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District Court 31 March 2016

R v Rotner

[2016] NSWDC 298

Sexual offencesDrugs
CRIMINAL LAW SENTENCE SEXUAL INTERCOURSE WITHOUT CONSENT SUPPLY PROHIBITED DRUG

Citation: R v Rotner [2016] NSWDC 298
Court: District Court of New South Wales
Date: 31 March 2016
Judge(s): Berman SC DCJ

Background

The offender was convicted by jury of two offences: sexual intercourse without consent and supplying a prohibited drug. The complainant, an older woman with mobility and health problems, had been introduced to the offender by a neighbour and had been purchasing small quantities of ice (methamphetamine) from him on a number of occasions at approximately $100 a time.

On 5 February 2015, after the complainant had consumed a large amount of ice supplied by the offender, he entered her home and forced her to perform oral sex on him without her consent. He did not wear a condom and had a visible sore on his leg. He threatened to shoot her if she reported the assault to police. The complainant nonetheless told friends and then police, and the offender was arrested and remained in custody from that point.

A third charge of stealing from a dwelling was also laid. The jury acquitted the offender on that count, a result the sentencing judge described as unsurprising given the complainant's acknowledged state of extreme intoxication at the relevant time.

  • What sentence was appropriate for an offence of sexual intercourse without consent, having regard to the standard non-parole period of seven years and a maximum of 14 years?
  • What sentence was appropriate for the drug supply offence, which carried a maximum of 15 years?
  • Whether the supply of drugs could be treated as an aggravating circumstance of the sexual assault offence while the offender was also being sentenced for the drug supply separately (the double-counting issue)?
  • Whether special circumstances existed to justify varying the statutory ratio between the non-parole period and the head sentence?
  • How should the absence of a guilty plea and the offender's continued denial of the offences be treated?

Decision

Berman SC DCJ described the sexual intercourse offence as "a most serious example" of its kind. The forced oral sex was committed in the complainant's own home, against a vulnerable woman whose intoxicated state the offender had substantially caused. The offender held her down, did not use a condom despite a visible sore on his leg, and threatened her with violence to prevent her from reporting the matter. The judge noted there is no hierarchy among the forms of sexual intercourse covered by section 61H of the Crimes Act, but regarded the particular intimacy of forced fellatio as a weighty factor in the objective gravity of the conduct.

The judge was careful not to double-count the drug supply as an aggravating feature of the sexual assault, given that the supply was itself a separate offence attracting its own penalty. The complainant's vulnerability arising from her intoxication was acknowledged as relevant context, but the judge was explicit that he would not treat the act of supply as an aggravating circumstance of both offences simultaneously.

The offender had learning difficulties (placing him in the bottom two percent of the population by IQ), a history of depression and anxiety, and a supportive family background. He did not give evidence at trial or sentence. Because he was convicted after a contested trial, no discount applied. The judge declined to treat the absence of planning as a mitigating factor, noting there was no evidence either way on that question.

A finding of special circumstances was made, not as a concession to the offender, but to enable a longer period of post-release supervision by the Probation and Parole Service, which the judge considered necessary to protect the community given the offender's criminal history.

Orders Made

  • Aggregate sentence of imprisonment imposed with a non-parole period of six years and six months, commencing 10 December 2015, expiring 9 June 2022.
  • Head sentence of nine years and six months.
  • The component sentences (had they not been aggregated) would have been: sexual intercourse without consent, nine years with a non-parole period of six years; supply of a prohibited drug, 18 months.
  • Suppression order: no publication of anything identifying or tending to identify the complainant.

Key Takeaways

  • The District Court confirmed that forced oral sex constitutes one of the most serious forms of sexual intercourse without consent, even though the Crimes Act recognises no formal hierarchy among the types of sexual intercourse within that offence.
  • A sentencing court must guard against double-counting where conduct (here, drug supply) underpins both a separate charge and a claimed aggravating circumstance of another offence being sentenced at the same time.
  • Special circumstances justifying a departure from the standard non-parole period ratio can be found in a need for extended post-release supervision to protect the community, not merely to benefit the offender.
  • Where an offender is convicted after a contested trial and continues to deny the offences, no sentencing discount applies; however, the offender is also not to be additionally punished for exercising the right to trial or for the distress that giving evidence caused the complainant.
  • Applying the principle articulated in Hartikainen (NSWCCA, 8 June 1993), non-consensual sexual intercourse remains an extreme form of violence, a characterisation the court found fully borne out by the facts of this case.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), including section 61H (definition of sexual intercourse for the purposes of the sexual assault offences)

Cases:
- Hartikainen (Unreported, NSW Court of Criminal Appeal, 8 June 1993) (per Gleeson CJ: non-consensual sexual intercourse described as an "extreme form of violence")