Citation: R v Hines [2020] NSWDC 511
Court: District Court of New South Wales
Date: 30 July 2020
Judge: Bourke SC DCJ
Background
The offender and the victim had been close friends for approximately four years, having met at school in Tamworth. By mid-2019 they lived in different parts of Sydney and would meet socially about once a month, with the offender regularly sleeping over at the victim's house given the distance between their homes.
On 12 July 2019, after a night of significant drinking together, the offender stayed overnight at the victim's house as arranged. In the early hours of the morning, while the victim was asleep in her own bed, the offender touched her breasts, pulled down her underpants, digitally penetrated her vagina causing her physical pain, and ground his erect penis against her. The victim woke, froze, and attempted to move away but was physically restricted by the offender's body weight. The offender left after the victim's flatmate intervened.
Following the incident, text messages were exchanged in which the offender apologised repeatedly and acknowledged he had done wrong, while maintaining he had not realised the victim was asleep. The victim later reported the matter to police, and the offender was charged with sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW). He pleaded guilty at the earliest opportunity.
Legal Issues
- What was the appropriate objective seriousness of the offence relative to other offences under s 61I?
- What subjective factors were relevant to the sentence, including the offender's youth, character, and intoxication?
- Whether full-time imprisonment was warranted, and if so, what head sentence and non-parole period were appropriate.
- Whether special circumstances existed to justify departing from the standard ratio between the non-parole period and the head sentence, and whether the standard non-parole period of seven years should be departed from.
Decision
Objective seriousness: His Honour found the offence fell below the mid-range of objective seriousness but towards the lower range, while expressly noting this characterisation did not trivialise it. The offence was aggravated by occurring in the victim's home and bed, a place where she had every right to feel safe. Although no violence beyond that inherent in the sexual assault was involved, the conduct was sustained and not merely fleeting. The court approached the offence on the basis that the offender was reckless as to consent, meaning he either recognised the possibility the victim had not consented and proceeded regardless, or simply failed to turn his mind to the question.
Intoxication: The offender's heavy intoxication at the time provided context for otherwise uncharacteristic behaviour but was treated as offering no excuse or mitigation.
Subjective factors: The offender was 25 years old at the time of sentencing and had no prior criminal history. His Honour accepted evidence of genuine remorse, good character references, a stable upbringing, and meaningful community ties. The court applied the principle from BP v The Queen [2010] NSWCCA 159 that emotional maturity and impulse control may not be fully developed until the early-to-mid twenties, treating the offender's relative youth as a factor supporting rehabilitation. The 25 per cent guilty plea discount was applied.
Sentence: His Honour was satisfied that full-time imprisonment was the only appropriate penalty, a conclusion accepted by both parties. A finding of special circumstances was made, justifying a departure from the standard one-third ratio between non-parole period and head sentence. The grounds for that finding included the offender's youth, the fact that this was his first custodial sentence, the desirability of extended post-release supervision, and the additional hardship of commencing custody during the COVID-19 pandemic, which restricted family visits. The standard non-parole period of seven years was departed from, with the Crown accepting such a departure was justified.
Orders Made
- The offender was convicted of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW).
- Head sentence of two years' imprisonment, expiring 29 July 2022.
- Non-parole period of 12 months, expiring 29 July 2021.
- Sentence to date from 30 July 2020.
Key Takeaways
- Sexual intercourse without consent committed against a sleeping victim in her own home and bed constitutes an aggravating circumstance, even where no additional physical violence beyond that inherent in the offence is present.
- Heavy intoxication at the time of the offence provides contextual explanation for otherwise uncharacteristic behaviour but carries no weight as mitigation in sentencing for sexual assault.
- A finding of special circumstances justifying departure from the standard non-parole period ratio can be supported by a combination of factors including the offender's youth, a first custodial sentence, the need for post-release supervision, and the additional hardship of serving custody during a period of pandemic-related restrictions.
- Under s 61I of the Crimes Act 1900 (NSW), recklessness as to consent, meaning proceeding without turning one's mind to whether consent existed, is a sufficient mental state to ground the offence.
- Applying BP v The Queen, a sentencing court may treat incomplete emotional maturity in young adult male offenders as a factor relevant to the weight given to rehabilitation alongside deterrence.
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:
- BP v The Queen [2010] NSWCCA 159
- Bugmy v The Queen [2013] HCA 27
- Perkins v R [2018] NSWCCA 62