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District Court 25 November 2022

R v Bullaman

[2022] NSWDC 588

Sexual offencesFirearms & weapons
CRIME SENTENCE S166 OFFENCE CARRY CUTTING WEAPON UPON APPREHENSION

Citation: R v Bullaman [2022] NSWDC 588
Court: District Court of New South Wales
Date: 25 November 2022
Judge(s): Mahony SC DCJ

Background

The offender, a man born in 1976, was tried on an indictment containing two counts. A jury returned a verdict of guilty on Count 1, sexual intercourse without consent under section 61I of the Crimes Act 1900, and not guilty on Count 2. The offence involved the offender engaging in penile-vaginal sexual intercourse with a woman who was asleep at the time.

The offender also appeared for sentencing on a related charge of carrying a cutting weapon upon apprehension under section 547D of the Crimes Act 1900, to which he had pleaded guilty and which came before the court on a section 166 certificate. That offence related to a pair of scissors found on him at the time of his arrest.

The offender carried an extensive criminal history dating from the Walgett Children's Court in 1989, including a prior conviction in 2004 for sexual intercourse without consent in strikingly similar circumstances. At the time of the index offending he was subject to five community corrections orders.

Legal Issues

  • What was the appropriate assessment of the objective seriousness of the section 61I offence, including the relevance of the victim's vulnerability, the duration of the offending, and the mental element involved?
  • Which aggravating and mitigating factors under section 21A of the Crimes (Sentencing Procedure) Act 1999 applied?
  • Whether the standard non-parole period should apply.
  • Whether special circumstances existed to justify varying the statutory ratio between the head sentence and the non-parole period.
  • What penalty, if any, was appropriate for the related scissors offence.

Decision

Objective Seriousness of the Principal Offence

The court accepted that the victim was vulnerable because she was asleep when the offending occurred, and rejected the defence submission that the offending could be characterised as lasting only seconds, though it accepted the conduct was of relatively short duration (at [53]). While the Crown had put the case to the jury on alternative bases (actual knowledge, recklessness, or lack of reasonable belief as to consent), the court noted the inference from the circumstances that the offender knew the victim was not consenting (at [53]). The offending was assessed as falling within the mid-range of objective seriousness for a section 61I offence, towards the lower end of that mid-range (at [53]).

Aggravating and Mitigating Factors

The court accepted several statutory aggravating factors, including the offender's prior criminal history, that he was subject to a community correction order at the time, and the vulnerability of the victim. The court found the offender's remorse to be limited and self-centred, focused on the impact of incarceration on himself rather than on the harm caused to the victim (at [59]). His insight did not therefore mitigate his moral culpability (at [59]). An early plea of guilty to the related scissors offence was treated as a mitigating factor for that charge (at [56]).

Disadvantage and Rehabilitation

The court accepted that the offender had experienced a life of disadvantage, including exposure to alcohol and domestic abuse in childhood, early alcohol abuse, and subsequent heroin addiction after relocating to Sydney (at [61]). The court noted these factors endure throughout a person's life and are relevant to sentencing, consistent with principles established in Bugmy v The Queen. However, prospects of rehabilitation were assessed as extremely guarded given his long history of substance abuse, high assessed risk of reoffending, and the fact that his recent placement on opioid replacement therapy was his first attempt to address addiction (at [60]).

Standard Non-Parole Period and Special Circumstances

The court determined that the standard non-parole period of seven years did not apply, having regard to the offender's age and subjective circumstances (at [62]). Special circumstances were found to exist because of the particularly onerous conditions of custody during the COVID-19 pandemic, including the absence of visitation, inability to access programs, and repeated lockdowns (at [63]). The court accordingly varied the statutory ratio and imposed a total sentence of four years with a non-parole period of two years (at [63]).

Orders Made

  • Convicted of sexual intercourse without consent under section 61I of the Crimes Act 1900.
  • Sentenced to a non-parole period of 2 years imprisonment commencing 22 February 2021 and expiring 21 February 2023, with a balance of term of 2 years commencing 22 February 2023 and expiring 21 February 2025.
  • The sentence ordered to be served concurrently with the three-month sentence previously served for goods in personal custody.
  • Convicted of carrying a cutting weapon upon apprehension under section 547D of the Crimes Act 1900; no further penalty imposed pursuant to section 10A of the Crimes (Sentencing Procedure) Act 1999.

Key Takeaways

  • A sleeping victim constitutes a vulnerable victim for the purposes of objective seriousness in a sexual assault sentencing, and the court's inference of actual knowledge of non-consent follows naturally from that circumstance, even where the jury may have convicted on the basis of recklessness (at [53]).

  • Limited remorse that is self-focused on the offender's own circumstances, rather than on the impact on the victim, does not operate to reduce moral culpability at sentence (at [59]).

  • Under Bugmy principles, a documented history of childhood disadvantage, including exposure to alcohol and domestic violence, remains relevant throughout a person's life and is a proper consideration on sentence, even where no direct causal nexus between that disadvantage and the specific offending is established (at [61]).

  • Onerous prison conditions arising from the COVID-19 pandemic, including lockdowns and restricted access to programs and visitors, can constitute special circumstances justifying a departure from the standard statutory ratio between the non-parole period and the head sentence under section 44(2) of the Crimes (Sentencing Procedure) Act 1999 (at [63]).

  • Where a related offence is assessed as falling at the very lowest end of objective seriousness, a conviction with no further penalty under section 10A of the Crimes (Sentencing Procedure) Act 1999 may be appropriate (at [54], [65]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999
- Criminal Procedure Act 1986

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
- Fisher v R; R v Fisher [2021] NSWCCA 91
- Jonson v R (2016) 263 A Crim R 268; [2016] NSWCCA 286
- R v Carter [2003] NSWCCA 243
- Veen v R [No. 2] (1998) 164 CLR 465; [1998] HCA 14