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District Court 14 October 2022

R v Lee

[2022] NSWDC 482

Sexual offences
SENTENCING — PENALTIES — IMPRISONMENT SEXUAL OFFENCES SEXUAL INTERCOURSE WITHOUT CONSENT SEXUAL TOUCHING.

Citation: R v Lee [2022] NSWDC 482
Court: District Court of New South Wales
Date: 14 October 2022
Judge(s): Noman SC DCJ

Background

The offender was convicted after a jury trial on two counts: sexual touching contrary to s 61KC(a) of the Crimes Act 1900 (NSW), and sexual intercourse without consent contrary to s 61I of the same Act. The offences occurred on the same evening, 6 September 2020, at the offender's home during a party he was hosting. Both the offender and the victim had been friends since 2017, having met while studying in China, and had resumed contact in Sydney during COVID-19 restrictions.

The first offence involved the offender touching the victim's breast area in a room where two other males were present, continuing after she told him to stop and physically resisted. The second offence occurred later that evening: the victim fell asleep in a shared bed and was awoken by digital penetration. The offender had moved her bedding and raised her dress while she slept, and when she confronted him he pulled her closer and placed a hand over her mouth before she extracted herself.

The offender denied both acts at trial, claiming the first was consensual hugging and denying the second entirely. The jury rejected those accounts and returned guilty verdicts on both counts.

  • What facts for sentencing were established beyond reasonable doubt, consistent with the jury verdicts?
  • What was the objective seriousness of each offence?
  • Whether the offender acted with actual knowledge of the victim's lack of consent, or merely recklessly, in respect of each count.
  • What sentence was appropriate having regard to the offender's subjective circumstances, the COVID-related conditions of custody, and the standard non-parole period applicable to Count 2?
  • Whether special circumstances existed warranting a variation to the statutory non-parole period ratio.

Decision

Objective seriousness: The court assessed both offences as falling modestly below the mid-range of objective seriousness. For Count 1, the court found the touching was brazen, accompanied by demeaning comments, and persisted after the victim clearly communicated non-consent by words and physical resistance. For Count 2, the court found the offender had actual knowledge that the victim was asleep, inferring this from the fact that her bedding and clothing had been deliberately moved to facilitate the offence, which the victim could not have assisted with.

Subjective circumstances: The offender had no prior criminal history and received positive character evidence from family and friends. However, he maintained his denial of the offences throughout the proceedings and into the sentencing hearing, advancing a fabricated account. The court found that a post-offence phone call in which the offender apologised was a genuine acknowledgment of his conduct at the time, though he subsequently retreated from that position. The absence of any acceptance of responsibility and the absence of remorse meant little weight could be given to rehabilitation prospects at that stage.

COVID conditions and special circumstances: The court acknowledged that custody conditions during the COVID-19 period were more onerous than usual, with restricted visits, limited programs, and reduced social interaction. Despite these matters, the court found the offender possessed the personal fortitude and family support to reintegrate without requiring a significant adjustment to the statutory non-parole period ratio. A finding of special circumstances was nonetheless made, resulting in a modest variation to the ratio.

Accumulation: Because the two offences involved different sexual acts, even though they occurred on the same day, the court determined that some accumulation of sentences was appropriate to reflect the full criminality involved.

Orders Made

  • Count 1 (sexual touching): Fixed term of 9 months imprisonment, commencing 18 July 2022.
  • Count 2 (sexual intercourse without consent): 3 years imprisonment with a non-parole period of 2 years, commencing 18 September 2022. The head sentence expires 17 September 2025; the non-parole period expires 17 September 2024.
  • The overall combined sentence is 3 years and 2 months, with an overall non-parole period of 2 years and 2 months (a ratio of approximately 68%, reflecting the special circumstances finding).
  • Sentences backdated to 18 July 2022 to account for pre-sentence custody.
  • A statutory non-publication order over the victim's identity remains in place.

Key Takeaways

  • Where an offender denies offending at trial and maintains that denial on sentence, no reduction for remorse or acceptance of responsibility is available, even where other subjective factors are present.
  • A sentencing court may find actual knowledge of a victim's lack of consent where the physical circumstances, such as the deliberate rearrangement of bedding and clothing while a victim slept, are inconsistent with any other rational inference.
  • The District Court confirmed that even relatively brief acts of sexual penetration or touching can warrant full-time imprisonment where they involve a breach of trust, persistence after clear indication of non-consent, or exploitation of a sleeping victim's vulnerability.
  • Under s 61I of the Crimes Act 1900, the standard non-parole period of 7 years operates as a legislative guidepost calibrated to the mid-range of objective seriousness; offences assessed below that mid-range will attract proportionately lesser sentences, though full-time custody may still be warranted.
  • Enhanced custody conditions arising from COVID-19 restrictions, such as reduced programs, limited visits, and restricted movement, are a recognised factor in sentencing but did not, in these circumstances, alter the statutory non-parole period ratio beyond the modest variation already made on special circumstances grounds.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61KC(a) (sexual touching, maximum 5 years imprisonment)
- Crimes Act 1900 (NSW), s 61I (sexual intercourse without consent, maximum 14 years imprisonment, standard non-parole period of 7 years)

Cases cited: No cases were cited in the provided judgment text.