Citation: R v SIM [2020] NSWDC 743
Court: District Court of New South Wales
Date: 10 December 2020
Judge(s): Priestley SC, DCJ
Background
The offender, identified only as S.I.M., was found guilty by a jury of one count of sexual intercourse without consent under section 61I of the Crimes Act 1900 (NSW). The maximum penalty for that offence is 14 years imprisonment, with a standard non-parole period of seven years. The offending occurred in February 2019 and the offender was sentenced in December 2020.
The victim was a close friend of the offender's partner and the offending took place at the victim's home following a wedding reception. The victim had gone to sleep in her own bedroom when the offender entered the room, placed his hands under the sheets, and digitally penetrated her while she slept. The victim woke, moved away, and told the offender to leave. He had no prior sexual or intimate relationship with the victim.
The offender denied the allegation in his police interview and maintained his innocence throughout, including at sentencing. He presented a strong subjective case, including steady employment as a boilermaker, a long-term de facto relationship, three young children, and extensive character references.
Legal Issues
- Whether the agreed facts adequately reflected what had been proved beyond reasonable doubt regarding the nature of the penetration
- How the objective seriousness of the offending should be assessed, and where it fell within the range of section 61I offences
- Whether the sentencing threshold in section 5 of the Crime (Sentencing Procedure) Act 1999 (NSW) was crossed, that is, whether no penalty other than imprisonment was appropriate
- What weight to give the offender's total lack of remorse and absence of a guilty plea against his otherwise strong subjective case
- Whether special circumstances existed to justify a non-parole period departing from the standard ratio
Decision
Objective seriousness:
The court found that the objective seriousness of the offence was low (at [55]). There was no force, coercion, violence, or threats, and the offending appeared unplanned in its immediate execution, though the offender must at some point have decided to act (at [51]-[52]). The conduct barely exceeded the minimum required to constitute the offence, and only one finger was found to have been used, rather than multiple fingers as stated in the agreed facts (at [4], [52]). Two aggravating features were accepted: the offending occurred in the victim's own home, and the offender deliberately sought out an unsuspecting sleeping woman with whom there had been no prior intimacy (at [53]-[55]).
The custodial threshold:
The court rejected the proposition that there is a presumptive starting point of imprisonment for section 61I offences, holding that the sentencing exercise must begin with an open mind (at [62]). The court reviewed the cases of Hewitt, Burton, and Shortland at length. It accepted that a non-custodial outcome was legally open given the low objective seriousness, but ultimately determined that a custodial sentence was warranted. The decisive factors were the offender's total lack of remorse and the manner in which the offending occurred, specifically the deliberate entry into the victim's bedroom while she slept (at [74]).
Subjective case and sentence length:
The court found the offender to be of good character, a low risk of reoffending, and unlikely to reoffend sexually or otherwise (at [20]-[21], [64]). No discount was available for a plea of guilty, and there was no evidence of remorse (at [21]). The court imposed a 12-month term of imprisonment with a four-month non-parole period (at [77]). The sentence was backdated to 11 August 2020 to account for time already served in custody (two months and 21 days) and a period reflecting the onerous bail conditions, including a nightly curfew from 9pm to 4am, which the court treated as quasi-custody (at [66]-[77]).
Special circumstances:
Special circumstances were established because this was the offender's first real period of custody and because a longer supervisory period on parole was appropriate to support the offender's reduced alcohol intake and abstinence from drugs, circumstances that bore on the risk of reoffending (at [76]-[78]). The non-parole period was set well below the statutory ratio, reflecting both those special circumstances and the offending falling below the middle of the range of seriousness (at [78]).
Orders Made
- Conviction confirmed.
- The offender is sentenced to imprisonment with a non-parole period of 4 months, commencing 11 August 2020 and expiring 10 December 2020, and a balance of term of 8 months expiring 10 August 2021.
Key Takeaways
- The District Court confirmed that there is no presumptive starting point of imprisonment for offences under section 61I of the Crimes Act 1900 (NSW); the sentencing court must approach each matter with an open mind, though a custodial outcome will be appropriate in the vast majority of cases (at [62]).
- Low objective seriousness, assessed by reference to the nature and circumstances of the intercourse rather than by any hierarchy of penetrative acts, can in combination with a strong subjective case bring a section 61I matter close to the non-custodial threshold, even without a guilty plea (at [51]-[57]).
- A total absence of remorse was treated as a significant factor warranting a custodial sentence in this case, and was the feature that most clearly distinguished the outcome from the non-custodial results in comparable decisions such as Hewitt and Burton (at [73]-[74]).
- Bail conditions imposing a nightly curfew over an extended period were treated as quasi-custody and reflected in backdating the sentence commencement date, reducing the time the offender was required to serve (at [66]-[67]).
- Special circumstances justifying a longer supervisory period can be established where the offender has had limited prior exposure to custody and where ongoing supervision is considered necessary to consolidate positive behavioural changes, such as reduced substance use, that bear on the risk of reoffending (at [76]-[78]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW )
- Criminal Appeal Act 1912 (NSW)
- Crime (Sentencing Procedure) Act 1999 (NSW)
Cases
- R v AJP [2004] NSWCCA 434
- Bonett v R [2013] NSWCCA 234
- R v HJS [2020] NSWDC 480
- Cowling v R [2015] NSWCCA 213
- The Queen v Hewitt [2020] NSWDC 566
- DPP v Burton [2020] NSW CCA 54
- Shortland [2018] NSWCCA 34
- R v Hibberd [2009] NSWCCA 20
- Ibbs v The Queen (1987) 163 CLR 447