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District Court 1 March 2022

R v Campbell-Buck

[2022] NSWDC 60

Sexual offencesAssault & violenceDomestic & family violence
CRIME SEXUAL INTERCOURSE WITHOUT CONSENT RELEVANT FACTORS ON SENTENCE MULTIPLE OFFENCES PATTERN OF OFFENDING FORMS 1

Citation: R v Campbell-Buck [2022] NSWDC 60
Court: District Court of New South Wales
Date: 1 March 2022
Judge: Haesler SC DCJ

Background

The offender and the complainant were both in their early twenties and had met through an online dating app. They were in an intimate relationship and regularly spent nights together. Following the complainant's shoulder reconstruction surgeries in mid-2020 and late 2020, she took nightly pain medication that caused her to sleep heavily. The offender exploited this vulnerability across a series of incidents between August and November 2020.

The offending took place both at the complainant's home and the offender's home. It included digitally and physically touching the complainant sexually while she slept, recording those acts on his mobile phone without her consent, penetrating her vaginally while she was asleep, and, in a separate incident, placing both hands around her throat and squeezing until she lost consciousness. Text messages sent by the offender after the choking incident confirmed he was aware of what he had done and acknowledged that he had "enjoyed" the power of it.

The offender entered guilty pleas in the Local Court to all six charges and was brought before the District Court for sentencing. He was a first offender with no prior criminal history and had underlying mental health conditions, which were addressed in psychiatric and psychological reports tendered to the court.

  • What aggregate sentence was appropriate for six serious sexual and violent offences committed in a domestic context against the same complainant?
  • What weight should be given to guilty pleas entered at the Local Court stage, including the utilitarian benefit and the sparing of the complainant from cross-examination?
  • How should Form 1 matters (additional offences not charged but acknowledged by the offender and taken into account on sentence) affect the indicated sentences for the relevant counts?
  • What role did special circumstances play in structuring the non-parole period relative to the head sentence?
  • How should sentencing purposes, including retribution, general deterrence, victim vindication, and community protection, be balanced against the offender's personal circumstances, including his youth, mental health, and status as a first offender?

Decision

Haesler SC DCJ accepted that a custodial sentence was unavoidable given the nature and pattern of the offending. His Honour identified several aggravating features: the offending was deliberate and repeated; it occurred in a domestic relationship where trust should have existed; the offender had been expressly told to stop and sent apologies acknowledging his conduct, yet continued; and he recorded intimate images of the offending without consent. The messages sent after the choking incident, in which the offender described enjoying the power of causing the complainant to lose consciousness, were treated as particularly serious.

The court gave the offender full credit for his early guilty pleas. His Honour drew on the Court of Criminal Appeal's reasoning in R v Thompson, noting that guilty pleas in sexual offence matters carry particular value by sparing complainants the further trauma of giving evidence and being cross-examined. Care was taken, when formulating the aggregate sentence, not to erode that discount in the process of accumulating the individual sentences.

Special circumstances were found, given the offender's youth, his underlying mental health conditions, and the importance of supervised post-release treatment. This finding justified a non-parole period that represented a larger proportion of the head sentence than the statutory default would otherwise produce. The court structured the sentence to allow sufficient time under supervision upon release for the offender to continue voluntary treatment programs already in place.

The judgment also addressed the purposes of sentencing explicitly, stating that the sentence must vindicate the complainant's dignity and express community disapproval of sexual and physical violence committed in a domestic context. His Honour noted that the law responds to such offending with what he described as "a very blunt instrument": removal from the community for a period combined with appropriate retribution and the hope of general deterrence.

Orders Made

  • Convictions recorded on all six counts.
  • Aggregate sentence of four years and three months imprisonment.
  • Non-parole period of two years and six months, commencing 28 February 2022 (the day before sentencing, to account for time served).
  • Parole eligibility date: 27 August 2024.
  • Sentence expiry date: 27 May 2026.

Individual indicated sentences (reflected within the aggregate):

  • Sexual touching without consent (DV), sequence 13 (with Form 1 matters): 2 years 2 months
  • Sexual intercourse without consent, sequence 3 (standard non-parole period applies): 3 years, non-parole period 1 year 9 months
  • Sexual touching without consent (DV), sequence 6 (with Form 1 matter): 1 year 10 months
  • Sexual touching without consent (DV), sequence 10: 1 year 6 months
  • Record intimate image without consent, sequence 12: 9 months
  • Intentionally choke with recklessness, sequence 9: 1 year 10 months
  • Psychiatric and psychological reports (Exhibits 1 and 2) ordered to be forwarded with the warrant.

Key Takeaways

  • The District Court confirmed that repeated sexual offending against a sleeping domestic partner, accompanied by recordings made without consent and subsequent physical violence, will attract a significant custodial sentence even for a first offender with mental health vulnerabilities.
  • Early guilty pleas in the Local Court carry enhanced value in sexual offence matters because they spare complainants from the further trauma of giving evidence and cross-examination; this principle, drawn from R v Thompson, informed the full discount applied here.
  • Where Form 1 matters are agreed and signed by an offender, they are properly taken into account in formulating the indicated sentence for the relevant offence, increasing its gravity without creating a separate conviction.
  • A finding of special circumstances can justify a non-parole period that departs from the default statutory ratio, particularly where the offender is young, has diagnosed mental health conditions, and has voluntarily engaged with treatment programs that would benefit from post-release supervision.
  • Victim vindication is recognised in NSW sentencing law as a discrete purpose of the sentencing exercise, particularly in cases of domestic sexual and physical violence, and the sentence must reflect both that purpose and the community's disapproval of such conduct.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 37(1), 61, 61KC(a), 61P(1), 578A
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2013] NSWCCA 115; (2002) 56 NSWLR 146
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- R v Herring (1956) 73 WN (NSW) 203
- R v Holder; R v Johnston [1983] 3 NSWLR 245
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- R v Thompson [2000] NSWCCA 309; (2000) 49 NSWLR 383