness and in the midrange of objective seriousness, so that their assessments do not differ to any great extent.

21. As already indicated in my view the matter is one of significant seriousness due to the way in which the offender has taken advantage of a young person seeking help in the circumstances outlined above. Yes the matter can be described as opportunistic, which I accept, but in my view not in a way that significantly lessens the seriousness of the matter. One member of the public seeks the help of another only to the betrayed and abused. The opportunism tends to highlight the vulnerability of the victim.

22. I find that based on the evidence of the words spoken by the victim and the words spoken by the offender as to the conditional basis on which he would stop that the offender had actual knowledge of the lack of consent of the victim.

23. The act of intercourse continued for some minutes, prior to the change of position, and then continued for some difficult to determine time, but it was not of great duration. I accept that this offending could not be described as fleeting albeit in objective terms a short period of time; in the context of the offence occurring it was not of short duration, albeit one can readily hypothesise such offending enduring for far longer.

24. I accept the submission of the offender which notes that no threats were made to the victim although one could argue and I think correctly that there was an implicit threat to continue the intercourse if she did not give her agreement to the oral sex. The fact that the offending only ended upon an agreement by the victim to in some other way sexually gratify the offender, albeit on the basis described above consensually, in my view adds to the seriousness of the matter. This is not because that there was then oral sex, but because it reflects the degree of disregard the offender had for the victim in that he would only stop doing what she was not consenting to if she satisfied him in another way. The fact that the offender did not ejaculate is a relevant one to take into account favourable to him though I am satisfied that he was not wearing a condom.

25. Taking the above matters into account ultimately I accept the submission on behalf of the offender that the offending falls slightly below the mid level of objective seriousness.

26. The one matter of aggravation in contest between the parties was the issue of vulnerability. For the reasons given above I do not find that to be an aggravating matter in this case and to the extent that the victim was vulnerable that is a matter that has figured prominently in my assessment of objective seriousness so in any event it should not be further taken into account as an aggravating matter. It was also submitted that this was not a case of substantial harm, and neither party argued that substantial harm was an aggravating factor. I accept that to be the position, and refer to it below.

Victim impact statement

27. The victim provided an impact statement. She describes her circumstances at the time as being a young traveller in a lovely country, and trusting the world and the people around her. Following the offence she felt numb and ashamed and completely disconnected from herself. She says it took her sense of innocence from her and that things that once felt exciting now felt dangerous. She describes feeling severely anxious and traumatised and of suffering panic attacks. There was objection to this part of the statement on the basis of being expert opinion and it was allowed as being a lay description by the victim of her emotional state. Her sleep was affected and there were times when she could not work or eat. She is triggered by traveling and being in unfamiliar places. The length of the legal process worsened the situation bearing in mind that it was more than five years between the offence and the verdict. She continues to engage in counselling and her emotional state varies from strong and hopeful to powerless and afraid. She says she is not writing the statement out of anger but to allow the court to understand it is not something she can simply get over. The victim makes the observation that it occurred at a formative time in her life and has had a lasting impact on her health, independence, relationships, work and her sense of who she is in the world.

28. I accept the victim impact statement as giving a very sensitive and considered view of the impact this has had on the victim. The courts recognise that any case of sexual assault, even in the absence of a statement such as this, is able to be considered as being very likely to have such an effect which is so plainly present in the present case. It is a matter I take into account.

29. At the same time the Crown accepted that a finding could not be made that the matter is one where the circumstance of aggravation of substantial injury is satisfied. That is not to in any way minimise the reality of the damage done to the victim.

Subjective case

30. The offender of course has no benefit of any discount with the matter having run to a jury verdict.

31. In the material presented on behalf of the offender on the sentencing hearing he accepts his wrongdoing, expresses remorse and apologises to the victim. Albeit those sentiments emerge very late in the piece it is a matter which I take into account.

32. The offender has a minor criminal history. That history is of two offences in Queensland, the first in 2006 of possessing dangerous drugs and the second occasion of 2 offences in 2020 of stealing and of possessing drug utensils. In respect of all of those offences no convictions were recorded and modest fines were imposed.

33. I would also note that the 2020 offences occurred after the present offence though no submission was made in that regard.

34. I do not consider that that this record disentitles the offender to all leniency based on his criminal history. Up to the time of the offending he has led an almost entirely offence free life, and with one minor occasion of offending afterwards. I take this into account in his favour.

35. The offender relied on a testimonial from his former employer. That employer states that the offender was a good worker who got along with everybody and in respect of whom he had no issues. The employer was shocked that the offender had committed this offence.

36. There were testimonials from both the offender’s partner, Waimaria Te Tai and Ms Te Tai’s mother. The offender has been in a relationship with Ms Te Tai for some 14 years and they have four children. It is a testimony to the strength of their relationship that they remained together and on my view shows that there are significant redeeming factors to the offender’s character for Ms Te Tai’s mother to speak as highly of him as she does in all respects, namely as a worker and provider and also as a father and a partner. Ms Te Tai also speaks highly of him as a partner.

37. There was some further evidence provided by the offender’s partner concerning the period from January 2018 to December 2019, being the month immediately before the offending. It was in the form of a letter and not on oath, however there was no challenge to this material or its veracity and I accept it; the history given by the offender to the psychologist referred to below is consistent with this evidence. The evidence details that in that period, the offender, Ms Te Tai and his family suffered numerous traumatic events. Throughout 2018 the offender was managing four businesses and grieving the loss of his grandmother who was the only family member he was close to and also coping with the death of his best friend. In January 2019 Ms Te Tai was diagnosed with renal cell carcinoma and chronic lymphocytic leukemia. A combination of these stresses overwhelmed the offender particularly as cancer treatment began in March 2019. The offender grew distant and spent hours researching potential cures for Ms Te Tai. Significantly his coping mechanism which predominantly was one of obsessive working changed and he began to drink daily.

38. With the treatment came the need for the offender to care for the children and to continue working as much as he could; he also became hypervigilant in checking on Ms Te Tai as to how she was managing when he was not there. The view expressed by Ms Te Tai which I accept is that he was despairing that he could not do anything about the disease or in the words of Ms Te Tai “couldn’t fix me”. He would wake yelling and screaming about the problem and to her lay observation he became deeply depressed, sleeping most days and avoiding work and ultimately losing his job, drinking excessively and using drugs and gambling which were uncharacteristic of him.

39. This behaviour continued after the cancer treatment concluded. Both the offender and Ms Te Tai struggled with mental health issues, and they suffered financially and they grew apart. They made a decision in September 2019 that they separate for a time. It was in the course of the separation that the offending occurred following the family having spent Christmas and New Year together. At the same time their fourth child was known to be expected by November 2019.

40. Following the offence the offender and Ms Te Tai reunited and moved to Western Australia. Living with them has been Ms Te Tai’s mother who is in ill health. The evidence from a treating GP states that she is being cared for by Ms Te Tai, and that Ms Te Tai’s mother suffers from amongst other things declining lung function. That same GP provided a second letter relating to Ms Te Tai confirming her cancer history and noting other related consistent medical issues such as fatigue and hypertension.

41. Also relied upon were some case notes from the Department of Corrective Services which showed that since being in custody initially the offender requested employment and completed a working safely program prior to being bailed, and that since being returned to custody in October 2025 has attended at a remand addiction course which involved attendances on 10 different occasions.

42. The offender relied upon a psychological report of a senior case worker, Ms. Anand of Legal Aid dated 9 March 2026. Ms. Anand holds qualifications in psychology and sociology and social health and counselling. There was no challenge to her qualifications to express the views that she does in the report.

43. The history given by the offender to Ms Anand was of a family home on a farm in poor condition which was not cared for by his parents. It was infested with cockroaches. His father was lazy. His parents were preoccupied with arguing and the offender was exposed to their fighting. The offender is the oldest of four children but does not have contact with any family members. He does not get on with his mother and has not spoken to her for a long time apparently due to her having done bad things to her own mother which was not elaborated on. The offender says his family were very poor with his father not working from when the offender was in year six. The family had the necessities of food and clothing but little else. His father belted him “a bit”, he said this was fairly regularly. As he got older he fought back. In reaction to his father not working he says all he does is work, at one stage working each day for three years.

44. The offender left home aged about 15 or 16 due to the violence of his father and he felt the need to get away. He says he wants to give his children a better life than he had and feels he has failed them by being in custody.

45. He achieved a year 12 education (though the material also refers to him leaving in year 11) and then did a mechanic apprenticeship. He moved from job to job. He says he loves work but acknowledges this contributed to the near breakdown of his relationship. Suffice to say he has a very good work history.

46. He speaks very lovingly of Ms Te Tai and that they have a great relationship. They have four children aged from 13 to 5. The offender has an 18-year-old daughter from an earlier relationship and has not had contact with her for years.

47. The report adopts the outline of 2018 and 2019 from Ms Te Tai referred to above, and the stressors there referred to. In short those stressors were managing 4 businesses, the death of his best friend, the death of his grandmother, a miscarriage being suffered by Ms Te Tai, his dog dying, and the cancer diagnosis of Ms Te Tai. The result was he was juggling work, the care for Ms Te Tai, and caring duties for the children. He says it “broke him” that he could not do anything to help Ms Te Tai and again as noted above began consuming alcohol drugs and gambling. This behaviour and the financial stress led to arguments and the separation for a time. In that time he went on the road trip on which the offence occurred.

48. Since the offence circumstances have improved. The offender and Ms Te Tai reunited, now with a fourth child, Ms Te Tai’s health improved, they had a family road trip, he obtained a good job in Western Australia and up until his arrest all was well.

49. In terms of his mental health there was no diagnosed condition though Ms Te Tai described him as being in a deep depression being a reference to his change of mood in the difficult period. The offender says custody is affecting his mental health.

50. The offender’s substance use history was of methamphetamine and alcohol daily following the cancer diagnosis. Before that he says he only consumed alcohol one or two times a week and gambled once in a blue moon. He had used marijuana when he was younger. He did not know why he started using drugs. As an observation it would seem to me likely to be a maladaptive coping mechanism. There is reference to being told that he lives with ADHD and he says his mind does not stop.

51. He was able to cease the excessive use of drugs and alcohol and as I understand the report in fact has not used drugs or alcohol for six or seven years; it is not clear if that is meant to mean post the offending though it clearly cannot be as long as 7 years. In any event it is clear from the material that following the offence he returned to his largely pro social way of living prior to the diagnosis of cancer, and the minor offences of August 2020 are noted.

52. The report sets out what is said to be negative impacts on the family of his incarceration. Ms Te Tai’s health is such that there are still bad days when she needs support. Ms Te Tai’s family (other than her mother) lives in Queensland and does not provide assistance. The one family member in Western Australia is her mother Margaret who Ms Te Tai has the care of. She has a pulmonary disease and a lesion on the brain and numerous other ailments as set out in the doctor’s letter. Thus Ms Te Tai is coping with four children aged 13 and under, her own health concerns, her aged mother’s health condition and has difficulty financially.

53. Ms Te Tai is unable to work in her present circumstances with her various obligations. I infer to assist in paying bills she is selling a second car as the Centrelink allowance is proving inadequate.

54. The incarceration of the offender has had an emotional impact on all the children. The enthusiasm of the eldest has dimmed; he is no longer as enthusiastic about sports as he was before; two of the children have been fighting each other; another has been playing up at school and there are two who have experienced sadness and broken sleep patents. The offender is very concerned for the eldest child turning 14 which he considers to be entering a critical age where a father is needed.

55. Before this matter the offender had never been incarcerated. The offender expressed sorrow for what happened and was sorry to the victim. He accepted he needed to be punished but hoped that it was something other than for an extended period so he could get out for his family.

56. There has been no challenge to any of the offender’s background or the impact upon the family, nor his statement of remorse and I accept these matters. The current position of the offender in custody is one that he said is terrible and that he hates. He elaborated that it was difficult to be away from his family although he emphasised the impact on them rather than himself. He sees himself as a worker and a very active person who found it difficult to have so much free time in custody. He has secured work as a sweeper in custody and has attended various courses.

57. The summary and recommendations of the report note the disadvantaged upbringing of a family experiencing domestic violence and a lack of funds which led to the offender leaving home when he reached 15 or 16. Research is referred to which shows that in general terms people from such circumstances have poor outcomes socially and healthwise and are at risk of a range of behavioural issues. The conclusion of Ms Anand’s report refers to him leaving school at your 11 in contrast to the earlier reference to you 12. Reference is made to the emphasis placed by the offender on his employment, a reflection of his desire not to be like his father. The report recognises and I accept that there is a deep connection to his family and the central role they play in his life. The report notes at [13.13] that incarceration of a parent may interfere with the attachment relationship with the child which seems fairly obvious. Further the child may experience stigma and other difficulties and I accept the evidence shows there has been an impact on their behaviour.

58. The report notes the offender’s willingness to engage with intervention and the benefits to him of accessing justice health medical services in relation to his mental health as well as noting his attendance at the eclipse addiction program.

Consideration

59. The ultimate submission for the Crown was that no sentence other than full-time imprisonment is warranted and there is no challenge to that and it is plainly the case. The Crown argues that denunciation punishment and specific deterrence are all of importance. The Crown argues the sentence must indicate the seriousness of sexual assault and hold the offender accountable for his actions.

60. The offender puts forward a number of arguments. The first is that this conduct is out of character for the offender. I accept that submission. He was 36 at the time of this offending. He had no record for similar type offending. In fact his life to that point can be seen to be one where he was pro social, a very hard worker, in a long term relationship with a number of young children. As a consequence of his background he seems to have, and I find has, developed workaholism as either a conscious or unconscious reaction to the inadequacies of his father as he experienced them.

61. As to his developmental background whilst the Crown does allow that it may give rise to an argument that Bugmy principles are enlivened the offender does not go so far and in my view reasonably and sensibly so. It is undoubtedly the case that the offender has had a difficult upbringing but one would not go so far as to say that it was a background of profound disadvantage imbued with violence drug abuse and crime. That does not mean it is not something that can be taken into account but rather should be treated in the way discussed in Nasrallah [2021] NSWCCA 207. That is, that the fact of the offender’s background as has been established is one of some degree of disadvantage and is taken into account in the overall sentencing exercise.

62. The situation really that the offender found himself in leading up to the offending could be categorised on the evidence as one of despair and of feeling powerless. It is perhaps an extreme reaction but nevertheless the reaction of a kind that might be expected when so much loss is suffered in a short period. It led to him relying on substances as a crutch and on the occasion in question a large consumption of beer. In all the circumstances of the period leading up to the offence and of period immediately before the offence, ie on the day of the offence, the offender abandoned his usual sense of restraint and judgment and moral conscience and chose to gain sexual gratification by this offending. The offender’s self induced intoxication of course cannot be called in aid to mitigate the offending but it can be called in aid favourably to the offender when considering matters of his prospects and likelihood of reoffending. The risk of course is that should he be placed in a difficult situation again, for example should he be in the community and the cancer recur, what is to say that he would not react in the same way? The answer to that, favourable to the offender, is because these issues have now been identified, interventions have been identified that he can undertake in due course as well as already in custody and he will be more aware of the risk of descending into substance abuse, and more able to take preventative steps. I find that he is overwhelmingly pro social outside of this period of extreme distress. That is based on the fact that that is precisely what he was prior to the difficult period in 2019 and it was what he became following the offending when he reunited with Ms Te Tai, with the one small glitch on that scenario being a minor offence in Queensland in August 2020 for which no conviction was recorded, and which likely reflects ongoing drug use at that time of a minor nature.

63. The conclusion that one can draw based on these supportive findings is that this offence is very much an aberration for this offender and that the likelihood of him reoffending is particularly low. That conclusion is supported by the strong commitment he states that he has to his family and which I accept is the case. It is a submission often heard which sometimes is met with some scepticism, given that that same family was present, as in this case, when the offending occurred in the first place. I am very aware of that phenomenon however on the evidence just referred to I am satisfied this to be a genuine case of that desire. That he has an earnest and strong desire to support his family and perform his role as father to his children is demonstrated by his post offending conduct; reuniting with Ms Te Tai, the family road trip, the move to a new state, the assistance to Ms Te Tai’s mother, and his return to his almost unhealthy work habits to provide for them.

64. The offender argued that delay is of assistance to the offender. This is not a case, nor was it suggested to be a case, of the Todd type; the delay is not due to incarceration elsewhere whilst waiting for contemporaneous offending to be dealt with upon release. Rather the argument is that due to the delay of 5 years and 9 months between the offence and the conviction of which almost 5 ½ years were spent in the community the offender has not committed any further offence of significance, and has demonstrated himself to be prosocial in the way explained above which supports the finding of an aberration. In my view the offender is correct to rely on delay in this way.

65. The final point made by the offender is that there should be a finding of exceptional hardship to the offender’s family by his imprisonment. The facts relied on for this submission are those set out above of the difficulties being faced by Ms Te Tai who has significant health issues, is raising four children, is struggling financially and has also a caring role for her own mother who has her own significant health issues, and the impact felt by the children described above, all facts which I find are established. It is of course hardly exceptional that a family of an incarcerated person will suffer financially. Nor is it exceptional that a partner of an incarcerated person will have greater difficulty in providing the necessary care for the children. Yet as is well established in other contexts (eg Bredal [2024] NSWCCA 75) talking of what may constitute “exceptional” may be made up of a number of factors which viewed in isolation, or even a combination of some of them, would not be seen as exceptional. I consider exceptional to be a circumstance that is not usual and is out of the ordinary. The combination of factors in this case, each on their own not exceptional does combine in my view to create a position of exceptional hardship particularly for the offender’s partner.

66. There was some debate in submissions as to whether this should be a factor which impacts upon the setting of the overall sentence or should be taken into account in relation to the non parole period. It was accepted that it had to be one or the other, and not both for that would amount to double counting.

67. This consideration raises a relevant matter to be determined in this case as in every case, as to what sentence is proportionate. The relevant principles are that the sentence to be imposed needs to be proportionate to the gravity of the offence. Further in terms of a non-parole period, as was stated in Power v The Queen (1974) 131 CLR 623 at 629 (underlining added) “mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom when appropriate once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his case”.

68. The offender also relied on the hardship to his family by submitting it made his time in custody more onerous. I consider that the magnitude of the hardship described would impact on the offender whilst in custody, that is, he would be distressed to know that without him the hardships described continue. In a broad sense there would be a great many cases where a concern of that type exists, and the question is one of extent. Given the extent of the hardship here, I find it will make custody more onerous and take it into account. It will have some, though not significant, impact.

69. The factors of hardship just recounted to the family and the offender will be taken into account as establishing special circumstances. Those factors, together with the fact this is the first time in custody for the offender, and the fact that he would benefit from an extended period of supervision to ensure he adopts appropriate coping mechanisms result in a significant finding of special circumstances.

70. Before determining what is the appropriate sentence in this case it is relevant to note the purposes of sentencing as set out in section 3A of the CSPA. They are:

(a) To ensure the offender is adequately punished. (b) To prevent crime by deterring the offender and others from committing similar offences. (c) To protect the community from the offender. (d) To promote the rehabilitation of the offender. (e) To make the offender accountable for his actions. (f) To denounce the conduct of the offender. (g) To recognise the harm done to the victim of the crime and the community.

71. In this case the purposes of sentencing that need to be emphasised are general deterrence, denunciation, to make the offender accountable, and to recognise the harm to the victim. At the same time, there is also a need to arrive at a sentence that will best achieve the offender’s rehabilitation. In this case the rehabilitation is well in train, and is really a reference to ensuring he is better equipped to deal with stress and adversity, but also to achieve a result that will best ensure that upon his return to the community he will resume his life as the pro social member of the community that he was both before and after the offending.

72. The offender called in aid a number of authorities, so called “comparables”. The need for great care in relying on comparable cases is recognised; each case is different, and each case should be determined on its own facts and circumstances. Unsurprisingly the cases relied on by the offender arrived at non parole periods of in some cases 18 months, and in one case, 9 months, though that latter non parole period was held to be manifestly inadequate by the Court of Criminal Appeal, though the head sentence of 2 years after a 10% discount was found not to be manifestly inadequate; see R v Ibrahim [2021] NSWCCA 296. A page of statistics was also handed up showing that from a sample of 33 decisions under s61I, 36%, so about 12 cases, had a head sentence of 3 years. It was not being suggested that this was some kind of across the board statistic. A brief look at the Public Defenders Office online statistics shows as you would expect a great many cases with lengthier outcomes. The point made really is that it is not uncommon for offences of sexual assault to be modest. The result of course reflects the particular case.

73. One case referred to by the offender was R v Aiza Hajj [2019] NSWDC 458, where a sentence for a s61I offence after trial was imposed of 18 months non parole and with a balance of term of 18 months. The objective seriousness of the matter was found to be “at the lower end of the scale”. That is the first point of difference to the present case. That assessment was influenced by the fact the offender wore a condom and did not ejaculate inside the victim.

74. In Aiza Hajj the victim had consensual sex with A; she then went to sleep and woke up to someone having sex with her, who was found to be the offender, A’s brother. The intercourse lasted 15 or 20 seconds before the victim realised it was not A who was having sex with her and she said “who are you; get out of here”.

75. There is some analogy to be made between the facts of Aiza Hajj and the present case in broad terms in that it involves the taking advantage of a vulnerable (in the general sense) person; here because the victim is alone, drunk, and disorientated; in Aiza Hajj because the victim is asleep. There are also differences; in the present case no condom used, and the offender did not stop when the victim first said to stop. That said the overall circumstances are very different as the brief recounting of facts shows.

76. I have set out the above not to err by placing too much emphasis on a “comparable case”, but to recognise that the offender relies on it to assist his argument.

Conclusion

77. I have above considered the whole range of relevant matters raised by this case. As noted above, by its very nature this is a serious offence. The offender argues, and I find, that objectively it is just below the mid range of objective seriousness.

78. Other matters to consider, without being exhaustive, include my finding that the offender has a strong subjective case; the offending has been found to be an aberration, and the risk of reoffending is very low. At the same time an egregious wrong has been done to a young person who was entitled to expect assistance, not violence, when she needed help. The offence will impact upon the victim almost certainly, and to varying degrees, for the rest of her life. Tending again in the other direction is the exceptional hardship being faced by other innocent parties to this offence, namely the offender’s family.

79. The conclusion I reach is that there should be a non parole period of 2 years and 9 months, with a balance of term of 2 years and 9 months. The sentence will date from 29 May 2025.

80. The non parole period differs to the standard non parole period due to the assessment of objective seriousness, and the factors relied upon for the finding of special circumstances.

Orders

1. The offender is convicted of count 1 on the indictment.
2. The offender is sentenced to a term of imprisonment to date from 29 May 2025 with a non parole period of 2 years and 9 months, expiring on 28 February 2028, and with a balance of term of 2 years and 9 months, expiring on 28 November 2030.
3. The offender will first be eligible for parole on 28 February 2028.