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District Court 14 August 2020

R v Brookes

[2020] NSWDC 440

Sexual offences

Citation: R v Brookes [2020] NSWDC 440
Court: District Court of New South Wales
Date: 14 August 2020
Judge(s): Letherbarrow SC DCJ

Background

Following a jury trial, the offender was convicted of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW). The offence occurred on 16 December 2018 at Ashfield, just seven days after the offender had been released on parole for earlier offences involving police.

The offender and the victim had been in a sexual relationship since early 2018, and consensual intercourse had occurred on several occasions in the days immediately preceding the offence. In the early hours of 16 December, after the victim fell asleep having asked to stop consensual intercourse, the offender returned and engaged in penile/vaginal intercourse with her without her consent. Both parties accepted that the offender held an honest but unreasonable belief in consent, rather than actual knowledge of non-consent.

At the sentencing hearing, the court received a victim impact statement, a psychiatric report, character references, an affidavit from the offender, and written submissions from both parties. The offender did not give oral evidence at sentence.

  • What facts could properly be found consistent with the jury's verdict, particularly regarding the offender's state of mind as to consent?
  • Whether the jury note could or should be used to draw inferences about the basis of the verdict
  • Whether the offender's time in custody following revocation of his parole for earlier offences warranted backdating the commencement of the sentence
  • Whether special circumstances existed to justify departing from the statutory ratio between the non-parole period and the balance of sentence
  • What action, if any, should be taken on breaches of two Community Correction Orders arising from the subject offending

Decision

Facts and the jury note. The parties both sought to rely on a jury note to confirm that this was a case of honest but unreasonable belief in consent rather than actual knowledge of non-consent. Letherbarrow SC DCJ treated that approach with caution, describing it as "dangerous and perhaps impermissible." His Honour reached the same factual conclusion, but did so by reference to the trial evidence rather than the jury note.

Backdating the sentence. After the offender was arrested for the subject offence in December 2018, the Parole Authority revoked his parole for the earlier offences and he served a further seven months and 25 days in custody. Because that revocation was caused entirely by the subject offending, the court held it had a discretion under Callaghan v R (2006) 168 A Crim R 145 to backdate the commencement of the new sentence. A backdate of four months was considered appropriate, fixing the commencement date as 18 August 2018.

Special circumstances. The court found this a difficult question but ultimately made a positive finding of special circumstances, based primarily on the offender's mental health. The statutory ratio was varied, though only modestly. Relevant factors raised by the defence included the offender's mental health conditions, assaults suffered in custody, and the environment within the prison. The court noted it could find no evidence to support one particular claim, namely that a fellow prisoner had tested positive for COVID-19.

Community Correction Orders. Both parties submitted that no action should be taken on the two called-up Community Correction Orders, which related to knife possession offences. The court agreed, noting that the offences were of an entirely different character to the sexual assault, one order had already expired, and resentencing would not cross the threshold for imprisonment in any event.

Orders Made

  • The offender was convicted of sexual intercourse without consent.
  • A non-parole period of 2 years and 5 months was imposed, commencing 18 August 2018 and expiring 17 January 2021.
  • The total sentence is 3 years and 9 months, commencing 18 August 2018 and expiring 17 May 2022.
  • No action was taken on the breaches of the two Community Correction Orders.

Key Takeaways

  • The District Court declined to use a jury note to determine the basis of a verdict for the purposes of sentencing, treating that as a "dangerous and perhaps impermissible" enquiry and instead relying on the trial evidence to make factual findings consistent with the verdict.
  • Where custody served following a parole revocation is attributable entirely to the commission of the offence for which sentence is being imposed, the court retains a discretion to backdate the commencement of the new sentence to account for that time, as confirmed in Callaghan v R.
  • A finding of special circumstances does not automatically produce a substantial variation to the statutory non-parole period ratio; the degree of variation should reflect the weight of the circumstances established.
  • Honest but unreasonable belief in consent, as distinct from knowledge of non-consent, remains a relevant factual matter at sentencing and may bear on the objective seriousness of the offence.
  • In determining whether to take action on breached Community Correction Orders, courts will consider the nature and vintage of the underlying offending, the status of the orders, and whether resentencing would serve any practical utility.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61I (sexual intercourse without consent)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Callaghan v R (2006) 168 A Crim R 145
- Markarian v The Queen [2005] HCA 25
- R v May [1999] NSWCCA 40
- R v Daley [2010] NSWCCA