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District Court 23 November 2023

R v Tatola (No. 4)

[2023] NSWDC 518

Sexual offences
CRIME SENTENCE S 61I INTENTION RECKLESS DISPUTED FACTS

Citation: R v Tatola (No. 4) [2023] NSWDC 518
Court: District Court of New South Wales
Date: 23 November 2023
Judge: Montgomery DCJ

Background

The offender, aged 22 at the time of the offence, was convicted by unanimous jury verdict of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW). The offence occurred in the early hours of 6 February 2022 at his home in Rydalmere. The complainant (referred to as CX) was of similar age and had met the offender at a social event approximately two weeks earlier.

The parties had spent a mutually respectful evening together before returning to the offender's home. A period of extensive consensual sexual activity preceded the penile/vaginal penetration that gave rise to the charge. The offender's position at trial was that the penetration was unintentional, occurring when his penis slipped accidentally during active movement. CX communicated non-consent to penile/vaginal intercourse, and the offender accepted he was aware of her non-consent.

The key question left for the sentencing court was not guilt, which the jury had determined, but rather what factual basis should underpin the sentence: specifically, whether the penetration was intentional or merely reckless.

  • Whether, for sentencing purposes, the penile/vaginal penetration should be found to have been intentional or reckless, applying the principles from Cheung v The Queen, Filippou v The Queen, R v Isaacs, R v Olbrich, and Weininger v The Queen
  • How the objective seriousness of the offence should be assessed given the circumstances, including the brief duration of the penetration and the offender's conduct in ceasing it
  • What weight should be given to the offender's youth, prospects of rehabilitation, and other subjective matters in determining the sentence
  • Whether special circumstances existed to justify adjusting the statutory ratio between the non-parole period and the balance of sentence under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW)

Decision

Finding of recklessness, not intention

The Crown pressed for a finding that the penetration was intentional and deliberate, while the defence submitted it was reckless. Montgomery DCJ declined to approach the task by determining which witness the jury preferred outright. The court's function at sentencing was to find facts material to sentencing consistently with the jury's verdict, giving the offender the benefit of any reasonable doubt. The judge found the penetration was reckless rather than intentional, noting that a finding of intentional penetration could not be made to the required standard given the whole of the evidence.

Objective seriousness

The judge placed the offending in the lower range of objective seriousness for this type of offence. Significant to that assessment was that the parties had been engaged in mutually consensual and affectionate sexual activity immediately beforehand, that the penetration was brief, and that the offender ceased and withdrew on realising penetration had occurred, without ejaculation. There was no violence, defilement, or humiliation beyond that inherent to the offence itself. The court emphasised that short duration does not automatically reduce objective seriousness, but in this case the brevity was a direct consequence of the offender stopping, which was relevant to moral culpability.

Subjective matters and special circumstances

The offender's youth at the time of the offence (22 years old) was treated as a significant mitigating factor. The court identified special circumstances within the meaning of the Crimes (Sentencing Procedure) Act 1999 (NSW) that justified departing from the standard non-parole period ratio, in order to provide a longer period of supervised parole to support the offender's rehabilitation. The court assessed his prospects of rehabilitation as excellent.

Sentence

Taking into account the standard non-parole period of seven years as a legislative guidepost, the objective seriousness of the offence, and the offender's subjective circumstances, the court imposed a total sentence of 1 year and 3 months' imprisonment with a non-parole period of 8 months. The sentence was backdated to account for two days of prior custody.

Orders Made

  • The offender was convicted.
  • Sentenced to a term of imprisonment of 1 year and 3 months, commencing 20 September 2023 and expiring 19 December 2024.
  • Non-parole period of 8 months, commencing 20 September 2023 and expiring 19 May 2024.
  • Eligibility for consideration for release on parole from 19 May 2024.
  • Directed to accept supervision and guidance of Community Corrections Services, including compliance with directions regarding referral for psychological and risk assessment and services addressing sex offending.

Key Takeaways

  • The District Court confirmed that the sentencing judge's task on disputed facts is not to reconstruct which version the jury preferred, but to find facts material to sentencing consistently with the verdict while giving the offender the benefit of any reasonable doubt.
  • A finding of intentional penetration for sentencing purposes required the court to be satisfied of that fact to the criminal standard; where that standard was not met, the lesser factual basis (recklessness) governed the sentence.
  • Short duration of a sexual assault does not automatically reduce objective seriousness, but where brevity flows directly from the offender voluntarily ceasing the offending, that conduct is relevant to assessing moral culpability.
  • Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), special circumstances, including the offender's youth and strong rehabilitation prospects, justified extending the parole period beyond the standard ratio to best protect community interests and support rehabilitation.
  • The standard non-parole period of 7 years under s 61I operates as a legislative guidepost rather than a fixed benchmark, and sentences below it remain available where objective seriousness and subjective factors warrant.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33(1)(b), 35(2), 61I
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 22A, 44(2)
- Evidence Act 1995 (NSW), s 191

Cases
- Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- R v Isaacs (1997) 41 NSWLR 374
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Hili v The Queen (2010) 242 CLR 527; [2010] HCA 45
- R v Daley [2010] NSWCCA 223
- Alenezi v R [2023] NSWCCA 283
- Bussey v R [2020] NSWCCA 280
- Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54
- Kramer v R; R v Kramer [2023] NSWCCA 152
- R v Brannen [2023] NSWDC 356
- R v Hines [2020] NSWDC 511