R v Smith

Victim impact statement

1. The victim read her victim's impact statement in court today. Although not tested or given on oath, it is appropriate for the Court to give significant weight to the statement. As Basten JA said in R v Thomas [2007] NSWCCA 269 at [37], "… it will often be appropriate to give weight to a victim impact statement where the conduct of the offender is otherwise established beyond reasonable doubt and the statement is restricted to subsequent effects on the victim."
2. The statement of the victim here is restricted to the subsequent effects of the offence on the victim. The statement is an eloquent description of the significant effects on her, which the Court bears in mind in the sentencing process.

Offender's material on sentence

1. A pre-sentence report was prepared by Queensland authorities, in which the offender continues to claim that he had consensual oral and vaginal sex with the victim. Despite that, he raised no unexpected concern at the Court outcome and was co-operative with the assessment.
2. He is currently subject to a domestic violence order in Queensland with respect to his former partner.
3. There was an offence on 19 April 2018. He was sentenced by O'Brien Chief Judge in the District Court of Queensland on 28 October 2019 to a two-year term of imprisonment, to be suspended, bearing in mind that he had served almost seven months in custody after his arrest. He was released on November 2018 and was on conditional liberty at the time of this offence in the early hours of 1 January 2019, and it is common ground that that is an aggravating factor to be taken into account.
4. The offender's history, which is set out in the pre-sentence report and is consistent with other material that has not been challenged by the Crown, seems to be uncontroversial. He came to Australia from New Zealand when he was eight years of age. He was of good character, apart from the choking offence committed in April 2018. As the Chief Judge said, that offence was a most bizarre one and certainly seemed to be out of character for him. He pleaded guilty to that offence. He was described as having a good work history and there were many who spoke well of him at the time. He was employed full-time and was financially capable of paying debts.
5. It was suggested that, given his current offence and admitted domestic violence history, rehabilitative needs with regard to interpersonal boundaries in relationships were evident, and it is likely that he would be recommended for treatment programs.
6. He was educated to year 10, holds intermediate scaffolding tickets and has been in regular long term employment.
7. Although it was not on his record, he acknowledged a drink driving offence some 20 years ago, but the circumstances and location of that offence are not disclosed.
8. The recommendations in the report are expressed to be subject to current COVID-19 restrictions, but in view of Mr Winch's concession, they are of academic interest only at present.
9. I have a reference from Tenille Sealy, an indigenous education worker/special needs support worker, who has been in a relationship with him since November 2019. She currently looks after her four children. She says that he has been open about his offending. She was present during the trial. She said that he was very involved in the upbringing of her four children. Her elder daughter suffers from post-traumatic stress disorder, anxiety and depression. Her younger son has ADHD and ADD and another son has autism, and Mr Smith has been very helpful in implementing strategies to keep their behaviour under control.
10. Monique Morcus, a child care worker, has observed Mr Smith's interactions with Ms Sealy's children and she is concerned about how the loss of him would cause a change in the home and family dynamic and the negative impact of this on the children.
11. His employer of some ten years describes him as reliable, trustworthy and hard-working. Mr Lloyd, a long term colleague, also speaks highly of him.

Objective seriousness and other relevant factors on sentence

1. As the Crown put, in concise written submissions, the maximum penalty and the standard non-parole period reflect the fact that sexual intercourse without consent is an extremely serious offence. It is an invasive and degrading act and is intrinsically an extreme form of personal violence. The form of penetration is but one measure of the objective seriousness of the offence. Other relevant factors include any degree of violence, the physical hurt inflicted, the form of the forced intercourse, the circumstances of humiliation and the duration of the offence, and while there is a great range of conduct involved in offences under s 61I in terms of objective seriousness, cases of actual penile penetration will rarely fall at the low end of the spectrum. Here I would class the offending as slightly below the mid-range of objective seriousness, bearing in mind the facts to which I have referred, namely, there was little interaction between the offender and the victim on the night, she gave him no indication that she was attracted to him, but he went into her room hopeful of sexual intercourse because it was New Year's Eve.
2. The jury rejected the assertion of consent. He commenced having sexual intercourse with a sleeping woman; she was asleep and could not consent. There was a limited degree of planning over a brief time, involving him choosing to enter her room and commence intercourse with her without her consent. He removed her underpants while she was asleep. He knew that she was asleep and was not consenting. He did not use a condom and he tried to continue after she woke up and told him to stop.
3. The Crown points to the Court of Criminal Appeal decision in Cordeiro v The Queen [2019] NSWCCA 308 as a broad comparator, and I take into account the facts and the judgment on the sentence appeal delivered by Harrison J in that matter.
4. I also take into account a number of matters referred to in the Public Defender's tables, to which Mr Winch took me during the course of submissions. They include Day v The Queen [2017] NSWCCA 192, Jeffreys v The Queen [2015] NSWCCA 132, R v Tonari [2014] NSWCCA 232; and Cordeiro v The Queen [2019] NSWCCA 308.
5. There are no further aggravating factors, beyond his being on conditional liberty, raised in submissions or apparent from the evidence. I have dealt with Mr Winch's submission that there was no planning and that it was only opportunistic and committed while he was heavily intoxicated, but he must have been, as I have indicated, in a position to engage in a limited degree of planning.
6. As to mitigating factors, the evidence suggests that he has reasonable prospects of rehabilitation, particularly if he was to undertake counselling and treatment of the type referred to in the Queensland sentence assessment report. He has, both before trial and since his conviction, complied with bail conditions and there is no evidence of any further offending.
7. He has concerns of being deported to New Zealand once his term of imprisonment concludes, as he has no family residing in New Zealand. However, as the authorities demonstrate, the prospects of deportation are not a matter that I can take into account on sentencing.
8. I accept that there is the basis of a finding of special circumstances, given the need for treatment for alcohol consumption. There is no evidence of illicit drug use or other criminogenic or antisocial factors. His low risk of reoffending is apparent from the pre-sentencing report and the other material to which I have referred.
9. The orders that I make are: 1. The offender is convicted of the offence. 2. I impose a sentence of imprisonment of 3 years, 6 months, to commence on 12 July 2020. 3. I impose a non-parole period of 2 years, 5 months, expiring on 11 December 2022. 4. I find special circumstances.
10. Note - The extempore remarks were revised without access to the court file.

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