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District Court 17 November 2023

R v WB

[2023] NSWDC 516

Sexual offences
CRIME — SEXUAL OFFENCE

Citation: R v WB [2023] NSWDC 516
Court: District Court of NSW (Gosford)
Date: 17 November 2023
Judge: Bright DCJ

Background

The offender, a 60-year-old man referred to as WB, was sentenced following his conviction by jury on 8 March 2023 for one count of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW). The offending occurred on the night of 25 August 2007 at Watanobbi, when the victim was a guest staying at the home WB shared with his wife, who was also a long-time friend of the victim.

The victim fell asleep after accepting a drink from WB. She awoke to find WB on top of her engaging in penile-vaginal intercourse. When he asked whether she wanted this, she said "No." He continued despite her refusal. The victim later became pregnant as a result of the assault and gave birth to a child on 28 May 2008. The matter was not reported to police until May 2020, with WB arrested in February 2021.

WB had also, since his conviction in the present matter, stood trial in the Sydney District Court and on 5 October 2023 was found guilty of 18 further counts, including aggravated sexual intercourse without consent, aggravated indecent assault, assault occasioning actual bodily harm, and common assault. Most of that sexual offending pre-dated the current offence.

  • What was the appropriate assessment of the objective seriousness of the offence, including the significance of the victim's resulting pregnancy?
  • Whether the aggravating factor of the offence occurring in the offender's home should be taken into account separately from objective seriousness?
  • What weight, if any, should be given to the offender's subjective circumstances, including age, physical disability, limited prior criminal history, and prospects of rehabilitation?
  • Whether special circumstances existed to justify varying the statutory ratio between the non-parole period and the balance of term?

Decision

Bright DCJ assessed the objective seriousness of the offence as well above the mid-range. The most significant factor was that the victim became pregnant as a direct consequence of the offending. Additional factors included that the intercourse began while the victim was asleep and therefore vulnerable, that she had a reasonable expectation of safety in what was her friend's home, that WB had actual knowledge of her non-consent (she had said "No" in direct response to his question), and that he ejaculated twice.

The Crown relied on one aggravating factor under the Crimes (Sentencing Procedure) Act 1999 (NSW): that the offence occurred in the offender's home. Her Honour declined to apply this separately, having already factored the victim's reasonable expectation of safety into the objective seriousness assessment.

On subjective circumstances, the offender's recent convictions for 18 serious offences in the Sydney District Court disentitled him to any leniency available to a person of good character. His Honour was also unable to find good prospects of rehabilitation, noting that WB continued to maintain his innocence and had been convicted of serious sexual offending spanning nearly two decades.

Her Honour did, however, find special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act, warranting a variation of the statutory ratio. WB's physical incapacity (documented by an orthopaedic surgeon) combined with this being his first custodial sentence justified a longer parole period than the standard ratio would produce.

Orders Made

  • WB convicted of one count of sexual intercourse without consent.
  • Sentenced to a total term of 8 years imprisonment.
  • Non-parole period of 5 years and 3 months, commencing 7 March 2023 and expiring 6 June 2028.
  • Balance of term of 2 years and 9 months, expiring 6 March 2031.
  • Eligible for parole from 6 June 2028.

Key Takeaways

  • The District Court treated the victim's pregnancy resulting from the offence as the most significant factor in assessing objective seriousness, placing this case well above the mid-range for s 61I offending.
  • Where a sentencing court has already taken a particular circumstance into account when assessing objective seriousness (here, the victim's reasonable expectation of safety), it will not separately apply the same fact as a statutory aggravating factor, to avoid double-counting.
  • Subsequent convictions for serious sexual offences, handed down before sentencing in the current matter, can extinguish any claim to leniency based on good character or limited prior history.
  • A finding of special circumstances is available where a combination of significant physical disability and the serving of a first custodial sentence would make the statutory ratio unduly harsh.
  • Under s 3A(g) of the Crimes (Sentencing Procedure) Act, recognition of harm to the victim remains a purpose of sentencing even in the absence of a formal victim impact statement.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61J(1), 61M(1), 59(1), 61
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1), 44(2), 54B(2)

Cases:
- R v Hibberd (2009) 194 A Crim R 1