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District Court 11 December 2020

R v Marsh

[2020] NSWDC 892

Sexual offences
CRIME SENTENCE SEXUAL INTERCOURSE WITHOUT CONSENT

Citation: R v Marsh [2020] NSWDC 892
Court: District Court of New South Wales
Date: 11 December 2020
Judge: Bourke SC DCJ

Background

The offender, a man named Matthew Marsh, appeared before the District Court for sentencing on two counts of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900. A third offence of the same type was taken into account on a Form 1 document in connection with the first count. Each offence carries a maximum penalty of 14 years' imprisonment and a standard non-parole period of seven years.

The offences occurred in the early hours of 8 December 2019. The victim, a 26-year-old woman, had fallen asleep in her bedroom at her family home during a social poker night. The offender, a work colleague of approximately four years, entered her bedroom uninvited at around 4:30am while heavily intoxicated. Over the course of the incident he digitally penetrated the victim, performed cunnilingus on her (the Form 1 matter), and then penetrated her vaginally with his penis for a sustained period, all while physically restraining her and ignoring her repeated verbal refusals.

The offender was arrested and made admissions in a police interview. He had also sent the victim a Facebook message shortly after the assault in which he acknowledged and apologised for his conduct. He entered early guilty pleas and was entitled to a 25 percent utilitarian discount on that account.

  • How to assess the objective seriousness of the two offences, including the relevance of the type of sexual act involved and the circumstances of the offending
  • Whether full-time imprisonment was the appropriate sentencing disposition
  • Whether special circumstances existed to justify adjusting the standard ratio between the non-parole period and the head sentence
  • How to apply the principle of totality across multiple offences, including by imposing an aggregate sentence with indicative component sentences

Decision

Bourke SC DCJ assessed the objective seriousness of the offences as significant, noting they were committed inside the victim's own home and bed, a place where she was entitled to feel safe. The court drew on the High Court's observations in Ibbs v R (1987) 163 CLR 447 that the seriousness of a particular act of sexual penetration is determined by the facts of the case rather than merely by the statutory category. While penile penetration is generally regarded as more serious than digital penetration or cunnilingus, the court noted that the digital penetration here was accompanied by considerable violence: the offender physically pinned the victim, placed his hand over her mouth, and made the remark "Just be quiet, you'll enjoy this."

The court was satisfied that full-time imprisonment was the only appropriate penalty. In sentencing, the judge took into account the offender's early guilty pleas (warranting a 25 percent discount), his absence of prior convictions, his expression of remorse, and his prospects of rehabilitation, which were described as reasonably good. The court also weighed the seriousness of the offending, the need for both personal and general deterrence, and the victim's ongoing psychological harm.

Special circumstances were found to exist, justifying a departure from the ordinary ratio between the non-parole period and the head sentence. The grounds included the need for extended supervision on parole to manage the offender's drug and alcohol issues, the fact that this was his first period in custody, and the presence of an adjustment disorder likely to make imprisonment more difficult for him.

An aggregate sentence was imposed, with the judge indicating what individual sentences would otherwise have applied. The indicative sentence for the first count (penile penetration, taking into account the Form 1 matter) was three years six months with a non-parole period of 22 months. The indicative sentence for the second count (digital penetration) was three years with a non-parole period of 19 months.

Orders Made

  • Aggregate head sentence of four years' imprisonment, commencing 16 December 2019 and expiring 15 December 2023
  • Aggregate non-parole period of two years and three months, expiring 15 March 2022
  • Finding of special circumstances recorded

Key Takeaways

  • The District Court confirmed that the objective seriousness of a sexual assault is determined by the particular facts of the case, not solely by which statutory category of penetration is involved, consistent with Ibbs v R (1987) 163 CLR 447.
  • Where penile penetration is accompanied by sustained physical restraint and explicit disregard for the victim's refusals, both the act and its surrounding conduct are relevant to the sentencing assessment.
  • An early guilty plea resulting in a 25 percent utilitarian discount remains available even in serious sexual offence matters, provided the plea is entered at an appropriately early stage.
  • Special circumstances justifying adjustment of the non-parole period can be established on the basis of a combination of factors including first-time custody, a need for structured parole supervision to address substance use, and a diagnosed mental health condition.
  • Under the totality principle, an aggregate sentence must reflect the overall criminality of multiple offences without crushing the offender's future prospects of rehabilitation.

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), s 5 (imprisonment as a last resort)

Cases
- Ibbs v R (1987) 163 CLR 447