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Supreme Court 8 December 2017

R v Attwater; R v Maris

[2017] NSWSC 1710

Sexual offencesHomicide
CRIMINAL LAW SENTENCE UNLAWFUL AND DANGEROUS ACT MANSLAUGHTER AGGRAVATED SEXUAL ASSAULT SEXUAL ACT OF “FISTING” ISSUE OF CONSENT

Citation: R v Attwater; R v Maris [2017] NSWSC 1710
Court: Supreme Court of New South Wales
Date: 8 December 2017
Judge: Fullerton J

Background

In the early hours of 27 January 2011, a woman was found deceased on a remote beach near Iluka in northern New South Wales. A post-mortem examination revealed she had died from blunt force genital tract trauma, specifically two significant lacerations caused by the insertion of a fist into her vagina during a sexual encounter with the first offender. The blood loss from those injuries, which went untreated, caused hypovolemic shock and death. Her blood alcohol concentration at the time of death was 0.303g/100mL.

Two men were ultimately charged and tried. The first offender was charged with manslaughter and aggravated sexual assault. The second offender was charged with aggravated sexual assault and hindering the discovery of evidence relating to a serious indictable offence. Both were convicted by a jury in September 2017, more than six years after the offending occurred. The remarks on sentence were delivered in December 2017.

The central factual contest at trial concerned whether the deceased had consented to the sexual acts performed on her. Both offenders maintained she had consented, but the jury rejected that account on both the sexual assault and manslaughter counts.

  • Whether the offending conduct constituted unlawful and dangerous act manslaughter, and how the circumstances of death bore on the objective seriousness of the offence.
  • The extent to which the deceased's intoxication was relevant to consent, and to the culpability of the offenders who were also significantly intoxicated.
  • How to apply the principle from R v De Simoni when sentencing for manslaughter where the circumstances also involved a sexual offence that formed its factual foundation.
  • The appropriate weight to give to general and specific deterrence, denunciation, and the harm caused to the deceased's family and the broader community under s 28(4) of the Crimes (Sentencing) Procedure Act 1999 (NSW).
  • The significance of the delay between offending (January 2011) and prosecution (arraignment July 2017), and whether that delay warranted a reduction in sentence.
  • Whether the burning of the blood-stained mattress by the second offender constituted a separate aggravating circumstance and how it should be reflected in his sentence.
  • The application of totality principles to fix aggregate sentences across multiple counts for each offender.

Decision

Fullerton J found both offences committed by the first offender to be of the highest objective seriousness. The manslaughter arose from a sexual act that directly caused catastrophic internal injuries, the severity of which would have been apparent from the immediate and extensive bleeding. Despite this, neither offender sought medical assistance, and the deceased was allowed to bleed to death over the course of several hours.

On the question of consent, her Honour accepted the jury's verdict and proceeded to sentence on the basis that the deceased had not consented to the sexual intercourse. Her Honour was also satisfied that both offenders lacked remorse and continued to demonstrate a lack of insight into the circumstances of their offending. Their prospects of rehabilitation were accordingly described as guarded, though some benefit from custodial treatment programs was considered possible.

The delay between charging and prosecution was acknowledged as a relevant consideration, but her Honour was not satisfied it warranted a material reduction in the sentences given the gravity of the offending. The harm caused to the deceased's family and the community was taken into account as required by s 28(4) of the Crimes (Sentencing) Procedure Act 1999. General and specific deterrence and denunciation were identified as the dominant sentencing considerations.

In fixing aggregate sentences, her Honour applied the totality principle to avoid a crushing outcome while ensuring the total sentences reflected the full criminality involved across all counts. No finding of special circumstances was made for either offender.

Orders Made

Adrian Attwater:
- Aggravated sexual assault: 12 years imprisonment, non-parole period of 9 years.
- Manslaughter: 18 years imprisonment.
- Aggregate sentence: 19 years imprisonment, commencing 5 September 2017; non-parole period of 14 years and 3 months (eligible for parole 4 December 2031); sentence expiring 4 September 2036.

Paul Maris:
- Aggravated sexual assault: 8 years imprisonment, non-parole period of 6 years.
- Hindering the police investigation: 4 years imprisonment.
- Aggregate sentence: 9 years imprisonment, commencing 5 September 2017; non-parole period of 6 years and 9 months (eligible for parole 4 June 2024); sentence expiring 4 September 2026.

Key Takeaways

  • Unlawful and dangerous act manslaughter arising directly from a sexual act causing fatal internal injuries was treated by the Supreme Court as falling at the highest end of objective seriousness, particularly where the offender failed to seek medical assistance despite obvious signs of serious injury.
  • Under s 28(4) of the Crimes (Sentencing) Procedure Act 1999 (NSW), harm caused to the victim's family and the broader community is a legitimate sentencing consideration, and Fullerton J gave it explicit weight in fixing both sentences.
  • A delay of over six years between charging and prosecution did not, on the facts of this case, produce a material reduction in sentence, given the gravity of the offending.
  • Absence of remorse, combined with a persistent failure to acknowledge the circumstances of the offending, operated as a significant impediment to findings of rehabilitation prospects and precluded mitigating weight being given to those factors.
  • Sentencing for multiple serious offences arising from the same factual circumstances requires the application of the totality principle to ensure the aggregate sentence remains proportionate, without that principle operating to diminish the denunciatory weight of the individual counts.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(b), 24, 61J(1)
- Crimes (Sentencing) Procedure Act 1999 (NSW), ss 28(4), 54B(4)
- Coroners Act 2009 (NSW)

Cases:
- Coles v R [2016] NSWCCA 32
- Hurst v R [2017] NSWCCA 114
- McKittrick v R [2014] NSWCCA 128
- Mill v R [1988] HCA 70; 166 CLR 59
- R v De Simoni [1981] HCA 31; 147 CLR 383
- R v Johnson [2005] NSWCCA 186
- Todd v R [1982] 2 NSWLR 517