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District Court 12 October 2018

R v Zhao

[2018] NSWDC 449

Sexual offencesAssault & violence
CRIME SENTENCE GUILTY PLEA ASSAULT WITH ACT OF INDECENCY FORM 1 MATTERS

Citation: R v Zhao [2018] NSWDC 449
Court: District Court of New South Wales
Date: 12 October 2018
Judge(s): Wilson SC DCJ

Background

The offender, a 24-year-old man, attended a dinner party at a mutual friend's unit in Burwood Heights on 18 March 2017. The complainant, a 25-year-old woman, was also a guest. The offender had previously expressed romantic interest in the complainant via a Chinese social media app; she had declined his invitations.

During the evening, while the complainant used a bathroom within the unit, the offender entered without consent. He sat on her lap while she was on the toilet, unlatched and removed her bra, and touched her vagina on three occasions. He also pushed her head into a wall and attempted to pull her head toward his exposed penis. The complainant repeatedly said "no" and resisted throughout.

The offender was arrested later that evening, observed by police to be intoxicated. The complainant suffered minor physical injuries, including redness to her knees and a lump on her head, and was taken to hospital by ambulance.

  • What was the appropriate sentence for the principal offence of assault with an act of indecency under s 61L of the Crimes Act 1900, having regard to the seriousness of the offending?
  • What weight should be given to the two additional offences taken into account on the Form 1 (a further assault with an act of indecency and a common assault)?
  • What discount was appropriate for the guilty plea, given it was entered four days after the trial was due to commence?
  • Whether special circumstances existed justifying a variation to the standard non-parole period ratio.
  • Whether the complainant's presence in the bathroom (in a state of undress) could be treated as a mitigating factor on the basis of contributory vulnerability.

Decision

Wilson SC DCJ sentenced the offender to 26 months' imprisonment, with a non-parole period of 17 months commencing 12 October 2018. The head sentence reflected a starting point of 30 months, reduced by 12 percent to account for the late guilty plea.

The court rejected any suggestion that the complainant's use of the bathroom while undressed contributed to the offending or diminished its seriousness. Being in a bathroom in a state of undress for ordinary purposes carries no implication of consent or vulnerability of a kind that could mitigate an offender's culpability for entering without permission and committing acts of indecency.

The court found special circumstances warranting a longer parole period than the statutory default, citing the offender's need for supervision and support on release, including the availability of a psychological report prepared by Mr Chafic Awit. This adjustment resulted in a non-parole period of 17 months against a head sentence of 26 months, a ratio somewhat below the standard one-third split.

The Form 1 matters, comprising the additional indecent assault and the common assault, were taken into account by increasing the weight given to personal deterrence and the community's entitlement to retribution. The court also noted that the matter was appropriately dealt with in the District Court rather than the Local Court, while confirming the sentence was not intended to be "crushing" in nature.

Orders Made

  • The offender convicted of assault with an act of indecency contrary to s 61L of the Crimes Act 1900.
  • Non-parole period of 17 months, commencing 12 October 2018 and expiring 11 March 2020.
  • Head sentence of 26 months, expiring 11 December 2020.
  • Direction that the psychological report by Mr Chafic Awit accompany the offender's Warrant of Commitment.
  • Form 1 matters certified as taken into account.

Key Takeaways

  • The District Court confirmed that a complainant's physical state or location at the time of an offence does not constitute contributory vulnerability capable of mitigating sentence where the complainant was doing nothing more than engaging in an ordinary, private activity.
  • A guilty plea entered four days before the scheduled trial commencement attracted only a 12 percent discount, reflecting the limited utilitarian value of a late plea.
  • Form 1 offences increase a sentence by elevating the weight given to personal deterrence and community retribution, rather than by treating each charge as a standalone penalty.
  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 can justify a reduced non-parole period ratio where evidence supports a need for structured post-release supervision, such as a psychological report recommending ongoing support.
  • Where an offence is within the concurrent jurisdiction of the Local Court and the District Court, the appropriate forum is determined by the sentence actually warranted: if sentencing principles produce a term beyond Local Court jurisdiction, the District Court is the proper venue.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61 (common assault), 61L (assault with act of indecency)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Aslan v R [2014] NSWCCA 114
- Barbaro v R; Zirilli v R (2014) 253 CLR 58
- Baines v R [2016] NSWCCA 132
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Knight v R [2015] NSWCCA 222
- Muldrock v The Queen (2011) 244 CLR 120
- R v Cortese [2013] NSWCCA 148
- R v Daley [2010] NSWCCA 223
- R v Einfeld [2010] NSWCCA 87
- R v Engert (1995) 84 A Crim R 67
- R v Henry (1999) 46 NSWLR 346
- R v Hibberd [2009] NSWCCA 20
- R v Israil [2002] NSWCCA 255
- R v King (Court of Criminal Appeal, 18 July 1991, unrep)
- R v Kwon [2004] NSWCCA 456
- R v Mirzaee [2004] NSWCCA 315
- R v MJR (2002) 54 NSWLR 368
- R v Radenkovic (Court of Criminal Appeal, 6 March 1990, unrep)
- R v Rivkin (2003) 45 A Crim R 366
- R v Schneider [2016] VSCA 76