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District Court 6 December 2021

R v Berriman

[2021] NSWDC 771

Sexual offencesAssault & violenceDomestic & family violence
CRIME SEXUAL OFFENCES AGGRAVATED SEXUAL ASSAULT SUBJECTIVE CONSIDERATIONS ON SENTENCE SPECIAL CIRCUMSTANCES

Citation: R v Berriman [2021] NSWDC 771
Court: District Court of New South Wales
Date: 6 December 2021
Judge: Buscombe DCJ

Background

The offender was tried before Buscombe DCJ, sitting without a jury, on six counts arising from events on 11 April 2019 at the offender's unit in Miller, NSW. The victim was a former domestic partner who had continued visiting the offender after their relationship ended in March 2019, concerned about changes in his behaviour.

On the day in question, the victim attended to return keys and belongings. The offender blocked her exit, threatened her with a long-bladed knife while saying he would kill and dismember her, choked her on multiple occasions, headbutted and struck her, sexually touched her without consent, and raped her twice. The victim secretly messaged a friend, who called police and alerted the victim's mother.

The offender was found guilty on five of the six counts following trial. He was acquitted on count 2. The sentencing judgment dealt with all five guilty verdicts together.

  • What sentence was appropriate for each of the five offences, including the two aggravated sexual assault counts that carried a standard non-parole period of ten years under s 61J(1) of the Crimes Act 1900 (NSW)?
  • Whether special circumstances existed justifying a departure from the standard ratio between the non-parole period and the total sentence
  • How to structure an aggregate sentence across five offences of differing seriousness, including for the related offence of resisting a police officer

Decision

Buscombe DCJ sentenced the offender on the basis of facts consistent with the verdict judgment, in which the victim was found to be a truthful and reliable witness supported by contemporaneous complaint evidence. The offender's own evidence at trial was rejected.

The court identified significant objective gravity across all counts. The use of a knife to threaten the victim during the sexual assault offences constituted a serious aggravating feature. The prolonged nature of the ordeal, the domestic relationship context, and the offender's conduct in blocking the victim's exit were all treated as serious matters.

Indicative sentences were set for each count before an aggregate was imposed: three years for count 1 (unlawful detention), two years and four months for count 3 (intentional choking), twelve months for count 4 (indecent assault), and six years each for counts 5 and 6 (aggravated sexual assault), with indicative non-parole periods of four years on each of the latter two counts.

Applying the totality principle and finding special circumstances that justified some departure from the standard non-parole period ratio, the court imposed an aggregate sentence of eight and a half years with a non-parole period of five and a half years. The sentence was backdated to commence on 11 April 2019, the date of the offending. A conviction was recorded for resisting police with no further penalty.

Orders Made

  • The offender is convicted of the five offences found proven at judge-alone trial.
  • Aggregate sentence of 8 years and 6 months imprisonment imposed, with an aggregate non-parole period of 5 years and 6 months.
  • Sentence commences 11 April 2019 and expires 10 October 2027; non-parole period expires 10 October 2024.
  • Conviction recorded for resisting police in the execution of duty (s 166 certificate offence) with no further penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Apprehended Domestic Violence Order made under s 39 of the Crimes (Domestic and Personal Violence) Act, commencing 6 December 2021 and expiring 9 October 2029, prohibiting assault, threats, stalking, harassment, intimidation, property damage, and any contact with the victim except through a lawyer.

Key Takeaways

  • An aggregate sentence of eight and a half years, with a non-parole period of five and a half years, was imposed for a serious course of domestic violence offending involving unlawful detention, choking, sexual assault, and repeated threats with a knife.
  • The use of a bladed weapon to threaten the victim during the sexual assault offences was treated as a significant aggravating factor under the sentencing framework.
  • Where an offender faces multiple counts of varying objective seriousness, the totality principle operates to ensure the overall sentence reflects the full criminality without being crushing; the District Court applied this principle in constructing the aggregate.
  • A finding of special circumstances permitted the non-parole period to be set below the proportion that would otherwise apply to the standard non-parole period offences, reflecting the need for an adequate period of supervision on release given the nature and extent of the offending.
  • Backdating the sentence to the date of the offending, rather than the date of sentencing, significantly affected the practical operation of the non-parole period, with the earliest eligible parole date falling before the sentencing date itself.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 37(1), 61J(1), 61KC(a), 86(2)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 21A
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 39

Cases:
- DPP v De La Rosa (2010) 79 NSWLR 1
- Hall v R [2021] NSWCCA 220
- Lawson v R [2018] NSWCCA 215
- Moiler v R [2021] NSWCCA 73