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District Court 11 July 2008

R v Rad, John

[2008] NSWDC 286

Sexual offencesTraffic & driving
CRIMINAL LAW SENTENCING AFTER TRIAL SEXUAL INTERCOURSE WITHOUT CONSENT (X3) STANDARD NON PAROLE PERIOD OFFENCES S.166 CPA DRIVE WHILST DISQUALIFIED

Citation: R v Rad, John [2008] NSWDC 286
Court: District Court of New South Wales
Date: 11 July 2008
Judge(s): Nicholson SC DCJ

Background

The offender, a 40-year-old divorced male refugee, was convicted by a jury of three counts of sexual intercourse without consent arising from events on 6 February 2007 at his apartment in Parramatta. The complainant was an adult female international student with no family in Australia, who had met the offender at a Town Hall bus stop on two prior occasions.

On the night in question, the offender physically carried the complainant from the lounge room to his bedroom against her expressed objections, struck her across the face, and proceeded to commit two acts of digital vaginal penetration and one act of penile-vaginal intercourse. The complainant repeatedly communicated her lack of consent throughout. The offender was also convicted of driving whilst disqualified on the same date.

The matter came before the District Court for sentencing following the jury's verdict. The court was required to assess the objective seriousness of the offences, consider the applicable standard non-parole period provisions, and determine appropriate sentences having regard to subjective factors personal to the offender.

  • What was the objective seriousness of the three sexual intercourse without consent offences, including whether they fell within, above, or below the standard non-parole period range?
  • Whether the applicable standard non-parole period under the Crimes (Sentencing Procedure) Act required adjustment given the specific facts of the offending?
  • What weight should be given to subjective factors, including the offender's background as a refugee, absence of contrition, and rehabilitation prospects?
  • Whether special circumstances existed to justify departing from the statutory ratio between the non-parole period and the additional term?
  • How the totality principle should apply in structuring sentences for three separate counts of a related series of offences?
  • What sentence was appropriate for the back-up charge of driving whilst disqualified, brought up from the Local Court under section 166 of the Criminal Procedure Act?

Decision

The court assessed the penile-vaginal intercourse offence as falling within the mid-range of objective seriousness. The offending involved the physical carrying of the complainant to the bedroom against her will, a strike to the face, further violence, and threats during the commission of the acts. The court identified these features as aggravating, though the penile-vaginal intercourse offence was not placed at the most serious end of the scale.

On the standard non-parole period, the court found that factors existed placing the principal offence outside the standard non-parole period provisions, resulting in a departure from the default legislative benchmark. The court applied the framework from R v Way (2004) 60 NSWLR 168 in conducting that assessment.

Regarding the offender's subjective circumstances, the court noted his age, divorced status, refugee background, and the absence of any expression of contrition. Rehabilitation prospects were assessed as fair, and the court recommended the offender undertake the CUBIT (Custody-Based Intensive Treatment) program for sexual offenders as a condition relevant to any future parole application.

On totality, the sentences for the two digital penetration counts were structured as fixed terms to run concurrently with the non-parole period of the principal count. The court set a non-parole period of five years for the penile-vaginal intercourse offence, with an additional term of three years.

Orders Made

  • Count 1 (digital vaginal penetration): Convicted and sentenced to a fixed term of three years imprisonment, commencing 25 May 2007 and expiring 24 May 2010.
  • Count 2 (digital vaginal penetration): Convicted and sentenced to a fixed term of three years imprisonment, commencing 25 May 2007 and expiring 24 May 2010.
  • Count 3 (penile-vaginal intercourse): Convicted and sentenced to a non-parole period of five years commencing 25 May 2007 and expiring 24 May 2012, with an additional term of three years expiring 24 May 2015.
  • Driving whilst disqualified (s 166 CPA): Sentenced to three months imprisonment commencing 11 July 2008 and expiring 10 October 2008.
  • Driver's licence disqualified for two years, cumulative upon any existing disqualification.

Key Takeaways

  • The District Court assessed penile-vaginal intercourse committed with accompanying physical violence and repeated indications of non-consent as falling within the mid-range of objective seriousness, while leaving open that additional aggravating features could elevate an offence beyond the standard non-parole period reference point.
  • Where multiple sexual intercourse without consent offences arise from a single episode of offending, the totality principle operates to structure sentences so that the overall term reflects the totality of the criminality without resulting in a crushing or disproportionate outcome.
  • Absence of contrition following conviction after trial is a factor relevant to the sentencing assessment, particularly in evaluating rehabilitation prospects and the weight given to that consideration.
  • Under the Crimes (Sentencing Procedure) Act, the standard non-parole period for sexual intercourse without consent operates as a legislative benchmark rather than a rigid floor; the sentencing court must identify specific factors that place the offence within, above, or below that range, applying the R v Way methodology.
  • Recommendation for completion of the CUBIT program does not form part of the formal sentence, but the court identified it as a matter the Parole Board would likely consider when assessing suitability for release at the expiry of the non-parole period.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW)
- Crimes (Sentencing Procedure) Act (NSW)
- Criminal Procedure Act (NSW), s 166
- Motor Traffic Acts (NSW)

Cases:
- R v Way (2004) 60 NSWLR 168
- R v Gladue (1999) 1 SCR 688
- R v Cuthbert (1967) 2 NSWR 329
- R v Rushby (1977) NSWLR 597
- R v Hayes [1984] 1 NSWLR 740
- R v Gebrail (unreported, NSWCCA, 18 November 1994)
- R v Hartikainen (unreported, NSWCCA, 8 June 1993)
- R v Pay (1999) NSWCCA 40
- R v Dean (2006) NSWCCA 341
- R v AJP (2004) NSWCCA 434