Citation: R v Elsworth (No 3) [2021] NSWDC 555
Court: District Court of New South Wales
Date: 15 October 2021
Judge: Mahony SC DCJ
Background
The offender appeared for sentence in the Sydney District Court in respect of two offences arising from events at Potts Point on 20 October 2019. The first was assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act 1900, carrying a maximum penalty of five years imprisonment. The second was sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900, carrying a maximum penalty of 14 years imprisonment and a standard non-parole period of seven years.
The offender entered a guilty plea to the assault charge on the first day of his trial in March 2021. He was found guilty of the sexual assault count after trial in April 2021, with the jury returning not guilty verdicts on two further counts under the same provision.
The victim sustained four injuries: petechial haemorrhaging, bruising to the left shoulder, a bite mark to the right buttock, and a bruise to the inner lip. The offender, who had no prior criminal history, had a background in executive employment and had commenced psychological treatment shortly after being charged.
Legal Issues
- What were the appropriate facts for sentencing, given the absence of a Crown fact sheet and the conflict between the parties about how the injuries were caused?
- What weight should be given to the standard non-parole period for the sexual assault offence?
- How should the principle of totality operate where both offences arose from the same course of conduct?
- What mitigating factors were relevant, including the guilty plea, the offender's personal circumstances, and the conditions of custody during the COVID-19 pandemic?
- Whether special circumstances existed to justify varying the statutory ratio between the head sentence and the non-parole period.
Decision
The sentencing judge proceeded on the basis that facts should be drawn from the trial evidence consistent with the jury's verdict on Count 2, and from the victim's evidence (supported by expert testimony from Dr Lee and Professor Duflou) on Count 1. The offender's characterisation of the physical conduct as "normalised foreplay" was noted, as was his continued assertion during the pre-sentence process that the sexual activity had been consensual.
On Count 2, the court assessed the offending as within the mid-range of objective seriousness. The standard non-parole period of seven years served as a guidepost rather than a rigid starting point. The offender's lack of prior convictions, his guilty plea to Count 1, his psychological treatment, his low-to-medium assessed risk of reoffending, and the support of family and former partners were all considered in mitigation. However, the court noted that the offender had continued to minimise his conduct and had not demonstrated genuine remorse in respect of the sexual assault count.
On Count 1, the court imposed a Conditional Release Order rather than a custodial term, reflecting the early plea and the circumstances of that offending. Applying the principle of totality, the sentence for Count 1 was made concurrent with that for Count 2, given both offences arose from the same course of conduct.
A finding of special circumstances was made under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 on the basis that this would be the offender's first period of custody. The court also took into account the additional hardship imposed on the prison population by COVID-19 pandemic conditions, including lockdowns, restricted visits, and limited access to education programs, as factors mitigating the sentence.
Orders Made
- Count 1 (assault occasioning actual bodily harm): Conviction recorded; Conditional Release Order imposed for 17 months from 15 October 2021, with standard conditions (no offending; appear before court if called upon).
- Count 2 (sexual intercourse without consent): Conviction recorded; sentenced to imprisonment with a non-parole period of 18 months (from 15 October 2021, expiring 14 April 2023) and a balance of term of 18 months (expiring 14 October 2024).
- Total head sentence: 3 years imprisonment; eligible for parole on 14 April 2023.
Key Takeaways
- The District Court proceeded to sentence on facts derived from trial evidence where no agreed Crown fact sheet was provided, applying the principle that the offender must be sentenced consistently with the jury's verdict.
- Where an offender maintains a version inconsistent with the verdict, the sentencing court is entitled to treat that as limiting the weight available to any claim of remorse or insight.
- A finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 permitted a departure from the standard statutory ratio between non-parole period and head sentence, producing equal periods of 18 months each.
- The hardship of custody during the COVID-19 pandemic, including lockdowns and restricted access to programs and visits, was a recognised mitigating factor for first-time offenders, consistent with Valentine v R [2020] NSWCCA 116 and DPP (Cth) v Saadieh [2021] NSWSC 1186.
- The principle of totality operated to make the sentence for a related assault charge concurrent with the primary custodial sentence, reflecting that both offences arose from the same course of conduct on the same occasion.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 59(1), 61I
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 44(2)
Cases
- Cayhadi v R [2007] NSWCCA 1
- Diaz v R [2018] NSWCCA 33
- DPP (Cth) v Saadieh [2021] NSWSC 1186
- DPP v Burton [2020] NSWCCA 54
- Fisher v R; R v Fisher [2021] NSWCCA 91
- Franklin v R [2013] NSWCCA 112
- KAB v R [2015] NSWCCA 55
- Kearsley v R [2017] NSWCCA 28
- R v Daley [2010] NSWCCA 223
- R v Hewitt [2020] NSWDC 566
- R v King [2009] NSWCCA 117
- R v Tuala [2015] NSWCCA 8
- Simpson v R [2014] NSWCCA 23
- The Queen v De Simoni (1981) 147 CLR 383
- Valentine v R [2020] NSWCCA 116