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District Court 8 April 2022

R v Song

[2022] NSWDC 100

Sexual offencesDrugs
SEXUAL INTERCOURSE WITHOUT CONSENT A GGRAVATED INDECENT ASSAULT VICTIM UNDER AUTHORITY FINDING OF SPECIAL CIRCUMSTANCES PRINCIPLE OF TOTALITY.

Citation: R v Song [2022] NSWDC 100
Court: District Court of New South Wales
Date: 8 April 2022
Judge(s): Mahony SC DCJ

Background

The offender operated a private tutoring school in Chatswood and had provided tutoring services to the victim, a young female student, since 2014. By early 2018, he had developed a sexual interest in her. She attended sessions twice weekly and was preparing for her HSC examinations.

On 31 January 2018, the offender secreted an unknown substance into a milk tea he gave the victim. She lost consciousness for approximately 30 minutes. That earlier incident formed the basis of a Form 1 matter (causing a person to take an intoxicating substance with intent to commit an indecent assault) to be taken into account on sentence.

On 28 October 2018, the day before the victim's final HSC examination, the offender researched Rohypnol online, cancelled other students' appointments, and gave the victim capsules containing Rohypnol disguised as health supplements. After she lost consciousness, the offender sexually assaulted and then raped her. The entire incident lasted approximately one and a half hours.

  • What aggregate sentence was appropriate for two counts (causing a person to take an intoxicating substance with intent to commit an indecent assault, and sexual intercourse without consent), together with two Form 1 matters?
  • What utilitarian discount applied to the late guilty pleas?
  • Whether special circumstances existed justifying a departure from the standard statutory ratio between head sentence and non-parole period.
  • How the principle of totality applied given that one Form 1 matter arose from a separate incident nine months before the principal offending.

Decision

Mahony SC DCJ noted that the offending was serious and deliberate. The offender had conducted targeted internet searches about Rohypnol, date rape drugs, and how to avoid arrest, in the hours before the victim arrived on 28 October 2018. That premeditation significantly aggravated the offences. The guilty pleas came very late, after three trial dates had been vacated, and attracted only a 5% utilitarian discount under s 25D(2)(c) of the Crimes (Sentencing Procedure) Act 1999.

The offender was diagnosed with schizophrenia and had been prescribed Rohypnol (Flunitrazepam) as a sleep medication. His condition was a relevant consideration but did not diminish the deliberateness of the offending. The court directed that psychiatric reports be forwarded to Justice Health to ensure continuity of his treatment in custody.

On totality and accumulation, the court found that Counts 1 and 2 were discrete offences requiring some accumulation, and that the Form 1A matter (from January 2018) arose from a separate incident nine months earlier, also warranting some accumulation rather than full concurrence. The court applied the principle of totality to arrive at an aggregate sentence that reflected the overall criminality without producing a crushing result.

The court found special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 based on the offender's mental illness, the onerous conditions of custody he would face, the fact that this was his first time in custody, and the impact of COVID-19 pandemic restrictions on access to rehabilitation programs and medical services. Accordingly, the court varied the standard statutory ratio between the head sentence and non-parole period.

Orders Made

  • The offender was convicted of Count 1: causing a person to take an intoxicating substance with intent to commit an indecent assault, contrary to s 38(b) of the Crimes Act 1900.
  • The offender was convicted of Count 2: sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900.
  • An aggregate sentence of six years imprisonment was imposed.
  • A non-parole period of three years was set, commencing 13 February 2022 and terminating 12 February 2025.
  • The balance of term of three years terminates on 12 February 2028.
  • The Registrar was directed to forward psychiatric reports from Dr Furst (9 July 2021 and 7 November 2021) and Dr Miao (multiple dates from 2019 to 2021) to Justice Health, and the offender was to receive ongoing prescription medication for schizophrenia.

Key Takeaways

  • A finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 is available where a combination of factors exists, including mental illness, first-time custody, onerous custodial conditions, and the impact of the COVID-19 pandemic on access to rehabilitation and medical care.
  • Where Form 1 matters arise from incidents temporally and factually separate from the principal offending, the court treats them as warranting some accumulation rather than full concurrence, even where the principal counts themselves arose from a single course of conduct.
  • The District Court confirmed that very late guilty pleas, entered only on the day a trial was to commence after multiple adjournments, attract only the minimum utilitarian discount of 5% under s 25D(2)(c) of the Crimes (Sentencing Procedure) Act 1999.
  • Evidence of premeditation, including targeted internet searches about drugs, sexual offences, and avoiding arrest in the hours before the offending, was treated as a significant aggravating factor in assessing the objective seriousness of drug-facilitated sexual assault.
  • Psychiatric conditions are a relevant sentencing consideration, but the court found that the offender's diagnosis of schizophrenia did not reduce moral culpability where the offending was plainly deliberate and calculated.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 38(b), 61I, 61M(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D, 44(2)
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Cases:
- Cahyadi v R [2007] NSWCCA 1
- Chenhall v R [2021] VSCA 175
- Christie v R [2012] NSWCCA 228
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Faehringer v R [2017] NSWCCA 248
- Fenner v R [2022] NSWCCA 48
- Hoskins v R [2020] NSWCCA 18
- Irmak v R; Dagdanasar v R [2021] NSWCCA 178
- Korovou v R [2021] NSWCCA 28
- McKinley v R [2022] NSWCCA 14
- McKinnon v R [2020] NSWCCA 106
- Muldrock v The Queen (2011) 244 CLR 120
- Nguyen v R [2007] NSWCCA 14
- R v Cunningham [2006] NSWCCA 176
- R v Diez [2020] NSWDC 351
- R v Ellis (1986) 6 NSWLR 603
- R v Engert (1995) 84 A Crim R 67
- R v Holder; R v Johnstone (1983) 3 NSWLR 245
- R v Solomon [2005] NSWCCA 158
- R v SS [2021] NSWCCA 56
- Zahorsky v R [2013] NSWCCA 268