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District Court 14 February 2020

R v Bourke (a pseudonym)

[2020] NSWDC 10

Sexual offencesAssault & violenceTheft & propertyDomestic & family violencePublic order & justice offences
CRIME SENTENCE SEXUAL INTERCOURSE WITHOUT CONSENT ASSAULT WITH ACT OF INDECENCY COMMON ASSAULT INTIMIDATION

Citation: R v Bourke (a pseudonym) [2020] NSWDC 10
Court: District Court of New South Wales
Date: 14 February 2020
Judge: Colefax SC DCJ

Background

The offender, referred to by the pseudonym Bourke, was sentenced in relation to 14 offences arising from criminal conduct against two victims, identified by the pseudonyms Suzanna and Ms Jones. Non-publication orders were made protecting the identities of the offender and both victims.

Eleven of the offences were the subject of jury verdicts following a trial in September 2019, at which the jury found the offender guilty on all counts. Two further offences were dealt with by way of a section 166 certificate, and one offence was the subject of a late guilty plea entered after the jury returned its verdicts.

The offending against Suzanna involved sexual intercourse with a person aged between 14 and 16 years, arising from events that occurred between 2011 and 2012 when both parties were teenagers. The offending against Ms Jones, a 45-year-old woman with whom the offender had a brief relationship, took place on the night of 23 to 24 December 2017 when the offender was 22 years old. That offending included multiple counts of sexual intercourse without consent, assault with acts of indecency, threatened use of an offensive weapon, intimidation, common assault, larceny, and destruction of property.

  • The appropriate aggregate sentence for 14 offences spanning two separate victims and distinct episodes of offending
  • The indicative sentence for each individual offence, including the weight given to standard non-parole periods where applicable
  • Whether a discount for guilty plea applied, and what weight to give to the utilitarian value of the late plea
  • Whether remorse warranted a reduction in sentence
  • The relevance of the offender's background and personal circumstances, including any consideration of the principles in Bugmy v R
  • The applicable sentencing approach where the principal offence involving Suzanna was committed when the offender was a juvenile
  • How to set a non-parole period within the aggregate sentence framework, having regard to totality and prospects for rehabilitation

Decision

His Honour sentenced the offender across all 14 offences, setting out indicative sentences for each count before arriving at an aggregate term. The indicative sentences for the offences against Ms Jones ranged from 6 months (for the intimidation and property damage matters) up to 12 years imprisonment (for one of the counts of sexual intercourse without consent), with indicative non-parole periods fixed for the more serious rape counts. The indicative sentence for the offence against Suzanna, taking the Form 1 matter into account, was set at 4 years and 9 months, reflecting a 5 per cent discount for the utilitarian value of the guilty plea.

The court applied a 5 per cent reduction to the sentence for the offence involving Suzanna on account of the late plea of guilty. No additional discount for remorse was applied, as the court found no persuasive evidence of genuine remorse. In relation to Suzanna's victim impact statement, which described ongoing mental illness, suicidal thoughts, and acts of self-harm, the court noted the Crown's specific submission that there were no additional aggravating factors in connection with that victim, and accepted that submission accordingly.

The offence against Suzanna was determined to fall slightly below the mid-range of objective seriousness for its kind. The court noted it was not a serious children's indictable offence, but ordered that the offender be dealt with according to law, having regard to the seriousness of the conduct and the offender's age and maturity at both the time of the offence and at sentencing.

Applying the principle of totality, the court imposed an aggregate sentence of 16 years and 6 months imprisonment, with a non-parole period of 12 years. The non-parole period was backdated to 24 December 2017, reflecting time already spent in custody.

Orders Made

  • The offender was ordered to be dealt with in accordance with law in respect of the offence involving Suzanna, notwithstanding that it was not classified as a serious children's indictable offence
  • An aggregate sentence of 16 years and 6 months imprisonment was imposed across all 14 offences
  • A non-parole period of 12 years was fixed, commencing 24 December 2017 and expiring 23 December 2029
  • A balance of term of 4 years and 6 months was fixed, commencing 24 December 2029 and expiring 23 June 2034
  • Non-publication orders were confirmed and continued in respect of the names of the offender and both victims

Key Takeaways

  • An aggregate sentence of 16 years and 6 months, with a 12-year non-parole period, was imposed for 14 offences including six counts of sexual intercourse without consent, one threatened use of an offensive weapon, and associated sexual and violent offending against two separate victims.
  • A late guilty plea attracted only a 5 per cent utilitarian discount; the court found no persuasive evidence of remorse to justify any further reduction.
  • Where the Crown expressly submitted there were no additional aggravating factors in connection with a victim, the District Court accepted that submission even where the victim impact statement might otherwise have indicated substantial emotional harm capable of constituting an aggravating factor.
  • The court set indicative sentences for each count before applying a totality assessment, as required when imposing an aggregate sentence under NSW sentencing law.
  • The non-parole period was fixed at a length designed to serve both the purposes of punishment and the offender's rehabilitation, in accordance with established sentencing principle.

Legislation and Cases Referenced

Legislation

  • Crimes Act 1900 (NSW): ss 61 (common assault), 61I (sexual intercourse without consent), 61L (assault with act of indecency), 66C(3) (sexual intercourse with person aged 14 to 16), 32B(1)(a) (threatened use of offensive weapon with intent to commit indictable offence), 117 (larceny), 195(1)(a) (destroying or damaging property)
  • Crimes (Domestic and Personal Violence) Act 2007 (NSW): s 13(1) (intimidation)

Cases

  • Bugmy v R [2013] 249 CLR 571