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District Court 22 July 2019

R v Wharehinga

[2019] NSWDC 640

Sexual offences

Citation: R v Wharehinga [2019] NSWDC 640
Court: District Court of New South Wales
Date: 22 July 2019
Judge: M L Williams SC DCJ

Background

The offender, a 46-year-old man with no prior criminal history, sexually assaulted his partner's close friend during the early hours of 1 September 2018. The victim, who had socialised with the offender for around five years, had been drinking heavily at his home and had become significantly intoxicated, with an estimated blood alcohol concentration of .263 at the time of the offence. Expert evidence confirmed that her cognition was compromised to that degree.

The victim had gone to bed after vomiting and urinating on herself. She later found herself without clothing from the waist below, and when the offender entered the garage she confronted him directly. DNA evidence confirmed his involvement. She reported to the taxi driver, her son, and her boyfriend that she believed she had been raped.

The offender was arrested that morning, declined to answer questions in interview, but subsequently entered an early guilty plea to a charge of sexual intercourse without consent under s 61I of the Crimes Act 1900. His counsel conceded from the outset that a full-time custodial sentence was required.

  • What sentence was appropriate for a charge of sexual intercourse without consent, having regard to the objective seriousness of the offence and the relevant aggravating and mitigating factors?
  • What weight should be given to the victim's intoxicated state as an aggravating factor?
  • What discount was appropriate for the utilitarian value of the early guilty plea?
  • Whether special circumstances existed to justify varying the standard ratio between the non-parole period and the head sentence?

Decision

His Honour assessed the objective seriousness of the offence as below mid-range. The offender had taken deliberate advantage of the victim's severely compromised state, and her intoxication was accepted as an aggravating factor rendering her a vulnerable victim within the meaning of the sentencing legislation.

The offender's subjective circumstances attracted considerable weight in mitigation. His early guilty plea justified a 25 per cent discount for its utilitarian value. The court also accepted that he had expressed genuine remorse, held good prospects of rehabilitation, was unlikely to reoffend, and had no prior criminal record. His role as the primary breadwinner for a partner and six children was noted, though it did not rise to the level of exceptional hardship.

His Honour acknowledged the strong need for general deterrence in sexual assault matters and the community's condemnation of such offences. The standard non-parole period of seven years was noted as a yardstick but was found not to assume particular significance on the facts of this case.

Special circumstances were found, justifying a variation of the statutory ratio between the non-parole period and the total sentence. The primary basis was that this was the offender's first time in custody, together with considerations relating to the manner of his imprisonment.

Orders Made

  • The offender was convicted of the offence.
  • A sentence of imprisonment of 2 years and 3 months was imposed, commencing 19 July 2019 and expiring 21 October 2021.
  • A non-parole period of 15 months was imposed, expiring 21 October 2020.
  • Special circumstances were found.

Key Takeaways

  • The District Court treated the victim's severe intoxication, and the offender's deliberate exploitation of that state, as an aggravating factor going to vulnerability, even where the victim was a close personal acquaintance rather than a stranger.
  • An early guilty plea to a charge carrying a maximum of 14 years imprisonment and a standard non-parole period of seven years attracted a 25 per cent discount for its utilitarian value.
  • Where an offender is assessed as below mid-range on objective seriousness and presents strong mitigating factors including remorse, rehabilitation prospects, prior good character, and no criminal history, the standard non-parole period operates as a yardstick rather than a determinative benchmark.
  • A finding of special circumstances, justifying a departure from the statutory non-parole ratio, remained available where the offender was a first-time custodial prisoner.
  • The sentencing purposes under s 3A of the Crimes (Sentencing Procedure) Act 1999 required the court to weigh general deterrence and community denunciation of sexual assault against a substantive body of individualised mitigating material.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I (sexual intercourse without consent; maximum 14 years imprisonment; standard non-parole period of seven years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A (purposes of sentencing)

Cases cited: No cases were cited in the judgment.