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District Court 12 December 2019

R v Brisbane (a pseudonym)

[2019] NSWDC 785

Sexual offencesDomestic & family violencePublic order & justice offences
CRIME SENTENCE

Citation: R v Brisbane (a pseudonym) [2019] NSWDC 785
Court: District Court of NSW
Date: 12 December 2019
Judge: Colefax SC DCJ

Background

The offender (referred to by the pseudonym "Brisbane") was in a domestic relationship with the victim for approximately three years. The relationship was characterised by sustained domestic abuse. After the parties separated, and while the offender was on bail for prior alleged offences involving the same victim, he entered her home late at night using a key, refused to leave, and sexually assaulted her.

Following his arrest and while on remand, the offender arranged for his mother to repeatedly contact the victim in an attempt to persuade her to withdraw her cooperation with police. This conduct breached both an apprehended violence order (AVO) that had been varied to prohibit any contact, and constituted a separate offence of doing an act intending to pervert the course of justice.

The offender was 28 years old at the time of sentencing. He had a prior criminal history, a significant long-term drug abuse problem, and, according to both the sentence assessment report and a psychological report, displayed no remorse or insight into his offending.

  • What was the appropriate sentence for sexual intercourse without consent in a domestic violence context, having regard to objective seriousness, aggravating factors, and subjective circumstances?
  • What were the appropriate indicative sentences for perverting the course of justice and contravening an AVO, and how should those sentences relate to the principal offence?
  • What discount applied for the guilty plea entered on arraignment?
  • What were the offender's prospects of rehabilitation, and how did that bear on the structure of the sentence?

Decision

Colefax SC DCJ assessed the rape as a mid-range offence of its kind. The judge identified several aggravating features specific to that offence: it occurred in the victim's home, it was committed while the offender was on conditional liberty (bail), and it involved both an explicit threat of rape and the use of actual violence. The perverting the course of justice offence and the AVO breach were each assessed as falling towards but not at the bottom of the range of objective seriousness for their respective categories.

The offender's subjective case was significantly weakened by his attitude as disclosed in the pre-sentence reports. He denied the offence entirely to the sentence assessment report author, minimised the role of drug use in his conduct, expressed no remorse, and showed no interest in rehabilitation. The judge found his prospects of rehabilitation to be poor, and noted that specific deterrence, general deterrence, and community protection were all squarely engaged.

A 10% discount was applied to each indicative sentence to reflect the guilty pleas entered on arraignment. The sentences for perverting the course of justice and the AVO breach were structured as totally concurrent with each other but partially accumulated on the sexual assault sentence. Applying the principle of totality, the commencement date was set at 14 December 2018, the day after the offender's related prior custody ended.

Orders Made

  • Aggregate sentence of 7 years' imprisonment, commencing 14 December 2018.
  • Non-parole period of 5 years and 3 months, expiring 13 March 2024.
  • Balance of term of 1 year and 9 months, expiring 13 December 2025.

Indicative sentences (underpinning the aggregate):
- Sexual intercourse without consent: 6 years and 3 months (indicative non-parole period of 4 years and 8 months).
- Doing an act intending to pervert the course of justice: 1 year and 9 months (concurrent).
- Contravening an AVO: 5 months (concurrent).

Key Takeaways

  • The District Court treated rape committed in the victim's home, while the offender was on bail, with an express prior threat, as a mid-range offence attracting an indicative head sentence of 7 years before the guilty plea discount.
  • A guilty plea entered on arraignment attracted a 10% discount under the applicable sentencing framework, reducing each indicative term accordingly.
  • Where an offender arranges for a third party to pressure a victim into withdrawing cooperation with police, that conduct can simultaneously constitute both a breach of an AVO and the separate offence of doing an act intending to pervert the course of justice under s 319 of the Crimes Act 1900 (NSW).
  • Complete absence of remorse, active denial of the offence to pre-sentence report authors, and a failure to engage with drug treatment all weighed heavily against the offender on prospects of rehabilitation, which the court assessed as poor.
  • The principle of totality informed the commencement date of the aggregate sentence, with the court back-dating it to the day after the offender's related prior custody period concluded.

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 Act 1900 (NSW), s 319 (doing an act intending to pervert the course of justice, maximum 14 years)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1) (contravening an AVO, maximum 2 years in the Local Court)

Cases cited: None stated in the judgment.