Citation: R v Humphreys [2021] NSWDC 311
Court: District Court of NSW
Date: 12 July 2021
Judge(s): Wilson SC DCJ
Background
The offender was an interstate truck driver who met the victim through a social media application in April 2019. In the early hours of 7 April 2019, he collected her by truck and drove to an industrial area at Eastern Creek. What began as a consensual sexual encounter became the subject of two criminal charges.
After the jury trial concluded on 3 May 2021, the offender was found guilty on two of the six counts in the indictment. Count 1 was sexual intercourse without consent (penile-anal intercourse, after the victim had clearly refused). Count 6 was assault occasioning actual bodily harm (the offender pinned the victim's arms above her head, causing bruising). The jury acquitted him of the remaining counts, and two further counts had not been left to the jury at all.
The sentencing hearing required the judge to determine the appropriate facts for sentencing purposes, fix a commencement date for the sentence, and impose an aggregate term.
Legal Issues
- What facts could the court find for sentencing purposes, consistently with the jury's verdicts, given the inscrutability of those verdicts?
- What was the appropriate commencement date for the sentence, given the offender had been in custody on other matters before a detention order was made in the index matter?
- Where did the offending sit in the range of objective seriousness, and how should the standard non-parole period for the sexual intercourse offence be applied?
- Was full-time custody appropriate for the assault count, and was an aggregate sentence the correct sentencing structure?
- Were there special circumstances justifying a departure from the statutory ratio between the non-parole period and the balance of term?
Decision
Fact-finding after the verdict. Applying the principles from Savvas v The Queen and Cheung v The Queen, Wilson SC DCJ found the facts consistently with the jury's guilty verdicts. The offender had argued that the anal penetration was accidental; the jury plainly rejected that account in preferring the victim's evidence. The court accordingly sentenced on the basis that the offender deliberately engaged in penile-anal intercourse after the victim had clearly and repeatedly refused, and that he pinned her arms to prevent resistance, causing bruising.
Commencement date. The offender had spent three days in custody immediately after arrest in April 2019, and had been continuously in custody from 17 February 2020 on other matters, with a detention order in the index matter made on 5 March 2020. The court fixed the commencement date as 4 November 2020, representing a point midway between the detention order date and the sentencing date, with a further three-day adjustment for the initial custody period. Defence counsel did not oppose this approach.
Objective seriousness and standard non-parole period. The court assessed the sexual intercourse offence as falling below the mid-range of objective seriousness. Because of that assessment, and because applying the seven-year standard non-parole period would have produced an overall sentence the court considered excessive, the standard non-parole period was not applied. The court noted that both specific and general deterrence were important sentencing considerations, as was recognition of the harm caused to the victim and the community.
Aggregate sentence and special circumstances. The court imposed an aggregate sentence rather than separate concurrent or cumulative terms. Full-time custody was found to be the only appropriate disposition for both offences. No evidence supported a finding of special circumstances, so the statutory ratio between the non-parole period and the balance of term was applied, with the non-parole period rounded down by seven days.
Orders Made
- The offender was convicted of sexual intercourse without consent (s 61I, Crimes Act 1900) and assault occasioning actual bodily harm (s 59, Crimes Act 1900).
- An aggregate sentence of imprisonment was imposed with a non-parole period of 3 years and 2 months, commencing 4 November 2020 and expiring 3 January 2024.
- The balance of term was 1 year and 1 month, producing a head sentence of 4 years and 3 months, expiring 3 February 2025.
- Indicative sentence for count 1: 4 years imprisonment with an indicative non-parole period of 3 years.
- Indicative sentence for count 6: 6 months imprisonment.
Key Takeaways
- A sentencing judge may make independent factual findings after a jury trial, provided those findings do not conflict with the jury's verdicts. Where the jury has clearly preferred one witness's account, the court sentences on that factual basis.
- The standard non-parole period for sexual intercourse without consent operates as a guidepost, not a mandatory minimum. The District Court declined to apply it where the offending was assessed as below the mid-range of objective seriousness and its application would have produced an excessive overall sentence.
- Where an offender is in custody on unrelated matters before a detention order is made in the index proceeding, the commencement date for the index sentence need not automatically run from the date of the detention order or from the date custody began on the other matters. The court has discretion to fix an intermediate date.
- Aggregate sentencing under the Crimes (Sentencing Procedure) Act 1999 requires the court to provide indicative terms for each constituent offence and, where applicable, an indicative non-parole period.
- Absent evidence establishing special circumstances, the statutory ratio between the non-parole period and the balance of term applies without adjustment.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 59, 61I
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A
Cases
- Savvas v The Queen (1995) 183 CLR 1
- Cheung v The Queen (2001) 209 CLR 1
- R v Isaacs (1997) 41 NSWLR 374
- R v Crickitt (No 2) [2017] NSWSC 542