R v Wortley

Agreed facts

1. There are agreed facts before the Court. In summary. Wortley and the complainant were in an intimate relationship in 2019; they were both teenagers at the time. They lived in separate accommodation. They would, as part of their relationship, have consensual penile-vaginal intercourse, however, the complainant made it quite clear that she was not interested at all in digital penetration of her anus. He was aware of that fact. He tried to do this on a number of occasions, but she would, flinch, move away and tell him to stop.
2. The first count occurred on 16 September 2019. The pair were in the victim's unit and engaged in penile-vaginal intercourse. During the intercourse the offender penetrated the complainant's anus with his thumb. She felt pain and moved away. He continued to do so. Although she was unsure how long it lasted she said, "I think it took around five minutes". She said it hurt her and the following morning she noticed blood in her stools.
3. In mid-September 2019 the pair went away with the offender's family. They were sharing a cabin at a resort on the South Coast. They had been drinking but were not excessively drunk. When they went to bed the complainant fell asleep. The offender then moved her pants and underwear and inserted his fingers into her vagina. She woke, tried to push him away and said no. She curled into a ball and fell back to sleep: Count 2.
4. Another incident occurred that night. It will be taken into account on a Form 1. It involved similar activity. Again, there was digital penetration while she was asleep, and she woke and said no. She was woken a third time that night. His persistence annoyed her, and she had to tell him to stop.
5. The next evening, she made her views about his actions clear by telling him; "What you did was wrong, you shouldn't do that". The offender cried and apologised. He told the complainant he knew what he did was wrong and that he did not know what had come over him. Despite that apology there were two further incidents.
6. In October 2019 the two went out to celebrate a family event. They returned to the complainant's unit in the afternoon. She lay down to have a nap. She woke to find the offender had hold of her hand and was pulling it onto his penis. He then inserted his finger into her vagina: Count 4, third matter for sentence. Loosening the grip on her hand she pulled away and turned her body away to face the wall. Again, the offender persisted. She sat in a ball against the wall and started to cry. She told him what he was doing was "not okay" and that he should not keep doing it. Again, she asked him if he knew it was wrong and if he knew he could get into trouble. He said, "I know. I'm sorry".
7. In May 2020 the victim was organising some photos and videos on her mobile phone. She came across something she did not recognise. It was a recording of a close-up of her vagina showing the offender's fingers going in and out of it and stretching it. It captures her saying, "Matt, what are you doing?". She has no memory of this incident; she certainly did not give her consent to being penetrated or filmed this way. That is the fourth count for sentence (Count 5) and the second matter to be dealt with on a Form 1 (Count 6).
8. The relationship ended in early 2020. Shortly afterwards the offender and the complainant exchanged a series of text messages during which the offender said, "I'm sorry everything I've put you through, at the times I was disrespectful, at the times I pushed your boundaries, but most importantly for disrespecting your body when you clearly didn't want to do anything".
9. She responded, "You violated me, Matt. I don't know how to recover from that, I really don't know". He replied, "I did violate you, I am beyond ashamed" she replied, "But it happened more than once" he replied, "I know, it happened a couple of times. I have to take responsibility for what I've done, I have to take the consequences".
10. The offender discussed his behaviour with other mutual friends and admitted that he had touched the complainant while she was asleep.
11. In May 2020 the complainant went to the police. Arrangements were made for a telephone call to be lawfully recorded. During that call the offender made admissions to sexually assaulting the complainant.
12. The offender was arrested on 3 July 2020. He made admissions to police about digitally penetrating the complainant's vagina. He said he could not deny other events, particularly that recorded on the video. He was co‑operative with police and cried during the interview.

Objective seriousness

1. The seriousness of any offence of this nature must be determined in the light of all of the facts and circumstances. There is no hierarchy of kinds of sexual intercourse: R v AJP [2004] NSWCCA 434; Doe [2013] NSWCCA 248; (2013) 187 A Crim R 328 at [54]; MRM v R [2015] NSWCCA 195 at [148]. The form of sexual intercourse without consent does not necessarily determine its seriousness. I must focus on what was done. In doing so I note that while the absence of aggravating features does not mitigate, many of the features that often accompany s 61I offences did not occur here.
2. So far as Count 1 is concerned the offence occurred when the offender was a guest in the complainant's home. In such situations a young woman is entitled to feel safe in her own bed. A woman is entitled to accept from an ostensibly loving partner that "no" means "no". She had rejected anal intercourse and he persisted and engaged in anal intercourse with her without any consideration for her. The act took a number of minutes, it hurt her and left her with bloodied stools.
3. So far as Count 2 is concerned, it occurred while the complainant was asleep. While brief, the penetration still interfered with her dignity as a human being.
4. Count 4 occurred in her home; he was her guest. He engaged in sexual activity with her when she clearly was resistant to the idea. There was persistence and digital penetration. And, as she made clear at the time, what he did was "not okay."
5. Count 5 is intertwined with the matter on the Form 1 as it was discovered when the video was found. It is obvious from the descriptions that there was no consent and, while brief, it was a gross interference with the young woman's dignity and rights as a human being.
6. In general, each of the offences occurred in the bed they shared. Each of the offences involved an exercise of power and control over the victim and ignored her rights as a person and violated the inherent trust necessary and fundamental to consensual sexual relationships between partners. Proper recognition must be given to the real harm matters such as this cause their victims.
7. The offender gave evidence from that he did not know the complainant was not consenting. His case was based on an admission that he was reckless on the question of consent because he failed to consider whether she was consenting or not or realised the possibility she was not consenting but went ahead anyway. The Crown's case is that he knew full well she was not consenting.
8. Having reviewed the evidence and what was said in the cross-examination the bottom line is, that it is quite clear to me he knew the complainant did not want anal penetration and he went ahead anyway. He did not ask before any of the digital penetration events occurred. A sleeping woman cannot consent. No-one can presume consent in such circumstances. While he says, and I accept, he was intoxicated by alcohol and perhaps other drugs and professes amnesia, neither can provide him an excuse. As I said earlier, what he did was not okay, it was a serious violation of someone who trusted him and whom he professed to love and what he did hurt her deeply.

Victim Impact Statement

1. So much is clear from the Victim Impact Statement that is before me. Although there is no evidence of physical injury; none is required in an offence of this type. What the offence punishes primarily is the emotional and other consequences of such matters. The Victim Impact Statement speaks of quite considerable and recurring emotional and psychological impacts, including nightmares, inability to feel safe, constant emotional change, loss of value in her own life, turning to drugs and alcohol, and serious interference with her capacity to interact with family and friends. The complainant said, "I get physically sick. I've lost love for myself, my body doesn't feel like my own anymore." In her work and social life she no longer feels that she can perform as she did before. She does not believe she is strong. Rather, she tells me she felt defeated. Tragically, the drawn-out court process has reinforced those feelings. I will take those matters into account when I formulate an appropriate sentence.
2. The Victim Impact Statement, the statement drew to my attention, and to the community and the offender, the human impact of the crime and of a life tragically altered by that crime: DPP (Vic) v DJK [2003] VSCA 109 at [17] & [18]. As I said to the complainant at the time, it was read, the sentence imposed is only one indicator of the seriousness with which the Court views the crime committed. The Court has to take into account all the relevant considerations and the victim should never equate or measure her injury, harm suffered with the punishment inflicted.

Form 1

1. The matters on the Form 1 must also be taken into account but I do not sentence for them. The Form 1 for Count 5 is intrinsically intertwined with that count, so I have to be careful not to double count matters against the offender already taken into account. So far as the other matter on the Form 1 is concerned, the persistence and repetition of the behaviour has to be taken into account and leads to an increase in the sentence; which recognises the need for personal deterrence and retribution for the crime for which I am sentencing him.

Maximum penalty and Standard Non-Parole Period

1. I have to have regard to the maximum penalty and the standard non-parole period. They are important to the exercise of my sentencing discretion. Each offence carries a maximum penalty of 14 years and three is a standard non-parole period of the range, seven years for a matter that taking into account objective factors, falls into the middle of the range. Both are measures that have to be taken into account.
2. I must give content to the standard non-parole period. In doing so I am required to assess the objective seriousness without reference to matters personal to the defendant. I am not entitled to, nor should I, engage in a staged approach to sentencing. I am not obliged to compare and contrast the actual offence with some abstract one. Although that is sometimes done, I do not believe it is necessary here. Not every case can be fitted into categories, human behaviour, human characteristics are too varied. Sentencing involves a synthesis of competing features which attempt to translate the complexity of the human condition and human behaviour to mathematics of units, punishment usually expressed in time: Weininger v The Queen (2003) 212 CLR 629; [2013] HCA 14.
3. Ultimately, my role is to identify all the factors relevant to the sentence, discuss their significance and then make value judgments as to what the appropriate sentence is.

Criminal record

1. The offender comes before the Court as a young man who has never previously come before the Court. Although the offence occurred over a number of months and he has admitted, in proceedings, illicit drug use, I cannot accept the prosecution's submission that he is not a person of prior good character. He is entitled to have this fact taken into account.
2. His arrest on 3 July 2020 was the first time he had any experience with police. These are his only convictions. I am confident these will be his only convictions; past behaviour is a reasonable indication of future conduct. I note that he has been on strict bail conditions since he was arrested.

Evidence from Mr Wortley

1. I heard evidence from Mr Wortley. It is clear that he had trouble accepting what he did was criminally wrong otherwise pleas would have been entered in the Local Court. But from before he was aware the police were involved, he had apologised to the complainant and acknowledged to others he had touched her inappropriately. He made admissions on arrest, but he could not bring himself to enter a guilty plea. He persisted, during his evidence, in saying he did not know she was not consenting. I can only surmise that this is the only way he can maintain some degree of self-respect. But he accepts he must be punished for what he did, and he did, eventually, enter guilty pleas.
2. I accept that since his actions ended the relationship, he has stopped using alcohol and other drugs, particularly cocaine. He has engaged in relapse prevention programs. He has sought and received treatment for his underlying depression. He now must deal with a recent diagnosis of adult ADHD.
3. He expressed what I accept was genuine regret and remorse for the harm he had caused his victim, her family and his family, and the large number of other people affected by his actions.
4. The other evidence tendered allows me to conclude that; he has successfully completed drug relapse prevention treatment, that he does have an untreated mental condition, and that he did, at the relevant time, have a drug problem and had at times suffered drug-induced psychosis. But while drug use and alcohol use might explain why he did what he did they cannot excuse it.
5. All the material before me indicates the offender is motivated to lead a better life and he has responded to treatment during his remand period and is now subject to a mental health plan. Urine test results have been negative. He has some insight into his behaviour, he has work, he has the capacity to work, he has the capacity to engage with others and has formed a new relationship which is apparently loving.
6. I heard from those who support him. His fiancée described him as a caring, consideration person who engaged in rehabilitation and accepts responsibility. His mother, tried to teach him, and says she did teach him, respect for others. She talked about his struggles with drug and alcohol. She says that as he has matured and now he has taken the help offered he is more stable and grounded. His stepfather speaks of a caring and understanding young man. He does not understand how the man he knows could have committed these offences. His sister and his friends also speak of a gentle and supportive man, someone you can rely upon.
7. Mr Ballardie, a psychologist, provided a report and gave evidence before me and was tested by the Crown. That report is comprehensive and sets out the offender's background. He believes that several experiences in his background impacted negatively on his psychological functioning, his self-esteem and confidence. Mr Ballardie says that at the relevant time he would have been suffering a major depressive disorder and had a generalised anxiety disorder. These negative conditions made him more vulnerable to anxiety and depression and at times he felt unloved and rejected. He also found that he had a high level of substance use but now finds that the offender is in sustained remission. Mr Ballardie noted that there had been a period prior to the offending when antipsychotic medication had been prescribed.
8. Mr Ballardie picks up on the history, also given in evidence before me, that generally the offender sees himself as a person who is respectful of women, something not reflected in his offending. Mr Ballardie concludes however that his mental conditions did not impact on his awareness of the illegality of his offences. He qualified this in evidence by saying there are a number of possible factors that impacted on Wortley's function behaviour choices that contributed to his offending: 1. The extremely severe level of depression and anxiety and adult ADHD affecting him at the time. 2. The distress he was experiencing as a consequence of problems in the family. 3. Symptoms of mental condition and his drug-induced psychosis, and 4. His age, lack of emotional maturity and incomplete brain development.
9. His conclusions were supplemented by matters set out in the report and by reference to academic publications summarised in the annexures. They will be taken into account. As I said earlier, drug use cannot excuse what he did, alcohol abuse cannot excuse what he did, but they are relevant to my overall sentencing synthesis. The way he has dealt with theses problem, of his own volition, before and after arrest will impact on his prospects of rehabilitation. His drug use and related mental conditions help me to understand, to some extent, his state of mind at the time.
10. The offender's other mental problems, including his ADHD and longstanding depressive illness, allow for some amelioration of his moral culpability, but there is still a requirement here for a sentence to bring home to him and to others in the community the consequences of such behaviour.
11. Wortley was young at the time of the offending. He has grown over the period; he is showing more maturity. The law recognises that young people can reform and learn to conform to society's norms. It is also accepted that cognitive, emotional and psychological immaturity can contribute to their offending. This must be taken into account. Allowance should be made for an offender's youth and immaturity, not just his biological age.

Submissions

1. I received written and oral submissions from the parties. I have sought to address them in this judgment.
2. Ms Hughes, Solicitor Advocate for the Director, drew my attention to what she described as Wortley's ongoing, sustained, blatant abuse of his partner. She said I would find that the harm caused was substantial. I have already determined that issue. She said his course of conduct diminishes the impact of his prior good character. She called for a significant full-time custodial penalty.
3. Mr Özen, of Senior Counsel, submitted that in the extraordinary circumstances here, given the nature of the offending and the efforts made by the offender to prove to the Court that this was a brief and aberrant period in his life. He is otherwise a person of good character. He submitted that I could either delay the sentencing proceedings to enable him to get treatment for his recently diagnosed ADHD or that as the sexual assaults fall at the bottom of the range, impose non-custodial sentences. He submitted although there are four matters such are the number of mitigating circumstances that a non‑custodial option could meet all the purposes of sentencing. And, while many might regard such an option as lenient, it would encourage and not set back a demonstrated path to rehabilitation.
4. Mr Özen noted the absence of matters that commonly aggravate matters such as this. He noted the context in which they occurred, which also involved consensual intimate sexual activity, a relationship that continued despite his offending. He said there was no evidence of coercion or other domestic violence and that there were a significant number of mitigating feature. They include, the offences being relatively unplanned, his demonstrated remorse and him being a first offender who accepts the responsibility and made early admissions. In those circumstances, he said, a full‑time custodial sentence need not be imposed

Other cases

1. I have had regard to the statistics from the Judicial Commission provided by Mr Özen. I have also had regard to a helpful summary of cases where non-custodial sentences were imposed for s 61I offences. They can be found in the judgment of Judge M L Williams, R v Francis [2021] NSWDC 870. I also note the judgment of the Court of Criminal Appeal in Burton v R [2020] NSWCCA 54. The consistent application of principle must always be considered. The guidance offered by appellate courts and other decisions is always welcome, but every sentencing exercise is individual and the mix of factors that must be weighed in each case are different.

Structure of sentence

1. I have determined, as I indicated on Wednesday, 15 December 2021, that there must be full-time custodial sentences. The option of an Intensive Correction Order is not available for offences such as this and would in any event be precluded by the length of the sentence.
2. Mr Wortley has successfully completed drug rehabilitation programs and the psychological program designed to help him gain skills and strategies to deal with his underlying depressive illness. A further remand period is not justified.
3. Each count involved discrete acts of criminality. Each count had some common features and the purposes of sentencing apply to each and those purposes overlap. The sentences should be partly cumulative, however, the aggregation of all the sentences must be a 'just and appropriate measure of the total criminality involved': Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at 307-308 per McHugh J; Cahyadi v R [2007] NSWCCA 1 (2007) 168 A Crim R 41

Special Circumstances

1. The evidence relating to the offender's excellent prospects of rehabilitation, his need for further psychological treatment, help adjusting to normal community life all provide a basis for a substantial finding of special circumstances. In so finding I am mindful of the requirement that the minimum period he must be imprisoned for must also reflect the gravity of his offences and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59] .
2. It is important to note that studies reveal that offenders who receive parole supervision upon release do significantly better than those who are released unconditionally into the community: Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497, 2011, BOCSAR. http://www.bocsar.nsw.gov.au/Documents/parolesupervisionandreoffending.pdf

Synthesis

1. Synthesising all those matters. I accept that Mr Wortley has taken steps to prove he is a better person than the young man who offended so seriously against a woman he professed to care for. He has strong pro-social support and a generally ethical approach to life. Gaol will be hard for him. I do not underestimate the lived experience of gaol. He will serve his sentence during the pandemic. He will be subject to quarantine immediately when he enters into custody. I have heard evidence in many cases over the past two years of; the number and regularity of lockdowns, the inability to have face-to-face visits and the restrictions on programs and treatment; they are now significantly less than pre-COVID normal, and normal was not great.
2. One important aim of sentencing involves the protection of the community. At its best gaoling someone removes them for a period, but gaol rarely makes them better citizens. Long sentences and harsh prison conditions do not necessarily discourage future offending. In my experience, paradoxically, imprisonment can exert a crime‑producing effect. Gaols provide a criminal learning environment. Once imprisoned a person is labelled and stigmatised as an offender. Gaols do not address, in an effective way, the underlying causes of crime. Experience has shown that the protection of the community is often better contributed to by the successful rehabilitation of offenders and this aspect of sentencing should never be lost sight of. It assumes particular importance in the case of first offenders and those who have not developed settled criminal habits: Blackman & Walters v R [2001] NSWCCA 121.
3. Rehabilitation is important, but sentences have other purposes; one is retribution. Retribution is the notion that reflects the community's expectation the offender will suffer punishment and that particularly offences involving sexual offences against young women will merit severe punishment. A proper sentence marks the Court's view of the seriousness of the crime and should let other wrongdoers know the retribution which will fall upon them if they commit similar crimes: R v Herring (1956) 73 WN (NSW) 203 at 205.
4. While mitigating factors will be given full weight, they cannot be allowed to lead to the imposition of a sentence which is disproportionate to the gravity of the offences committed. Sentencing courts also have an obligation in such matters to express the community's disapproval of the offending and vindicate the dignity of the victim.

Orders

1. The orders I make so far as aggregate sentences reflect a discount for the plea of guilty and a finding of special circumstances.

Indicated sentences

1. So far as count 1 is concerned, I indelicate a sentence of two years and four months imprisonment with a non-parole period of one year and two months.
2. So far as count 2, taking into account the matter on the Form 1, I indicate a sentence of two years four months imprisonment with a non-parole period of one year and two months.
3. So far as count 4 is concerned, I indicate a sentence of one year 11 months imprisonment, non-parole period 11 months.
4. So far as count 5 is concerned I indicate a sentence of two years and one month imprisonment, non-parole period one year. That matter also includes the Form 1.

Aggregate sentence

1. There will be an aggregate sentence in this matter. that sentence will be three years, two months imprisonment. There will be a non-parole period of one year and seven months, reflecting a substantial finding of special circumstances. That sentence will commence today. You will be eligible for consideration for release to parole. And, given your history I would expect you would be released to parole, on 16 July 2023. There will be a parole period of one year and seven months to date from 16 July. The total sentence will expire on 16 February 2025.
2. Ms Hughes advises me that as these are domestic violence offence there is a provision for an automatic apprehended violence order unless I consider it unnecessary. Ms Plevalica advises that a 2 year Apprehended Domestic Violence Order was made yesterday in the Local Court considers.
3. I vary the Apprehended Violence order made on 16 Dec 2021 at Wollongong Local Court. I extend the Apprehended Violence order to 3 years 7 months from today (17/12/2021). That is for a further two years after you get out on parole. OFFENDER: Thank you for your time, your Honour.

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