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District Court 11 February 2019

R v Mansory

[2019] NSWDC 104

Sexual offences
CRIMINAL SENTENCE SEXUAL INTERCOURSE WITHOUT CONSENT SUBJECTIVE MATTERS MENTAL HEALTH ISSUES FITNESS TO PLEAD

Citation: R v Mansory [2019] NSWDC 104
Court: District Court of NSW
Date: 11 February 2019
Judge: King SC DCJ

Background

The offender, a 32-year-old man, approached a 16-year-old high school student outside the State Library in Sydney's CBD on 4 July 2015. After following her to a nearby fast food outlet and walking with her towards a train station, he pulled her into a recessed area on Elizabeth Street and digitally penetrated her vagina without her consent. The victim was in shock during the assault and ran to her train immediately afterwards, contacting friends and her father in distress.

The offender was arrested two days later when police spotted him near the original scene. He denied the assault in his police interview, claiming any physical contact had been consensual and that the victim had appeared to be around 20 to 21 years of age.

He was committed for sentence at the Central Local Court on 15 December 2016, having entered a guilty plea to one count of sexual intercourse without consent under s 61I of the Crimes Act 1900. Notably, while on bail for this matter, he committed a similar offence in South Australia.

  • What sentence was appropriate for a single offence of sexual intercourse without consent against a 16-year-old victim?
  • What discount, if any, applied for the guilty plea?
  • How should the offender's mental health diagnosis (Bipolar Affective Disorder) and questions about his fitness to plead affect sentencing?
  • How should the interstate reoffending on bail and the resulting South Australian sentence be addressed, particularly regarding totality and the structure of the non-parole period?

Decision

The court accepted that the offender was entitled to a 25% discount on his sentence for the utilty of his early guilty plea, consistent with the principles in Thomson and Houlton (2000) 49 NSWLR 383. This reflected the plea having been entered at an early stage rather than any expression of genuine remorse, which the court found limited.

On mental health, the court acknowledged the offender's diagnosis of Bipolar Affective Disorder and considered questions about his fitness to plead. These matters were treated as having some mitigating weight, but did not displace the fundamental sentencing purposes of punishment, general and specific deterrence, and community protection. The court found specific deterrence remained relevant, though somewhat diminished by the mental health considerations.

The court addressed the South Australian conviction separately. Because the offender had committed a similar offence interstate while on bail for this matter, the court considered the totality of both sentences in structuring the non-parole period. The court determined that a more extended parole period was warranted. The purpose was to provide greater supervision and support upon release, given the risk of reoffending and the offender's need for continued psychiatric medication.

The court was satisfied that no penalty other than imprisonment was appropriate. No submission to the contrary was made on the offender's behalf.

Orders Made

  • The offender was convicted of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900.
  • Sentenced to imprisonment with a non-parole period of three years, commencing 31 July 2016, expiring 30 July 2019.
  • Balance of term: one year and six months, giving a total sentence of four years and six months.
  • Total sentence expires 30 January 2021.
  • Release at the end of the non-parole period is not automatic and is subject to determination by Corrective Services.
  • A suppression order was made in relation to the victim's name and any evidence identifying her.

Key Takeaways

  • A diagnosis of Bipolar Affective Disorder, including associated fitness-to-plead considerations, may reduce the weight given to specific deterrence in sentencing, but does not displace the core purposes of punishment and community protection.
  • Committing a similar offence interstate while on bail is a significant aggravating factor and is taken into account in assessing the overall character of the offender.
  • Under the Thomson and Houlton principles, a 25% discount for guilty plea applies where the plea is entered at an appropriately early stage, even where the court finds remorse to be limited.
  • Where an offender has also been sentenced in another jurisdiction for related conduct, the totality principle informs the structure of the non-parole period, not merely the head sentence.
  • The District Court varied the statutory relationship between the non-parole period and the balance of term on the basis that this was the offender's first period of custody and that a longer parole period was needed to reduce the risk of reoffending and to facilitate ongoing treatment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I (sexual intercourse without consent)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5

Cases:
- Thomson and Houlton (2000) 49 NSWLR 383 (guilty plea discounts)