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District Court 4 December 2020

R v Francis

[2020] NSWDC 870

Sexual offences

Citation: R v Francis [2020] NSWDC 870
Court: District Court of New South Wales
Date: 4 December 2020
Judge: ML Williams SC DCJ

Background

The offender, a 57-year-old man, was found guilty by a jury of one count of sexual intercourse without consent contrary to section 61I of the Crimes Act 1900. The maximum penalty for this offence is 14 years imprisonment, with a standard non-parole period of seven years. The offender had served one day in custody following his arrest in July 2019.

The offence occurred in December 2017 at a hotel in Batemans Bay, following a social running event. The victim and the offender were both members of a running club. After a night of drinking, the victim returned to her hotel room and fell asleep, still clothed. She woke the following morning to find her clothing partially removed and the offender in bed with her. Text messages exchanged that morning indicated she had no recollection of any sexual activity but believed something had occurred without her consent.

The offender maintained throughout that the sexual contact, which he described as cunnilingus lasting under a minute, was consensual. The jury rejected that account. The victim's impact statement was notable for its measured tone: she expressed ambivalence about a custodial outcome and hope that the offender would change.

  • What was the appropriate sentence, having regard to the purposes of sentencing under section 3A of the Crimes (Sentencing Procedure) Act 1999?
  • What weight should be given to the objective seriousness of the offence, including the nature and brevity of the sexual act and the absence of planning?
  • How should the sentencing court treat the offender's subjective circumstances, including his psychological history, rehabilitation steps, and remorse?
  • Was a non-custodial sentence appropriate in light of comparable cases and the standard non-parole period applicable to the offence?
  • What significance, if any, attached to the delay in reporting and charging, and to the offender's initial lack of comprehension of his wrongdoing?

Decision

His Honour considered the objective seriousness of the offence carefully, comparing it to other cases involving sexual intercourse without consent where victims were incapacitated. The court drew distinctions between this matter and cases such as DPP (NSW) v Burton and R v HJS, noting that in those cases the offenders were aware of their offending, had engaged in a degree of planning, and occupied positions of trust or familial authority over their victims. None of those aggravating features were present here.

In assessing subjective factors, the court noted significant matters in mitigation. The offender had undertaken psychological treatment, commenced attending Alcoholics Anonymous, abstained from alcohol, written a letter of apology to the victim, and withdrawn from social environments centred on drinking. His psychological report indicated a good prognosis for recovery if he engaged in a 12-month treatment program.

The court acknowledged that the offender's early failure to comprehend his wrongdoing, as evidenced by his text messages the morning after the offence, was a complicating feature. However, his Honour accepted that the offending was better characterised as involving a miscommunication, albeit not a reasonably held one, rather than predatory conduct. The court also noted the delay between the offence and the charge, the offender's otherwise minor criminal record, and the victim's own ambivalence about a custodial outcome.

His Honour described himself as "only just persuaded" that a non-custodial sentence was appropriate in the circumstances. A community corrections order for two years was imposed, with a condition requiring the offender to undertake the rehabilitation and treatment program recommended by the treating psychologist.

Orders Made

  • The offender was convicted of the offence.
  • Pursuant to section 8(1) of the Crimes (Sentencing Procedure) Act 1999, a community corrections order was imposed for a period of two years, commencing 4 December 2020.
  • Standard conditions applied: no further offending, and appearance before the court if called upon.
  • Additional condition: the offender must undertake a rehabilitation or treatment program as recommended by psychologist Ms Frew in her report dated 19 November 2020.

Key Takeaways

  • The District Court confirmed that the standard non-parole period and maximum penalty for sexual intercourse without consent serve as yardsticks rather than starting points, and must be considered alongside all relevant sentencing purposes under section 3A of the Crimes (Sentencing Procedure) Act 1999.
  • A non-custodial outcome for this offence is possible but requires clear and compelling subjective circumstances; the court described itself as only just persuaded in this instance, underlining the narrow circumstances in which such a result is available.
  • Distinguishing between cases involving similar offences turned on factors including the presence or absence of planning, the nature of the relationship between offender and victim, relative moral culpability, and the offender's awareness of wrongdoing at the time.
  • Genuine rehabilitation steps, including psychological treatment, abstinence from alcohol, and a written apology, carried significant mitigating weight when considered alongside the offender's overall subjective circumstances.
  • Victim impact statements are treated as relevant to the effects of the offence on the victim, consistent with R v Thomas [2007] NSWCCA 269, but do not determine the sentencing outcome; the victim's own ambivalence about custody was noted but was not determinative.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61I
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 8(1)

Cases
- Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54
- Greenwood v R [2014] NSWCCA 64
- R v HJS [2020] NSWDC 480
- R v JS (unreported, NSWDC, Yehia DCJ, 5 April 2019)
- R v Russell (unreported, NSWDC, Marien ADCJ, 15 March 2019)
- R v Stacy (unreported, NSWDC, Ellis DCJ, 30 August 2019)
- R v Thomas [2007] NSWCCA 269
- R v Tuala [2015] NSWCCA 8