Citation: R v Katon [2023] NSWDC 640
Court: District Court of New South Wales
Date: 7 November 2023
Judge: Bourke SC DCJ
Background
The offender was tried before a jury in Newcastle in August 2023 on a charge of sexual intercourse without consent. The jury returned a guilty verdict on 15 August 2023, and the matter proceeded to sentencing before Bourke SC DCJ.
The offence occurred on the morning of 27 November 2021 at a residential property in Buchanan. The victim, an 18-year-old woman identified only as KR, had been socialising with friends at the property before going to sleep in a granny flat. She awoke to find the offender beside her and experienced pain consistent with vaginal penetration. DNA evidence confirmed the offender's involvement. After the victim became distressed and went to the bathroom, the offender made a series of admissions to those present, including confirming he had digitally penetrated her.
At trial, the offender contested the facts, suggesting all contact had been consensual. The jury rejected that account. His Honour likewise rejected it, describing the victim as a credible and understated witness whose evidence it was not surprising the jury accepted beyond reasonable doubt.
Legal Issues
- What were the appropriate facts for sentencing, consistent with the jury's verdict?
- How should the objective seriousness of the offence be assessed?
- Whether any subjective factors, including mental health, drug use, or first time in full-time custody, warranted mitigation of the sentence?
- Whether special circumstances existed to justify a non-parole period shorter than the standard one-third reduction from the head sentence?
Decision
His Honour found the facts to be that the offender had penetrated the victim's vagina with a finger while she was asleep, without her consent. The penetration commenced without her knowledge. These facts placed the offending at a meaningful level of objective seriousness, measured against the maximum penalty of 14 years imprisonment and the standard non-parole period of seven years, both of which served as important guideposts.
On subjective matters, his Honour accepted that the offender's depression and unstable mental health would likely make his period of custody more burdensome, and took that into account. The psychologist's assessment placed the offender at a medium risk of reoffending on the LSI-R tool. His Honour noted that a suggestion of higher risk, which appeared to draw on unresolved historical allegations, was put to one side. The offender's prospects of remaining offence-free were described as uncertain and guarded.
The defence did not press a causal link between the offender's cocaine intoxication or mental state and the commission of the offence, and his Honour found that concession appropriately made. General and personal deterrence, denunciation, retribution, and community protection remained significant sentencing considerations.
His Honour found special circumstances, grounded in this being the offender's first period of full-time custody and the need for extended post-release supervision. This justified a non-parole period that represented a greater reduction from the head sentence than the standard ratio.
Orders Made
- Head sentence of four years imprisonment, commencing 15 August 2023 and expiring 14 August 2027.
- Non-parole period of two years and eight months, expiring 14 April 2026 (as amended on 2 July 2024).
Key Takeaways
- The District Court treated the commencement of penetration while the victim was asleep as a significant feature of objective seriousness, assessed against the statutory maximum of 14 years and the standard non-parole period of seven years.
- Where a risk assessment tool relies partly on unresolved historical allegations, a sentencing court may set aside the elevated risk rating flowing from those matters and proceed on the remaining assessment.
- A finding that the offender's mental health would increase the burden of custody is a recognised mitigating factor in the sentencing exercise, even where no causal connection to the offending is established.
- Special circumstances can be found where an offender is serving their first period of full-time custody and requires an extended period of supervision upon release, justifying a non-parole period proportionally shorter than the standard.
- The court declined to treat cocaine intoxication or mental health instability as contributory to the offending where the defence itself disavowed any such causal link.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5
Cases:
- Fisher v R [2021] NSWCCA 91