Citation: R v Quintyn Aloese [2018] NSWDC 210
Court: District Court of New South Wales
Date: 3 August 2018
Judge: Mahony SC DCJ
Background
The offender was a 20-year-old man with no prior criminal record who had been in a domestic relationship with the victim for approximately two years. The relationship had ended in August or early September 2017 due to the offender's persistent physical and psychological violence, but the parties continued living together at the same premises in Beresfield, sleeping in separate bedrooms.
On 29 September 2017, the offender entered the victim's bedroom, repeatedly asked her for sex, and was repeatedly refused. After following her throughout the premises, he pushed her onto her mattress, removed her towel, slapped her face, placed his hand around her throat and squeezed until she became light-headed, and then proceeded to rape her. The entire physical struggle lasted approximately five to ten minutes, during which the victim said "No" at least ten times.
After the offence, the offender made a degrading remark about his earlier sexual activity and repeatedly asked the victim whether she considered what had occurred to be rape. When she nodded, he told her she was not allowed to leave. The victim dialled 000, and the offender was arrested shortly after police arrived. He made full admissions in his electronically recorded interview.
Legal Issues
- What sentence was appropriate for the principal offence of sexual intercourse without consent (s 61I, Crimes Act 1900), which carries a maximum of 14 years and a standard non-parole period (SNPP) of 7 years?
- What sentence was appropriate for the offence of intentionally choking a person with recklessness (s 37(1), Crimes Act 1900), which carries a maximum of 10 years?
- How should totality and proportionality principles apply when structuring partly concurrent sentences across two offences arising from the same course of conduct?
- What weight should be given to the offender's youth, lack of criminal history, early admissions, demonstrated remorse, and psychological profile when determining the appropriate sentence?
Decision
Mahony SC DCJ accepted that the offending was serious. The rape occurred in a domestic violence context, involved sustained physical resistance by the victim, and was accompanied by choking that caused physical injury. The court also took into account the Form 1 matters, including a common assault (the slap to the victim's face) and a threat made while she was calling police.
In mitigation, the court accepted several factors in the offender's favour. He was 20 years old with no prior record, had made full admissions to police, demonstrated genuine remorse in court (including in the presence of the victim), had proactively enrolled in a Remand Domestic Violence Course while in custody, and had been assessed by a clinical psychologist as showing symptoms consistent with Borderline Personality Disorder. His upbringing, including time in foster care, and his expressed intention to seek ongoing support upon release were also noted.
The court found that the sentence for the rape offence fell below the SNPP of 7 years, reflecting those mitigating factors. The SNPP operates as a legislative benchmark, and courts are required to identify reasons when departing from it, which the judgment did by reference to the offender's age, lack of record, admissions, and remorse.
Applying the principles in Pearce v R, the court structured partly concurrent sentences to reflect both the seriousness of each offence and the overall criminality of the episode, without producing a result disproportionate to the total conduct. A fixed term of 9 months was imposed for the choking offence, commencing on the date of arrest. The rape sentence commenced three months later, producing a total effective sentence of 4 years with a non-parole period of 2 years and 9 months.
Orders Made
- Convicted of intentionally choking a person with recklessness (DV) under s 37(1) of the Crimes Act 1900: fixed term of 9 months imprisonment, commencing 29 September 2017.
- Convicted of sexual intercourse without consent (DV) under s 61I of the Crimes Act 1900: non-parole period of 2 years and 6 months, commencing 29 December 2017 and terminating 28 June 2020; balance of term of 1 year and 3 months, commencing 29 June 2020 and terminating 28 September 2021.
- Total sentence: 4 years imprisonment with a non-parole period of 2 years and 9 months.
- Parole eligibility date: 28 June 2020.
- Form 1 matters (common assault and intimidation to unlawfully influence) certified and taken into account.
Key Takeaways
- The District Court applied the standard non-parole period of 7 years for sexual intercourse without consent as a legislative benchmark, but departed below it on account of the offender's youth, absence of prior convictions, full admissions to police, demonstrated remorse, and psychological vulnerability.
- Where two offences arise from the same course of domestic violence conduct, partly concurrent sentences may be appropriate to satisfy both the totality and proportionality principles set out in Pearce v R [1998] HCA 57.
- A clinical diagnosis of Borderline Personality Disorder, combined with evidence of proactive engagement with rehabilitation programs while on remand, can carry meaningful mitigating weight at sentencing, though it did not displace the need for full-time imprisonment.
- Form 1 offences, including common assault and intimidation, were taken into account in sentencing for the principal rape charge, increasing the overall seriousness recognised by the court without generating separate penalties.
- Early, full admissions made in electronically recorded interview, coupled with in-court expressions of remorse (including in the presence of the victim), were treated as genuine and afforded mitigating weight by the sentencing judge.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 37(1), 61I
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), s 166
Cases
- Pearce v R [1998] HCA 57
- Baradi v R [2018] NSWCCA 143
- R v Hamid [2006] NSWCCA 302