Citation: R v Jonathan Anthony Deane [2019] NSWDC 109
Court: District Court of New South Wales
Date: 28 March 2019
Judge(s): Mahony SC DCJ
Background
The offender, a 23-year-old British national on a working holiday visa, was charged with one count of sexual intercourse without consent under s 61I of the Crimes Act 1900. The offence occurred on 30 June 2018 in a motel room in Narrabri, where the offender and the victim, colleagues at a nearby farm, were sharing accommodation after their car broke down.
Both had consumed significant quantities of alcohol during the evening. While the victim was asleep, the offender digitally penetrated her vagina for a period of five to ten minutes. When she woke and told him to stop, he ceased immediately.
Shortly after the incident, the offender attended Narrabri Police Station, made unsolicited contact with police, and gave full admissions in an ERISP interview. He pleaded guilty at an early stage. By the date of the sentence hearing, he had been in custody for approximately eight months and twenty-six days.
Legal Issues
- What was the objective seriousness of the offending, and where did it fall within the range for offences under s 61I of the Crimes Act 1900?
- Whether the motel room constituted the victim's "temporary home" as an aggravating factor under s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (CSPA)
- What mitigating factors applied, including the offender's good character, remorse, cooperation with authorities, and early plea of guilty
- Whether special circumstances existed under s 44(2) of the CSPA to justify varying the statutory ratio between head sentence and non-parole period
- Whether the s 5 threshold in the CSPA (requiring that a court not impose full-time imprisonment unless no other penalty is appropriate) was crossed
Decision
Objective seriousness
The court placed the objective seriousness of the offending below mid-range and towards the middle of the low range for a s 61I offence (at [51]). His Honour noted that digital penetration is not necessarily less serious than penile penetration, consistent with the Court of Criminal Appeal's decision in R v Hibberd and Diaz v R, and emphasised that seriousness turns on the particular facts (at [51]). The relevant circumstances included that the victim was intoxicated and asleep, making her vulnerable, and that the penetration lasted up to ten minutes. The absence of any threat of violence or coercion was relevant to the assessment (at [51]).
Aggravating factor: temporary home
The court rejected the Crown's submission that the motel room constituted the victim's temporary home for the purposes of s 21A(2)(eb) (at [52]). Both parties had agreed to share the room with two beds for one night only, and the offending was opportunistic rather than planned.
Mitigating factors and subjective matters
The court identified a range of mitigating factors: the offending was unplanned and opportunistic; the offender had no criminal history in Australia or the United Kingdom; he was a person of good character with good prospects of rehabilitation; he expressed immediate remorse; and he assisted law enforcement authorities in a manner that facilitated the administration of justice, including by preserving forensic evidence (at [52], [57]). A forensic psychologist assessed his ADHD, his alcohol intoxication at the time, and his limited sexual experience as contextual factors in the offending, though these did not reduce his moral culpability (at [22]-[24], [55]).
Plea discount, special circumstances, and sentence
The court allowed a 25 percent utilitarian discount for the early plea of guilty (at [57]). Special circumstances were found under s 44(2) of the CSPA, based on the offender's young age, social immaturity, the hardship he faced as a foreign national in custody with no visitors and facing deportation, and the fact that this was his first time in custody (at [58]). The court found the s 5 threshold was crossed and that no penalty other than full-time imprisonment was appropriate (at [59]). The statutory non-parole period ratio was varied accordingly.
Orders Made
- The offender was convicted of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900.
- Head sentence of 2 years imprisonment imposed.
- Non-parole period of 12 months, commencing 30 June 2018 and expiring 29 June 2019.
- Balance of term: 12 months from 30 June 2019.
- Parole eligibility date: 29 June 2019.
Key Takeaways
-
The District Court confirmed that digital penetration is not inherently less serious than other forms of sexual penetration under s 61I; objective seriousness must be assessed on the specific facts of each case, including duration, vulnerability of the victim, and the presence or absence of violence or coercion (at [51]).
-
A shared motel room booked for a single night by two people who both had a right to be there did not constitute the victim's "temporary home" for the purposes of the aggravating factor in s 21A(2)(eb) of the CSPA (at [52]).
-
Where an offender attends police unprompted, makes full admissions, and facilitates the preservation of forensic evidence, those steps may attract leniency in sentencing as cooperation with law enforcement authorities under s 21A(3)(m), even where the offence would likely have been detected regardless (at [57]).
-
Special circumstances justifying a departure from the standard non-parole period ratio can arise where a first-time offender is a foreign national who has received no visits in custody, faces deportation on release, and presents with youth and immaturity as well as good prospects of rehabilitation (at [58]).
-
Under s 29(3) of the CSPA, the absence of a Victim Impact Statement does not give rise to an inference that the offending caused little or no harm to the victim; a sentencing court may accept that psychological trauma was suffered even without a formal statement, particularly for an offence of this nature (at [53]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999
Cases
- Diaz v R [2018] NSWCCA 33
- Doe v R [2013] NSWCCA 248
- Ibbs v R (1987) 163 CLR 447
- R v Hibberd (2009) 194 A Crim R 1