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District Court 11 October 2024

R v Nathan Sellers

[2024] NSWDC 524

Sexual offences
CRIME SENTENCING SEXUAL INTERCOURSE WITHOUT CONSENT RECKLESS AS TO WHETHER VICTIM CONSENTED ELOQUENT EXPRESSION OF HARM

Citation: R v Nathan Sellers [2024] NSWDC 524
Court: District Court of New South Wales
Date: 11 October 2024
Judge: Wass SC DCJ

Background

The offender, a 30-year-old man, was sentenced for an offence of sexual intercourse without consent, reckless as to whether the complainant was consenting, contrary to section 61I of the Crimes Act 1900 (NSW). The complainant was a 16-year-old who had known the offender for approximately four years. The offending occurred at a birthday party in October 2023, after the complainant had consumed around five cans of premixed spirits and was visibly and severely intoxicated.

CCTV footage showed the complainant lying on the floor at the party before the offender helped her to the bathroom. Shortly afterwards, the offender positioned himself in front of the complainant as she lay on a couch and engaged in fellatio without her meaningful consent, also digitally penetrating her as a contextual matter not the subject of any charge. He later told her not to tell anyone.

When interviewed by police, the offender admitted he knew the complainant was 16 and that she was "probably not" in a sound state of mind when she appeared to nod in response to his question about engaging in sexual activity.

  • What sentence was appropriate for the offence of sexual intercourse without consent (reckless), having regard to the objective seriousness of the offending?
  • What weight should be given to the offender's guilty plea, genuine remorse, and lack of prior criminal history?
  • Whether special circumstances existed to justify a non-parole period that departed from the standard ratio, having regard to the offender's mental health, neurodiversity, and first-time imprisonment.
  • How should the harm caused to the complainant inform the sentencing exercise?

Decision

Wass SC DCJ assessed the offence as falling below the mid-range of objective seriousness, though not markedly so. Aggravating features included the significant age gap between the offender and the complainant, the complainant's extreme vulnerability arising from her intoxication and youth, and the vigorous nature of the act. The short duration did not, in the judge's view, reduce the objective gravity of the conduct. The offending was characterised as opportunistic.

The offender received a 25% discount on sentence for the utilitarian value of his early guilty plea in the Local Court. His admissions to police and his demeanour before the court demonstrated genuine remorse, which the judge accepted without reservation. He had no prior criminal history and was afforded leniency accordingly.

The judge gave careful attention to the offender's subjective circumstances, which included a difficult upbringing, ADHD diagnosed since age 14, symptoms consistent with autism spectrum disorder and generalised anxiety disorder, a history of situational depression, and a prior suicide attempt at age 15. The forensic psychologist's report indicated that these conditions made time in custody significantly more onerous for the offender than for the average inmate, and reduced his suitability as a vehicle for general deterrence.

Special circumstances were found, justifying a non-parole period shorter than the statutory standard. The judge cited the offender's first time in custody, the additional burdens his mental health and neurodiversity placed on him in the custodial environment, the prevalence of lockdowns in NSW prisons, and the need for an extended period of supervised release.

Orders Made

  • The offender was convicted of the offence.
  • Sentenced to imprisonment for 2 years and 6 months, commencing 5 July 2024 and expiring 4 January 2027.
  • Non-parole period set at 16 months.
  • Eligible for release to parole on 4 November 2025.

Key Takeaways

  • The District Court confirmed that a full-time custodial term is appropriate for reckless sexual assault of a severely intoxicated young person, even where objective seriousness is assessed as below the mid-range.
  • A 25% sentencing discount applied where the offender pleaded guilty in the Local Court and demonstrated genuine remorse supported by consistent admissions and courtroom conduct.
  • Diagnosed neurodevelopmental and mental health conditions, including ADHD and symptoms of autism spectrum disorder, can reduce an offender's suitability as a vehicle for general deterrence and render the custodial experience more onerous, which are relevant factors in fixing the sentence.
  • Special circumstances were established on the combination of first-time imprisonment, heightened hardship in custody attributable to mental health and neurodiversity, and the rehabilitative need for extended post-release supervision, justifying a non-parole period well below the standard seven-year marker for this offence.
  • The complainant's victim impact statement, delivered orally in open court, was treated by the sentencing judge as a significant expression of the profound harm caused, encompassing loss of safety, shame, panic attacks, nightmares, and social isolation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I (sexual intercourse without consent, reckless as to consent; maximum 14 years imprisonment; standard non-parole period of 7 years)

Cases cited: No cases were cited in the judgment.