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District Court 9 April 2020

R v DE

[2020] NSWDC 94

Sexual offences
CRIME SENTENCE SEXUAL INTERCOURSE WITHOUT CONSENT INDECENT ASSAULT OFFENDING OCCURRED IN VICTIM’S HOME INTELLECTUAL IMPAIRMENT OF OFFENDER

Citation: R v DE [2020] NSWDC 94
Court: District Court of New South Wales
Date: 9 April 2020
Judge(s): Lerve DCJ

Background

Following a jury trial at Dubbo District Court, the offender was convicted on 29 October 2019 of two offences arising from events on 9 July 2017 in Bourke, New South Wales. The first was sexual intercourse without consent contrary to s 61I of the Crimes Act 1900. The second was indecent assault.

The offending occurred in the early hours of the morning while a birthday party was winding down at the victim's home. The victim had retired to bed fully clothed. The offender, who was known to her and had been invited into the yard during the party, entered her bedroom and digitally penetrated her while she was asleep. He then placed her hand on his exposed penis. The victim woke, recognised the offender, and immediately demanded he leave.

Because the matter proceeded to trial, no discount applied for a guilty plea. The sentencing proceedings considered, among other things, the offender's intellectual impairment and background of disadvantage, and the appropriate structure of concurrent and accumulating sentences.

  • What was the objective seriousness of the sexual intercourse without consent, given it involved digital penetration?
  • Did the aggravating factor of offending in the victim's home apply under s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999?
  • How should the offender's intellectual impairment and deprived background be weighed under the principles in Bugmy v The Queen [2013] HCA 37?
  • Were special circumstances established to justify a non-parole period shorter than the standard ratio?
  • How should the sentences for the two counts be structured (accumulation versus concurrency)?

Decision

Lerve DCJ found the statutory aggravating factor under s 21A(2)(eb) clearly established: the offending occurred not only in the victim's home but in her bedroom while she was asleep. Drawing on a line of Court of Criminal Appeal authority, including Doe v R and Jolly v R, her Honour declined to treat digital penetration as inherently less serious than other forms of sexual intercourse. The objective seriousness of the offence was assessed according to the totality of the facts and circumstances, not by reference to a hierarchy of penetrative acts. The indecent assault was treated as a serious example of its kind.

The offender's intellectual impairment and background of profound disadvantage, consistent with the Bugmy principles, were accepted as relevant mitigating factors. However, as those principles recognise, moral culpability is reduced but not eliminated by such circumstances, and general and specific deterrence, community protection, and denunciation remained significant sentencing considerations.

Special circumstances were found to exist, warranting a departure from the standard ratio between the non-parole period and the total sentence. The reasons included the offender's need for extended supervision and treatment on release, particularly for alcohol and substance abuse, as well as his intellectual impairment and the challenges of reintegration. The non-parole period was set at approximately 68% of the total sentence rather than the standard 75%.

The sentence for the indecent assault (count 2) was ordered to run concurrently with the head sentence for the sexual assault (count 1), reflecting the principle of totality and the fact that both offences arose from the same transaction.

Orders Made

  • Count 2 (indecent assault): Fixed term of 15 months imprisonment, commencing 17 October 2019, expiring 16 January 2021.
  • Count 1 (sexual intercourse without consent): Non-parole period of 3 years and 3 months, commencing 17 October 2019, expiring 16 January 2023; followed by a parole period of 1 year and 6 months, expiring 16 July 2024.
  • The non-parole period represents approximately 68% of the total sentence, reflecting a finding of special circumstances.
  • Release to parole recommended at expiration of the non-parole period, with supervision by the Department of Community Corrections, conditioned on compliance with directions regarding alcohol and substance abuse treatment and counselling.
  • A copy of the report of Ms Ann Lucas (Exhibit 1 on sentence) directed to be annexed to the warrant forwarded to the Department of Corrective Services.

Key Takeaways

  • Digital penetration is not automatically treated as less serious than other forms of sexual intercourse without consent. Consistent with the Court of Criminal Appeal's approach in Doe v R and related cases, the District Court assessed objective seriousness by reference to the totality of the facts, not a fixed hierarchy of penetrative acts.

  • Offending committed inside the victim's own home, and specifically in her bedroom while she was asleep, clearly engages the statutory aggravating factor under s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999.

  • Under Bugmy v The Queen, an offender's intellectual impairment and background of severe deprivation can reduce moral culpability and remain relevant throughout the sentencing exercise, but they do not displace the need for the sentence to reflect denunciation, deterrence, and community protection.

  • Special circumstances justifying a longer parole period relative to the total sentence can be established where an intellectually impaired offender requires extended supervision and treatment on release to address substance abuse and support reintegration.

  • Where two offences arise from the same criminal transaction, the totality principle informs the decision to run sentences concurrently rather than cumulatively.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61I (sexual intercourse without consent), s 61H (definitions)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5, s 21A(2)(eb)

Cases
- Bugmy v The Queen [2013] HCA 37
- Muldrock v The Queen [2011] HCA 39
- R v AJP [2004] NSWCCA 434
- Jolly v R [2013] NSWCCA 76
- Doe v R [2013] NSWCCA 248
- R v BA [2014] NSWCCA 148
- Cahaydi [2007] NSWCCA 1
- Tepania v R [2018] NSWCCA 247
- R v Tuala [2015] NSWCCA 8
- Aslan v R [2014] NSWCCA 114
- Ngati v R [2014] NSWCCA 125
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Brown v R [2014] NSWCCA 215
- SS v The Queen [2016] NSWCCA 197
- LG v R [2012] NSWCCA 249
- MMK (2006) 164 A Crim R 481; [2006] NSWCCA 272
- R v XX [2009] NSWCCA 115