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District Court 13 July 2020

R v Smith

[2020] NSWDC 459

Sexual offences

Citation: R v Smith [2020] NSWDC 459
Court: District Court of New South Wales
Date: 13 July 2020
Judge: M L Williams SC DCJ

Background

The offender, a 45-year-old scaffolder, was found guilty by a jury at Goulburn District Court in February 2020 of one count of sexual intercourse without consent under s 61I of the Crimes Act 1900. The offence occurred in the early hours of 1 January 2019 at a private residence in Moss Vale, following a New Year's Eve gathering at which both the offender and the victim had been drinking.

The victim had gone to sleep in a spare room and woke to find the offender on top of her engaged in penile/vaginal intercourse. She initially believed it was her boyfriend, but quickly realised it was not and told the offender to stop. He replied that he had not finished and only left after she attempted to push him away. The offender later sent a text message asserting that the encounter was consensual. The jury rejected that account.

At the time of the offence, the offender was on conditional liberty following a sentence imposed in Queensland for a prior offence committed in April 2018.

  • What sentence was appropriate for a conviction of sexual intercourse without consent in these circumstances?
  • What weight should be given to the victim impact statement?
  • How should the offender's intoxication at the time of the offence be treated?
  • Did special circumstances exist justifying a reduction in the non-parole period below the statutory ratio?
  • What mitigating factors, including prospects of rehabilitation, were available to the offender?
  • Whether the prospect of deportation could be taken into account on sentence.

Decision

His Honour accepted that the offence was seriously objectively grave. The victim was asleep and had an elevated blood alcohol concentration that medical evidence indicated could cause drowsiness, altered consciousness, and reduced perception of physical stimulus. The offender penetrated the victim without consent and, after she woke and told him to stop, continued momentarily before leaving. His Honour found the offender must have engaged in a limited degree of planning to enter the spare room, even though the offending was broadly opportunistic.

The offender's intoxication at the time received limited mitigation. His Honour acknowledged the offender was heavily intoxicated but found he retained sufficient capacity to engage in at least minimal planning. Consistent with established authority, serious intoxication does not excuse conduct of this nature.

The victim's impact statement was read in court. His Honour gave it significant weight, applying the principle from R v Thomas [2007] NSWCCA 269 that weight is appropriately given to such a statement where the offending is established beyond reasonable doubt and the statement is confined to the subsequent effects on the victim.

On mitigating factors, His Honour found the offender had reasonable prospects of rehabilitation, particularly if he undertook alcohol treatment and counselling. He had complied with bail conditions both before and after his conviction, had no history of illicit drug use, and was assessed as a low risk of reoffending. The potential for deportation to New Zealand was raised but His Honour declined to take it into account, consistent with authority. A finding of special circumstances was made, primarily on the basis of the offender's need for alcohol treatment, resulting in a non-parole period shorter than the standard ratio. The aggravating factor of committing the offence while on conditional liberty in Queensland was taken into account in accordance with the Crimes (Sentencing Procedure) Act 1999.

Orders Made

  • The offender was convicted of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900.
  • A sentence of imprisonment of 3 years and 6 months was imposed, commencing 12 July 2020.
  • A non-parole period of 2 years and 5 months was set, expiring 11 December 2022.
  • Special circumstances were found.

Key Takeaways

  • The District Court confirmed that heavy intoxication by an offender does not operate as a substantial mitigating factor where the offender retained sufficient capacity to engage in some degree of planning before committing a serious sexual offence.
  • A victim impact statement confined to the subsequent effects of an offence on the victim is entitled to significant weight in sentencing, even though it is not given on oath and is not tested, provided the underlying conduct has been established beyond reasonable doubt.
  • Committing a serious offence while on conditional liberty remains a statutory aggravating factor under the Crimes (Sentencing Procedure) Act 1999, and the court applied it here without dispute.
  • Prospects of deportation following a custodial sentence are not a matter available to a sentencing court as a mitigating factor, consistent with existing authority.
  • Special circumstances justifying a departure from the standard non-parole period ratio may be found where an offender has a demonstrated need for alcohol treatment programs during and after custody, even in the absence of other significant criminogenic factors.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I (sexual intercourse without consent)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A (purposes of sentencing)

Cases:
- R v Thomas [2007] NSWCCA 269
- Cordeiro v The Queen [2019] NSWCCA 308
- Day v The Queen [2017] NSWCCA 192
- Jeffreys v The Queen [2015] NSWCCA 132
- R v Tonari [2014] NSWCCA 232