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District Court 5 June 2024

R v McAlister

[2024] NSWDC 357

Sexual offences

Citation: R v McAlister [2024] NSWDC 357
Court: District Court of New South Wales
Date: 5 June 2024
Judge: Haesler SC DCJ

Background

The offender, a man born in 1990, pleaded guilty to one count of sexual intercourse without consent knowing the complainant was not consenting, contrary to s 61I of the Crimes Act 1900 (NSW). The offence occurred on 25 March 2023 at the complainant's home. The offender and complainant were acquaintances who had recently reconnected and spent time together comfortably in the weeks before the offence.

On the day in question, the complainant fell asleep in her own bedroom while the offender remained in the home. She woke to find him lying next to her and his finger inside her vagina. She told him to stop and get out, and he complied immediately. He was arrested four days later, cooperated with police, and provided DNA samples by consent.

The central sentencing question was whether the objective seriousness of the offence, combined with the statutory maximum of 14 years imprisonment and a standard non-parole period of 7 years, required a full-time custodial sentence, or whether the offender's compelling subjective circumstances warranted a non-custodial order.

  • Where on the spectrum of objective seriousness did this offence fall, given the absence of many commonly aggravating features?
  • Did the threshold under s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) require the imposition of a full-time custodial sentence?
  • What weight should be given to the early guilty plea, the offender's subjective circumstances (including youth, deprived background, mental health, and low risk of reoffending), and the purposes of sentencing including general deterrence, specific deterrence, rehabilitation, and recognition of harm?
  • Was a Community Correction Order (CCO) an appropriate sentencing disposition in the circumstances?

Decision

His Honour found the offence fell well towards the lower end of the range for this category of offending. Several aggravating features commonly associated with such offences were absent: there was no penile-vaginal intercourse, no persistence after the complainant said "stop," no violence beyond the act of penetration itself, and no threats, intimidation, or coercion. The offence was opportunistic in the sense that the offender acted while the complainant was asleep and therefore unable to consent. His Honour firmly rejected defence counsel's characterisation of the conduct as a "regrettable misjudgement," making clear it was a serious crime.

The sentence was reduced by 25% to reflect the utilitarian value of the early guilty plea. His Honour drew on R v Thompson [2000] NSWCCA 309 to note that an early plea in a matter of this kind also carries weight beyond mere utility: it meant the complainant's account was not challenged, and it constituted an acceptance that what she said was true. The plea could also be taken into account in determining the manner of the sentence's service.

On the subjective case, His Honour accepted evidence from a forensic psychologist and other materials indicating the offender had a deprived childhood, mental health issues, and was assessed as unlikely to reoffend. His Honour noted the offender had already suffered significant consequences, including loss of employment and psychological harm flowing from recognition of what he had done to a former friend. A short custodial sentence, His Honour found, would expose the offender to harm in custody without meaningfully advancing the purposes of sentencing in circumstances where rehabilitation was already underway.

His Honour concluded that the s 5 threshold requiring full-time custody was not crossed. Despite the serious nature of the offence and the significant available penalties, a Community Correction Order was the appropriate disposition. The community interest in supporting the offender's demonstrated rehabilitation, combined with the low risk of recidivism and the absence of aggravating features, justified a non-custodial sentence with substantial conditions.

Orders Made

  • The offender was convicted of the offence.
  • A Community Corrections Order (CCO) was imposed for a period of 3 years from the date of sentence.
  • Standard conditions: the offender must not commit any offence; must appear before a court if called to do so during the term of the CCO.
  • Additional conditions:
  • Participate in any sex offender rehabilitation program as directed by Community Corrections
  • Receive sex offender treatment or other mental health treatment as directed by Community Corrections
  • Engage in any other treatment or rehabilitation program as directed by Community Corrections
  • Not visit any place where the complainant works or resides
  • Submit to supervision by Community Corrections officers for as long as deemed necessary
  • Participate in any sex offender psychological assessment as directed by Community Corrections

Key Takeaways

  • The District Court confirmed that the absence of commonly aggravating features (such as persistence, threats, or penile-vaginal intercourse) can place an offence of sexual intercourse without consent towards the lower end of the objective seriousness spectrum, without diminishing the finding that it constitutes a serious crime.
  • Characterising non-consensual sexual penetration of a sleeping person as a "misjudgement" was expressly rejected: the court treated it as a deliberate criminal act, even where the offender ceased immediately upon the complainant's instruction.
  • An early guilty plea in a sexual assault matter carries weight both as an indicator of remorse and acceptance of responsibility, and as a factor bearing on disposition, not merely on the quantum of the sentence. The District Court applied R v Thompson [2000] NSWCCA 309 on this point.
  • Where all relevant sentencing factors are synthesised, including a low risk of reoffending, compelling subjective circumstances, demonstrated rehabilitation, and the protective purpose of community-based orders, the s 5 threshold for full-time custody is not automatically crossed even for offences carrying a 14-year maximum and a 7-year standard non-parole period.
  • The absence of a Victim Impact Statement does not permit a sentencing court to draw any inference that the complainant did not suffer harm as a result of the offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I (sexual intercourse without consent)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5 (threshold for custodial sentences)

Cases:
- R v Thompson (2000) 49 NSWLR 383; [2000] NSWCCA 309
- Blackman and Walters [2001] NSWCCA 121
- Yardley and Betts (1979) 22 SASR 108