Citation: R v Andrew COLE [2009] NSWDC 255
Court: District Court of New South Wales
Date: 21 August 2009
Judge(s): Berman SC DCJ
Background
The offender pleaded guilty to two offences arising from events on the night of 29 to 30 July 2008. He entered the home of a recently widowed woman while she slept with her two young children, aged seven and ten. The entry charge was dropped after psychiatric evidence indicated the offender had a mental illness defence rooted in paranoia, but he remained morally responsible for what followed once inside.
Over approximately four to six hours, the offender bound and gagged the complainant, threatened her children with sexual assault to compel her cooperation, and forced her to perform fellatio. He also sprayed household bleach around the premises in an attempt to destroy DNA evidence. The complainant ultimately drove him from the scene at dawn, then went directly to police. The offender was arrested two days later and gave a record of interview broadly consistent with the complainant's account.
The matter came before the District Court for sentencing on the offender's guilty pleas to aggravated sexual intercourse without consent (the circumstance of aggravation being the infliction of actual bodily harm) and detaining for advantage. Both offences carry a maximum penalty of twenty years' imprisonment.
Legal Issues
- What sentence was appropriate for offences assessed as objectively at the high end of seriousness?
- How should the standard non-parole period of ten years for aggravated sexual intercourse without consent operate as a guidepost given the guilty plea?
- To what extent could the protection of the community and the risk of future offending inform the sentence, within the constraints established by Veen v R and Veen (No 2) v R?
- Whether the sentences for the two distinct offences should be concurrent, partially accumulated, or fully accumulated.
- Whether special circumstances existed to justify a departure from the statutory ratio between the non-parole period and the head sentence.
Decision
Berman SC DCJ described the facts as "chilling" and assessed the aggravated sexual intercourse offence as well towards the upper end of the range of objective seriousness. The violation occurred in the complainant's home, a place where she was entitled to feel safe. The presence of the children, the threats directed at them, the physical restraint, and the use of bleach to destroy evidence all heightened the gravity of the conduct.
The court acknowledged the offender's guilty plea and his expressions of remorse, both to police during the record of interview and during conversation with the complainant on the night. However, the offender had a substantial custodial history including prior convictions for abduction and sexual assault, as well as armed robbery. The court found the prospects of rehabilitation were poor and described the prospect of his eventual release as "decidedly uncomfortable."
Applying Veen v R and Veen (No 2) v R, the court confirmed that community protection and the risk of future offending are legitimate sentencing considerations, including preventive detention as a factor. The court was careful to note that it would not allow this to produce a sentence longer than what the objective gravity of the offences required.
The court declined to impose fully concurrent sentences, finding that the detaining for advantage offence addressed a distinct aspect of the offender's conduct and its impact on the complainant. Fully concurrent sentences would, in effect, leave one offence unpunished. Accordingly, partial accumulation was ordered. The court found no special circumstances warranting a departure from the standard ratio between the non-parole period and the head sentence.
Orders Made
- For the offence of detaining for advantage: fixed term of five years' imprisonment commencing 31 July 2008 (fixed term because of the structure of the other sentence).
- For the offence of aggravated sexual intercourse without consent: non-parole period of ten years commencing 31 July 2010, with a head sentence of fourteen years.
- The offender becomes eligible for parole on 30 July 2020.
Key Takeaways
- The District Court confirmed that community protection and the risk of reoffending are proper sentencing considerations, but preventive detention cannot justify a sentence exceeding what the objective seriousness of the offences warrants, consistent with Veen v R and Veen (No 2) v R.
- A standard non-parole period functions as a sentencing guidepost even where a guilty plea has been entered, and does not operate as a mandatory minimum in those circumstances.
- Fully concurrent sentences were refused where two offences addressed distinct aspects of the offender's conduct and its effect on the victim; partial accumulation was required to avoid the result of one offence going effectively unpunished.
- Where a breaking and entering charge is dropped on the basis of a mental illness defence grounded in psychiatric evidence, the sentencing court does not take that entry into account in assessing moral culpability for the subsequent offences committed once inside.
- The objective seriousness of an aggravated sexual assault is not reduced simply because the physical injuries sustained are less severe than in some comparable cases; other aggravating features, including threats to children and the complainant's particular vulnerability, may keep the offence at the high end of the range.
Legislation and Cases Referenced
Cases:
- Veen v R (1979) 143 CLR 458
- Veen (No 2) v R (1988) 164 CLR 465
Legislation:
- No specific legislative provisions were cited by name in the judgment. The offences of aggravated sexual intercourse without consent and detaining for advantage carry maximum penalties of twenty years' imprisonment under New South Wales criminal law, and a standard non-parole period of ten years applies to the former.