Turner v R

JUDGMENT

1. DAVIES J: The applicant pleaded guilty to one count of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW) in respect of which the maximum penalty is 14 years' imprisonment and there is a standard non-parole period of 7 years. The applicant also asked the sentencing judge to take into account one offence of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act.
2. On 14 December 2023 Judge Hanley SC sentenced the applicant to imprisonment for 3 years commencing 13 December 2023 and expiring 12 December 2026 with a non-parole period of 18 months expiring 12 June 2025.
3. The applicant now seeks leave to appeal against his sentence on one ground only as follows: The sentencing judge erred by finding that the sentence was aggravated by the applicant being subject to conditional liberty at the time of the offending.
4. There was no evidence that the applicant was on conditional liberty at the time of the offence. Neither party made any submission to his Honour about the matter. The Crown now accepts that it would be open to this Court to find that it was not open to the sentencing judge to determine that the applicant was on conditional liberty at the time of the offence. For the reasons which follow, his Honour was in error in so determining. These reasons also disclose why I consider, nevertheless, that no lesser sentence is warranted.

The offending

1. The applicant and the complainant, RS, had been in an on-and-off casual, sexual relationship for about four or five years by January 2021. RS described arguing with the applicant at various times during their relationship.
2. At about 9:30pm on 16 February 2021, the applicant went to RS's home. He was intoxicated upon his arrival and was carrying a large bottle of port with him. He entered her premises with consent, removed his shirt and sat on a chair in the living room while RS sat on the lounge. They shared the port and also smoked some cannabis together.
3. At some point RS and the applicant got into an argument. RS got up from the seat and tried to walk to the front door. The applicant grabbed her by her upper arms from behind, preventing her from leaving. This caused bruising to her arms. That constituted the offence on the Form 1.
4. The applicant then removed RS's clothing and pushed her onto the couch. As she was bent over the couch, the applicant had penile-vaginal sexual intercourse with her. RS described feeling like a rag doll and being thrown around. The applicant ejaculated inside her vagina. RS later described the sexual intercourse as being different from when they usually had sex, in that it was much rougher. She did not consent to the sexual intercourse.
5. RS then said to the applicant, "I've had enough of your shit. I'm not really happy with the way you treat me. I'm sick of you treating me like a piece of shit. I think I want you to go home", to which the applicant replied, "I'm not going home." They then retired to RS's bedroom.
6. The next morning RS disclosed to a carer that the applicant was asleep in bed and that she did not feel comfortable with him in the house. After some discussion, they decided to contact the police with a view to having police remove him from the premises.
7. RS and the carer attended the police station and, as a result of questions asked by a police officer, RS disclosed that she and the applicant had had sex and that she did not consent to it.
8. When the applicant was arrested, he participated in an ERISP. He admitted to having sex with RS but maintained it was consensual, and denied being rough or assaulting her.

The plea

1. The applicant had initially been arraigned on a more serious charge, being an aggravated form of the offence. A trial commenced on 27 July 2022 in the Armidale District Court, but was aborted on 1 August 2022 when the applicant's legal representatives withdrew because of a change in his instructions. The complainant and six other witnesses had given evidence at that stage of the trial.
2. The matter was relisted for trial in the October 2022 sittings and was referred to the Super Call-over on 18 October 2022 at Armidale District Court.
3. The applicant then pleaded guilty to the present offence which was accepted in full satisfaction by the Crown.
4. On 21 February 2023, the applicant informed the Court that he would be applying to reverse his plea of guilty and requested the matter be relisted for trial. It was then listed for trial on 16 October 2023. On 11 October 2023, his application to withdraw the plea was withdrawn.
5. When the matter came before Judge Hanley on 14 December 2023 the applicant was rearraigned and confirmed his plea of guilty to the present charge and he asked that the Judge take into account the offence on the Form 1.
6. In all of those circumstances, his Honour discounted the sentence by 5% for the late plea. His Honour said he did not intend to ascribe a percentage reduction for the plea made during the Super Call-over, but said that he would take it into account as advancing the interests of justice despite the advice that the applicant intended to withdraw his plea.

Objective seriousness and aggravating factors

1. His Honour said that he was satisfied that the applicant was aware of, or at least reckless to, the fact that RS was not consenting. His Honour noted that the defence conceded in submissions that the applicant had no reasonable grounds for believing RS was consenting. His Honour accepted the defence submission that the offence was not planned but impulsive, spontaneous and of relatively short duration. His Honour found that the offence fell just below the midrange of objective seriousness.
2. In relation to the offence on the Form 1, his Honour said that he was satisfied it fell towards the lower end of objective seriousness but it would not require any increase in the penalty imposed for the principal offence.
3. His Honour found that an aggravating factor was that the offending occurred in the home of RS. His Honour noted the applicant's criminal history which dated back to 2005. His Honour then said: In 2021, in respect of an offence of common assault, he was placed on a community corrections (sic) order with counselling, and an offence in 2004 of aggravated break and enter and the offence on 16 February 2021 of stalking for which he was placed on a community correction order of 9 months. All disqualify him from any leniency but do not aggravate the offences.
4. His Honour said under the heading in his Remarks on Sentence "Conditional Liberty": He was on bail for these offences at the time of the commission of this offence. The fact that he was on conditional liberty aggravates the offence.

Other findings

1. The applicant did not give evidence at the sentence hearing. His Honour had a Sentencing Assessment Report ("SAR"), what amounted to a report contained within the Corrective Services case notes from a senior psychologist at Justice Health, Jodie Legge, dated 15 February 2023, and a report from the psychologist, Dr Thomas Dornan dated 15 December 2022. It may be noted in that regard that the three assessments made of the applicant had been made more than nine months earlier than the time of sentencing.
2. His Honour was not satisfied that the applicant was truly remorseful. That was based on a number of matters. First, in the SAR, the applicant failed to articulate or express any empathy in relation to RS, saying instead, "I hope she's proud of herself, locking up an innocent man". He claimed he was simply pleading guilty to get the charges over and done with, that the sexual intercourse had been consensual and that the victim's family had "conned" her into making a statement against him.
3. Secondly, the sentencing judge also noted from Dr Dornan's report, while the applicant demonstrated some insight into the possible impact of sexual abuse on victims, he was unable to apply those insights to RS. Dr Dornan went on to say: Mr Turner has limited insight into his offending behaviours, likely as a consequence of impairments in social relationships and his minimisation of the offending. Mr Turner appears to struggle with the nuances in relationships and in particular, the concept of consent. I note that this may be as a consequence of his trauma history, which he attempts to make sense from within his low cognitive/executive functioning. Mr Turner also appears to have limited insight into the impacts that his mental health conditions, in particular bipolar disorder, has on him and the need for ongoing review and treatment.
4. The sentencing judge was satisfied from the material he had that the applicant came from a profoundly deprived background and one in which sexual violence and violence was normalised so that it had an impact upon him, particularly in view of the intellectual difficulties he suffered from. His Honour was satisfied that the deprived background mitigated the sentence to be imposed on him.
5. His Honour was also satisfied that there should be some reduction in his moral culpability because of his underlying low-level cognitive intellectual capacity.
6. His Honour found that the applicant had a low to moderate risk of sexual recidivism, but his risk of engaging in future antisocial conduct was much higher where he was assessed as medium to high risk.
7. His Honour considered that the applicant's difficulty in dealing with drugs and alcohol and his incapacity to understand fully the nature of his offending, and his inability to demonstrate any empathy for the victim meant that prospects of rehabilitation should be guarded.
8. His Honour said he would make a finding of special circumstances, based on his own underlying mental health issues and the onerous nature of his time in custody as a consequence and the fact that there is still some strategies being implemented by Corrective Services to combat the COVID-19 pandemic, which add to the onerous nature of any future incarceration. I propose also to make a finding of special circumstances on the basis his rehabilitation is more likely to be successful in the community, particularly considering the fact he seems to have been taking some positive steps towards achieving that objective.

Ground 1: The sentencing judge erred by finding that the sentence was aggravated by the applicant being subject to conditional liberty at the time of the offending.

1. Both parties provided written submissions to his Honour at the sentence hearing. Very limited oral submissions were made. Nothing was said in any of the submissions about the applicant being on conditional liberty.
2. In the report of Jodie Legge, the following appears: It is noted that on the same day as these offences he had earlier been involved in a dispute with a female neighbour, resulting in two charges for Common Assault and Stalk/Intimidate intend fear/physical fam (personal). He was convicted for the latter offences and sentenced to a 9-month Community Corrections (sic) Order.
3. The applicant's criminal history discloses that on 3 December 2021 the applicant was convicted and sentenced for an offence of stalk/intimidate committed on 16 February 2021. On the same day the applicant was convicted of a common assault on 27 July 2021 and a community correction order was imposed for that offence together with the stalk/intimidate offence.
4. The criminal history also discloses that on 7 October 2021 the applicant was convicted in the Local Court in Inverell for failing to appear in accordance with his bail acknowledgement. That appears to relate to an offence charged on 17 February 2021, and the charge number relates to the present offence of sexual intercourse without consent and the offence on the Form 1. In that way, the criminal record only provides evidence, inferentially, that bail had been granted for the index offences. Nothing in the criminal record suggested bail had been granted for the other offence committed on 16 February 2021.
5. There was, therefore, no basis for his Honour's conclusion that the applicant was on bail for other offences at the time of the commission of the index offences. It appears to be accepted that, although the offence of stalk/intimidate was committed on 16 February 2021, the applicant was not charged with that offence until some days later.

Submissions

1. The applicant submitted that having regard to the favourable subjective case of the applicant that a lesser sentence than that imposed by the sentencing judge was warranted.
2. The applicant relied on an affidavit affirmed by him on 19 November 2024 and an affidavit of his solicitor which annexed documents from the applicant's Justice Health file and some Corrective Services case notes.
3. In his affidavit, the applicant says that he had committed one custodial infringement which involved a telephone call he was not permitted to make. He says that since being in custody he has been medicated for the first time and it has had a very positive effect. He has been able to get a place on the RUSH (Real Understanding of Self Help) Program. He says that the program has helped him to learn and develop different techniques to deal with his emotions. He is seeing a psychologist once a fortnight. The Justice Health notes appear to support the beneficial effects of the medication the applicant has been prescribed whilst in custody.
4. The applicant discloses for the first time in his affidavit read on the usual basis that he was sexually assaulted at a juvenile institution and that solicitors are acting for him in pursuit of a claim for that abuse. The evidence about the sexual abuse is new evidence that could have been placed before the sentencing judge. At the hearing of the appeal, the applicant's counsel accepted that that was so, and he said that the evidence was only put forward as being relevant to the treatment and programs that the applicant has been undergoing whilst in custody.
5. The applicant's counsel said that he did not submit that the factual findings made by the sentencing judge should be displaced. However, he submitted that when they are considered in the absence of the aggravating feature of being on conditional liberty at the time of the offending, in combination with the progress made by the applicant whilst in custody, there might be a reduced focus on deterrence and the protection of the community, such that a lesser sentence would be warranted.
6. The applicant drew attention to a note from a nurse at Justice Health which it was submitted showed that he was starting to have some insight into how his mental health affects his behaviour and that he needs pharmacological intervention. He submitted that this was a step towards his rehabilitation. Previously, Dr Dornan's report noted his limited insight into his offending behaviours and his poor cognitive and executive functioning. The applicant submitted that this Court could have greater confidence in the prospects of his rehabilitation when compared with the finding made by the sentencing judge that his prospects of his rehabilitation must be somewhat guarded because of his prior criminal history, his difficulty in dealing with drugs and alcohol, his incapacity to understand fully the nature of his offending and his inability to demonstrate any empathy for the victim.
7. The applicant pointed to material in the Justice Health records which suggested that the medication he was receiving was having a beneficial effect on his ability to sleep and a reduction in his symptoms of what the Justice Health personnel thought might be Post Traumatic Stress Disorder.

Determination

1. I agree with the sentencing judge's assessment that the offence of sexual intercourse without consent falls just below the midrange of objective seriousness and that the offence on the Form 1 of assault occasioning actual bodily harm does not require any increase in the penalty for the principal offence because it was in the low range of objective seriousness and formed part of the overall offending. The offending was aggravated by its occurrence in the home of the victim.
2. The applicant has a criminal record extending back to 2005 when he was 16 years of age. Since becoming an adult he has been convicted on five separate occasions of assault occasioning actual bodily harm, three counts of common assault, four counts of destroy or damage property and other offences including behaving in an offensive manner, shoplifting, using offensive language and stalk and intimidate. For a number of these offences the applicant has been given sentences of imprisonment. His record entitles him to no leniency.
3. I agree with the sentencing judge that the applicant comes from a profoundly deprived background where sexual violence and violence was normalised. It is not necessary to summarise all of the detail in Dr Dornan's report in that regard. It is sufficient to note that the applicant was brought up by a single mother who was a sex worker, and that they were both brutalised by a man with whom his mother had a relationship when the applicant was aged from 4 to 13. The applicant started using alcohol and drugs from early adolescence, and he experienced frequent episodes of drug-induced psychosis.
4. Dr Dornan diagnosed the applicant as suffering from Persistent Depressive Disorder and Bipolar II Disorder, as well as Alcohol, Cannabis and Stimulant Use Disorders. Psychometric testing suggested difficulties with some aspects of executive functioning and problems with cognition.
5. The applicant's deprived background mitigates the sentence to be imposed upon him and there is also a reduction in his moral culpability from his low level cognitive intellectual capacity.
6. He has a low to moderate risk of sexual recidivism according to both Dr Dornan and the SAR but his risk of engaging in future antisocial conduct was assessed at medium to high risk.
7. In relation to rehabilitation, the sentencing judge found that his prospects were somewhat guarded for a variety of reasons. These were his prior criminal history, his difficulty in dealing with drugs and alcohol, his incapacity to understand fully the nature of the offending and his inability to demonstrate any empathy for the victim. As noted earlier, in any consideration of prospects of rehabilitation the applicant claims to have made some progress from his treatment in custody.
8. In my opinion, the highest the matter can be put from the Justice Health records and the plaintiff's own affidavit is that the medication he has been put on is having a beneficial effect on helping his sleep patterns and assisting to some small extent in his mood instability. The plaintiff's own affidavit also suggests some small insight into his need for treatment and the course which he has undertaken whilst in custody. My assessment of his prospects of rehabilitation are that they are still guarded but that he has taken some small steps along the way.
9. There is nothing to suggest any insight into what the victim of his offending must have endured, and there is no additional material which suggests that he is remorseful for what he did.
10. The plea was entered at a very late stage and I would only allow a 5% discount for that plea.
11. Like the sentencing judge, I would find special circumstances based on the applicant's underlying mental health issues, the onerous nature of his time in custody as a consequence of them, and also for the occasional limitations as a result of the COVID 19 pandemic. I am not at the moment prepared to accept that his rehabilitation is more likely to be successful in the community because only small advances have been made up to this point in time, and they have resulted from his being in custody.
12. Although the resentencing exercise does not involve using the sentence from which an appeal is brought as a starting point, regard must be had to that sentence for the purpose of determining whether a lesser sentence is warranted. In my opinion, the sentence imposed was a lenient one, especially the allowance for special circumstances. On the basis of the above assessments, I would sentence the applicant to no lesser sentence than that which was imposed by the sentencing judge, both in terms of the non-parole period and the balance of term.

Conclusion

1. I propose the following orders:
2. Leave to appeal granted.
3. Dismiss the appeal.
4. YEHIA J: I have had the advantage of reading the Judgment of Davies J in draft. I agree with the proposed orders and his Honour's reasons.
5. R A HULME AJ: I agree with Davies J.

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