Sentence
63 The maximum penalty for the offence of sexual intercourse without consent was 14 years imprisonment. A standard non-parole period of 7 years imprisonment was prescribed (Crimes (Sentencing Procedure) Act 1999, s 54D) and was relevant as a guide or reference point (R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168). The Crown accepted before the sentencing judge that it was open to depart from the standard non-parole period, because of the guilty plea and the recklessness as to consent.
64 Early in her remarks the sentencing judge determined that a discount of the order of 12 per cent would be allowed for the guilty plea.
65 The sentencing judge's assessment of the objective seriousness of the offence was -
"It was urged on behalf of Mr Sabapathy that I would find the offence was in the low range of objective seriousness.
The Crown, in written submissions, pointed to a number of factors in assessing the objective seriousness of the offence. I do note the matters that were highlighted in cross-examination of Mr Sabapathy, that he had sexual intercourse with [the complainant] in a number of positions and ejaculated on her stomach, so that while he was well affected by alcohol he was sober enough to make those decisions. I accept that he was well affected by alcohol and so the offence was greatly out of character. The parties have agreed that his state of mind was reckless as to [the complainant's] lack of consent. I would agree that puts his mental state, his failure to consider or turn his mind to the issue of her lack of consent, in the low range. But in my view the sexual act itself, being penile-vaginal intercourse in a number of positions, is not in the low range. Furthermore, I have noted the victim was affected by alcohol and sleepy and she was carried into the offender's bedroom by him. So whilst I accept that Mr Sabapathy's mental state was in the low range, the act itself is in the mid range in my view, which means that the total objective seriousness of the offence has to be characterised as in the low to mid range rather than in the low range."
66 Her Honour found that the appellant "comes to court as a man of good character", and that his remorse was genuine and he was "regarded by Dr Lennings as having excellent rehabilitation prospects".
67 Her Honour said -
"His wife and he are still grieving over the death of their baby. His mother, as I have noted, is seventy years of age, not in good health and prefers to live with him for reasons of her ill health, and his wife's part-time income is not sufficient to cover the mortgage payments on their home, so that Mr Sabapathy fears his wife and mother will lose the roof over their heads if he is not able to maintain his employment which he has at present. In my view they do not amount to exceptional circumstances, such as that if I decided a custodial sentence was appropriate that I would depart from that, but in my view they are circumstances which I can take into account in terms of the hardship to those persons which would result from Mr Sabapathy being put into custody.
…
I was urged on behalf of Mr Sabapathy, whilst it was conceded that a custodial sentence is the only realistic option, to suspend that sentence and not impose a full-time custodial sentence.
I note that the Court of Criminal Appeal said in The Queen v Hartakanen, which I was referred to, that non consensual sexual intercourse is itself an extreme form of violence and one which the community expects will be taken very seriously by the courts. In my view to suspend a sentence in Mr Sabapathy's case, while noting that his remorse is genuine and he has the subjective circumstances to which I have referred, and noting the circumstances in which he committed this out of character offence, to suspend a sentence would involve me according to much weight to his sympathetic subjective circumstances and giving insufficient weight to the objective seriousness of the sexual act involved in the offence. Therefore, I think that it would involve inappropriate leniency and it is not appropriate for me to suspend a sentence that I consider is appropriate, that a full time custodial sentence is the only appropriate sentence to recognise the seriousness of the offence."
68 The appellant's submissions were brief, and it was not easy to understand how his counsel sought to make good the grounds of appeal. It is convenient to deal first with the ground of over-emphasis on the form of sexual intercourse.
69 As I understand it, the asserted over-emphasis was her Honour's arrival at the low to mid range of objective seriousness because "the sexual act itself … is not in the low range". That is, the ground went to the finding as to objective seriousness.
70 The objective seriousness properly included regard to the sexual intercourse, what the appellant did to a non-consenting complainant, as well as his recklessness as to consent. The "penile/vaginal intercourse in a number of positions" to which the appellant admitted was plainly serious. The question on appeal is whether it was open to the sentencing judge to determine that the offence was in the low to mid range of seriousness, see Mulato v Regina [2006] NSWCCA 2182 at [37] per Spigelman CJ. In my opinion, it was well open.
71 Going then to the ground of error in not finding exceptional circumstances, it was common ground that conviction for the offence of sexual intercourse without consent will ordinarily bring a custodial sentence. There may be unusual or exceptional circumstances in which a sentence other than a custodial sentence will be appropriate, but there is no litmus test for when that might be so. It is part of the exercise of the broadly based sentencing discretion in the light of all the facts in the particular case.
72 As best I understand it, counsel for the appellant submitted that the appellant's mental state of recklessness, rather than any actual knowledge that the complainant was not consenting, together with his favourable subjective circumstances and the effect of a full-time custodial sentence on his wife and mother should have led the sentencing judge to depart from a custodial sentence. No error was suggested in the account taken by the sentencing judge of subjective circumstances, but the submissions appeared to include that the finding of low to mid range objective seriousness influenced her Honour against the circumstances being exceptional, and was erroneous and thereby brought error in not finding exceptional circumstances.
73 There was no error in this respect, and in my opinion it was well open to the sentencing judge, in the exercise of the sentencing discretion, to conclude that a full-time custodial sentence was appropriate despite the appellant's favourable subjective circumstances and the effect of such a sentence on his wife and mother.
74 I go then to the ground concerned with consideration of a suspended sentence. The sentencing judge directly considered that matter. A sentence can not be suspended until it is imposed, and a sentence for a term greater than two years can not be suspended. Her Honour did not come to the sentence to be imposed before considering whether it should be suspended, and her opinion that suspension "would involve inappropriate leniency" passed over that the sentence she must have had in mind could not be suspended. However, that a suspended sentence would not appropriately recognise the objective seriousness was a sound reason for declining suspension, and these infelicities were not relied on.
75 The appellant's submission appears to have been that, if the error of finding low to mid range seriousness were corrected, a two year sentence would have been warranted; then by a massive leap, in the words of the written submissions -
"Because periodic detention is no longer an alternative sentencing option for such offences, the only realistic approach is for the Presiding Judge to consider and find a 2 year sentence to be appropriate and then allow it to be suspended."
76 The opening error has not been shown, and in any event it does not follow that a two year sentence would have been suspended. In my opinion, the sentencing judge was correct in her view that a suspended sentence would not appropriately recognise the objective seriousness.
77 The final ground was that the full-time custodial sentence was manifestly excessive. This did not appear to be separately addressed in submissions, save as the converse of failure to impose a non-custodial or suspended sentence. It is sufficient that I have no doubt that the sentence was within the range open to her Honour in the exercise of her sentencing discretion. Indeed, although it is unnecessary for the outcome, in my opinion no less severe sentence was warranted in law and should have been passed, which would itself be fatal to an appeal against sentence: Criminal Appeal Act, s 6(3).