Citation: R v McLennan, Raymond [2009] NSWDC 298
Court: District Court of New South Wales
Date: 9 September 2009
Judge(s): Nicholson SC DCJ
Background
The offender, a 50-year-old man, rented a flat in Broken Hill which he shared with several teenagers. On the night of 4 February 2009, a 15-year-old girl (the complainant) fell asleep in one of the bedrooms after feeling unwell. While she was asleep, the offender committed two acts of sexual intercourse without her consent: fellatio and vaginal intercourse lasting approximately ten minutes.
The complainant later left the premises through a window and was found ill on the roadway. She disclosed the offending to another teenager present at the flat, and was driven to hospital shortly afterwards. The offender had been drinking that evening, though the court did not find him grossly intoxicated.
The offender was originally charged with two counts of sexual intercourse without consent. When arraigned, he pleaded guilty to two alternate charges of sexual intercourse with a person aged over 14 but under 16 years. The Crown accepted those pleas in full satisfaction of the indictment.
Legal Issues
- What were the objective circumstances of each offence, and where did each sit on the scale of objective seriousness?
- Was the absence of consent established, and what factors bore on that finding?
- What weight should be given to the offender's subjective circumstances, including his Indigenous background and limited criminal history?
- How should the sentences be structured, including whether special circumstances existed, what discount applied for the guilty pleas, and how totality principles applied?
Decision
The court found both offences were committed without the complainant's consent. Her compliance when asked to open her mouth did not constitute consent, particularly given that she had been asleep, was 15 years old, and the offender was 50. The court found that the complainant's freezing during the vaginal intercourse, her immediate departure through the window, her subsequent vomiting, and her early disclosure to a friend all confirmed her non-consent.
On objective seriousness, the court assessed the vaginal intercourse as reaching the mid-range of seriousness for the offence type and the fellatio as falling below mid-range. The fear experienced by the complainant arose not from any physical threat by the offender but from the significant power imbalance created by the age difference, his gender, and his role as the householder.
In assessing subjective factors, the court took into account the offender's Indigenous background, referencing the Canadian authority of Gladue as general context for sentencing Indigenous offenders. The offender had only one prior conviction from the distant past. The court found special circumstances justified a longer than usual balance of term, given the need for supervision on release and the programming requirements identified.
The offender received a discount on each sentence for his early pleas of guilty. The sentences were structured partly cumulatively to reflect the fact that the two offences, while arising on the same night, were distinct acts.
Orders Made
- Count 1 (fellatio): Convicted. Total sentence of 2 years 7 months and 15 days (after guilty plea discount from 3 years). Non-parole period of 18 months commencing 6 February 2009, expiring 5 August 2010. Balance of term expiring 20 September 2011.
- Count 2 (vaginal intercourse): Convicted. Total sentence of 3 years and 2 months (after guilty plea discount from 4 years). Non-parole period of 2 years commencing 6 May 2009, expiring 5 May 2011. Balance of term expiring 5 July 2012.
- Overall: Effective non-parole period of 2 years and 3 months from 6 February 2009; total available sentence of 3 years and 7 months.
- The court recommended the offender be considered for the CORE sexual offenders programme.
- No AVO was made at the time of sentencing; leave was granted to the parties to approach the court for an AVO if circumstances warranted.
Key Takeaways
- Compliance with a sexual act does not constitute consent where the person was asleep, is significantly younger than the offender, and no prior interaction or foreplay occurred. The District Court was satisfied to the required standard that both acts were non-consensual.
- Fear underpinning non-consent need not arise from physical force or threat. Here, the court identified a power imbalance rooted in age difference, gender, and the offender's role as householder as the operative source of the complainant's fear.
- Vaginal intercourse with a 15-year-old complainant, committed while she was asleep and feigning unconsciousness, was assessed as reaching the mid-range of objective seriousness for offences under s 66C of the Crimes Act. Fellatio in similar circumstances was assessed as falling below mid-range.
- An Indigenous offender's background is a relevant factor in the sentencing exercise, with the court drawing on the principle articulated in the Canadian High Court decision of Gladue as a reference point, though the extent of its influence on the ultimate sentence is not separately quantified in the judgment.
- Special circumstances were found to exist, justifying a longer balance of term to allow for supervision and rehabilitation programmes, including the court's recommendation that the offender undertake the CORE sexual offenders programme before parole consideration.
Legislation and Cases Referenced
Legislation
- Crimes Act (NSW), including s 66C (sexual intercourse with a person aged 14 to 16)
- Crimes (Domestic and Personal Violence) Act (NSW), s 39
Cases
- Gladue v The Queen [1999] 1 SCR 688 (Supreme Court of Canada)
- R v Cuthbert [1967] 2 NSWR 329
- R v Rushby [1977] 1 NSWLR 597
- R v Hayes [1984] 1 NSWLR 740
- R v Bruland [2005] NSWCCA 289
- R v SG [2003] NSWCCA 220
- R v Pearce (1998) 194 CLR 610