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District Court 6 August 2020

The Queen v Hewitt

[2020] NSWDC 566

Sexual offences
CRIMINAL LAW SENTENCING SEXUAL INTERCOURSE WITHOUT CONSENT WHETHER S5 THRESHOLD CROSSED CONSIDERATION OF NON CUSTODIAL SENTENCE

Citation: The Queen v Hewitt [2020] NSWDC 566
Court: District Court of New South Wales
Date: 6 August 2020
Judge: Wilson SC DCJ

Background

The offender, a 25-year-old university student, was convicted by a jury of one count of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW). The offending occurred on 22 November 2016 at Pearl Beach. The offender and the complainant were longstanding friends who had been sleeping on a couch together at a house gathering when, as the complainant woke, she became aware of the offender's fingers inside her vagina. She had not consented. The offender was 21 at the time, as was the complainant.

Following a police investigation, the offender was charged in March 2017 and remained on bail throughout the proceedings. The jury returned its verdict in October 2019, and sentencing proceeded before Wilson SC DCJ in August 2020 on agreed facts consistent with that verdict.

The central contested issue at the sentencing hearing was not the facts of the offending but whether the court should impose a custodial sentence or a community-based sentence. The offence carries a maximum penalty of 14 years' imprisonment and attracts a standard non-parole period of seven years.

  • Whether the s 5 threshold under the Crimes (Sentencing Procedure) Act 1999 (the "imprisonment as a last resort" provision) was crossed, such that a custodial sentence was required.
  • Whether the offender's psychiatric illness and other subjective circumstances were sufficient to justify a non-custodial sentence for an offence of this type.
  • How the standard non-parole period of seven years should inform the sentencing exercise.
  • How the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999 should be balanced against the objective seriousness of the offending and the offender's subjective circumstances.
  • Whether the circumstances were sufficiently unusual or exceptional to depart from the ordinary sentencing approach for sexual assault.

Decision

Wilson SC DCJ found that the objective seriousness of the offending was real and acknowledged the serious harm caused to the complainant. The standard non-parole period of seven years was treated as a guidepost, not a fixed benchmark, and the sentencing exercise was described as intuitive and synthetic rather than arithmetical. The court drew on the approach confirmed in Markarian v The Queen [2005] HCA 25 and the discussion of standard non-parole periods in Tepania v R [2018] NSWCCA 247.

After careful reflection, the court determined that the s 5 threshold was not crossed. This conclusion was reached on the basis of what the court described as unique circumstances, including the offender's significant psychiatric illness and his mental health rehabilitation program. The court accepted that the purposes of sentencing, including rehabilitation, could be better served by a structured community-based order with meaningful conditions than by a short period of imprisonment followed by unsupervised parole.

The court expressly recognised that imposing a non-custodial sentence for an offence of this type would ordinarily be exceptional or lenient. It did not minimise the seriousness of the offending or the harm to the complainant. However, the court concluded that the greater flexibility available under sentencing law amendments introduced in 2018 permitted an outcome that could better address rehabilitation while still reflecting the gravity of the conduct.

Orders Made

  • The offender was convicted of one count of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW).
  • A three-year Community Corrections Order was imposed, commencing 6 August 2020.
  • Standard conditions: no further offending; attendance before the court if called upon.
  • Additional conditions imposed:
  • 450 hours of community service work to be completed within the three-year period.
  • Supervision by Community Corrections for the duration of the order.
  • Participation in a rehabilitation or treatment program, including continuing with the offender's existing mental health rehabilitation program as directed by his treating psychiatrist and psychologist, or any additional treatment directed by Community Corrections.
  • Non-association condition prohibiting any association with the complainant.
  • The offender was directed to sign the order at the court registry before leaving and to attend Sydney City Community Corrections by midday on 10 August 2020.

Key Takeaways

  • The District Court confirmed that the standard non-parole period of seven years for sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW) operates as a guidepost for sentencing, not a mandatory floor, and that the sentencing exercise remains a synthetic and intuitive process rather than an arithmetical one.

  • A non-custodial sentence for a conviction of sexual intercourse without consent is, in the court's own terms, ordinarily exceptional or lenient; such an outcome requires unique circumstances that clearly distinguish the case from the general run of offending.

  • Where an offender's psychiatric illness is significant and a structured rehabilitation program is already underway, those factors can, in combination, justify the conclusion that the s 5 imprisonment threshold is not crossed, particularly where a community-based order with meaningful conditions is available.

  • Under s 5 of the Crimes (Sentencing Procedure) Act 1999, imprisonment remains a sentence of last resort; the court must be satisfied that no other sentence is appropriate before imposing a custodial term, even for serious sexual offending.

  • Sentencing amendments introduced in 2018 expanded the flexibility of community-based orders. This case illustrates how that expanded toolkit can affect the sentencing outcome in cases involving serious offending by an offender with complex psychiatric needs.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61I
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, Part 4

Cases
- Director of Public Prosecutions v Burton [2020] NSWCCA 54
- DPP v De La Rosa (2010) 79 NSWLR 1
- Greenwood v R [2014] NSWCCA 64
- Hili v The Queen (2010) 253 CLR 58
- JDX v R [2017] NSWCCA 9
- Jolly v R [2013] NSWCCA 76
- Kelly v The Queen [2007] NSWCA 357
- Markarian v The Queen [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120
- R v Engert (1995) 84 A Crim R 67
- R v PGM (2008) 187 Crim R 152
- R v Ponfield (1999) 48 NSWLR 327
- R v Way (2004) 60 NSWLR 168
- R v Zamagias [2002] NSWCCA 17
- Sabapathy v R [2008] NSWCCA 82
- Silvano v R (2008) 184 A Crim R 593
- Tepania v R [2018] NSWCCA 247
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Yildiz v R [2020] NSWCCA 69