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District Court 4 August 2017

R v LI, Run

[2017] NSWDC 282

Sexual offencesAssault & violence
CRIMINAL SENTENCE AGGRAVATED SEXUAL ASSAULT ASSAULT OCCASIONING ACTUAL BODILY HARM CHINESE FOREIGN NATIONAL PRIOR GOOD CHARACTER

Citation: R v LI, Run [2017] NSWDC 282
Court: District Court of New South Wales
Date: 4 August 2017
Judge: Judge S Norrish QC

Background

The offender, a Chinese citizen in his mid-twenties, was convicted by a jury in May 2017 of two offences committed on or about 31 March 2014 at Rhodes, NSW. The first and more serious count was aggravated sexual assault under s 61J(1) of the Crimes Act 1900 (NSW), carrying a maximum of 20 years imprisonment and a standard non-parole period of 10 years. The second count was assault occasioning actual bodily harm under s 59(1), carrying a maximum of 5 years.

The offender and the victim were Chinese nationals who had met as students in Canada several years earlier. He came to Australia in early March 2014 ostensibly to study, but also to see the victim, who had recently married and was completing postgraduate studies. They were sharing a rented apartment at the time of the offences, though the relationship was one of friendship only on the victim's part. The Crown case included evidence that the offender had drugged the victim's drink prior to the assault.

The offender was arrested on 7 April 2014, after attempting to flee the country. He remained in custody from that date through to sentencing, a period of over three years. He had no prior criminal history and presented material relating to his personal circumstances, though he did not give evidence at trial or in sentencing proceedings.

  • How should the standard non-parole period for aggravated sexual assault operate as a sentencing guidepost in this case?
  • What weight should be given to the offender's prior good character in light of the seriousness of the offending?
  • How should the sentencing court treat the extended period spent in pre-sentence custody?
  • Was there a breach of trust element that could aggravate the offending?
  • How should the principle of totality apply in fixing the overall sentence for the two counts?
  • What effect, if any, should the offender's inevitable deportation and his prospects of rehabilitation have on the sentence?
  • How should the court treat the absence of remorse and the offender's conduct following the offences?

Decision

Judge Norrish found that the Crown case was strong, supported by the victim's direct evidence, evidence of the victim's injuries, and surrounding circumstantial evidence including the offender's attempt to flee Australia. The court accepted that hospital apologies made by the offender to the victim were largely self-serving, noting they were made in the context of attempts to dissuade her from reporting and to impede medical examination. The court found the offender showed no genuine remorse and demonstrated a degree of self-absorption in the material he presented.

On the question of breach of trust, the court ultimately concluded the domestic arrangements did not support that characterisation, given the premises had been rented jointly before the offender's arrival rather than the victim hosting him as a guest. The court found the offender's conduct in attempting to flee the jurisdiction and his collateral attempts to interfere with the investigation were relevant to the objective seriousness of the matter and to the assessment of his character.

The court noted that the offender's prior good character, his age at the time of the offending, his time spent in custody (including an assault suffered while imprisoned), and the prospect of deportation at sentence's end were all mitigating factors to be weighed. However, these could not substantially reduce the sentence given the gravity of the offence, the need for general and personal deterrence, and the harm caused to the victim, which was documented in a victim impact statement. Special circumstances were found to exist, justifying an adjustment to the standard non-parole period ratio.

Orders Made

  • Count 3 (assault occasioning actual bodily harm): Convicted and sentenced to 9 months imprisonment, commencing 7 April 2014, expiring 6 January 2015.
  • Count 1 (aggravated sexual assault): Convicted and sentenced to a non-parole period of 3 years and 6 months commencing 7 August 2014, expiring 6 February 2018; balance of term 3 years and 6 months, expiring 6 August 2021.
  • Total sentence: 7 years and 4 months imprisonment, with a total non-parole period of 3 years and 10 months, dating from 7 April 2014.
  • The court noted the offender would be eligible for parole consideration from February 2018 and indicated that upon release he would likely be transferred to immigration detention and deported.

Key Takeaways

  • Prior good character carries limited mitigating weight where the offending is serious and the Crown case is strong, and particularly where no genuine remorse is demonstrated.
  • Under s 61J(1) of the Crimes Act 1900, the standard non-parole period of 10 years for aggravated sexual assault functions as a legislative guidepost; departures must be reasoned and justified by reference to all relevant factors.
  • Special circumstances can justify a non-parole period below the standard ratio where the sentencing court identifies rehabilitation prospects or other specific factors, even where deportation will follow release.
  • The District Court treated the offender's flight from Australia immediately after the offences, his attempts to discourage reporting, and his efforts to impede medical examination as relevant to both objective seriousness and his character at sentencing.
  • Extended pre-sentence custody is taken into account in fixing the commencement dates of sentences, and an assault suffered by the offender while on remand may be treated as a relevant mitigating circumstance.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59(1), 61J(1)
- Migration Act 1958 (Cth)

Cases
- Ali v The Queen [2010] NSWCCA 35
- Cowling v R [2015] NSWCCA 213
- R v De Simoni (1981) 147 CLR 383
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- Ibbs v The Queen (1987) 163 CLR 447
- Makarian v The Queen [2005] HCA 25
- Mill v The Queen (1998) 166 CLR 59
- Muldrock v The Queen [2011] HCA 39
- Pearce v The Queen (1998) 194 CLR 610
- R v AJP (2004) 150 A Crim R 575
- R v Andrews [2001] NSWCCA 428
- R v Daley [2010] NSWCCA 223
- R v Hibberd (2009) 194 A Crim R 1
- R v King [2009] NSWCCA 117
- R v MS [2005] NSWCCA 332
- R v O'Donnell (NSWCCA, 1 July 1994, unreported)
- R v PGM (2008) 187 A Crim R 152
- R v Way (2004) 60 NSWLR 168
- Suleman v The Queen [2009] NSWCCA 70