Citation: R v Mattiusi (No.3) [2022] NSWDC 406
Court: District Court of New South Wales
Date: 9 September 2022
Judge: Abadee DCJ
Background
A jury convicted the offender on two counts of sexual assault (contrary to s 61I of the Crimes Act 1900 (NSW)) and one count of intimidation with intent to cause fear of physical harm (contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)). The offences arose from events occurring in April 2020 at the victim's home in Paxton, NSW, within the context of a domestic relationship. The offender and victim had been together since February 2020.
The circumstances were particularly serious. Following a consensual "threesome" that had soured, the offender forced the victim into the shower, pushed his penis into her mouth without her consent (count 2), and then forcibly inserted a large dildo into her anus (count 3). Throughout, the victim was crying, vomiting, and pleading for him to stop. The offender laughed and told her she had "deserved" what he had done. A separate intimidation count (count 5) was also established.
The offender had been acquitted on count 1, which concerned an earlier act of penile-anal intercourse. The judge accepted, consistent with the jury's verdict, that the act had occurred but that reasonable doubt may have existed as to whether the offender knew the victim was not consenting at that point.
Legal Issues
- What facts could properly be found at sentence, consistently with the jury's verdicts (including the acquittal on count 1)?
- What was the appropriate aggregate sentence for the two sexual assault offences and the intimidation offence?
- Whether special circumstances existed justifying a departure from the standard non-parole period ratio.
- Whether a final Apprehended Violence Order (AVO) was required under s 39 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
Decision
Abadee DCJ applied established High Court principles on fact-finding at sentence. Facts adverse to the offender could only be taken into account if proved beyond reasonable doubt, while mitigating facts were for the offender to establish on the balance of probabilities. The jury's guilty verdicts were treated as a general endorsement of the victim's credibility, and the sentencing remarks were predicated on the jury's effective acceptance of her evidence. The judge declined to speculate about the precise basis for the count 1 acquittal.
The judge assessed the offending as serious, involving sustained sexual violence against a victim in a domestic relationship, compounded by the offender's conduct during the assault (laughing, telling the victim she "deserved" it) and the use of a large object in the second assault. Drug use at the time, while noted, did not substantially reduce the offender's moral culpability.
On special circumstances, the judge acknowledged the offender's drug dependence, his rehabilitative needs, and some lost opportunity for parole-based intervention during the pandemic period. Special circumstances were found, but the reduction in the statutory non-parole ratio was described as small.
An aggregate sentence of 7 years and 6 months' imprisonment was imposed, with a non-parole period of 5 years, 3 months and 2 days. A final AVO was also made, the offender having consented to it, as the offences constituted "serious offences" within the meaning of the domestic violence legislation.
Orders Made
- The offender convicted on counts 2, 3, and 5 of the indictment.
- Aggregate term of imprisonment of 7 years and 6 months, commencing 9 March 2021 and expiring 8 September 2028.
- Non-parole period of 5 years, 3 months and 2 days, expiring 10 June 2026, after which the offender is eligible for release on parole.
- Final Apprehended Violence Order of 3 years' duration, requiring the offender not to assault, threaten, stalk, harass, intimidate, or contact the victim (except through a lawyer), and not to destroy or damage her property.
Key Takeaways
- A sentencing judge may make independent findings of fact after a jury verdict, provided those findings do not conflict with the verdicts returned. Where a jury convicts on some counts and acquits on others, the sentencing judge is not required to speculate about the precise basis for each acquittal.
- Facts adverse to an offender at sentencing must be established beyond reasonable doubt; the offender bears the burden of proving mitigating facts on the balance of probabilities, consistent with Filippou v The Queen and The Queen v Olbrich.
- The District Court treated the jury's guilty verdicts as a general endorsement of the victim's credibility, anchoring its factual findings to the substance of her evidence.
- Special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW) were found on the basis of drug dependence, rehabilitative need, and reduced parole opportunities during the pandemic, but the departure from the standard ratio was modest.
- Under s 39 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), a final AVO must be made upon conviction for a "serious offence" unless the court is satisfied it is not required. Here, the court made the order without difficulty.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 61I
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 11, 13(1), 39
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 4A, 5, 21A
Cases
- Savvas v The Queen (1995) 183 CLR 1
- Cheung v The Queen (2001) 209 CLR 1
- The Queen v Olbrich (1999) 199 CLR 270
- Leach v The Queen (2007) 230 CLR 1
- Filippou v The Queen (2015) 89 ALJR 776
- Bussey v R [2020] NSWCCA 280
- Cherry v R [2017] NSWCCA 150
- Kelly v R [2022] NSWCCA 189
- Kiss v R [2021] NSWCCA 158
- Patel v R [2019] NSWCCA 170
- R v Daley [2010] NSWCCA 223
- R v Hibberd (2009) 194 A Crim R 1
- R v Mostyn (2004) 145 A Crim R 304
- SC v R [2019] NSWCCA 25