Citation: R v Mercuri de Figueiredo [2022] NSWDC 67
Court: District Court of New South Wales
Date: 18 March 2022
Judge(s): Mahony SC DCJ
Background
Following a judge-alone trial, the offender was found guilty of three offences arising from a single night between 25 and 26 April 2020. The offender, a Brazilian national on a student visa, met the complainant and, in the course of the evening, placed MDMA in her drink without her knowledge. Once she was intoxicated, he kissed her without consent and then removed her clothing and attempted to engage in sexual intercourse with her while she was rendered unconscious.
The offender maintained throughout both the trial and the sentencing proceedings that the victim had accidentally consumed MDMA by drinking from his own glass, and that any sexual contact was either consensual or a misunderstanding. Those accounts were rejected at trial and again at sentencing.
The offender had been in custody for a total of 257 days across two periods, and the parties agreed that any sentence should be backdated to commence on 22 May 2021. The sentence hearing proceeded by reference to the trial judgment, a sentencing assessment report, clinical records, and expert evidence from a clinical psychologist.
Legal Issues
- What was the objective seriousness of each of the three offences, and how did the use of MDMA across the counts interact for the purpose of avoiding double counting?
- Whether the offending was planned or opportunistic, and how that characterisation affected the assessment of moral culpability
- Whether the offender's substance use disorder, depression, and mental health history mitigated his culpability or reduced the weight to be given to general deterrence
- Whether the harm caused to the victim was substantial within the meaning of section 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999
- How the principle of totality should apply to the aggregate sentence across three related offences arising from a single episode
- Whether special circumstances existed under section 44(2) of the Crimes (Sentencing Procedure) Act to vary the standard ratio between the non-parole period and balance of term
Decision
Objective seriousness and the role of MDMA across counts:
The court found the offending in Count 1 (administering an intoxicating substance) fell in the middle of the low range for that offence, but nonetheless constituted serious criminal conduct attracting substantial moral culpability (at [63]). The offending was found to be opportunistic, arising from the offender's own drug consumption, rather than part of a planned criminal course of conduct (at [64]). To avoid double counting, the court declined to treat the victim's intoxication as an aggravating factor under section 21A(2)(cb) in respect of Counts 2 and 3, given that element was already captured by Count 1 (at [67]).
Objective seriousness of the sexual offences:
The court assessed the sexual touching in Count 2, involving kissing, as falling at the lower end of the scale of objective seriousness for that offence (at [65]). Count 3, attempted sexual intercourse without consent, was characterised as serious criminal conduct, noting the offender had rendered the victim unconscious and removed her clothing, though the offending fell below the mid-range and in the middle of the low range for that offence (at [66]).
Subjective factors and mitigation:
The court accepted that the offender had a substance use disorder and was depressed at the time of the offending, but found neither condition materially contributed to the commission of the offences (at [72]). The intoxication was self-induced and therefore not a mitigating factor under section 21A(5AA). There was no causal link established between the offender's pre-existing schizophrenia diagnosis and the offending conduct (at [74]). The court gave credit for the offender's good character prior to these offences (at [74]), but found his continued denial of guilt meant that rehabilitation prospects were extremely guarded, notwithstanding a medium low assessed risk of reoffending (at [75]).
Harm, totality, and special circumstances:
The court rejected the submission that harm was no more than ordinarily expected for offences of this type, finding instead that the injury and emotional harm to the victim was substantial (at [69]). Applying the principle of totality as articulated in Cahyadi v R and R v Van Ryn, the court held that some accumulation across the three counts was necessary, notwithstanding the offences arose from a single course of conduct (at [83]). Special circumstances were found, given the offender's mental health difficulties, the fact this was his first custodial sentence, and the particularly onerous conditions of custody during COVID-19 lockdowns, including assaults he suffered while in prison (at [79]-[80]).
Orders Made
- The offender was convicted on all three counts.
- An aggregate sentence of four years and six months imprisonment was imposed, with a non-parole period of two years and three months.
- The sentence commenced on 22 May 2021 and the non-parole period expires on 21 August 2023.
- The balance of term is two years and three months, expiring on 21 November 2025.
Key Takeaways
- Where multiple counts arise from a single episode and one count captures the use of a drug as an element of the offence, using that same drug use as an aggravating factor under section 21A(2)(cb) for the remaining counts constitutes impermissible double counting.
- The District Court confirmed that the harm caused by sexual offending is assessed on an individual basis: it is not sufficient to characterise harm as no greater than that ordinarily expected from offending of the relevant type, as doing so improperly depersonalises the impact on the victim (at [69]).
- Self-induced intoxication by the offender at the time of the offence is not a mitigating factor under section 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999, even where the offender is also found to have a substance use disorder (at [72]).
- An offender's continued denial of guilt does not eliminate all prospects of rehabilitation, but it renders any assessment of rehabilitation prospects extremely guarded and precludes a finding of remorse (at [70], [75]).
- Under the principle of totality, some degree of accumulation is required when sentencing for multiple offences arising from the same course of conduct, to ensure the aggregate sentence reflects the full criminality involved and maintains public confidence in the administration of justice (at [83]).
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999
- Crimes Act 1900
Cases
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- R v Edwards (1996) 90 A Crim R 510
- R v Grech [1999] NSWCCA 268
- R v Holder; R v Johnstone (1983) 3 NSWLR 245
- R v King [2009] NSWCCA 117
- R v Van Ryn [2016] NSWCCA 1