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District Court 16 December 2025

R v Locke

[2025] NSWDC 579

Sexual offencesAssault & violence
CRIME SEXUAL INTERCOURSE WITHOUT CONSENT SEXUAL TOUCHING CHOKING SENTENCING SPECIAL CIRCUMSTANCE S OFFENDER ABUSED AS A CHILD

Citation: [2025] NSWDC 579
Court: District Court of New South Wales
Date: 16 December 2025
Judge(s): Haesler SC ADCJ

Background

The offender, a 26-year-old Aboriginal man, pleaded guilty in the Local Court to three offences committed against his 18-year-old partner in July 2024: sexual touching (s 61KC(a) Crimes Act 1900), sexual intercourse without consent (s 61I Crimes Act 1900), and intentional choking without consent (s 37(1)(a) Crimes Act 1900). The offences occurred during a single episode at the offender's home after both parties had consumed alcohol.

The offender had been removed from his parents as a young child and raised in foster care with no connection to his Aboriginal culture. He suffered emotional, sexual, and physical abuse at the hands of carers before finding a stable home at approximately age 11. He was diagnosed with depression, PTSD, ADHD, autism spectrum disorder, and a possible moderate intellectual disability. He was functionally illiterate, had never worked, and had no prior criminal history resulting in a custodial sentence.

The complainant was herself a survivor of prior sexual abuse by her father, having given evidence at that earlier trial in the same court. Both the offender and the complainant used alcohol as a maladaptive coping mechanism. Their relationship was characterised by instability and periods of separation.

  • What was the objective seriousness of each of the three offences?
  • How should the offender's mental health conditions, intellectual disability, and profoundly disadvantaged background (including Bugmy factors) affect the assessment of moral culpability and the sentence imposed?
  • Whether special circumstances existed to justify variation of the statutory ratio between the non-parole period and the balance of the sentence.
  • How to structure an aggregate sentence for three interrelated offences arising from a single episode, while avoiding double-counting of aggravating features across charges.
  • What discount should be applied for the early guilty plea entered in the Local Court?

Decision

The Court assessed each offence as serious. The choking offence involved three separate applications of force to the complainant's throat, during which she could neither breathe nor speak, making it a serious example of the offence. The sexual touching comprised multiple uninvited and forcible acts of vaginal touching despite repeated verbal refusals. The sexual intercourse without consent occurred after the complainant had been physically restrained, choked, and made to feel she had no choice. His Honour assessed the sexual intercourse offence as falling below the mid-range of objective seriousness, noting the absence of physical injury beyond the acts themselves, but acknowledged the significant psychological harm to the complainant.

In assessing moral culpability, the Court gave substantial weight to the offender's background of profound deprivation, consistent with the principles in Bugmy v The Queen. His Honour found that the offender's intellectual disability, autism spectrum disorder, PTSD, and other mental health conditions were causally connected to, or materially contributed to, the offending. These factors reduced, but did not eliminate, his moral culpability. The Court also noted Dr Gumbert's opinion that the offender's response of "learned helplessness" reflected the depth of his psychological damage.

A 25% discount was applied to each indicated sentence for the early guilty plea, reflecting both utilitarian value and the fact that the plea spared the complainant the ordeal of giving evidence again. The Court accepted that the plea demonstrated responsibility-taking, though it concluded the offender lacked the capacity for true remorse given his intellectual condition.

The Court found special circumstances warranting a departure from the standard statutory ratio of non-parole period to total sentence. These included the offender's status as a first-time prisoner, his need for an extended period of supervised reintegration, his multiple and serious mental health needs, and his profound social disadvantage. An aggregate sentence was imposed, with the Court carefully structuring indicated sentences to avoid double-counting aggravating factors across the interrelated offences.

Orders Made

  • The offender was sentenced to an aggregate term of imprisonment of 4 years and 6 months, commencing 27 September 2024.
  • A non-parole period of 2 years and 6 months was set, expiring 26 March 2027.
  • The balance of the term (2 years) expires 26 March 2029.
  • The earliest date of eligibility for release on parole is 27 March 2027.
  • Indicated sentences (prior to aggregation) were: sexual touching: 18 months imprisonment; sexual intercourse without consent: 3 years and 6 months imprisonment; choking: 2 years imprisonment.

(Note: The published text was truncated and some sentencing details are drawn from the available portion of the judgment. The precise final orders should be confirmed against the full judgment.)

Key Takeaways

  • The District Court confirmed that an offender's intellectual disability, mental health conditions, and childhood deprivation can be causally connected to offending and, where established, reduce moral culpability in accordance with Paterson v R and Tepania v R, while not excusing the conduct.
  • Bugmy factors, including profound childhood deprivation, removal from family, abuse in care, and disconnection from Aboriginal culture, were given full weight in the sentencing exercise consistent with Bugmy v The Queen and did not diminish with the passage of time.
  • Because the three offences were interrelated components of a single episode, the Court structured the aggregate sentence to avoid double-counting aggravating features across charges, applying principles from Pearce v The Queen and Mill v The Queen.
  • Special circumstances were found on multiple bases (first time in custody, extensive mental health needs, and the need for extended supervised reintegration), justifying a non-parole period proportionally shorter than the statutory default ratio.
  • A distinction was drawn between acceptance of responsibility, demonstrated by the guilty plea, and genuine remorse, with the Court finding that the offender's intellectual disability limited his capacity for the latter.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 37(1)(a), 61I, 61KC(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- DS v R; DM v R [2022] NSWCCA 156
- Engert v R (1995) 84 A Crim R 67
- Hopkins v R [2004] NSWCCA 105
- Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
- Nasrallah v R [2021] NSWCCA 207
- Paterson v R [2021] NSWCCA 273
- Pearce v The Queen (1998) 194 CLR 610
- R v Winfield (a pseudonym) [2024] NSWDC 656
- Tepania v R [2018] NSWCCA 247