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District Court 15 December 2016

R v Ross

[2016] NSWDC 416

Sexual offences
CRIMINAL LAW SENTENCE SEXUAL INTERCOURSE WITHOUT CONSENT

Citation: R v Ross [2016] NSWDC 416
Court: District Court of New South Wales
Date: 15 December 2016
Judge(s): Berman SC DCJ

Background

The offender attended a social gathering at the complainant's home in Swansea Heads in May 2015, uninvited and unwelcome. He was intoxicated and had already made an unwanted advance toward the complainant during the evening. After the complainant went to bed, the offender entered her bedroom and had sexual intercourse with her while she was asleep.

The complainant woke during the assault and told the offender to stop, which he did. She immediately complained to friends present in the home and reported the matter to police a couple of days later.

The offender was charged with sexual intercourse without consent. He contested the charge at trial, giving evidence that the complainant had been a willing participant. The jury rejected that account and returned a guilty verdict. The matter came before Berman SC DCJ for sentencing.

  • What sentence, including head sentence and non-parole period, was appropriate for the offence of sexual intercourse without consent?
  • Whether the standard non-parole period of seven years should be applied or departed from, and on what basis.
  • Whether the offender's intoxication by drugs at the time of the offence had any relevance to sentencing.
  • Whether special circumstances existed to justify a longer than usual ratio of parole to non-parole period.
  • How the offender's subjective circumstances, including his drug history, learning difficulties, and prison conditions, bore on the sentence.

Decision

Berman SC DCJ sentenced the offender on the basis that he had deliberately penetrated the complainant while she was asleep, knowing she was incapable of consenting. The court found the offence fell at the serious end of the range. It was committed in the complainant's own home, against a highly vulnerable sleeping victim, without a condom, and was accompanied by physical evidence of force, namely bruising to the complainant's inner thighs consistent with her legs being forcibly spread.

The court declined to impose the standard non-parole period of seven years, identifying reasons for departing from it in the remarks on sentence. The offender's drug-affected state at the time was found to be not a mitigating factor, since self-induced intoxication does not operate to reduce culpability. However, the court noted that the drug use remained relevant to explaining the circumstances of the offending and to assessing the risk of re-offending.

On subjective matters, the court found the offender had no relevant prior custodial history, had previously demonstrated some capacity for employment and for caring for his daughter, and faced harsher than usual prison conditions due to being assaulted in custody and placed in protective custody. The offender showed no remorse. The court assessed rehabilitation prospects as limited but not entirely absent.

Special circumstances were found to exist, based on the combination of the offender's first time in custody, his significant drug history, and his concentration difficulties. These factors indicated a need for a longer than usual supervision period on parole. Nonetheless, the court emphasised that both the head sentence and the non-parole period were required to reflect the objective seriousness of the conduct.

Orders Made

  • Non-parole period of five years, commencing 10 August 2016, expiring 9 August 2021.
  • Head sentence of eight years.
  • The offender becomes eligible for release to parole on 9 August 2021.

Key Takeaways

  • The District Court confirmed that self-induced intoxication at the time of a sexual assault is not a mitigating factor in sentencing, though it may remain relevant to understanding the circumstances of the offending and assessing rehabilitation prospects.
  • Committing sexual intercourse without consent against a sleeping victim in her own home was treated as a seriously aggravated form of the offence, warranting a sentence above the standard non-parole period threshold in terms of the overall head sentence imposed.
  • Special circumstances justifying a longer parole tail can be established by a combination of first-time custody, a significant drug history, and cognitive or concentration difficulties that increase the need for post-release supervision.
  • Where an offender is at real risk of serving a substantial portion of a sentence in protective custody under harsher conditions than the general prison population, the sentencing court may take those conditions into account.
  • The victim impact material was treated as a significant factor in the weight given to general deterrence, with the court observing that anxiety, social withdrawal, and loss of trust are foreseeable and regrettably common consequences of sexual assault.

Legislation and Cases Referenced

Legislation

  • The offence of sexual intercourse without consent carries a maximum penalty of 14 years imprisonment and a standard non-parole period of seven years under New South Wales law (specific provision not cited in the judgment).

Cases

No cases were cited in the judgment text provided.