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District Court 30 May 2024

R v Bates

[2024] NSWDC 291

Sexual offences

Citation: R v Bates [2024] NSWDC 291
Court: District Court of New South Wales
Date: 30 May 2024
Judge(s): Coleman SC DCJ

Background

The offender was convicted by a jury of two counts of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW), following events in Armidale. The victim, who had met the offender only briefly that evening through mutual acquaintances, had been drinking and fell asleep in a motel bedroom after consensual intercourse with another man. She woke to find the offender having penile/vaginal intercourse with her without her consent.

The victim repeatedly told the offender to stop and tried to move away. He continued briefly before stopping, then forced her legs apart and performed cunnilingus on her. She again told him to stop, attempted to kick him away, and he held her leg. After he left the room, he made remarks to the effect that she had wanted it.

The offender had given an account in a post-arrest interview in which he denied the penile/vaginal intercourse and claimed the cunnilingus was consensual and that he had stopped immediately when asked. The sentencing judge was required to make findings of fact consistent with the jury's guilty verdict before proceeding to sentence.

  • What findings of fact could the sentencing court make, consistently with the jury's verdict, regarding the circumstances of each offence?
  • What weight, if any, should be given to the offender's post-arrest account, which was inconsistent with the jury's verdicts?
  • What was the appropriate objective seriousness of the two offences and how should aggravating and mitigating factors be weighed?
  • Whether the sentences for the two counts should be wholly concurrent, partially accumulated, or fully accumulated, and how the principles of totality and proportionality applied?
  • Whether the standard non-parole period of seven years required a non-parole period of that length for each count?

Decision

Fact-finding after a jury verdict: Coleman SC DCJ applied the principles from R v Cranston [2023] NSWSC 1004, which confirm that a sentencing court must make findings consistent with the jury's verdict, that adverse facts must be proved beyond reasonable doubt, and that the sentencing judge is not required to adopt the version most favourable to the offender. The judge rejected the offender's interview account, finding it inconsistent with the jury's verdicts. The Crown's proposed findings were adopted, including that both sexual acts occurred without consent and over the victim's repeated objections.

Objective seriousness and subjective factors: The offending was assessed as falling within the mid-range of objective seriousness. Aggravating features included that the victim was a stranger who was intoxicated and asleep when the first assault commenced, that physical force was used (holding her leg), that there were two distinct sexual acts, and that the offender made demeaning remarks to the victim. The judge acknowledged some subjective factors, including relevant personal circumstances, but noted the absence of any genuine remorse given the offender's continued denial.

Concurrency and totality: The judge declined to impose wholly concurrent sentences, accepting the Crown's submission that the two offences involved distinct criminal acts. Given the proximity of the two acts within the same incident, however, a significant degree of concurrency was applied. The judge also declined to impose a seven-year non-parole period for either count individually, concluding that doing so would produce a result disproportionate to the overall criminality when the principles of totality and concurrency were properly applied.

Orders Made

  • Count 1 (penile/vaginal intercourse): term of imprisonment of 5 years 8 months; non-parole period of 3 years 6 months.
  • Count 2 (cunnilingus): term of imprisonment of 5 years 6 months; non-parole period of 3 years 4 months.
  • Aggregate term of imprisonment: 7 years.
  • Aggregate non-parole period: 4 years 3 months.
  • Sentence commences 9 February 2023 and expires 8 February 2030.
  • First eligible for parole: 8 May 2027.

Key Takeaways

  • A sentencing court after a jury verdict must make findings of fact consistent with that verdict; it is not required to accept the accused's version or the version most favourable to them, and adverse findings must be proved beyond reasonable doubt by the prosecution.
  • Where a post-arrest interview account directly contradicts the conduct the jury found proved, the sentencing court may reject that account and decline to give it mitigating weight.
  • Two distinct sexual acts occurring in close temporal sequence within a single incident do not automatically warrant wholly concurrent sentences; partial accumulation may be required to reflect the discrete criminality of each act.
  • The standard non-parole period under the Crimes (Sentencing Procedure) Act 1999 (NSW) is a guidepost to be taken into account in the sentencing synthesis, but it does not mandate a seven-year non-parole period in every case where doing so would produce a disproportionate overall result.
  • Aggravating features such as the victim's intoxication and vulnerability, the use of physical force, the offender's demeaning post-offence remarks, and the victim's status as a stranger all informed the assessment of objective seriousness in the mid-range.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2), 21A(3)

Cases:
- R v Cranston [2023] NSWSC 1004
- DPP v De La Rosa [2010] NSWCCA 194
- Fisher v R; R v Fisher [2021] NSWCCA 91