Citation: R v Reyniel Herrera Marcial [2011] NSWDC 119
Court: District Court of New South Wales
Date: 17 August 2011
Judge: Cogswell SC DCJ
Background
The offender, a Cuban-born Latin music entertainer living in Australia, attended a party on the night of 6 December 2009. In the early hours of the following morning, he entered a room and found a young woman asleep. He penetrated her vaginally from behind without her consent and ejaculated before she was able to respond.
The offender maintained throughout his police interview and at trial that the sexual encounter was consensual. A jury rejected that claim and convicted him of sexual intercourse without consent under s 61I of the Crimes Act 1900. The first trial had resulted in a hung jury, meaning the complainant was required to give evidence twice.
The court was now required to determine the appropriate sentence, including where on the spectrum of objective seriousness the offence fell, and whether any personal circumstances of the offender warranted a departure from the standard approach.
Legal Issues
- Where on the range of objective seriousness did this particular offence of sexual intercourse without consent fall?
- What weight should be given to the victim impact statement in the sentencing exercise?
- What personal circumstances of the offender were relevant to sentence, including his background, mental health, alcohol issues, and claims of childhood sexual abuse?
- Whether imprisonment was unavoidable, and if so, whether any part of the sentence should be suspended.
- Whether special circumstances existed to justify a departure from the standard ratio between the non-parole period and the balance of sentence.
Decision
The court assessed the objective seriousness of the offence as falling just below the midpoint of the range, placing it in the upper half of the lowest category of seriousness. While the offending was spontaneous, of short duration, and involved no additional violence beyond the rape itself, three features elevated it within that lower range: the complainant received no warning whatsoever, the intercourse was unprotected, and the offender ejaculated inside her. Those last two features raised real risks of pregnancy and sexually transmitted disease.
The court reviewed the victim impact statement carefully. The complainant was approximately nineteen years old at the time of the offence. She experienced lasting anxiety, difficulty trusting others, disruption to her employment, her studies, her intimate relationship, and her sleep. The court noted that these consequences, while serious and distressing, were not treated as statutory aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999. Instead, the victim impact statement illustrated why Parliament had fixed such a serious maximum penalty for this type of offence.
The offender's personal circumstances were considered at length. He was twenty-nine years old, had been in Australia since 2007, and had a successful profile as a performer. He had a history of significant alcohol use, and there was evidence of psychological difficulties including reported self-harm ideation. There was contested material concerning whether he had been sexually abused as a child, which the court treated with appropriate caution given the lack of corroboration. The court noted that the absence of a guilty plea meant no discount for remorse or utilitarian value applied.
The court concluded that imprisonment was unavoidable given the nature of the offence. The sentencing remarks addressed whether any portion of the sentence might be suspended and whether special circumstances existed that would justify altering the standard ratio between non-parole period and total sentence. The court's concern about the offender's potential for self-harm was reflected in the judge arranging for psychological reports to be forwarded to Corrective Services to assist with assessment and management.
Orders Made
No orders were made in this decision.
Key Takeaways
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Sexual intercourse without consent can fall below the midpoint of objective seriousness while still warranting a sentence of full-time imprisonment; spontaneity and brevity may reduce seriousness but will not displace custodial sentences for this class of offence.
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Where intercourse is unprotected and the offender ejaculates, those features increase objective seriousness because of the associated risks of pregnancy and sexually transmitted disease.
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A victim impact statement in a sexual offence matter serves to illuminate why Parliament regards such crimes seriously, but the consequences described do not automatically constitute additional statutory aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999.
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Personal circumstances including mental health difficulties, a history of alcohol misuse, and contested claims of childhood sexual abuse are relevant to the sentencing exercise but must be assessed carefully and with appropriate caution about unverified claims.
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The District Court's practice of forwarding psychological and psychiatric reports directly to Corrective Services, where self-harm risk has been raised in evidence, reflects a practical protective measure that can be adopted at the sentencing stage.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 61I (sexual intercourse without consent)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5 (imprisonment as a last resort), s 21A (aggravating and mitigating factors)
Cases
- Da Silva v The Queen (NSWCCA, unreported, 30 November 1995)
- Dean v The Queen (2006) 166 A Crim R 341
- JRB v The Queen [2006] NSWCCA 371
- Subapathy v The Queen [2008] NSWCCA 82
- Sudarth v The Queen [2008] NSWCCA 207