Citation: R v Wasarua [2024] NSWDC 643
Court: District Court of New South Wales
Date: 15 November 2024
Judge: Bourke SC DCJ
Background
The offender was convicted after a jury trial of two counts of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900. The offences occurred on the night of 6 November 2022, when the offender attended the victim's home uninvited, having been expressly told not to come. The victim and offender had met through social media weeks earlier and had previously engaged in consensual intimacy, but the victim had decided to end the arrangement due to the offender's controlling behaviour.
After being collected from a nearby railway station, the offender entered the victim's bedroom without invitation, got into her bed, and over the course of approximately one hour subjected the victim to two distinct sexual acts. The victim resisted throughout, repeatedly told the offender to stop, sent a pre-arranged distress code to a friend, and police were called as a result.
The sentencing proceedings were delayed when the offender's counsel indicated at the initial hearing on 1 November 2024 that further material would be filed, but that material arrived significantly outside the directed timetable and without explanation. His Honour elected to consider the late material regardless, noting that ignoring it might effectively punish the offender for the shortcomings of his legal representation.
Legal Issues
- What facts should be established for sentencing purposes, consistent with the jury's verdicts?
- What weight should be given to the offender's subjective circumstances, including psychological diagnoses?
- How should the sentences for two offences arising from the one incident be structured, having regard to totality principles?
- Whether special circumstances existed justifying a variation to the standard non-parole period ratio?
Decision
His Honour found that the offender disregarded repeated and clear refusals by the victim, both before and during the sexual assaults. The court rejected the offender's claim that the victim had invited him into her bedroom, a version also rejected by the jury. The court found the offending commenced with digital touching of the victim's breasts despite explicit verbal protests, and escalated to cunnilingus and penile-vaginal intercourse while the victim physically struggled and continued to tell the offender to stop.
The court treated several factors as aggravating, including that the offending was committed in the victim's home, which should have been a place of safety, and that the victim was in an especially vulnerable position due to her concern that the offender would find his way to her home regardless. The offender's persistence in the face of multiple explicit refusals, and his dismissive response to the victim's threats to call police, were also weighty matters.
In terms of the offender's subjective case, the court accepted that the offender had no prior criminal history, had experienced a difficult upbringing and displacement following the Fiji coup in 2000, and had demonstrated positive family ties and work history. Psychological diagnoses were accepted as likely to make his experience of custody more burdensome, and the limitations on contact with his child and wife were also noted. However, the absence of remorse and his maintenance of his innocence meant that prospects of rehabilitation carried reduced weight.
On the question of sentence structure, the court declined to make the sentences for both counts fully concurrent, on the basis that doing so would fail to reflect the criminality of the count 1 offence. His Honour found special circumstances arising from the offender's first period of custody and the need for substantial post-release supervision.
Orders Made
- Aggregate head sentence of five years and six months imprisonment, commencing 22 August 2024 and expiring 21 February 2030.
- Aggregate non-parole period of three years and eight months, expiring 21 April 2028.
- Indicative sentence for count 1: four years two months, with a non-parole period of two years and nine months.
- Indicative sentence for count 2: five years three months, with a non-parole period of three years and six months.
Key Takeaways
- The District Court confirmed that where guilt is established after trial, the sentencing judge determines the facts but must remain consistent with the jury's verdicts, with aggravating matters proved beyond reasonable doubt and mitigating matters on the balance of probabilities.
- Where two sexual offences form part of a single incident, full concurrency is not automatic. A sentencing court may impose some degree of notional accumulation to ensure the sentence reflects the distinct criminality of each act, even where the accumulation is minimal.
- A finding of special circumstances, justifying a departure from the standard non-parole period ratio, may be made where an offender is serving their first period of custody and requires a significant period of supervised parole for rehabilitation purposes.
- Late-filed sentencing material tendered well outside a court-directed timetable, and with no adequate explanation for the delay, remains at risk of being disregarded. In this case, the material was admitted only because excluding it risked penalising the offender for the conduct of his legal representatives.
- Under s 61I of the Crimes Act 1900, each count of sexual intercourse without consent carries a maximum penalty of 14 years imprisonment and a standard non-parole period of seven years, both of which serve as important guideposts in the sentencing exercise.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 61I (sexual intercourse without consent)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5
Cases:
- Commonwealth DPP v De La Rosa (2010) 79 NSWLR 1