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District Court 8 August 2022

R v MK

[2022] NSWDC 566

Sexual offences

Citation: R v MK [2022] NSWDC 566
Court: District Court of New South Wales
Date: 8 August 2022
Judge: Tupman DCJ

Background

The offender was found guilty by a jury of one count of aggravated sexual intercourse without consent, contrary to s 61J of the Crimes Act 1900 (NSW). The offence occurred between June 2006 and February 2007 in Cooma, when the victim was aged either 16 or 17 and was staying at the home of her pregnant sister to assist with housework. The offender was the sister's de facto partner (they subsequently married in 2009).

The jury acquitted the offender on three remaining counts, all involving the same complainant and co-offender in the same premises. The circumstance of aggravation on the single guilty count was that the offence was committed "in company" with another person, that other person being the victim's own sister.

The matter proceeded to sentencing before Tupman DCJ. The offender maintained his innocence throughout, expressed no remorse or contrition, and a Victim Impact Statement was received and taken into account.

  • What was the appropriate assessment of objective criminality for a single count of aggravated sexual assault in company, where the co-offender was the victim's own sister and where the jury acquitted on three related counts?
  • How should the "in company" circumstance of aggravation be weighed in this factual context compared with other statutory circumstances of aggravation under s 61J?
  • What sentence was appropriate having regard to the sentencing purposes under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), including the offender's diagnosed mental illness, the absence of remorse, delay, and the need for community supervision?
  • Were there special circumstances justifying a non-parole period shorter than the standard ratio?

Decision

Tupman DCJ found that the objective criminality for this offence fell below the mid-range. While any offence under s 61J is serious, her Honour assessed the "in company" circumstance of aggravation as one of the less serious statutory aggravating factors. In many cases, an offender acting in company increases the level of physical threat and fear experienced by the victim. Here, however, the co-offender's presence and assistance served to overbear the victim's resistance rather than to heighten her fear or increase any physical threat.

The acquittals on counts 2, 3 and 4 required care in identifying the factual basis for sentencing on count 1. Her Honour found it unnecessary to resolve most inconsistencies between the complainant and the co-offender, as the jury's guilty verdict confirmed the essential elements were established. The victim was a teenager sent to assist her pregnant sister; the offender's culpability was assessed on that basis alone, without attributing conduct from the acquitted counts.

The offender offered no remorse and maintained his innocence throughout. Against that, her Honour took into account the significant delay between the alleged offending (2006 to 2007) and sentence (2022), the offender's diagnosed depression and generalised anxiety disorder, his limited prior criminal history, and his otherwise pro-social personal circumstances. The court also considered parity with a loosely comparable case involving similar offending.

Her Honour found special circumstances existed: the offender's diagnosed mental illness would make custody more onerous, he had no meaningful prior experience of imprisonment, and a longer period of community supervision was warranted to address psychological issues and provide vocational guidance. These factors justified a non-parole period shorter than the standard ratio, set at 2 years within an overall term of 4 years.

Orders Made

  • The offender is convicted.
  • Sentenced to a non-parole period of 2 years, commencing 31 July 2022 and expiring 30 July 2024.
  • Parole period of 2 years, commencing 31 July 2024 and expiring 30 July 2026.
  • Total term of imprisonment: 4 years, commencing 31 July 2022 and expiring 30 July 2026.
  • Sentence backdated to 31 July 2022 to account for 8 days of pre-sentence custody.

Key Takeaways

  • The District Court confirmed that "in company" is, of itself, one of the less serious statutory circumstances of aggravation under s 61J, and its factual weight varies considerably depending on whether the co-offender's presence increases physical threat and fear or operates in a different way.
  • Where a co-offender's role was to overbear the victim's resistance rather than to heighten threat or fear, the court assessed this as a factually lower level of the "in company" aggravation than cases involving multiple perpetrators acting to intimidate.
  • Acquittals on related counts can affect sentencing on a conviction for a single count: the sentencing court confined its assessment of objective criminality to the conduct proven on the count of conviction and did not draw on allegations underlying the acquitted counts.
  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW) were established by the combination of diagnosed mental illness, limited prior custodial experience, and the need for extended supervised reintegration, justifying a non-parole period of 2 years within a 4-year head sentence.
  • Absence of remorse and maintenance of innocence did not increase the sentence, but the court noted they meant no discount for contrition was available.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61J (aggravated sexual intercourse without consent) and s 61I (sexual intercourse without consent)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A (purposes of sentencing)
- Bail Act 2013 (NSW), s 22B
- Evidence Act 1995 (NSW), ss 66 and 108(3)

Cases:
- Manojlovic v R; R v Manojlovic [2020] NSWCCA 315