Citation: R v Profilio [2024] NSWDC 241
Court: District Court of New South Wales
Date: 15 March 2024
Judge: King SC DCJ
Background
The offender was convicted after trial of two counts of sexual intercourse without consent (contrary to s 61I of the Crimes Act 1900) and one count of affray (contrary to s 93C(1)). The jury acquitted him of a third count relating to alleged anal intercourse.
The offender and the complainant had known each other for approximately eight years, having met near Royal Prince Alfred Hospital while both were seeking to obtain heroin. They lived near one another in Camperdown and moved in overlapping social circles connected by prohibited drug use.
The sexual assault occurred on or around 14 February 2021. The complainant visited the offender's apartment seeking drugs. After consuming a combination of GHB, methylamphetamine and Xanax, she lost consciousness. She woke to find her pants and underwear removed, with physical signs consistent with non-consensual sexual intercourse. The affray count arose from a separate incident approximately one month later, on 15 April 2021, when the offender threatened violence against the complainant after she confronted him about the assault.
Legal Issues
- The objective seriousness of the two sexual assault counts and the affray offence
- Whether breach of an Intensive Correction Order (ICO) was an aggravating factor
- The weight to be given to the offender's subjective circumstances, including his history of drug dependency, custodial vulnerability and prior offending
- Whether special circumstances existed to justify a departure from the standard non-parole period ratio under the Crimes (Sentencing Procedure) Act 1999
Decision
King SC DCJ assessed the sexual assault offences as involving a serious breach of trust and significant vulnerability on the part of the complainant, who was rendered unconscious by drugs before the assault took place. The court accepted the facts beyond reasonable doubt based on the trial evidence.
The breach of the ICO was treated as a statutory aggravating factor under the Crimes (Sentencing Procedure) Act 1999. This weighed against the offender in determining the appropriate sentence.
On subjective matters, the court considered the offender's entrenched drug dependency as a central issue. The offender had been on a methadone program, but the court observed that methadone had not prevented ongoing use of other prohibited drugs and that he remained at risk of reoffending while any such dependency persisted. The court also noted that the offender had been assaulted on multiple occasions while in custody, and was being held in protection at Parklea Correctional Centre at the time of sentencing.
The court found special circumstances justifying a reduction in the non-parole period below the statutory ratio. The primary reason was to extend the period of supervised parole, providing ongoing support to address the offender's drug dependency following release, which the court regarded as a significant factor in the risk of future offending.
Orders Made
- Count 1 (sexual intercourse without consent): sentenced to imprisonment with a non-parole period commencing 25 November 2023, with first eligibility for parole on 24 August 2028
- Total head sentence: seven years, expiring 24 November 2030
- Balance of term (parole period): two years and three months
- Count 2 (affray): six months' imprisonment, commencing 25 November 2023, expiring 24 May 2024
Key Takeaways
- The District Court treated the complainant's drug-induced unconsciousness as a significant factor in assessing the objective seriousness of the sexual assault offences.
- Breach of an ICO at the time of offending operates as a statutory aggravating factor under the Crimes (Sentencing Procedure) Act 1999 and was applied as such in this sentencing.
- Special circumstances were found to exist where an offender's chronic drug dependency, unremedied by a methadone program, was identified as the primary driver of future reoffending risk, justifying a longer parole period to support rehabilitation.
- Custodial vulnerability, including documented assaults by other inmates and placement in protection, was placed before the court as a subjective matter in mitigation, though its ultimate weight in the sentence was not separately quantified in the available text.
- A total head sentence of seven years was imposed for two counts of sexual intercourse without consent and an affray, with the non-parole period structured to maximise post-release supervision rather than reflect the standard statutory ratio.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61I, 93C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW) (standard non-parole period provisions; aggravating circumstances)
Cases cited: No cases were cited in the judgment.