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7
Court of Criminal Appeal 26 June 2013

R v Gerard CORTESE

[2013] NSWCCA 148

Sexual offences
CROWN APPEAL AGGRAVATED SEXUAL ASSAULT ACT OF INDECENCY FINDING OF NO ONGOING HARM RELEVANCE OF PRE EXISTING RELATIONSHIP

Citation: R v Gerard Cortese [2013] NSWCCA 148
Court: NSW Court of Criminal Appeal
Date: 26 June 2013
Judges: Hoeben CJ at CL, Harrison J, Beech-Jones J

Background

The respondent was convicted on two counts arising from offences committed against a young woman over the evenings of 21 and 22 July 2011. The first count involved an act of indecency (rubbing the victim's vagina over her clothing without consent, contrary to s 61L of the Crimes Act 1900). The second, more serious count involved aggravated sexual assault: the respondent raped the victim the following morning while she remained detained at his residence, contrary to s 61J(1) of the Crimes Act 1900. The aggravating circumstance was that he had deprived her of her liberty overnight, preventing her from leaving.

The parties had a prior brief relationship, which the victim had sought to end approximately a week before the offences. The respondent used threats, including threatening to expose her employment and alleged tax irregularities to her family and authorities, to coerce and control her.

At sentencing in the District Court, the respondent received a good behaviour bond for the indecency count and a two-year fully suspended sentence for the aggravated sexual assault. The Director of Public Prosecutions appealed both sentences as manifestly inadequate.

  • Whether the sentencing judge erred in finding that the offending fell at the lowest end of the range of culpability for aggravated sexual assault
  • Whether a pre-existing consensual relationship between the offender and the victim could legitimately reduce the objective seriousness of the offending
  • Whether the sentencing judge erred in finding there was no ongoing harm to the victim
  • Whether the sentences imposed, particularly the fully suspended term for count 2, were manifestly inadequate
  • The appropriate sentence on resentencing, including the applicability of a special circumstances finding

Decision

Beech-Jones J (with Hoeben CJ at CL and Harrison J agreeing) found that the sentencing judge had fallen into error in her assessment of objective seriousness. The sentencing judge characterised the offending as at the "lowest end of the range" of aggravated sexual assault, but the Court of Criminal Appeal found this characterisation was not open on the agreed facts. The offending involved sustained threats, overnight deprivation of liberty, digital penetration accompanied by explicit threats of violence, and rape.

The Court accepted that a pre-existing consensual relationship can be a relevant consideration in sentencing for sexual assault, but it cannot justify placing offending that would otherwise attract a significant sentence at the bottom of the range. The relationship here was over before the offences occurred, and the respondent's conduct involved a deliberate exploitation of the victim's vulnerabilities, including the threats he used to prevent her from reporting the matter.

On the question of ongoing harm, the Court noted that the agreed facts contained a statement that the victim had no ongoing psychological harm, but observed that this finding had a tenuous basis. The Court declined to disturb it for the purposes of resentencing, but gave it little weight given the circumstances.

The Court held that the fully suspended sentence for count 2 was manifestly inadequate and allowed the Crown appeal on that count. The respondent was resentenced to three years imprisonment with a non-parole period of eighteen months, reflecting a 25 per cent discount for his early guilty plea and a finding of special circumstances given his lack of prior incarceration and strong rehabilitation prospects.

Orders Made

  • Crown appeal allowed in part
  • Sentence imposed by the District Court on count 2 (s 61J(1) offence) quashed
  • Respondent resentenced to three years imprisonment commencing 4 June 2013 and expiring 3 June 2016, with a non-parole period of eighteen months expiring 3 December 2014
  • Direction that the respondent be released at the expiration of the non-parole period
  • Certain conditions of the good behaviour bond imposed for the s 61L offence set aside
  • Crown appeal against the sentence for the s 61L offence otherwise dismissed

Key Takeaways

  • A sentencing court's characterisation of objective seriousness must be consistent with all the facts of the offending; a finding that conduct fell at "the lowest end of the range" was not open where the offending involved threats, overnight detention, digital penetration, and rape.
  • The existence of a prior consensual relationship between an offender and victim does not, of itself, substantially reduce the objective gravity of a subsequent sexual assault, particularly where the relationship had already ended before the offending occurred.
  • Under s 61J(1) of the Crimes Act 1900, the prescribed standard non-parole period of ten years operates as a legislative benchmark; sentencing that results in no actual imprisonment for such an offence requires a compelling and well-founded factual basis.
  • A finding of no ongoing psychological harm to the victim, where it appears in agreed facts without adequate evidentiary foundation, will attract scrutiny on Crown appeal, though the Court here declined to disturb the finding given the circumstances of the appeal.
  • Special circumstances justifying a longer parole period relative to the non-parole period may be found where an offender has never previously been incarcerated and has genuine prospects of rehabilitation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 61L
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 12, 54A
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- Bellchambers v R [2011] NSWCCA 131
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- Green v R [2011] HCA 49; 244 CLR 462
- House v R [1936] HCA 40; 55 CLR 499
- Mulato v R [2006] NSWCCA 282
- Muldrock v R [2011] HCA 39; 244 CLR 120
- NM v R [2012] NSWCCA 215
- R v Ehrlich [2012] NSWCCA 38
- R v Fahda [2013] NSWCCA 86
- R v Hendricks [2011] NSWCCA 203
- R v KB [2011] NSWCCA 190
- R v Koloamatangi [2011] NSWCCA 288
- R v Murrell [2012] NSWCCA 90
- Sabapathy v R [2008] NSWCCA 82
- Stewart v R [2012] NSWCCA 183
- Zreika v R [2012] NSWCCA 44