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District Court 8 September 2020

R v Junior

[2020] NSWDC 568

Sexual offences
CRIMINAL LAW CRIMES ACT 1900 (NSW) S 61I SEXUAL ASSAULT WITHOUT CONSENT DIGITAL PENETRATION ‑ S ENTENCING GENERAL SENTENCING PRINCIPLES OBJECTIVE SERIOUSNESS

Citation: R v Junior [2020] NSWDC 568
Court: District Court of New South Wales
Date: 8 September 2020
Judge: Montgomery DCJ

Background

The offender was convicted on 11 February 2020 of three counts of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW), following an incident in the early hours of 28 October 2018. Each offence involved digital penetration of a sleeping victim, a woman in her twenties who was known to the offender and had gone to bed in a private room within the shared household.

The victim had left a social gathering at a tavern early that evening after feeling low, returned home alone, and had self-harmed before falling asleep. The offender was the boyfriend of the victim's aunt, with whom she lived. He was familiar to the victim, having regularly stayed at the household over the preceding months.

A significant sentencing complication arose from the offender's immigration status. After bail was granted on 29 October 2018, he was immediately placed in immigration detention as a High Security detainee under Commonwealth executive powers, where he remained until his convictions in February 2020. From that point he was held under the authority of NSW Corrective Services.

  • How to assess the objective seriousness of the three offences and apply the standard non-parole period of seven years for each count
  • Whether the offender's time in immigration detention, prior to conviction, warranted a sentencing discount and on what basis
  • Whether special circumstances existed justifying a reduction in the ratio of the non-parole period to the balance of the sentence
  • How to construct an appropriate aggregate sentence, with indicative sentences for each count, that avoided double punishment while reflecting the overall criminality

Decision

Montgomery DCJ assessed the offending as involving three discrete acts of digital penetration performed on a sleeping and vulnerable victim. Aggravating features included the victim's vulnerable state of mind (which the offender knew about), the breach of the trust implicit in the domestic setting, and the fact that the victim had sought refuge in a separate room. The court placed the objective seriousness of the overall offending below the mid-range, while acknowledging its gravity.

In mitigation, the court gave weight to the offender's lack of any prior criminal history and his relatively young age. However, the court declined to treat his immigration detention as straightforwardly equivalent to pre-sentence custody in a correctional facility. The court noted that conditions in immigration detention are generally less onerous than those in prison, and that the detention itself was imposed partly due to the offender's prior unlawful immigration status and non-compliance with the Department of Immigration, not solely because of the subject offending. Accordingly, some discount was applied, but no precise quantification was stated to be possible.

The court found that special circumstances existed, principally because the offender would require an extended period of supervised parole given the absence of any prior offending history and the need for rehabilitative programs. This justified a reduction in the standard non-parole period ratio under s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

An aggregate sentence of three years and three months was imposed, commencing on 9 February 2020. Indicative sentences and non-parole periods were provided for each count, and the commencement date was backdated by two days to account for the brief period of actual custody on 28 to 29 October 2018.

Orders Made

  • The offender was convicted on Counts 1, 2 and 3
  • Sentenced to an aggregate term of imprisonment of 3 years and 3 months, commencing 9 February 2020 and expiring 8 May 2023
  • Non-parole period to expire 8 August 2021; balance of term to expire 8 May 2023
  • Indicative non-parole periods: Count 1: 1 year and 3 months; Count 2: 5 months and 16 days; Count 3: 1 year, 4 months and 17 days
  • The offender directed to accept supervision and guidance of Community Corrections Services, including referral to CSNSW Psychology Services, Forensic Psychology Service or general practitioners for mental health assessments, and participation in cognitive behavioural change modules addressing self-awareness, managing impulsivity and environment

Key Takeaways

  • Time spent in immigration detention prior to conviction is not automatically treated as equivalent to pre-sentence custody in a correctional setting; a sentencing court may limit the discount where the detention arose partly from independent immigration compliance issues rather than solely from the subject offending.
  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW) can be established by reference to a first-time offender's need for an extended period of supervised parole and rehabilitative intervention, justifying a downward adjustment to the standard non-parole period ratio.
  • Where an offender is sentenced on multiple counts arising from the same occasion, the overriding principle remains that the non-parole period must reflect the criminality involved; the aggregate sentencing regime requires indicative sentences and non-parole periods for each count under s 54B(4) of the Act.
  • The District Court confirmed that aggravating circumstances, including an offender's knowledge of a victim's psychological vulnerability and the breach of domestic trust, are relevant to objective seriousness even where the offending is placed below mid-range overall.
  • Conditions in immigration detention being generally less onerous than those in a correctional facility is a factor bearing on how much credit, if any, is extended for that period of pre-sentence deprivation of liberty.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61H(1), 61I
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A(5AA), 44(2A), 44(2B), 47(2)(a), 47(3), 53A, 54B(4)
- Migration Act 1958 (Cth), ss 148, 198(1)

Cases
- Cheung v The Queen (2001) 209 CLR 1
- DPP NSW v Burton [2020] NSWCCA 54
- Hampton v R [2014] NSWCCA 131
- Ibbs v The Queen (1987) 163 CLR 447
- Kerr v R [2008] NSWCCA 201
- Morgan v R [2020] NSWCCA 51
- Pearce v R (1998) 194 CLR 610
- Rao v R [2019] NSWCCA
- R v Chen [2004] NSWCCA 369
- R v Dadash [2012] NSWSC 1511
- R v Hibberd (2009) 194 ACrim 1
- R v Isaacs (1997) 41 NSWLR 374
- R v McDonald (1998) 28 MVR 432
- R v Parhizkar v R (2014) 245 ACrimR 515
- R v Pisciuneri [2007] NSWCCA 265
- Strbak v The Queen [2020] HCA 10