Citation: R v Bektasovski [2021] NSWDC 304
Court: District Court of New South Wales
Date: 30 March 2021
Judge: Haesler SC DCJ
Background
A jury convicted the offender, an 18-year-old man at the time of the offending, of two counts of sexual intercourse without consent and one count of assault with an act of indecency, all arising from a single afternoon in February 2017 at his home in Wollongong. The complainant, then aged 17, had attended the offender's home so he could help her download software for a microphone she used for singing. The two had only met briefly in person earlier that day, having first connected via Facebook.
The offending occurred in a spare room at the rear of the family home. The complainant's version, which the court accepted as consistent with the jury's verdicts, described a sustained course of persistent, coercive, and forceful conduct. This included groping, forced oral intercourse, and penile/vaginal intercourse that the offender performed after making and then breaking an explicit promise not to do so.
The jury had separately acquitted the offender of a charge involving a different complainant and was unable to reach a verdict on a third charge involving yet another complainant, the latter being listed for retrial. The sentencing judge noted that the pattern of verdicts reflected careful deliberation by the jury.
Legal Issues
- What was the appropriate objective seriousness of the three offences, viewed individually and as a course of conduct?
- How should the offender's strong subjective case (youth, prior good character, family support, no prior criminal history) be weighed against the gravity of the offending?
- What aggregate sentence would reflect the purposes of punishment, including retribution, victim vindication, community denunciation, and rehabilitation?
- How should the standard non-parole periods applicable to the sexual intercourse without consent offences inform the sentence?
Decision
Objective seriousness. Haesler SC DCJ found that, while each individual act was brief, the three counts formed part of a sustained and degrading course of conduct. The offender was persistent and forceful, ignored repeated refusals and pleas, made and broke a direct promise not to penetrate the complainant, and showed no concern for her as a person. The location of the penile/vaginal intercourse, bent over a sink in a laundry, was in itself described as demeaning. The court found that the offender had convinced himself the complainant consented, reflecting cognitive distortions that remained a risk factor.
Victim impact. The complainant's victim impact statement described severe and lasting psychological harm, including self-doubt, feelings of damage and worthlessness, difficulty finding peace, and a permanent toll on her life. The court treated this as a significant matter on sentence, noting that the harm was exactly the kind of consequence to be expected from this type of offending.
Subjective factors. The court accepted a strong subjective case. The offender was 18 at the time and had no prior criminal history. Before his conviction he was regarded as a person of good character, working as an apprentice carpenter and active as a local DJ. He had strong family and community support. The court gave significant weight to his youth and background, concluding that many retributive elements that might otherwise be applied did not need to be fully applied, while still imposing what was described as a harsh sentence.
Aggregate sentence. The court imposed an aggregate term of five years and six months imprisonment with a non-parole period of three years and four months. The sentence was structured to vindicate the dignity of the complainant, express community disapproval, and provide scope for rehabilitation. The court noted that, absent engagement with the underlying cognitive distortions, the offender remained at risk of reoffending.
Orders Made
- Count 1 (sexual intercourse without consent): 3 years 6 months imprisonment, with a non-parole period of 2 years 3 months.
- Count 2 (assault with act of indecency): 1 year imprisonment.
- Count 3 (sexual intercourse without consent): 4 years 6 months imprisonment, with a non-parole period of 2 years 8 months.
- Aggregate sentence: 5 years 6 months imprisonment.
- Aggregate non-parole period: 3 years 4 months, commencing 29 January 2021.
- Parole eligibility date: 28 May 2024.
- Parole period: 2 years 2 months.
- Total sentence expiry: 28 July 2026.
Key Takeaways
- A sustained course of coercive sexual conduct, even where individual acts are brief, can collectively reach a level of objective seriousness that warrants significant custodial terms, particularly where persistence, deception, and disregard for the victim's expressed refusals are present.
- Youth and an otherwise strong subjective case, including good character and community support, can modulate but do not displace the need for sentences that reflect retribution, denunciation, and victim vindication in serious sexual offence matters.
- The District Court treated the making and deliberate breaking of a promise not to penetrate the complainant as an aggravating feature going to the third and most serious count, introducing an element of deception into the objective assessment.
- Cognitive distortions, specifically the offender's apparent belief that the complainant had consented despite clear evidence to the contrary, were identified as a continuing risk factor relevant to the purposes of the sentence, including community protection.
- Where standard non-parole periods apply under the Crimes (Sentencing Procedure) Act 1999, the court is required to have regard to them as a guidepost in fixing the non-parole period for each qualifying count, consistent with the approach in Muldrock v The Queen.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61I, 61L
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Mill v The Queen (1988) 166 CLR 59
- Muldrock v The Queen (2011) 244 CLR 120
- Nguyen v The Queen [2016] HCA 17
- R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
- Tepania v R [2018] NSWCCA 247