R v Sordini [2015] ACTSC 45

2. Danilo Sordini be sentenced to imprisonment for two years and ten months to commence on 17 February 2015.

3. That the total sentence, including the earlier sentence, run from 5 August 2014 to 16 December 2017 with a non-parole period for the whole of the sentences to commence on 5 August 2014 and to end on 16 June 2016.

CRIMINAL LAW - Judgement and Punishment - Sentencing - Sexual intercourse without consent - Sleeping victim

CRIMINAL LAW - Judgement and Punishment - Sentencing - Family considerations

Crimes Act 1900 (ACT), s 54(1)

Crimes (Sentence Administration) Act 2005 (ACT), ss 69, 70, 82

Crimes (Sentencing) Act 2005 (ACT), ss 7, 11, 33(1), 40A, 62, 66, Pt 5.3

Cotter v Corvisy [2008] ACTSC 64

Henderson v R [2006] ACTCA 17

Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447

Lewis v The Chief Executive of Department of Justice and Community Safety [2009] ACTSC 73

R v Ballantyne (Unreported, ACTSC, SCC 29 of 2013, Murrell CJ, 1 April 2014)

R v Buckley (Unreported, Australian Capital Territory Supreme Court, SCC 214 of 2012, AJ Nield, 30 August 2013)

R v Buda-Kaa [2013] ACTCA 46

R v DF (No 2) [2012] ACTSC 3

R v Elphick [2014] ACTSC 372

R v Mason [2001] VSCA 62

R v MT [2014] ACTSC 162

R v Taylor [2015] ACTSC 43

ZZ v R [2013] NSWCA 83

Legal Aid ACT (Accused)

1. There is no doubt that sexual offences are abhorrent to members of the community. The courts must recognise that, because of the penalties that the legislature has set for such offences, the courts must also do their part to try and protect women and men from being the victim of such offences. This requires denunciation, deterrence and, where possible, reform. It also requires the courts to respect the need to vindicate the victims and hold offenders accountable.

2. Danilo Sordini has pleaded guilty to an offence of sexual intercourse without consent, being reckless as to whether the complainant, now a victim as a result of his plea of guilty, consented or not. Engaging in sexual intercourse without consent is an offence against s 54(1) of the Crimes Act 1900 (ACT), for which the maximum penalty prescribed is twelve years imprisonment. That penalty is, as the courts have said in cases such as Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447 at 451-2, an important yardstick by which to measure the relative seriousness of the offence. By that measure, it is a serious offence.

3. Mr Sordini met the victim in about July 2013 and they became friends. On the day of the offence, 16 August 2013, they were both at her apartment. The victim had smoked some methylamphetamine and, in the words of the statement of facts tendered without objection, "had engaged in behaviour of a sexual nature with Mr Sordini". This, of course, does not amount to consent to sexual intercourse.

4. Later in the day, a friend of the victim came to the apartment and he and Mr Sordini went shopping. When they returned, a heated argument developed between the three of them and the victim's friend left the apartment. The victim became anxious and felt weak in her legs. She took some non-prescribed anti-anxiety medication and sat on her bed. She felt dizzy, had difficulty in standing and lost consciousness. She later awoke to find herself lying on her back with Mr Sordini having penile/vaginal sexual intercourse with her. She struggled against him before again losing consciousness. When she finally awoke, she was lying on her stomach naked on the bedroom floor. Mr Sordini was in the bedroom. She was scared and ran into the lounge room. Mr Sordini emerged later and the victim, at his request, let him out of the apartment through the security door.

5. The next day, the victim rang a male acquaintance. She was hysterical but told him about what happened and that she was too scared to call the police. He did so and reported the incident. The victim also telephoned a female friend who came to her apartment to comfort her. When police arrived, they found the victim in a foetal position in the bedroom wardrobe wearing only a T-shirt, highly distressed, confused and agitated. She was rambling incoherently and was unable to stand up or sit of her own accord. The victim was taken the next day to the Canberra Hospital and forensic analysis found a DNA profile which provided extremely strong support for a match with Mr Sordini's DNA profile.

6. Mr Sordini was summonsed to appear in the Magistrates Court on 3 March 2014 and was charged with three offences. He entered a plea of not guilty on the second appearance in court and, on 5 June 2014, was committed for trial to this court on all offences. An indictment containing all three offences was presented on 14 July 2014. It was listed for callover on 1 September 2014 at which the trial was listed to start on 8 December 2014. At the prior callover on 3 December 2014, however, Mr Sordini pleaded guilty to the first count on the indictment and the Crown indicated that it would accept this in full satisfaction of the indictment. No doubt, in accordance with R v DF (No 2) [2012] ACTSC 3, the Crown will file a notice declining to proceed in respect of the other counts on the indictment.

7. Mr Sordini has not spent any time in custody in respect of these offences.

8. I had a Pre-Sentence Report prepared for these proceedings and also a Pre-Sentence Report for proceedings in the Magistrates Court to which I will refer below.

9. Mr Sordini was born in Italy 56 years ago and came to Australia with his family when he was fifteen years old. He was one of three children born to his parents. His sister died in 2003 but he remains in contact with his brother who, however, distances himself from Mr Sordini's criminal activities. His father died in 1998 and he has a close relationship with his mother, who is quite ill and for whom he is a carer. I shall refer to this later. I had no information about his education despite the order for the Pre-Sentence Report requiring the Report to address each of the Pre-Sentence Report matters set out in s 40A of the Crimes (Sentencing) Act 2005 (ACT) one of which, s 40A(d), is the offender's educational background.

10. Mr Sordini has a thirteen year-old daughter with whom he has no contact. I have no information about any other relationships.

11. Mr Sordini worked as a delivery driver but has not been gainfully employed for about ten years. He is presently a carer for his mother and receives a carer's allowance through Centrelink. In the Pre-Sentence Report prepared for the Magistrates Court tendered to me with the other documents detailing those proceedings, it was said:

Although he provides daily care for his mother, his presence is not required 24 hours a day.

12. Indeed, the Pre-Sentence Report ordered for these proceedings pointed out that, while Mr Sordini was in full-time custody in 2014, his mother managed with the assistance of a weekly visit from a healthcare worker. Her general practitioner lists a range of health conditions from which Mr Sordini's mother suffers, including angina pectoris, chronic obstructive pulmonary disease, chronic severe lymphoedema, osteoporosis, a rotator cuff injury and vertigo. Mr Sordini's general practitioner stated:

Her son Danilo Sordini states he looks after her, he washes her, cooks for her, cleans the house and ensures her medications are taken. In my opinion, he should be afforded every opportunity to care for her as his presence at home no doubt increases Mrs Sordini's safety.

13. Mr Sordini started drinking alcohol when he was twenty and has, he says, never been a heavy drinker. His current use of alcohol is said to be minimal. He started using amphetamines when he was forty. He attributed this to the influence of his partner at the time. He used about once a week for about two years but says he has only used three times in the past twelve months. He attended the Arcadia House withdrawal program on two occasions, completing a one-week detoxification program for amphetamines.

14. He was directed to attend for urinalysis on 23 December 2013 and on 17 January 2014 but failed to attend on both occasions. He did attend on 27 January 2014, however, and on that occasion, the results only disclosed the presence of prescribed medication.

15. Courts are often asked to infer from a failure to attend for urinalysis that the offender continues to use illicit drugs and that, if a subsequent test proves negative for illicit drugs, it does not mean that the earlier failures are no longer suspicious. Regular drug users can learn the half-life and other characteristics of the drugs they take so as to avoid inculpatory urinalysis. I make no findings on this matter, however, one way or the other. In any event, drugs do not seem to play a significant role in the commission of the offence by Mr Sordini.

16. Mr Sordini has been prescribed a suite of medications which are intended to prevent problems he may suffer such as heart disease and stroke, depression, psychotic symptoms and hallucinations, heartburn and oesophageal cancer and to reduce cholesterol, triglycerides and insomnia. He has suffered abdominal pains for some years and experiences stress and depression, especially related to his perceived inability to cease offending. He is said to have made contact with a psychiatrist but I had no further information in relation to that. He is said to have no structured leisure activities which provide him with pro-social rewards, though he attends a weekly pool competition with friends.

17. Mr Sordini has a long and depressing criminal history. He has fifty-four convictions on his record. The majority, twenty, are dishonesty offences, though many are for minor theft. He also has fifteen traffic offences on his record. He has breached court orders on many occasions. He also has a significant number of damaging property offences on his record and drug offences, including a conviction for possessing a traffickable quantity of heroin for supply for which he was sentenced to two years imprisonment wholly suspended with a four-year recognizance. He has been to prison on a number of occasions. He has no convictions for sexual offences. Nevertheless, his prior record does not leave a great deal of room for leniency.

18. His counsel, Mr A Doig, pointed out that an analysis of his record does show periods when he has abstained from offending. Thus, he committed an offence of damaging property on 18 April 2005 and then not another offence until 5 March 2009. It is to be noted that he was sentenced to nine months imprisonment served during that period. He also committed an offence on 18 December 2009 and apart from a breach of bail undertaking on 12 August 2010, committed no further offences until 20 November 2011. In December 2012, he committed an offence but his next offence was not committed until 12 July 2013. Thus it was submitted there were periods, especially the 2005 to 2009 period, of over four years when he did not commit offences.

19. He was dealt with in the Canberra Magistrates Court for six offences on 5 August 2014. He pleaded guilty to damaging property on 12 July 2013 when he smashed the window of a parked car. He pleaded guilty to theft of items from the car. He pleaded guilty to going equipped for theft, namely bolt cutters, a flathead screwdriver and a metal hole punch in his backpack at the time. He also pleaded guilty to damaging property on 24 April 2013 when he again smashed the window of a car. He pleaded guilty to stealing a mobile phone and to stealing a black and green backpack from the car. He was sentenced to three months fulltime imprisonment from 5 August 2014 to 4 November 2014 and then six months to be served by periodic detention thereafter. For the reasons explained in R v Elphick [2014] ACTSC 372, I will take into account these sentences.

20. In R v Mason [2001] VSCA 62 at [50], President Winneke, with whom Tadgell and Buchanan JJA agreed, said:

One thing which the authorities to which this court has been referred demonstrate is that the crime of rape, whatever the circumstances and upon whomsoever committed, is regarded by the courts as a grave insult to its victim and a crime which can rarely give rise to a non-custodial sentence (Schubert v Latham). It should not be forgotten that the crime of rape is an intensely personal crime which for sentencing purposes cannot be divorced from its effects on the victim but the effects include not only those which flow from the physical invasion of the victim's person and security but also those which flow from the violation of the more intangible intellectual properties of the victim's rights and freedoms.

21. See also what I said in R v MT [2014] ACTSC 162 at [36] to the same effect. I also said in that case that the engaging in sexual intercourse with a woman when she is asleep is predatory behaviour against a vulnerable person (at [38]). This must also be so when she was unconscious. It seems to me that this aggravates the offences.

22. It has been held in ZZ v R [2013] NSWCA 83 that there is a difference relevant in sentencing when a woman is sexually assaulted by a stranger where a further element of terror and fear would be expected. Nevertheless it seems to me that a person who is known to the victim but is not her sexual partner can, in effect, become a stranger when he takes advantage of the victim to engage in unwanted and unexpected sexual intercourse. This is not especially aggravating in this offence. It must be expressly and emphatically said that the fact that the victim "engaged in behaviour of a sexual nature with the offender" earlier in the day did not constitute consent or entitle Mr Sordini to expect that he was being invited to have intercourse with the unconscious victim. It may, however, have amounted to a less terrifying experience to the victim than had her attacker been a stranger.

23. The offence was committed in the victim's home. That is usually and properly regarded as a factor of aggravation. The victim has no easy place to which to escape. He also abused the permission, perhaps trust, that she gave him to be there. It was significantly aggravating that he persisted, despite the victim's attempts to have him stop [originally adding her "including her choking him", later deleted - see below (at [50])]. In this case, Mr Sordini engaged in penile/vaginal intercourse, usually regarded as being more serious than digital penetration because of the risk of consequences such as pregnancy or being infected with sexually transmitted diseases which, even if they do not eventuate, create uncertainty and concern for the victim for a further uncertain period.

24. The victim prepared a victim impact statement which was read by the prosecutor. It showed clearly the ongoing pain felt by the victim. She spoke of wanting to "rip her skin off". She feels that the effects of the incident will be with her forever, changing her life as mother, daughter and partner. She also pointed out that she was, at the time, recuperating from a major operation where the staples inserted had not been removed and she expressed the distress that that had not stopped Mr Sordini.

25. Section 33(1)(za) of the Crimes (Sentencing) Act requires the court to have regard to current sentencing practice. Ms K McKenzie, counsel for the Crown, provided an extract from the Supreme Court Sentencing Database. It showed that 69 per cent of all offenders convicted of sexual intercourse without consent were sentenced to imprisonment to be served fulltime, while 15 per cent were sentenced to a term of imprisonment which was partially suspended.

26. There have been a number of cases in this jurisdiction where an offender has had sexual intercourse with a sleeping victim. In R v Ballantyne (Unreported, ACTSC, SCC 29 of 2013, Murrell CJ, 1 April 2014), a jury found Mr Ballantyne, a young man of nineteen with no relevant criminal record, guilty of having non-consensual intercourse with the victim after a birthday party where he digitally penetrated her while she was asleep. Mr Ballantyne had a difficult and disadvantaged background. Mr Ballantyne was sentenced to 18 months imprisonment the first six months of which was to be served by periodic detention and the balance thereafter suspended. This was much a less serious case than the present case.

27. In R v MT, the offender went home from Civic with the victim after they had lost contact with the friends with whom they had been partying that night. At home, the victim fell asleep but awoke to find the offender having penile/vaginal intercourse with her. She tried to get him off her but he only stopped when his phone rang. He pleaded not guilty but was found guilty by a jury. He had no prior relevant convictions and was twenty-five at the time of the sentencing. He was sentenced to two years imprisonment with a nine months non-parole period. Again I consider that, notwithstanding the plea of not guilty, this was a less serious case than the present case.

28. In R v Buda-Kaa [2013] ACTCA 46, the victim fell asleep in her own home and Mr Buda-Kaa, who was twenty-two years old at the time, entered her home and came into her bedroom. He touched her on the breast and digitally penetrated her vagina. She initially thought he was one of her children who were in the house until, of course, he committed the sexual acts on her. She had, when she realised who he was, pushed him away. Mr Buda-Kaa had a mental illness. Mr Buda-Kaa pleaded not guilty to the offence but was found guilty at trial. Mr Buda-Kaa was on parole for earlier offences at the time and had a significant criminal history. I consider this case to be more serious than the present case.

29. In R v Buckley (Unreported, Australian Capital Territory Supreme Court, SCC 214 of 2012, AJ Nield, 30 August 2013), Mr Buckley performed acts of digital penetration and cunnilingus on the victim after he had entered her home. The victim thought that Mr Buckley was her husband. Mr Buckley pleaded not guilty but was found guilty by a jury. Mr Buckley was twenty-three years old at the time of the offences and had no criminal record. He was sentenced to five years imprisonment with a non-parole period of two years and six months. I consider that this was a more serious case than the present case.

30. In Henderson v R [2006] ACTCA 17, Mr Henderson broke into the victim's apartment for the purpose of stealing from her. He found her sleeping and placed a knife at her throat and one hand across her mouth, telling her to be quiet. He then fondled her breast and digitally penetrated her vagina. He took out his penis and put her hand on it, forcing her to masturbate him. He then stole property from her. He was forty-six years old and had a long and bad criminal record, including for violence against women. He was sentenced to seven years imprisonment for the sexual intercourse offence and with the other offences to a total period of imprisonment of nine years eleven months. I consider that that case was much more serious than the present case.

31. Finally, in R v Taylor [2015] ACTSC 43, Mr Taylor and the victim were at a party when the victim rejected Mr Taylor's sexual advances. The victim became heavily intoxicated and performed sexual acts before being taken inside and put to sleep. Mr Taylor then, after the other guests had left, digitally penetrated her. He had no relevant criminal record and sought out counselling immediately on arrest. He made admissions to the offences which enabled the police to charge him but he entered a late plea. He had a severely traumatised and sexualised childhood. He was sentenced to two years imprisonment suspended after six months with a good behaviour order which included a community service work condition of 300 hours. I consider that this was a less serious case than the present case.

32. Mr Sordini has raised the issue of his mother's dependence on him as a special circumstance that justifies a more lenient sentence. I have set out the evidence above. The Crown submits that it is not a compelling case, relevantly relying on self-report. Information in the Pre-Sentence Report, it was submitted, does not support the submissions made on behalf of Mr Sordini. Section 33(1)(o) of the Crimes (Sentencing) Act requires a sentencer to:

... consider the probable effect that any sentence or order under consideration would have on any of the offender's family or dependents so far as such matters are relevant and known to the court.

33. In Cotter v Corvisy [2008] ACTSC 64 at [82], I considered the various authorities on this issue and concluded:

On the basis of these authorities, then, it seems to me that the approach that should be taken is that the effect of a sentence on the family and dependents of the offender should be taken into account but will only result in any significant leniency where the effect is more severe or prejudicial than the inevitable and usual consequence of the imposition of a proper sentence or where it will not overwhelm the proper statutory purposes for which the sentence should be imposed.

34. The effect of the evidence is that Mr Sordini's mother does rely on him to provide care for her. He is not required for 24-hour care and there have been periods in which she has managed to sustain herself without his assistance. As his general practitioner said, however, her safety is one of the matters that would be benefitted by his continued care of her. Her condition, however, has not significantly deteriorated since late 2014 when he completed a three-month term of imprisonment that he served in full-time custody. Other mechanisms were then available for her care.

35. While I am not privy to family circumstances, Mr Sordini has a brother, although he lives in Melbourne. I do not suggest that he could provide the same care as does Mr Sordini. If Mr Sordini's mother were in dire straits, however, he would have at least a strong moral obligation to her and to make appropriate arrangements at least to some extent.

36. I also note the suggestion in the Pre-Sentence Report that Mr Sordini's mother may be relocated to a nursing home in the near future. That may have to come sooner rather than later.

37. I do take into account the dependence of Mr Sordini's mother on him but it does not seem to me that it can result in a significant leniency in the light of the seriousness of the offence.

38. As noted earlier, Mr Sordini is now serving a sentence of eighteen months imprisonment for various offences. These are referred to above. Mr Sordini has, despite his consistently poor compliance with supervision in the past, been relatively compliant with his obligations under the periodic detention order. He has failed to attend on two occasions but the automatic cancellation (see s 69 of the Crimes (Sentence Administration) Act 2005 (ACT) and Lewis v The Chief Executive of Department of Justice and Community Safety [2009] ACTSC 73) has not been activated because he has had the second failure resolved as an authorised absence. The conviction that I will record for this offence will, however, require the Sentence Administration Board under s 70 of the Crimes (Sentence Administration) Act to cancel the periodic detention. That will require the Board under s 82 to place Mr Sordini in the custody of the Director-General to serve the relevant part of his imprisonment.

39. The sentence is, however, already a sentence of imprisonment, as is clear from the terms of s 11 of the Crimes (Sentencing) Act. In addition, any term of imprisonment I impose must take into account the earlier sentence and I must determine whether the sentence I impose will be concurrent or partly so or consecutive on the earlier sentence (see Pt 5.3 of the Crimes (Sentencing) Act). The question is one of totality as I discussed in R v Elphick.

40. There is, of course, no non-parole period for the earlier sentence because it was partly served by periodic detention (see s 62 of the Crimes (Sentencing) Act). If, however, I impose a sentence that is longer than twelve months, including by taking into account the earlier sentence, I must, under s 66 of that Act, set a non-parole period.

41. I take into account the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act. In particular, it seems to me that denunciation, general deterrence and the recognition of the harm done to the victim are important elements in the sentence to be imposed.

42. I take into account Mr Sordini's plea of guilty. It was a late plea, only a few days before the trial was to begin. Nevertheless, it has been of some benefit to the administration of justice and avoided the need for the victim to give evidence.

43. I take into account the objective seriousness of the offence as I have described it. The offence was a gross violation of the rights of the victim who was, at the time, in a vulnerable position in her own home. She has been quite significantly affected by the experience. It was clearly committed for the sexual gratification of Mr Sordini.

44. I take into account Mr Sordini's subjective circumstances. Although his criminal record denies him much leniency, this is the first offence of its kind and he has shown in the past a capacity to live a crime-free existence for not insignificant periods of time.

45. As I am required to do so, I take into account the likely effect that the sentence will have on Mr Sordini's mother. While that must moderate the sentence, it can only be to a limited degree as it is rather overwhelmed by the seriousness of the offence. It can, however, permit a non-parole period which is rather lower than otherwise appropriate.

46. I take into account the victim impact statement and the distress and ongoing problems that the offence has caused the victim and will no doubt continue to do so into the future.

47. I note that Mr Sordini has been assessed as not suitable to perform community service work as a condition of a good behaviour order because of his previous non-compliance with earlier community-based orders. I note that he has been assessed as suitable to serve any term of imprisonment to periodic detention and has signed the relevant undertaking.

48. Having given the matter anxious thought, however, I am satisfied that no other sentence than a term of fulltime custody is appropriate.

49. [Counsel pointed out that the Statement of Facts did not refer to the victim choking Mr Sordini as had originally been stated above (at [23])].

50. I accept that, despite mentioning earlier in these reasons that the victim choked Mr Sordini, the facts that are set out in the statement of facts tendered without objection does not permit that finding. As I had described the facts in my initial summary, she struggled with him when regaining consciousness. Although the force with which the victim struggled may be relevant, the fact that she made clear her refusal to participate in the sexual intercourse is the principal factor and an aggravating one. I have carefully considered that matter and reconsidered the sentence to be imposed and am satisfied that any effect of the error I made, in the reference to the victim's actions, in forming the instinctive synthesis that is the sentence to be imposed, is now eliminated.

51. Having also carefully considered the element of totality, I am of the view that I should address that by making the balance of the earlier sentence, that is from now until the conclusion of the current period of periodic detention, approximately three months, to be served concurrently. That, of course, leaves the balance of nine months of the earlier sentence that was suspended but there is nothing that can be done about that. I am aware that this offence and the earlier offences are quite separate episodes and complete accumulation would be permissible. In my view, that would not recognise totality and the effect of the other mitigating factors in Mr Sordini's circumstances that I have mentioned.

53. I convict you of sexual intercourse without consent committed on 16 August 2013.

54. I sentence you to imprisonment for two years and ten months to commence today. Had you not pleaded guilty, I would have sentenced you to three years imprisonment.

55. That means that the total sentence, including the earlier sentence, is now to run from 5 August 2014 to 16 December 2017. I set a non-parole period for the whole of the sentences, being the sentence I have just imposed and the earlier sentence imposed by Magistrate Campbell, to commence on 5 August 2014 and to end on 16 June 2016.

I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Refshauge.