AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 6 February 2019

R v Phillips

[2019] NSWDC 906

Sexual offences
CRIME SENTENCE UNCONVENTIONAL LIVING ARRANGEMENTS UNPLANNED INCIDENT IMMEDIATE ADMISSIONS AND REMORSE AGE DIFFERENCE

Citation: R v Phillips [2019] NSWDC 906
Court: District Court of New South Wales
Date: 6 February 2019
Judge: Norrish QC DCJ

Background

The offender pleaded guilty to one count of sexual intercourse without consent, knowing the complainant was not consenting, committed on 1 July 2018 at a rural property near Bellingen, New South Wales. A related Form 1 matter of possessing a small quantity of cannabis was also taken into account. The maximum penalty for the principal offence is 14 years imprisonment, with a standard non-parole period of seven years.

The offender, aged 45 at the time, had known the 16-year-old complainant for approximately five years. The complainant had begun living with the offender after the death of her mother, who had been a friend of the offender. The living arrangements at the time of the offence were described by the court as unconventional: the offender's former partner owned the property, the offender had been asked to sleep in a car outside following the breakdown of that relationship, and the complainant remained in the house with the approval of the property owner.

On the day of the offence, the offender was invited into the house by the complainant after his former partner left for a trip. The two spent the day watching movies in bed, exchanging massages, and sharing cannabis. The offender woke later in a close physical position with the complainant and sexually touched her while she slept. The complainant immediately left the bed, contacted a friend, and police were notified. When arrested that evening, the offender made immediate admissions and expressed remorse.

  • What was the appropriate objective seriousness of the offence, having regard to its unplanned nature and the contextual circumstances?
  • Whether the offence was aggravated by being committed in the complainant's home, within the meaning of the Crimes (Sentencing Procedure) Act 1999.
  • Whether a breach of trust under s 21A(2)(k) of the Act was established as an aggravating factor beyond reasonable doubt.
  • What sentence, including discount for an early guilty plea and time already served, was appropriate in all the circumstances?

Decision

His Honour accepted that the offence was committed in what could be regarded as the complainant's home, satisfying the statutory aggravating factor under s 21A(2) of the Act. However, the court noted that the intensity of this aggravating factor was tempered by the fact the offender himself had previously lived at the same premises and had been invited back in by the complainant on the day in question.

On the breach of trust aggravating factor, the Crown submitted that the relationship between the offender and complainant constituted a "special relationship" engaging s 21A(2)(k). The court rejected this. While the complainant undoubtedly trusted the offender, His Honour held that the facts did not establish a defined special relationship of the kind the provision contemplates, and the aggravating factor was not made out beyond reasonable doubt.

The court characterised the offence as unplanned and either opportunistic or impulsive, occurring in the context of a day of extended close proximity and shared cannabis use. The court was careful to note that cannabis intoxication is not a mitigating factor in offences of this kind, but treated it as a relevant contextual matter. The prior relationship between the offender and complainant had been entirely proper, and the offence was found to be uncharacteristic conduct.

Taking into account the 25% utilitarian discount for the early guilty plea, the objective seriousness of the offence, the offender's immediate admissions and remorse, the need for adequate supervision on release, and the Form 1 cannabis matter (which was directly connected to the circumstances of the principal offending), the court imposed a total sentence of two years and three months with a non-parole period of one year and one month.

Orders Made

  • Convicted of the principal offence of sexual intercourse without consent.
  • Sentenced to imprisonment comprising a non-parole period of one year and one month, commencing 1 July 2018 and expiring 31 July 2019.
  • Balance of sentence of one year and two months, expiring 30 September 2020.
  • Total sentence: two years and three months.
  • Form 1 cannabis possession offence taken into account.

Key Takeaways

  • The District Court confirmed that all statutory aggravating factors carry degrees of intensity depending on the specific circumstances: the "committed in the home" factor was present but its weight was reduced by the offender's own prior connection to the premises and the complainant's invitation to enter.
  • A breach of trust under s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 requires identification of a "special relationship" between offender and victim, not merely the existence of trust. The court found that an informal domestic living arrangement and longstanding friendship did not, on these facts, meet that threshold beyond reasonable doubt.
  • Cannabis intoxication at the time of a sexual assault offence does not operate as a mitigating factor in sentencing, though it may be taken into account as a contextual circumstance going to the character of the offending.
  • An early guilty plea at the first reasonable opportunity attracted a 25% discount off the otherwise appropriate sentence, consistent with the Thomson & Houlton guideline.
  • Where a Form 1 offence is directly connected to the contextual circumstances already considered in assessing objective seriousness of the principal offence, it does not necessarily warrant a substantial increase to the head sentence.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 21A(2)(k)

Cases
- Barbaro v R [2014] HCA 2
- Cowling v R [2015] NSWCCA 213
- DPP (Cth) v De La Rosa [2011] NSWCCA 194
- Greenwood v R [2014] NSWCCA 64
- Hili v R [2010] HCA 45
- R v JRB [2006] NSWCCA 371
- R v May [1999] NSWCCA 40
- R v Shortland [2018] NSWCCA 34
- R v Thomas [2007] NSWCCA 269
- R v Tuala [2015] NSWCCA 8
- R v Wilson [2005] NSWCCA 219
- Veen (No 2) v R [1988] HCA 14
- R v Thomson & Houlton [2000] NSWCCA 309 (guideline judgment on guilty plea discounts, referenced in judgment)