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District Court 2 February 2022

R v Pender

[2022] NSWDC 160

Sexual offences
CRIME RELEVANT FACTORS ON SENTENCE SENTENCE AFTER TRIAL FACT FINDING VICTIM IMPACT CHILDHOOD ABUSE AND TRAUMA

Citation: R v Pender [2022] NSWDC 160
Court: District Court of New South Wales
Date: 2 February 2022
Judge: Haesler SC DCJ

Background

Following a jury trial at Wollongong District Court, the offender was convicted of two counts of sexual intercourse without consent. Each offence carries a maximum penalty of 14 years imprisonment, with a standard non-parole period of seven years. The offender maintained his innocence throughout the proceedings, including at the sentencing hearing.

The offences occurred in February 2020. The victim, a member of the same local Aboriginal community on the NSW South Coast, had arranged for the offender to bring methylamphetamine to her home. The offender remained at the home for several hours, during which the victim made repeated attempts to contact friends and family to assist her. She told the offender clearly that she did not want sexual contact. He nonetheless committed acts of oral intercourse and penile/vaginal intercourse before leaving when a friend arrived.

The offender had a lengthy criminal history, had been in and out of custody since 1998, and was on bail at the time of the offences. He gave evidence at trial, which the jury rejected.

  • Whether the offender knew the victim was not consenting, or was merely reckless as to lack of consent
  • How to assess the objective seriousness of the two offences relative to the standard non-parole period
  • What sentencing discount, if any, applied given the offender maintained innocence but conducted a focused and expeditious trial
  • How to weigh the offender's significant childhood trauma and drug dependency as mitigating factors against his criminal history, breach of bail, and community protection considerations
  • How to apply the principle of totality, including the commencement date and relationship of this sentence to a pre-existing sentence from Nowra Local Court

Decision

Consent and mental state: The court rejected a submission that the offender was merely reckless as to the victim's lack of consent. Haesler SC DCJ found beyond reasonable doubt that the offender knew the victim was not consenting. The victim had clearly said "I don't want to do this," had repeatedly said no, and had remained passive out of fear of injury. The court accepted her account in full and found the offender's drug use that day did not diminish his knowledge of her non-consent.

Objective seriousness: The court characterised the offences as involving coercive power and control, not simply sexual gratification. Aggravating circumstances included the intrusion into the victim's home late at night, her vulnerability, the offender's unpredictable behaviour due to ice use, and the absence of a condom. The court declined to find the act of ejaculation was deliberately degrading or intended to humiliate, as the Crown had submitted. While the absence of overt violence, threats, or physical injury were noted in the offender's favour, the court was satisfied the offences warranted substantial departure downward from the standard non-parole period.

Trial discount and guilty plea: Because the offender maintained his innocence, no utilitarian discount for an early guilty plea arose under the Crimes (Sentencing Procedure) Act 1999. However, the court acknowledged that the trial was conducted with focus on critical issues and was conducted expeditiously, providing some modest assistance to the administration of justice under s 22A of that Act. The victim was still required to give evidence and be cross-examined, which limited the benefit available.

Mitigating factors, totality, and commencement date: The court accepted evidence of the offender's significant childhood trauma and recognised its ongoing effect, consistent with principles in Bugmy v The Queen. His drug dependency was an underlying driver of offending across his history. However, these factors were weighed against a lengthy record, the breach of bail, and the need for community protection. Applying the totality principle, the court declined to backdate the sentence to the date he first entered custody on this matter (6 April 2020), as doing so would leave too small a portion of the earlier Nowra Local Court sentence unserved. The court set the sentence to commence nine months after initial custody, being 14 October 2020.

Orders Made

  • Convicted on both counts in accordance with the jury's verdicts
  • Count 1 (oral intercourse without consent): indicative sentence of 5 years imprisonment, non-parole period of 3 years
  • Count 2 (penile/vaginal intercourse without consent): indicative sentence of 5 years 6 months imprisonment, non-parole period of 3 years 3 months
  • Aggregate sentence: 6 years imprisonment, commencing 14 October 2020
  • Non-parole period: 3 years 6 months
  • Eligible for release to parole: 13 April 2024
  • Parole period: 2 years 6 months
  • Total sentence expires: 13 October 2026
  • A finding of special circumstances was made (the non-parole period is proportionally shorter than the statutory default)

Key Takeaways

  • The District Court found beyond reasonable doubt that the offender knew the victim was not consenting, rejecting the alternative finding of recklessness, on the basis of her repeated, clear refusals and her evidence that she remained passive from fear rather than acquiescence.
  • A modest discount for assistance to the administration of justice under s 22A of the Crimes (Sentencing Procedure) Act 1999 remains available even where an offender maintains innocence at trial, provided the conduct of the defence was focused and expeditious, though the benefit is limited where the victim was still required to endure cross-examination.
  • Childhood trauma and entrenched drug dependency, while accepted as mitigating factors consistent with Bugmy v The Queen, do not overcome the weight of a substantial criminal history, breach of bail, and the need for community protection in a serious sexual offence matter.
  • Where an offender is serving a concurrent or overlapping sentence, the totality principle may require the sentencing court to fix a commencement date that ensures a meaningful portion of the earlier sentence is served rather than absorbed entirely.
  • The commission of a serious offence shortly after release on bail is an aggravating factor on sentence; the court treated the breach of bail conditions as a distinct matter of weight in the overall sentencing exercise.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 22A (discount for assistance to the administration of justice)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Kennedy v R [2010] NSWCCA 260
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Millwood v R [2012] NSWCCA 2
- Muldrock v The Queen 244 CLR 120; [2011] HCA 39
- Nasrullah v R [2021] NSWCCA 207
- R v Geddes (1936) 36 SR (NSW) 554
- R v MJB [2014] NSWCCA 195
- R v Tuala [2015] NSWCCA 8
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14