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District Court 16 July 2021

R v Golding

[2021] NSWDC 322

Sexual offences
SENTENCE SEXUAL ASSAULT OFFENCE GOOD CHARACTER

Citation: R v Golding [2021] NSWDC 322
Court: District Court of NSW
Date: 16 July 2021
Judge: Abadee DCJ

Background

The offender was convicted by jury of four counts of sexual assault contrary to s 61I of the Crimes Act 1900 (NSW). All four offences occurred within approximately 10 minutes at the victim's home at Woy Woy on 29 October 2019. The offender and victim were acquaintances who had previously engaged in casual consensual sexual activity, including an incident in September 2019.

On the day of the offending, the victim agreed to let the offender visit but had communicated she was not willing to have sexual intercourse. Despite the victim saying "no", physically attempting to push the offender away, and being weakened after a gym session, the offender committed four separate acts of non-consensual sexual intercourse: digital penetration of the anus, digital penetration of the vagina, penile-vaginal penetration while the victim was on top of him, and penile-vaginal penetration from behind.

After the offending, the victim sent text messages to the offender and her mother expressing significant distress. The jury returned guilty verdicts on all four counts, finding both an absence of consent and that the offender knew the victim was not consenting.

  • What facts could properly be found consistent with the jury's verdicts, particularly regarding the offender's knowledge of the victim's non-consent?
  • What was the objective gravity of the four offences, including whether the prior consensual relationship or any prevarication by the victim affected the assessment?
  • What weight, if any, should be given to the offender's otherwise good character, including the significance of a subsequent assault he committed after the subject offending?
  • Were there special circumstances justifying a departure from the standard non-parole period ratio?
  • How should the aggregate sentence be structured across four counts?

Decision

Facts consistent with the jury verdicts

Abadee DCJ found facts consistent with the jury's verdicts, approaching disputed matters by requiring the Crown to prove adverse facts beyond reasonable doubt and the offender to prove favourable facts on the balance of probabilities, applying R v Olbrich (1999). His Honour found that the offender had embarked on a predetermined course of conduct. Critically, and acknowledging the prior casual relationship, his Honour found the offender knew from the outset that the victim was not consenting: the victim had said "no," had physically resisted, and the text messages sent before and after the events were inconsistent with any suggestion of initial consent or prevarication on her part.

Objective gravity

The offending was assessed as falling in the mid-range of objective seriousness, though not at the highest end. His Honour accepted that non-consensual digital penetration is generally considered less serious than penile penetration, while noting this is not an absolute rule. The prior consensual relationship between the parties did not mitigate the offending, consistent with R v Cortese [2013] NSWCCA 148, though it remained relevant to the knowledge element. The court found no prevarication or initial consent by the victim, and the victim's distress was evident from her conduct immediately after the offending.

Good character and subsequent offending

The offender had no prior criminal history and evidence was led of good character. However, his Honour addressed the complication that, after the subject offending but before sentencing, the offender had committed another assault. The court found this subsequent conduct substantially diminished, though did not entirely eliminate, the weight to be given to otherwise positive character evidence. A small discount was nonetheless applied to reflect the residual weight of that good character.

Special circumstances and aggregate sentence

His Honour found special circumstances, citing that this was the offender's first custodial sentence, a recent mental health diagnosis, and the likelihood that incarceration would be more burdensome given his condition, particularly during the COVID-19 lockdown affecting the Central Coast. These factors supported a longer parole period to facilitate rehabilitation and reintegration. A 3% discount was applied to each count to reflect the offender's assistance to the administration of justice.

Orders Made

  • The offender was convicted on all four counts.
  • An aggregate sentence of 4 years' imprisonment was imposed, commencing 11 July 2021 and expiring 10 July 2025.
  • A non-parole period of 2 years, 4 months and 25 days was set, expiring 5 December 2023.
  • Credit of 5 days was allowed for pre-sentence custody.
  • The court directed that a psychologist's report containing treatment plans be brought to the attention of Corrective Services officers responsible for the offender's supervision.

Key Takeaways

  • A prior consensual sexual relationship between an offender and victim does not mitigate a sexual assault offence, though the District Court confirmed it remains relevant to assessing the offender's state of knowledge regarding consent at the time of the offending.

  • Where the Crown disputes favourable sentencing facts, the court applies the standard principle from R v Olbrich (1999): the Crown must prove adverse facts beyond reasonable doubt, while the offender must prove favourable facts on the balance of probabilities.

  • Good character evidence carries diminished weight where the offender committed a further offence after the subject offending; the District Court held this substantially reduced, but did not entirely extinguish, the mitigating value of an otherwise positive character.

  • Special circumstances justifying a longer parole period can be established by a combination of factors: a first custodial sentence, a mental health diagnosis, the particular burden of imprisonment for someone with that condition, and the utility of extended post-release supervision for rehabilitation.

  • Under the approach in R v PGM (2008) and R v Hibberd (2009), objective gravity in sexual assault cases is assessed by reference to the degree of force or coercion, the duration and form of the intercourse, physical harm, and circumstances of humiliation, with no fixed hierarchy between forms of sexual penetration.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 61I
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5

Cases
- Bellchambers v R [2011] NSWCCA 131
- Bugmy v The Queen (2013) 249 CLR 571
- Cheung v The Queen (2001) 209 CLR 1
- Doe v R [2013] NSWCCA 248
- DPP (NSW) v Burton [2020] NSWCCA 54
- Merrick v R [2017] NSWCCA 264
- Nguyen v R [2007] NSWCCA 14
- NM v R [2012] NSWCCA 215
- R v AEM [2002] NSWCCA 58
- R v AJP [2004] NSWCCA 434
- R v Cortese [2013] NSWCCA 148
- R v Hibberd (2009) 194 A Crim R 1
- R v Hines (No 3) [2014] NSWSC 1273
- R v Olbrich (1999) 199 CLR 270
- R v PGM (2008) 187 A Crim R 152
- R v Shortland [2018] NSWCCA 34
- Savvas v The Queen (1995) 183 CLR 1
- Simpson v R [2014] NSWCCA 23