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District Court 15 September 2023

R v Starke (a pseudonym)

[2023] NSWDC 377

Sexual offencesDomestic & family violencePublic order & justice offences
INTEND FEAR OF PHYSICAL HARM

Citation: R v Starke (a pseudonym) [2023] NSWDC 377
Court: District Court of New South Wales
Date: 15 September 2023
Judge: Priestley SC DCJ

Background

The offender was convicted by a jury of two offences against his younger biological sister, who is cognitively impaired. The first offence was aggravated sexual assault, committed the day after the victim's 18th birthday in February 2018, at the family's rural property. The second offence was stalking or intimidation with intent to cause fear of physical or mental harm, committed in March 2021.

The sexual assault involved the offender locking the victim inside the family home, physically restraining her, and penetrating her without consent. During the assault he punched her hard in the nose, causing it to bleed, and threatened to kill her. He also threatened ongoing violence using third parties. The victim, who had been a virgin, suffered multiple injuries and destroyed her clothing afterwards.

The intimidation offence arose after the victim disclosed the assault to their father approximately three years later, leading to the offender's eviction from the property. The offender subsequently drove past the property and, together with his girlfriend, shouted threats at the victim from a car. The jury acquitted the offender of a separate intimidation charge alleged to have occurred the following day.

  • What aggregate sentence was appropriate for the two convictions, having regard to the maximum penalties and, for Count 1, the standard non-parole period of 10 years under the Crimes (Sentencing Procedure) Act 1999?
  • How serious were the offences objectively, and what weight should be given to the additional circumstances of aggravation present beyond those formally relied upon by the Crown?
  • Were there special circumstances justifying a departure from the standard ratio between the non-parole period and the balance of the sentence?
  • Whether any concurrency between the two sentences was warranted.

Decision

Count 1: Aggravated Sexual Assault

Priestley SC DCJ assessed Count 1 as falling in the middle of the range of objective seriousness. The formal ground of aggravation was the infliction of actual bodily harm (the punch to the nose), which the court characterised as serious but not at the most extreme end of such harm. However, several additional aggravating features were present: the victim's cognitive impairment, the offender's threats during the assault to kill her and arrange gang rape and murder, the fact the offence occurred in the victim's own home, the physical force used to restrain her, and the maliciousness reflected in the offender's conduct throughout. The court also found beyond reasonable doubt that ejaculation had occurred inside the victim. The head sentence for Count 1 was set at 7 years, with an indicative non-parole period of 4 years and 6 months.

Count 2: Stalking or Intimidation

The intimidation offence was assessed as falling in the low range of objective seriousness in isolation. The court nonetheless found it warranted a term of imprisonment rather than a non-custodial sentence, primarily because the victim was the same person as in Count 1, making the likely impact on her significantly greater. The indicative term was 4 months.

Concurrency and Aggregate Sentence

The court declined to order any concurrency. Although the two offences shared the same offender and victim, and Count 2 arose in part as a reaction to the disclosure of Count 1, they were committed more than three years apart and constituted wholly separate criminal acts. The aggregate sentence was therefore set at 7 years and 4 months.

Special Circumstances

The court found special circumstances existed, warranting a modest extension of the period on parole beyond the standard ratio. This reflected the offender's rehabilitative needs and the extended supervision that would be appropriate following a lengthy custodial term. The non-parole period was set at 4 years and 9 months, allowing 9 months for special circumstances. The sentence was backdated by 792 days to reflect time already spent in custody.

Orders Made

  • The offender was convicted of Count 1 (aggravated sexual assault, contrary to s 61J(1) of the Crimes Act 1900) and Count 2 (stalking or intimidation, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007).
  • The offender was sentenced to an aggregate term of imprisonment with a non-parole period of 4 years and 9 months, commencing 15 July 2021, with the offender first eligible for release on 14 April 2026.
  • The balance of term is 2 years and 7 months, expiring 14 November 2028.
  • The court noted that Count 1 constitutes a serious sex offence under s 5(1)(a)(i) and (ii) of the Crimes (High-Risk Offenders) Act 2006, and the offender was formally warned of that Act's potential application to him.

Key Takeaways

  • The District Court confirmed that additional circumstances of aggravation beyond those formally relied upon by the Crown can and should be taken into account when assessing the objective seriousness of a sexual assault offence, even where they do not found the specific charge.
  • Under Muldrock (2011) 244 CLR 120, the standard non-parole period operates as a legislative guidepost relevant across the range of offending, not only for offences assessed as falling in the middle of that range.
  • A low-range intimidation offence can still warrant a term of imprisonment where the victim is the same person as in a co-convicted serious sexual offence, given the likely compounding impact on that individual.
  • No concurrency between sentences was warranted where the offences, though linked by the same offender and victim, were separated by more than three years and constituted distinct criminal acts.
  • Conviction for aggravated sexual assault under s 61J(1) of the Crimes Act 1900 triggers classification as a serious sex offence under the Crimes (High-Risk Offenders) Act 2006, with the potential for ongoing supervision post-sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61J(1) (aggravated sexual assault), s 578A (anonymisation of sexual offence proceedings)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1) (stalking or intimidation)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A (standard non-parole period)
- Crimes (High-Risk Offenders) Act 2006 (NSW), s 5(1)(a)(i) and (ii)

Cases
- Muldrock v The Queen (2011) 244 CLR 120