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District Court 17 December 2021

R v Wortley

[2021] NSWDC 785

Sexual offencesDomestic & family violence
CRIME SEXUAL INTERCOURSE WITHOUT CONSENT RELEVANT FACTORS ON SENTENCE LATE GUILTY PLEA SOME EARLY ADMISSION SLEEPING VICTIM

Citation: R v Wortley [2021] NSWDC 785
Court: District Court of New South Wales
Date: 17 December 2021
Judge: Haesler SC DCJ

Background

The offender and the complainant were teenagers in an intimate relationship in 2019. They lived separately but spent time together, including stays at each other's accommodation and a family holiday. The complainant had made it unambiguous that she did not consent to anal penetration, and she consistently rejected the offender's sexual advances when asleep or unwilling.

Between September and October 2019, the offender committed multiple acts of sexual intercourse without consent under s 61I of the Crimes Act 1900. These included anal penetration during consensual vaginal intercourse, digital penetration of a sleeping complainant on multiple occasions, and a further incident in which the complainant woke to find the offender using her hand and then digitally penetrating her. After each incident, the complainant told him his conduct was wrong. He apologised repeatedly, yet the offending continued.

In May 2020, the complainant discovered a video on her mobile phone showing a close-up recording of the offender digitally penetrating her vagina without her knowledge or consent. This recording formed the basis of an additional charge. After the relationship ended, the offender made admissions in text messages, to mutual friends, in a lawfully recorded telephone call, and to police upon arrest.

  • What discount, if any, was appropriate for the utilitarian value of a guilty plea entered late, after the originally listed trial date?
  • What weight should be given to early admissions, co-operation with police, and expressions of remorse as mitigating factors?
  • How serious were the individual offences, and what aggregate custodial sentence was proportionate?
  • Whether a finding of special circumstances justified adjusting the ratio between the non-parole period and the head sentence.
  • Whether an Apprehended Domestic Violence Order (ADVO) should be made or extended.

Decision

Guilty plea discount. His Honour found that only a 5% discount was available for the utilitarian value of the guilty pleas. No offer had been made in the Local Court, and the pleas came after the originally listed trial date, engaging s 25D of the Crimes (Sentencing Procedure) Act 1999. However, the offender's early admissions before police involvement, his co-operation with investigators, and his partial acceptance of responsibility prior to formal proceedings were treated as separate mitigating factors.

Objective seriousness. The court assessed each offence individually. His Honour observed that the form of sexual intercourse does not determine seriousness, and that no hierarchy exists between types of sexual penetration. The offending took place in the complainant's home or in a shared sleeping space, where she was entitled to feel safe. A sleeping person cannot consent, and the offender's persistence after express refusals demonstrated an exercise of power and control that ignored the complainant's dignity and the trust inherent in an intimate relationship. His Honour was satisfied that the offender knew the complainant had not consented to anal penetration and proceeded regardless, and that the digital penetration offences were committed while she was asleep or actively objecting.

Subjective case and remorse. The offender presented a strong subjective case, including youth, prior good character, the absence of prior offending, and evidence of rehabilitation prospects. His Honour acknowledged his expressions of regret and remorse, but noted that he had difficulty genuinely accepting the wrongfulness of his actions. The court found that, while mitigating factors warranted full weight, they could not reduce the sentence to a level disproportionate to the gravity of repeated non-consensual offending within a relationship. Rehabilitation and retribution were both relevant purposes of sentencing, and the sentence was required to express the community's disapproval and vindicate the complainant's dignity.

Special circumstances. A substantial finding of special circumstances was made, reflecting the offender's youth and the importance of supervised parole in supporting rehabilitation. This justified a non-parole period proportionally shorter than the statutory default.

Orders Made

Indicated sentences (individual counts):
- Count 1 (anal penetration without consent): 2 years 4 months imprisonment, non-parole period 1 year 2 months
- Count 2 (digital penetration while asleep, including Form 1 matter): 2 years 4 months imprisonment, non-parole period 1 year 2 months
- Count 4 (digital penetration, persistent offending): 1 year 11 months imprisonment, non-parole period 11 months
- Count 5 (digital penetration captured on video, including Form 1 matter): 2 years 1 month imprisonment, non-parole period 1 year

Aggregate sentence:
- Total aggregate sentence: 3 years 2 months imprisonment
- Non-parole period: 1 year 7 months (commencing 17 December 2021)
- Expected parole release date: 16 July 2023
- Parole period: 1 year 7 months
- Total sentence expiry: 16 February 2025

Apprehended Domestic Violence Order:
- The ADVO made on 16 December 2021 at Wollongong Local Court was varied and extended to 3 years 7 months from 17 December 2021, extending two years beyond the expected parole release date.

Key Takeaways

  • A guilty plea entered after the originally listed trial date, with no offer made in the Local Court, attracted only a 5% utilitarian discount under s 25D of the Crimes (Sentencing Procedure) Act 1999. Pre-charge admissions and police co-operation were treated as distinct, separately weighted mitigating considerations.

  • Under NSW law, no hierarchy exists between forms of sexual intercourse for the purpose of assessing objective seriousness. The court's focus is on the totality of the conduct, including persistence, breach of trust, and the circumstances in which the offending occurred.

  • A sleeping person cannot consent to sexual activity. The District Court reaffirmed that penetrating a sleeping partner, without any inquiry or indication of consent, constitutes a serious exercise of power and control regardless of the existence of an otherwise consensual relationship.

  • Expressions of remorse, youth, and rehabilitation prospects constitute genuine mitigating factors, but cannot reduce a sentence to a level disproportionate to the gravity of repeated, persistent non-consensual sexual offending.

  • Where domestic violence offences are established, an automatic ADVO provision applies under NSW legislation. The court here extended an existing ADVO to cover the period of parole and two years beyond, reflecting the ongoing protective purpose of such orders.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I (sexual intercourse without consent)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 25D (guilty plea discount); Form 1 procedure

Cases:
- Burton v R [2020] NSWCCA 54
- Blackman & Walters v R [2001] NSWCCA 121
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Doe v R [2013] NSWCCA 248; (2013) 187 A Crim R 328
- DPP (Vic) v DJK [2003] VSCA 109
- MRM v R [2015] NSWCCA 195
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- R v AJP [2004] NSWCCA 434
- R v Francis [2021] NSWDC 870
- R v Herring (1956) 73 WN (NSW) 203
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14