Citation: [2023] NSWDC 286
Court: District Court of New South Wales
Date: 28 July 2023
Judge(s): Noman SC DCJ
Background
The offender, aged 56 at the time of sentencing, pleaded guilty in the Local Court to two offences: sexual intercourse without consent, contrary to s.61I of the Crimes Act 1900 (NSW), and contravention of a Child Protection (Offenders Prohibition Orders) Act order, contrary to s.13(1) of that Act. He maintained those pleas when the matter came before the District Court for sentence.
The offender and the victim had met in 2018 and developed a relationship by 2020. The offender was already subject to a five-year Child Prohibition Order imposed in September 2018, having subsequently been sentenced to imprisonment in 2019 for an earlier breach. Despite this, he continued to associate with the victim and her two young children.
The principal offence occurred on 4 March 2022, approximately five weeks after the victim had given birth to their child. The offender attended the victim's home uninvited, entered her bedroom, and forcibly engaged in unprotected penile vaginal intercourse despite her repeated objections and physical resistance. The offender was significantly larger than the victim, causing bruising to her wrists and forearm. The Child Protection Order breach arose from the offender's repeated contact with the victim's two children over an extended period, contrary to the express terms of the order.
Legal Issues
- What was the appropriate objective seriousness of each offence, and where did they fall within the range of comparable cases?
- Whether the offender's longstanding paranoid schizophrenia established a causal connection with the offending sufficient to reduce his moral culpability.
- Whether the offender had demonstrated genuine remorse warranting further mitigation.
- Whether special circumstances existed justifying a variation to the statutory non-parole period ratio.
- What aggregate sentence, applying the 25% guilty plea discount and the totality principle, was appropriate across both offences.
Decision
The court assessed the sexual intercourse without consent offence as falling within the mid-range of objective seriousness. Relevant factors included the nature of the penetrative act, the absence of consent and the offender's actual knowledge of that absence, the victim's recent post-birth recovery, the use of physical force, the location being the victim's own home, the exposure to pregnancy risk, and the fact the conduct was not entirely spontaneous given a similar prior incident.
On the question of mental illness, the court accepted the offender suffered from paranoid schizophrenia but declined to find any causal connection between that illness and the offending. The psychiatric evidence from Dr Pusey, a Clinical and Forensic Psychologist, acknowledged that cognitive impairments associated with psychotic illness may have impaired judgement and decision-making, but conceded the connection was unclear. The Justice Health records indicated the offender reported no symptoms in the month before the offending and was not then receiving medication. The court concluded that, at most, the offender's judgement was generally impoverished, warranting only the most modest reduction in moral culpability.
The court found it could not determine that the offender had demonstrated genuine remorse. He had presented a false account to the forensic psychologist that was inconsistent with the agreed facts, and the Justice Health records showed he had claimed the evidence against him was fabricated, even after entering his guilty pleas. The court acknowledged his mental illness may have prevented remorse from being clearly expressed, but could not make a positive finding in his favour on the point.
Special circumstances were found to exist. The court identified the notional accumulation of indicative sentences, the more onerous conditions in custody arising from the offender's mental illness, the restrictions during the COVID period, and the need for an extended period of mental health support upon release. This justified varying the statutory ratio between the non-parole period and the balance of the sentence.
Orders Made
- The offender was convicted on both offences.
- An aggregate sentence of 6 years and 4 months imprisonment was imposed, commencing 7 March 2022 and expiring 6 July 2028.
- A non-parole period of 3 years and 10 months was set, with eligibility for parole arising on 6 January 2026.
- A finding of special circumstances was made, resulting in a variation to the statutory ratio to 60%.
- Indicative sentences (each reduced by 25% for the guilty plea) were:
- Sexual intercourse without consent: 6 years imprisonment with a non-parole period of 3 years and 6 months.
- Contravene Prohibition Order: 1 year and 6 months imprisonment.
Key Takeaways
- A plea of guilty does not in itself establish remorse. Where an offender presents a version of events inconsistent with the agreed facts, and post-plea conduct suggests ongoing denial, the sentencing court may decline to find remorse as a mitigating factor.
- A diagnosed mental illness does not automatically reduce an offender's moral culpability. The District Court required evidence of a causal connection between the illness and the offending before treating it as a significant mitigating factor. An inconclusive expert opinion on that connection was insufficient.
- General deterrence and denunciation retain significant weight in sexual assault sentencing, and the absence of a causal connection between mental illness and offending means those principles are not diminished.
- Special circumstances sufficient to vary the statutory non-parole period ratio may arise from a combination of factors, including notional accumulation, the particular hardship of custody for an offender with mental illness, and the need for extended post-release supervision and mental health support.
- Under s.61I of the Crimes Act 1900, an offence involving actual knowledge of lack of consent, physical force, a post-partum victim, exposure to pregnancy risk, and offending in the victim's own home was assessed as falling within the mid-range of objective seriousness.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s.61I (sexual intercourse without consent; maximum penalty 14 years; standard non-parole period 7 years)
- Child Protection (Offenders Prohibition Orders) Act 2004 (NSW), s.13(1) (contravene a child protection order; maximum penalty 5 years)
Cases cited: No cases were cited in the judgment.