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District Court 28 January 2010

R v TS

[2010] NSWDC 111

Sexual offencesAssault & violenceDomestic & family violence
CRIMINAL LAW SENTENCE VICTIM EX DOMESTIC VIOLENCE OFFENCE SEPARATED 3 MONTHS VISITS VICTIM'S HOME

Citation: R v TS [2010] NSWDC 111
Court: District Court of New South Wales
Date: 28 January 2010
Judge(s): Nicholson SC DCJ

Background

The offender and the complainant had been in an intermittent domestic relationship for approximately eleven years and had three children together. They had separated roughly three months before the offending. Although the complainant had permitted the offender to visit the children at her home, and the two had occasionally shared a bed and engaged in consensual intercourse during those visits, no formal custody or access orders were in place.

In the early hours of 27 September 2008, the offender attended the complainant's home at Umina Beach while intoxicated and under the influence of amphetamines. After forcing his way inside, he subjected her to a prolonged course of serious criminal conduct over three to four hours. This included cutting off her clothing with scissors, flicking petrol and lighter fluid onto her naked body while making death threats, holding a knife to her face and throat, and committing multiple acts of sexual assault, including two acts of aggravated sexual intercourse without consent that formed the principal charges.

The offender pleaded guilty and appeared before the District Court for sentencing. Three further acts of sexual intercourse without consent were taken into account on a Form 1 (that is, additional matters acknowledged by the offender that were taken into account in fixing the sentence without recording a separate conviction). The offender also faced a charge of intentionally or recklessly damaging property by fire, relating to fires lit in the rear yard and in a bedroom waste bin.

  • What was the appropriate objective assessment of the criminality involved in two charges of aggravated sexual intercourse without consent, each committed in a domestic violence context?
  • What weight should be given to subjective factors personal to the offender, including his Aboriginal background, his drug and alcohol dependency, his prior history, his expressions of remorse, and his rehabilitation prospects?
  • Whether special circumstances existed justifying a departure from the standard ratio between non-parole period and balance of term
  • How the totality principle applied when imposing multiple concurrent sentences arising from a single course of offending
  • Whether the standard non-parole period provisions under the Crimes (Sentencing Procedure) Act 1999 applied to the charges

Decision

The court assessed the objective criminality of the offending as serious. The offending involved sustained psychological violence through threats and menace, the use of weapons including a knife and scissors, the application of flammable liquids to the complainant's naked body, and multiple acts of non-consensual sexual intercourse. The complainant was the mother of the offender's children, and the domestic setting was treated as an aggravating feature rather than a mitigating one.

The court considered the offender's Aboriginal background and the broader context of alcohol and drug abuse in Aboriginal communities, referencing principles drawn from the Canadian authority of R v Gladue. However, the court concluded that these contextual factors could not operate to reduce the sentence to a non-custodial disposition, given the gravity of the offending and the paramount need to protect the community.

On subjective matters, the court acknowledged the offender's contrition, his sober presentation before the court, and his apparent willingness to take responsibility. His long-term polysubstance abuse, involving cannabis, amphetamines, and alcohol, was noted as both contextual and an ongoing risk factor. Rehabilitation prospects were regarded as guarded but not foreclosed, particularly if the offender completed sexual assault offence courses while in custody.

The court applied the totality principle and determined that all sentences should be served concurrently, reflecting the fact that the offending occurred as part of a continuous course of conduct over a single night. Special circumstances were found, justifying an adjustment to the balance of term beyond the statutory ratio.

Orders Made

  • Charge 1 (aggravated sexual assault, domestic violence related): Non-parole period of 3 years and 9 months commencing 27 September 2008, expiring 26 June 2012; balance of term expiring 11 November 2015
  • Charge 12 (aggravated sexual assault, domestic violence related): Non-parole period of 4 years commencing 27 September 2008, expiring 26 September 2012; balance of term expiring 26 March 2016
  • Charge 20 (intentionally or recklessly damage property by fire): Fixed term of 6 months imprisonment commencing 27 September 2008, expiring 26 March 2009 (already served at time of sentencing)
  • All sentences to be served concurrently

Key Takeaways

  • Concurrent sentences can be appropriate where multiple serious offences arise from a single, continuous course of conduct over a discrete period, provided the overall sentence reflects the totality of the criminality involved.
  • A domestic or former-intimate relationship between offender and victim does not mitigate sexual offending; the District Court treated that relationship as an aggravating feature in the context of domestic violence.
  • Recognition of an offender's Aboriginal background and the social conditions surrounding their offending (following the approach in R v Gladue) does not automatically reduce a sentence where the objective gravity of the offending and community protection considerations are substantial.
  • Special circumstances justifying a longer-than-standard balance of term can be found where rehabilitation needs are significant, particularly where an offender must complete structured programs in custody before parole is appropriate.
  • Psychological violence, including threats to kill, use of weapons, and the application of flammable substances to a victim's body, contributed materially to the court's assessment of objective seriousness alongside the physical acts of sexual assault.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- R v Gladue [1999] 1 SCR 688
- R v Cuthbert (1967) 2 NSWR 329
- R v Rushby [1977] 1 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
- Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (2004) 61 NSWLR 38
- R v Way (2004) 60 NSWLR 168