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District Court 17 December 2018

R v UNARDI

[2018] NSWDC 512

Sexual offences
CRIMINAL LAW SENTENCE EARLY PLEAS OF GUILTY 25% DISCOUNT SUBSTANTIVE OFFENCE DIGITAL PENETRATION FORM 1 CUNNILINGUS

Citation: R v UNARDI [2018] NSWDC 512
Court: District Court of New South Wales
Date: 17 December 2018
Judge(s): Tupman DCJ

Background

The offender, a 29-year-old Indonesian man, was sentenced following pleas of guilty to two charges of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW). Both offences occurred on 1 January 2018 at a shared residential unit in Sydney. The victim was a housemate who had been asleep in her bed with her boyfriend in the early morning hours of New Year's Day.

The offender entered the victim's bedroom while she slept and digitally penetrated her vagina. He then performed cunnilingus on her before she woke and realised the act was not by her boyfriend. DNA evidence confirmed the offending. The offender admitted the conduct both to the victim immediately afterward and later in a police interview, stating he had been drinking heavily and had used cocaine for the first time on New Year's Eve.

The substantive charge covered the digital penetration, while the cunnilingus was dealt with on a Form 1 (that is, it was an additional offence taken into account during sentencing for the substantive charge without a separate conviction being recorded). The offender had no prior criminal history.

  • What discount applied for early pleas of guilty, and what was the utilitarian value of those pleas?
  • What was the appropriate assessment of the objective seriousness of the offending?
  • What aggravating and mitigating factors were relevant to sentence?
  • What weight should be given to the offender's intoxication at the time of the offences?
  • What term of imprisonment was warranted, and how should the period on conditional bail be treated?
  • Whether special circumstances existed justifying a variation from the standard non-parole period ratio.

Decision

Early pleas and utilitarian value. The offender pleaded guilty at the first available opportunity to both the substantive charge and the Form 1 offence, attracting a 25% discount on the sentence. Tupman DCJ noted that the utilitarian value was particularly significant in this matter because the early pleas meant the victim never had to prepare for trial, give evidence, or be cross-examined, sparing her from reliving the experience.

Objective seriousness. The court assessed the offending as below the mid-range of objective seriousness. The acts were of short duration, there was no evidence of physical violence beyond that inherent in any non-consensual sexual act, and the sexual acts, while constituting penetration, were not at the most serious end of acts capable of amounting to sexual intercourse under the legislation. The offending was characterised as brazen and opportunistic, though the court noted the offender's deliberate entry into the bedroom slightly qualified a purely spontaneous characterisation.

Aggravation and intoxication. A significant aggravating feature was that the offence occurred in the victim's own home, in her bed, in a room she had closed, while her boyfriend was present alongside her. The court accepted she had every reason to feel safe in those circumstances, and the violation of that safety was a serious aspect of the offending. The offender's heavy intoxication and cocaine use at the time were not treated as mitigating factors, as the intoxication was self-induced.

Subjective case and sentence. The offender presented a strong subjective case: no prior criminal history, a good work history, genuine remorse and contrition demonstrated both immediately after the offences and throughout the proceedings, and a low assessed risk of sexual offending recidivism with excellent rehabilitation prospects. The court imposed a total term of 2 years' imprisonment. Tupman DCJ credited approximately 12 months of conditional bail, during which the offender was subject to a curfew that significantly restricted his liberty given his work in the hospitality industry, as roughly equivalent to 6 months' imprisonment. The sentence was backdated accordingly to 17 June 2018. Special circumstances were found, given it was the offender's first time in custody, his relative youth, and the primary importance of rehabilitation, resulting in a non-parole period of 12 months rather than the standard half of the total term.

Orders Made

  • The offender was convicted of one substantive count of sexual intercourse without consent (s 61I, Crimes Act 1900).
  • The Form 1 offence of sexual intercourse without consent (cunnilingus) was taken into account in the sentence.
  • Non-parole period of 12 months commencing 17 June 2018, expiring 16 June 2019.
  • Parole period of 12 months commencing 17 June 2019, expiring 16 June 2020.
  • Total term of imprisonment: 2 years, commencing 17 June 2018 and expiring 16 June 2020.

Key Takeaways

  • A 25% discount for utilitarian value applied where the offender pleaded guilty at the first available opportunity; the District Court emphasised that the discount was particularly justified because the early pleas relieved the victim of the burden of preparing for and giving evidence at trial.
  • The location of the offending, inside the victim's own home and bed, in a closed room, with her partner present, constituted a significant aggravating factor that increased the gravity of the violation beyond the inherent harm of non-consensual sexual intercourse.
  • Self-induced intoxication, including alcohol and first-time cocaine use, did not operate as a mitigating factor in the sentencing calculation.
  • Special circumstances justifying a reduced non-parole period ratio were found where the offender was a first-time custodial prisoner, was relatively young, and had strong rehabilitation prospects.
  • Where an offender has been subject to a restrictive bail condition such as a nightly curfew for a substantial period, the sentencing court may treat that period of restricted liberty as equivalent to a portion of actual imprisonment and backdate the sentence accordingly.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I (sexual intercourse without consent; maximum 14 years, standard non-parole period 7 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A (purposes of sentencing), 5 (imprisonment as a last resort), 12 (suspended sentences)

Cases:
- R v Thompson and Houlton & Ors (2000) 49 NSWLR 383 (Court of Criminal Appeal: discount for utilitarian value of early plea of guilty)