Citation: R v Williams [2023] NSWDC 223
Court: District Court of New South Wales
Date: 16 March 2023
Judge: Bourke SC DCJ
Background
The offender stood trial in November 2022 across two consecutive jury trials for sexual offences committed against three separate complainants. The offences spanned a period from 2015 to 2019 and involved complainants who were acquaintances of the offender. A statutory non-publication order applies to the identities of all three complainants.
The first trial resulted in a guilty verdict for one count of sexual intercourse without consent against the first complainant, involving digital penetration while the complainant was asleep in a garage. The second trial produced verdicts on three counts relating to the remaining two complainants, covering penile penetration by force, attempted sexual intercourse, and intentional sexual touching.
The sentencing proceedings took place in March 2023, with the court determining the facts consistent with the jury's verdicts, assessing objective seriousness, considering the offender's subjective circumstances, and imposing an aggregate sentence.
Legal Issues
- What facts could be established for sentencing purposes, consistent with the jury's verdicts, on the criminal standard for aggravating matters and the civil standard for mitigating matters
- How objectively serious were each of the offences, having regard to their individual circumstances and the applicable maximum penalties and standard non-parole periods
- What aggregate sentence was appropriate, having regard to the principles of totality and accumulation across multiple offences against multiple victims
- Whether special circumstances existed to justify adjusting the statutory ratio between the non-parole period and the head sentence
- How pre-sentence custody should be calculated and applied, including a period during which the offender was also serving a sentence imposed in the Local Court
Decision
Bourke SC DCJ found the facts for each offence consistent with the jury's verdicts, drawing on a summary of trial evidence that was not disputed at sentence. Each of the sexual intercourse without consent offences involved genital penetration. The court noted that while the form of penetration, whether digital or penile, is a relevant factor, no hierarchy exists between different types of penetration. The offence against the second complainant involving penile penetration by physical force was treated as among the most serious, given the degree of physical restraint applied and the vulnerability of the victim in a confined space.
The court assessed each offence individually before considering the overall sentence. The offences involving the second complainant were treated as particularly grave, with the court noting the use of considerable physical force, the complainant's existing medical condition, and her explicit and repeated verbal objections. The attempted sexual intercourse offence, also against the second complainant and occurring several years after the first, indicated a persistent pattern of offending against the same victim.
On the question of accumulation and totality, the court structured the sentences to reflect the fact that the offences involved three different victims and occurred on entirely separate occasions spanning several years. The principle of totality required that the aggregate sentence not be crushing, but equally that it reflect the gravity and multiplicity of the conduct.
The court found special circumstances based on the offender's psychological treatment needs and the need for extended supervision in the community following release. This justified a modest adjustment to the statutory ratio between the non-parole period and the head sentence. The court also grappled with pre-sentence custody calculations, noting that for part of the post-verdict period the offender was concurrently serving a Local Court sentence for assault occasioning actual bodily harm and intentional choking. To reflect totality principles, the court applied only 50 percent of that overlapping custody period when backdating the sentence.
Orders Made
- Aggregate head sentence of 6 years and 10 months' imprisonment imposed
- Non-parole period of 4 years and 9 months imposed
- Sentence backdated by 294 days, commencing 26 May 2022
- Head sentence to expire 25 March 2029; non-parole period to expire 26 February 2027
- A copy of the psychologist's report (Dr Paul Pusey, dated 15 February 2023) to be forwarded to the Department of Corrective Services and to Justice Health
Key Takeaways
- The District Court confirmed that no hierarchy exists between forms of genital penetration for the purposes of assessing objective seriousness in sexual intercourse without consent offences, with the type of penetration being one factor among several.
- Where an offender is convicted of multiple sexual offences against different victims across separate occasions, the sentencing court must structure accumulation of sentences to reflect the distinct harm caused to each complainant while also applying the totality principle to avoid a crushing overall sentence.
- Special circumstances may be found, justifying adjustment of the statutory non-parole period ratio, where the offender has significant psychological treatment needs and requires extended post-release supervision.
- Pre-sentence custody calculations become more complex where the offender was simultaneously serving a separate sentence during part of the bail-refused period. The court applied a proportionate approach, crediting only half of the overlapping period to reflect totality principles.
- Repeated offending against the same victim across separate incidents, separated by several years, is a factor that the sentencing court will weigh in assessing the overall pattern and gravity of the offending.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- Simpson v R [2014] NSWCCA 23