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District Court 14 December 2023

R v Smee

[2023] NSWDC 618

Sexual offences

Citation: R v Smee [2023] NSWDC 618
Court: District Court of New South Wales
Date: 14 December 2023
Judge: Bennett SC DCJ

Background

The offender was tried on two counts of aggravated sexual assault arising from a single incident on 14 April 2019 at Concord, NSW. The complainant was 15 years old at the time and was substantially intoxicated. The charges were brought under s 61J(1) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 20 years' imprisonment and a standard non-parole period of 10 years.

The jury returned a not guilty verdict on count 1 and a guilty verdict on count 2. The sexual intercourse alleged involved fellatio and cunnilingus. Critically, the only direct evidence that sexual intercourse occurred at all came from the offender's own admissions in a recorded police interview conducted by a Queensland detective on behalf of NSW Police. The complainant had no memory of the relevant events, and no other witness observed them.

The sentencing judgment addressed the weight to be given to those admissions, the question of contrition and remorse, and the applicable sentencing considerations given the offender's youth and personal circumstances.

  • Whether the offender's admissions in the police interview attracted a sentencing discount, including under the principles in R v Ellis (1986) 6 NSWLR 603 or s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the admissions demonstrated genuine contrition and remorse sufficient to reduce the sentence
  • How the standard non-parole period for aggravated sexual assault should inform the sentencing exercise
  • Whether special circumstances existed justifying a variation from the standard ratio of non-parole to overall sentence
  • The relevance of delay between offence and trial to the assessment of penalty

Decision

Bennett SC DCJ found that the offender's admissions, while practically indispensable to the Crown's case, did not attract a discount equivalent to that available upon a guilty plea or under the Ellis principle. The court accepted that the admissions had some limited value in the offender's favour, but declined to express that value as a fixed percentage reduction. The offender had participated in the interview under the belief that what he did constituted consensual foreplay rather than sexual intercourse, and had not understood his conduct to be criminal. That framing, which persisted in his representations to a psychologist and in the contested trial, undermined any finding of genuine contrition or remorse.

The court found that the offender's attitude, as revealed across the interview, the psychologist's report, and the sentence assessment report, left real doubt about the depth of his remorse. His failure to appreciate the extent of his criminality, particularly his disregard for the complainant's incapacity to consent due to her intoxication, continued throughout the proceedings. At the same time, the court acknowledged compelling subjective features, including the offender's youth, good character evidence from family, and genuine prospects for rehabilitation.

Special circumstances were found to exist, warranting an extended parole period relative to the non-parole period. These arose from the offender's youth, his rehabilitation prospects, and the need to support his reintegration into the community and his Queensland family upon release. The court also took into account the delay between the offence in April 2019 and the trial in mid-2023, accepting that COVID-19 had likely contributed to that delay and that the offender had experienced a sustained period of anxiety and suspense as a result.

Orders Made

  • The offender was convicted of count 2 (aggravated sexual assault contrary to s 61J(1) of the Crimes Act 1900)
  • A term of imprisonment of three years was imposed, with a non-parole period of one year and six months
  • Sentence to commence 14 December 2023; eligible for parole 13 June 2025; sentence expiring 13 December 2026
  • The psychologist's report and mental health plan to accompany the offender
  • The court recommended that Corrective Services consider the offender's youth in determining placement and classification, and give consideration to specific safety concerns arising from his youth and immaturity

Key Takeaways

  • Admissions made in a police interview that are essential to establishing the Crown case may be given some limited weight in an offender's favour at sentencing, but this does not automatically translate into a quantified percentage discount of the kind available upon a guilty plea or under the Ellis principle.

  • Where an offender's admissions are framed in a manner that demonstrates a failure to appreciate the criminality of the conduct, those admissions are unlikely to support a finding of genuine contrition and remorse for sentencing purposes.

  • A conviction under s 61J(1) of the Crimes Act 1900 carries a standard non-parole period of 10 years, but the sentencing court retains a structured discretion to impose a sentence that reflects the full range of relevant factors, including the offender's subjective circumstances and the need for individualised assessment.

  • Special circumstances justifying variation from the standard non-parole ratio may be found where an offender's youth, rehabilitation prospects, and need for supervised reintegration are established on the evidence.

  • Delay between the date of the offence and trial, particularly where attributable in part to the disruption caused by COVID-19, is a recognised factor in the assessment of the offender's overall punishment.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J(1), 61HA
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 23, Pt 4 Div 1A
- Intoxicated Persons Act 1979 (NSW)
- Intoxicated Persons Act 2000 (NSW)
- Intoxicated Persons (Sobering Up Centres Trial) Act 2013 (NSW)
- Police Offences Act 1901 (NSW)

Cases
- R v Ellis (1986) 6 NSWLR 603
- Muldrock v The Queen [2011] HCA 39
- Markarian v The Queen [2005] HCA 25
- CMB v Attorney General (NSW) (2016) 256 CLR 346
- Cheung v The Queen (2001) 209 CLR 1
- Ryan v The Queen (2001) 206 CLR
- DXH (A Pseudonym) v The Queen [2023] NSWCCA 140
- R v Kramer [2023] NSWCCA 152
- Howard v The Queen [2019] NSWCCA 109
- Le v The Queen [2019] NSWCCA 181
- Kelly v The Queen [2022] NSWCCA
- Panetta v The Queen [2016] NSWCCA 85
- JL v The Queen [2014] NSWCCA 130
- Lewins v The Queen [2007] NSWCCA 189
- R v Calderoni [2000] NSWCCA 511
- R v Daley [2010] NSWCCA 223
- R v Fernando [2004] NSWCCA 147
- R v GLB [2003] NSWCCA 210
- R v Hassan [2005] NSWCCA 21
- R v Isaacs (1997) 41 NSWLR 374