R v Phillips [2019] NSWDC 906

District Court New South Wales

Medium Neutral Citation: R v Phillips [2019] NSWDC 906 Hearing dates: 31 January 2019; 1 February 2019 Decision date: 06 February 2019 Jurisdiction: Criminal Before: Norrish QC DCJ Decision: Sentenced to a term of imprisonment of 2 years 3 months; non-parole period I year 1 month imprisonment Catchwords: CRIME – sentence – sexual intercourse without consent, knowing she was not consenting – unconventional living arrangements - unplanned incident – immediate admissions and remorse – age difference – breach of trust Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Cases Cited: Barbaro v R [2014] HCA 2 Cowling v R [2015] NSWCCA 213 DPP(Cth) v De La Rosa [2011] NSWCCA 194 Greenwood v R [2014] NSWCCA 64 Hili v R [2010] HCA 45 R v JRB [2006] NSWCCA 371 R v May [1999] NSWCCA 40 R v Shortland [2018] NSWCCA 34 R v Thomas [2007] NSWCCA 269 R v Tuala [2015] NSWCCA 8 R v Wilson [2005] NSWCCA 219 Veen (No 2) v R [1988] HCA 14 Category: Sentence Parties: Regina (Crown) Kirke William Phillips (offender) Representation: Solicitors: Ms S Oliver (DPP) Mr J Carty (offender) File Number(s): 2018/00202676 Publication restriction: Non publication order of victim's name

Judgment 1. The prisoner appears for sentence today, in relation to an offence for which he was committed to this court. The offence to which he pleaded guilty was an offence that he committed, at Raleigh, on 1 July 2018, when he had sexual intercourse with the complainant, without her consent, knowing that she had not consented to the sexual intercourse. 2. There is a matter on the Form 1 to be taken into account in sentencing the prisoner for the principal offence; that is an offence committed on the same date, at the same place, of possessing a small quantity of cannabis. The possession of cannabis and the ingestion of cannabis is a matter intricately bound up with the facts of the case. 3. The prisoner has been in custody since 1 July 2018 and the sentence I impose, including the non-parole period, will date from that date. 4. The maximum penalty for the offence to which the prisoner pleaded guilty, is 14 years imprisonment. There is a standard non-parole period of seven years. 5. The prisoner was born in September 1972, thus, on my calculation, he was 45 years of age, when the crimes were committed and he is now 46 years of age. 6. The plea of guilty was entered at the first reasonable opportunity. The prisoner receives a discount of 25%, upon the otherwise appropriate sentence, for the utilitarian benefit of the plea of guilty, in accordance with the guideline judgment from 1999 of Thomson & Houlton v Regina. 7. The facts are unusual, in the context of offences of this type, it must be said. The prisoner had known the victim for approximately five years. The victim was 16 years of age, at the time of the commission of the offence. The facts state that the prisoner had been a friend of the victim's mother, who, it would appear, sadly died when the victim was 14 years of age. The facts state, "Sometime after her mother's death, the victim started living with the offender in Coffs Harbour". I have no detailed explanation as to how that came to pass. 8. In any event, the prisoner started a relationship with another person, who the prisoner, if I can use the expression, moved in with at her property near Bellingen. The prisoner and this other person had a child together but by June 2018, that relationship was over. 9. By reference to a matter in the prisoner's criminal history, it would appear that the prisoner committed an offence of common assault, on or about 24 June 2018. Whether that was against the woman who was the mother of his child or not I do not know. It is not alleged, however, that that common assault relates to the victim of the sexual assault of which I am concerned. 10. The prisoner, on the breakup of that relationship, was asked to leave the house, in which he was living with the former partner. The victim had moved into the house at the property near Bellingen, it would seem at about the same time as the prisoner had moved there. The living arrangements of the people involved in this matter appear somewhat unconventional, in the context of submissions made by the learned Crown to me, which I will come back to shortly. There is no evidence available to me as to why it was that the victim lived at Bellingen, as opposed to with other family members, in what circumstances she agreed to move to Bellingen and on what basis. The owner of the premises permitted her to remain on the premises. What I do know, however, is that just prior to the commission of the offence, the prisoner was required to sleep in a car on the property. The mother of his child left the premises on 1 July 2018, to go for a personal trip to Newcastle and the prisoner was, after sleeping in the car for a week leading up to the relevant events, invited into the property by the victim apparently after his former partner had left, to be in the house. 11. While they were alone in the house, they spent 1 July 2018 watching movies in bed and giving each other massages. During the afternoon they shared cannabis. There is no suggestion at all that the victim of the sexual assault was a person who was unused to the use of cannabis. They both fell asleep in the bed, hopefully clothed. 12. The facts state, para 8 of the facts: "Late afternoon, the offender woke to find them (himself and the victim) in a 'spooning' position, he behind the victim. He started to caress her breasts while she slept, then moved his hand inside her underpants and started rubbing the outside of her vagina. The victim woke to her vagina being touched. She felt the offender put his fingertips inside her vagina and she found this uncomfortable and unpleasant". 1. The victim got out of the bed immediately, went to the bathroom of the premises and rang a friend. She was distressed. She told her friend what happened and asked her friend to come to the house. She got into the shower. The prisoner knocked on the door of the bathroom to see if she was all right. The victim dressed in the bathroom and left the house directly, where she was picked up by her friend and her friend's mother. She also rang the prisoner's former partner, to tell her what happened. That woman rang the police, who took a statement from the victim at a later time. 2. At about 11.30pm, police went to the property where the prisoner was alone. He was arrested and cautioned. He gave an interview, when he made admissions. He said, amongst other things, as the facts are briefly relayed to me in the Agreed Statement of Facts, that he felt "like shit" for what he had done and realised he had broken the trust between himself and the victim. 3. It is clear on the basis of the evidence, contained within the Agreed Facts, that an aggravating factor, in the assessment of the objective gravity of this offence, pursuant to s 21A(2) Crimes (Sentencing Procedure) Act 1999 hereinafter to be referred to as 'the Act', is that the offence was one committed in the home of the victim. All aggravating factors, whether they be under that provision, at Common Law or pleaded in an indictment, have therein degrees of intensity and significance. Depending upon the character of the offence and the character of the circumstances of the aggravating factor. It is to be borne in mind, of course, that the home in which this occurred was premises that the prisoner had himself lived in. It would appear that the victim regarded this place as her home because she had been invited to live there with the approval of the owner, by the prisoner and it was a home that she and the prisoner had shared, that he had been asked to leave and then had been invited back in by the victim. 4. It is clear, as far as I am concerned, on the facts available, that the offence was not a "planned" offence. It might be regarded, on the facts available to me, as either an opportunistic offence, or an impulsive offence, in the context of the circumstances in which the prisoner and the victim were in close proximity to one another, for an extended period of time and in the context of they having smoked marijuana. Although, of course, there is no suggestion whatsoever that there was any conduct of the victim that is responsible for what happened. 5. Being affected by cannabis or alcohol is never a "mitigating factor" in sentencing for offences of this type. But it is a relevant matter to take into account, to the extent that the prisoner was affected by cannabis, as a contextual matter, to the essential facts. 6. The Crown, as I earlier indicated, submitted to me that an aggravating factor was that the prisoner, by his conduct, was in breach of trust of the victim and thus, I should consider the offence as aggravated by reference to the terms of s 21A(2)(k) of the Act. I cannot find this as an aggravating factor, beyond reasonable doubt. Whilst such a breach of trust as an aggravating factor is a significant matter in sentencing, a breach of trust exists between a victim and an offender where there can be identified a "special relationship" at the time of the offending. Of course, breaches of trust can extend across a wide range of offences. Whilst there certainly was a relationship in existence between the prisoner and the victim and there can be no doubt, based upon an impact statement to which I have had regard and having regard to the objective facts that the victim had "trust", in the prisoner. That is not the same thing as constituting, on the facts of this case, a breach of trust, as contemplated by subpara (k). There is no suggestion of any pre-existing sexual relationship between the two and in fact I am quite satisfied that the relationship between the two was perfectly proper up until this particular offence, representing, clearly, an uncharacteristic offence by the prisoner in the circumstances. 7. As I said earlier, the facts are silent as to the reasons that the complainant came to live in the same house as the prisoner and his former partner and the basis upon which they were living together could not be ascribed as being a situation where the prisoner plotted, if that is the correct expression, to have the complainant with him alone in the house, to take advantage of her. It seems, on the material available to me, that they had previously lived together without any suggestion of impropriety. In fact, it would have been on that basis that the victim felt quite safe to invite the prisoner onto the bed to watch television and stay there during the afternoon of 1 July. 8. The prisoner has findings of guilt. In 1995, he was convicted in the Local Court of "obscene exposure" and fined $340. That was a conviction here in New South Wales at Coffs Harbour. At the Ayr Magistrate's Court in Queensland, he was convicted, apparently, of behaving in an indecent manner, on 9 November 2002, he was fined $100. Those findings of guilt are of some considerable age and in the absence of any particular facts I could not conclude that they involved any particular sexual connotation. His other findings of guilt include a conviction for a low range PCA, in January 1996. A finding of guilt, after being charged in 2003, at the Tweed Heads Local Court in March 2007, of carrying a cutting implement and entering inclosed land without lawful excuse. I have concluded, in context, having regard to his age and the period of time since those findings of guilt or the offences were committed, that he does not have a significant criminal history as a mitigating factor under s 21A(3) of the Act. 9. As I said, I have the Victim Impact Statement of the victim. It was read in an emotional context by the victim. I have taken into account its contents. I am prepared to accept that the victim has been deeply affected by the conduct of the prisoner. There are assertions within the Victim Impact Statement, suggesting a degree of premeditation and planning on the part of the prisoner that I cannot accept as established beyond reasonable doubt. In fact I have already indicated that I am prepared to find, as a mitigating factor, that the offence was not a planned offence, pursuant to s 21(3) of the Act. 10. There has been a great deal of discussion as to the evidentiary status and the use of Victim Impact Statements in sentencing. For example, the decision of Tuala [2015] NSWCCA 8, has a discussion conducted by Justice Simpson, then of the Court of Appeal, at [52] - [76]. Justice Basten has made observations about the status of Victim Impact Statements in the decision of Thomas [2007] NSWCCA 269, particularly at [36] - [37]. Likewise, again Justice Simpson, in the decision of Wilson [2005] NSWCCA 219 at [25], discussed the statutory provisions and their consequences for the evidentiary value. 11. In terms of determining aggravating factors, a Court would be circumspect to conclude an aggravating factor based solely upon a Victim Impact Statement. It is open, of course, at all times, for the prosecution, in support of a Victim Impact Statement, to produce medical evidence, if matters of a medical character are sought to be asserted as established. Such as, for example, to conclude that there is substantial injury or suffering by the victim. No evidence has been produced in this court, in this regard. 12. I have noted what the victim said and I accept her expressions as genuine. She is emotionally affected. But ultimately, in the context of the terms of s 21A(2), I am not prepared to conclude that there is injury, emotional harm, loss or damage that is "substantial", on the basis of the material presented to me. 13. The Community Corrections Service prepared a Sentencing Assessment Report. This was supplemented by a psychological report, which has a great deal of detail about the prisoner's background. The prisoner has led what I would understand to be, with no disrespect to him, a peripatetic existence over a number of years. He has been in a number of relationships. I have the impression, although it is not an aggravating feature of the objective offending, that the prisoner has a relatively strong sexual drive, which has, to some extent, reflected itself in his relationships throughout his life. 14. He has two daughters, from separate relationships. One aged 24 and the daughter of the partner from whom he was separated but in whose house he had been living at Bellingen, who is now one year of age. 15. The Community Corrections Service described his employment history as "consistent". He has recently, to the offence, that is, in May 2018, lost employment at a dairy farm, where he had been gainfully employed, because of the "bankruptcy" of the dairy farmer. 16. It is a tragic thing to travel around New South Wales to see dairy farms with signs up imploring us not to buy $1 litres of milk from Coles or Woolworths because the supermarkets are selling milk for far less than it can be produced by the producers. But, be that as it may, I note in the Sentencing Assessment Report, the history given by the prisoner of his employment history is a little less "flattering". 17. What I do accept, from the combination of the history given, is that the prisoner had a range of employment over an extended period of time. I am prepared to accept, given the character of his qualifications and the industries in which he works, that he does endeavour, when at large, to obtain employment when he came but he has no particular trade skills. 18. He has not been subject of any disciplinary proceedings in custody. He is said to have taken responsibility for his offending behaviour. He describes his behaviour to the Community Corrections officer as "idiotic" and recognised its inappropriateness, in that context, bearing in mind what is recorded to be his immediate admissions of guilt, when spoken to by police and his reflection upon himself which was not inaccurate. 19. When he spoke to police, I am prepared to find that the prisoner has relevantly shown remorse, as a mitigating factor, under s 21A(3) of the Act. He has provided evidence, through his admissions and his acknowledgment of his wrongdoing, that he has accepted responsibility for his actions and acknowledged the harm that he had caused to the victim, by his conduct, although I note he did not give oral evidence before me. 20. He has a long history of drug use and has been a regular user of cannabis for some considerable period of time. He claimed that his sexual offending was "influenced" by his use of cannabis and the fact that at the relevant time he was "emotionally unstable". 21. He had insight into the impact of his offending, reflected in the Sentencing Assessment Report and he is willing to undertake such interventions, as are required or supervision that is required. 22. There have been assessments made, by a psychologist retained by Correctional Services, of his risk of reoffending. In the context of the report prepared by the psychologist, what I would understand is that when the review was undertaken the offender was not actually spoken to, there was a review of material available, the character of the offence, his criminal history, the agreed facts, Correctional Service records, consultation with other psychologists and there is a recitation of that information. This is common place. I am not criticising the process. But it is acknowledged in the psychologist's report that the report is "not a full report". It notes "individual circumstances relevant to the dynamic risk of this offender have not been considered, in the preparation of this advice". It should be borne in mind that when one is considering all the static and dynamic factors, risk factors or just some of them, whatever way one approaches it, the Static-99R is a "predictive instrument" and its lack of accuracy is acknowledged by those who are qualified to administer it. But it provides some assistance, in terms of predictability. 23. It must be fairly said, although I am not suggesting this is always true, that a person who is capable of acting in a certain way, in a particular situation, is prima facie, capable of acting in the same way, at some other time, in the same circumstances. I think that is a matter of common sense, unless there be some special aspect of the offending which would demonstrate that not to be true. 24. In any event, I have taken into account that assessment by the psychologist, which is reflected in the Community Corrections report. It must be said, in fairness, that the psychologist who assessed the prisoner, has come to much the same conclusion, although he/she had the benefit of interviewing the prisoner. 25. What is said in the report is that there should be supervision on his release from custody. There is a plan that can be implemented, on his release and if the opportunity is available. He should be subjected to some program within custody before he is released to parole. The Community Corrections Service Sentence Report considered that no conditions, other than a supervision condition, were required to implement the supervision plan. The prisoner has not previously been in goal custody. He may have been in custody on arrest for one of the matters that I have referred to but he has never served a term of imprisonment. 26. His sister attended at court to represent her interest in the prisoner. She provided a reference. She lives at the community of Bonville, which is between here and Nambucca Heads. She presented, from what I could see, as a respectable person. She lives with her fiancée and is able to provide, on the release from custody of the prisoner, an opportunity for accommodation and to help him secure gainful employment. If he would wish to obtain employment, I have no doubt that he is able to do so. She said that, in her experience, he had "never been without work" and she regarded him, in her observation (I make allowance for the fact that she is a sister), as being a person who is generally "honest, caring and transparent". It must be fairly said, as a comment, that it seems to me that the victim's familiarity with the prisoner must have been such that if she regarded the prisoner as a generally caring, interested person in her welfare. I would expect she would not have agreed to move with him to the premises of Bellingen if it was otherwise. But, he has let her down quite obviously and very seriously by his conduct. But the sister's offer of assistance is taken into account as being a stabilising factor. 27. One of the 'risk factors' that was noted in the reports, undertaken by both the private psychologist and the prisoner psychologist, was an absence of accommodation arrangements. This one of those risk factors taken into account by the instrument to which I have referred that can vary from time to time. 28. I do not propose to dwell upon the history provided by the prisoner. I have got no reason to doubt the general accuracy of it. He admits in the history to a long term preoccupation with cannabis, particularly, he has been using drugs, both alcohol and cannabis, since he was 12 or 13 years of age. His only major health problems are that of asthma, as a child and a few head injuries, once after being struck on the head with a champagne bottle. Ultimately, it was concluded by the psychologist that his pattern of polysubstance abuse appears driven by substance dependence, peer influence and a propensity towards alcohol and illicit substances, to cope with his emotions. He has a tendency to increase his use of "drugs", including alcohol, as a response to life stressors but he has had periods of abstinence from gambling and the use of drugs. 29. There is reference to his sexual adventurism as an adult, which I have already referred to, although, to my mind, it is not a key feature of this key, given the character of the offending, the circumstances in which it occurred and the like. 30. The psychologist came to the conclusion, having regard to the offender's history and account of his mental health, that he did meet the criteria for "persistent depressive disorder", with distress that worsened at times, in circumstances consistent with what was possibly a "major depressive episode" or episodes in his life. This assessment is taken from, as I would understand it identifying from the history given by the prisoner, certain criteria set down in the Diagnostic and Statistical Manual of Mental Disorders (5th Edition), which is sometimes referred to as DSM-5, published in 2013. Of course, one has to be cautious in one's consideration of psychologists, falling short of diagnosis, relying upon a history given to conclude that the history has sufficient consistency with Diagnostic and Statistical Manual criteria. I note what the psychologist has written. It could be that the offender has had a persistent depressive disorder over a period of time and from time to time has had symptoms that are "consistent with major depressive episodes" but this falls short of a diagnosis. 31. There is some history of consultation with a psychologist, in 2017. I note the prisoner was placed on a Mental Health Plan, supplied by his general practitioner, which underlines the fact that there were issues being addressed before the prisoner committed the offence. It seems to me that the prisoner's emotional instability is a feature of his life, usually addressed by the prisoner by the use of cannabis. It would seem that the offence with which I am concerned was committed at a time of personal instability, having separated from his partner. That does bring me, of course, to the matter that I earlier mentioned. That is, for the conviction for assault, that is recorded in his criminal history. This was not a conviction relating to an offence with which he was charged before the commission of the offence. But the date of the offence was said to be 24 June 2018. So it would appear to be a matter that relates to his relationship with his former partner that arose about a week before the commission of this offence. This again reflects some emotional instability, at the very least, on the part of the prisoner and I bear in mind, of course, that there is no history of violence other than this matter. 32. He was not on bail in relation to this common assault matter at the time of the commission of the offence. He apparently was not charged until 2 July 2018. I note he received a Conditional Release Order, on conviction, for a period of nine months, albeit that he was then in custody. 33. So it appears, in the context of the opinions expressed by the psychologist retained by the accused's legal representative, that the prisoner was going through a period of emotional instability, which may have contributed to the ingestion of cannabis. Again, that does not provide an excuse for his conduct. 34. The previous treatment of the prisoner also underlines the fact that the assessment of the relevant criteria, to which I have referred, may reflect a realistic assessment of his mental health history, albeit short of a diagnosis. 35. I do not believe there is anything in the material, having regard to the character of the offending, that warrants less weight to be given to general deterrence, in the context of what the Court of Criminal Appeal said in the decision of, for example, De La Rosa [2011] NSWCCA 194, particularly in the judgment of Justice McLennan, at [177] - [178]. There is no evidence before me that the prisoner, in regard to his mental health situation, is vulnerable in custody or will find custody a greater hardship than might otherwise be seen to be the case. 36. I have noted the prisoner's assessment by the psychologist was largely in accord with the psychologist for Corrective Services. He suggested the prisoner had a score that reflect a "moderate density of criminogenic needs", applying another actuarial tool called STABEL-2007. In relation to that instrument and the Static-99R instrument, the psychologist observed this: "The STABEL-2007 and the Static-99R can be combined to generate a composite assessment of risk needs. Mr Phillips' composite score places him in the average risk level. This means that out of 100 individuals convicted of sexually motivated offences with the same risk profile as Mr Phillips, between 6.1 and 7.5 could be expected to recidivate sexually over three and five years respectively. Conversely, 93.9 and 92.5 out of 100, would not recidivate after three and five years in the community, respectively (sic)". 1. The formulation of the psychologist noted the history of the prisoner had something of a traumatic upbringing, that affected something his sexual development, that being in a relationship breakdown at the time and having lost work, he was in a "bad headspace" at the time of the offending and that his cannabis use had increased prior to the offence committed against the victim and that there had been a "blurring of boundaries". He noted the prisoner's understanding of the inappropriateness of his conduct and he noted the prisoner's expressions of remorse. He recommended that the prisoner engage in psychological intervention, both in custody and outside of custody, as well as recommended by the Community Correction's officers. 2. Mr Carty, who skilfully represented his client's interest, brought to my attention a number of authorities. I will place the detail of those decisions on the record but some of them, to my mind, are not particularly helpful because of the changed sentencing climate since those decisions were given. 3. One such decision was a decision in which my late friend, Paul Byrne appeared De Silva, an reported decision of 13 November 1995. It was a case of digital penetration, where the offender received a sentence of two and a half years, with a one year non-parole period. But I note that is a sentence imposed in respect of an offence where there was no provision for a standard non-parole period and the circumstances were quite different from the present case. 4. There is also a decision of R v May [1999] NSWCCA 40. Likewise, this is a decision that predates standard non-parole periods. Both decisions in fact predate the recognition of discounts for the utilitarian benefit of the plea of guilty. Thus, if I can take my mind back to 1995, whilst the plea of guilty had to be taken into account, there was no discreet discount usually given for such an event, that is, an early plea. The measure of the sentence, by reference to current circumstances, is difficult to gauge. 5. Another decision that is subsequently decided is JRB [2006] NSWCCA 371. Particularly in that judgment I note it was one where the head sentence imposed was appropriate, in all the circumstances, for an act of sexual assault without consent. It was an act of sexual intercourse by penetration of the vagina, by the penis, where the accused ejaculated inside the victim but where the sentence of three years, so given I hasten to say, after trial, therefore no discount was available, was also accompanied with a non-parole period of three months, which the Court of Criminal Appeal regarded as inadequate. The non-parole period fixed by that Court was one of 15 months. The relevant features of the case are somewhat different from this in other respects, both subjectively and objectively, particularly, in relation to the character of the form of intercourse. The Court said that the head sentence imposed was not inappropriate but the non-parole period was clearly, with respect to Judge Goldring, another late friend of mine, inappropriate. 6. The two most pertinent judgments I was handed include the decision of Cowling [2015] NSWCCA 213, particularly I refer to paras [48] - [54]. I was initially proposing to read onto the record the cases that I reviewed, a number of supposedly "comparative" decisions were referred to, statistics were referred to as well. The statistics then available, in 2014, showed that in respect of offences of sexual intercourse without consent 88% of offenders received a full-time custodial sentence. In relation to that matter, the Court noted that sentencing statistics can and should provide guidance as a yardstick, but they have their limitations. They were demonstrated actually in this case because the very helpful material provided by the Crown from the statistics from the Judicial Information Research System, that were available as at November 2018, showed that 89% of offenders committing offences of sexual intercourse without consent after Muldrock v R [2011] HCA 39 (being the High Court decision in relation to the interpretation of standard non-parole periods) 89% of offenders were imprisoned, 10% received suspended sentences, which are no longer available. The range of sentences, providing some assistance where full-time imprisonment was imposed, was between 12 months' imprisonment, as the head sentence and 12 years imprisonment. Showing the wide range of seriousness and, of course, relevant subjective circumstances. Page 5 of the documents provided to me by the learned Crown Prosecutor, related to an individual with one offence only, such as here, with priors of a different type, with a plea of guilty, where the age was 41 to 50 years. There were five cases noted in the statistics and they showed terms of imprisonment between three years and 54 months. 7. Of course, to just pause for a moment, Chief Justice Spigelman, when he first became a Chief Justice, heard an appeal of Bloomfield, involving a young, Aboriginal man who seriously injured a QANTAS pilot in this home at Enmore. He noted that the statistics that were shown to the Court, and he was commenting in the context of resentencing in the Court of Criminal Appeal, provided some assistance but had a number of deficiencies, which I need not reiterate. Many of the deficiencies that he identified, for the purposes of appellate consideration, applied at first instance. We do not know, from the statistics, the degree of discount, we do not know the detail of any criminal history, we do not know the time spent in custody before sentencing, which could impact upon the final outcome, we do not know the number of and intensity of aggravating factors, we do not know the number of and intensity of mitigating factors, arising under s 21A. 8. The Crown's material showed that for a person with roughly the profile of this prisoner, there were five cases, as I said, head sentences of three years to 54 months. The problem is that that particular material flies in the face of the decision in Cowling and the decision, particularly, of R v Shortland [2018] NSWCCA 34, which I will come to in a moment. 9. Shortland was an appeal, to the Court of Criminal Appeal, in which for an offence of sexual intercourse without consent, the offender was actually sentenced to two years imprisonment. All I point out is statistics provide some assistance, they give one a range of penalties that are imposed. There are many issues relating to sentencing that cannot be reflected in the statistics and the truth of the matter is that sometimes the statistics are not complete. 10. Anyway, be that as it may, I have taken into account the various comparative sentences considered in Cowling. I note, of course, as did the Court of Criminal Appeal, the High Court in Hili v R [2010] HCA 45, particularly at [54] and Barbaro v R [2014] HCA 2, particularly at [41], noted that statistics and comparative sentences can provide some guidance. 11. The decision of Shortland was very useful. That is a decision more recently determined by the Court of Criminal Appeal [2018] NSWCCA 34, particularly noting that the decision was handed down on 9 March 2018. As I earlier said, Mr Shortland was a person who was convicted, in his case, of three counts of sexual intercourse without consent. Each sentence imposed was one of two years. 12. Justice Basten at [13] reflected upon the character of the offending and Justice Hidden, who gave the lead judgment of the Court, reflect upon the judge's assessment of the objective seriousness of the offence at [80]. 13. Of course his Honour did, in his judgment, which was referred to me by Mr Carty for different reasons than I am now alluding to, acknowledged a number of things. Firstly, the presence of the particular circumstances does not necessarily make for mitigation in offending the fact that a particular aggravating circumstance, that might otherwise be available, is not pleaded or proven, does not, in its absence, create a mitigating factor. He also made the point, in relation to the aggravating and mitigating factors at [95]: "Where aggravating and mitigating factors, specified in s 21A, arise in a case, a sentencing court must deal with them in conformity with that provision", otherwise, it seems, to me, determination of the objective gravity of an offence, by reference to the fact that factors were aggravating or mitigating was unhelpful. In assessing the seriousness of an offence, it is not inappropriate to examine the extent to which it shares features commonly encountered in offences of that kind, bearing in mind that ultimately, objective gravity turns on the features of the offence at hand". 1. His Honour citing, with approval the observations of Justice Hoeben, in the decision of Greenwood [2014] NSWCCA 64, particularly at [34]. 2. In the case of Shortland, being a case I point out, in the context of the range of conduct contemplated, in respect of sexual intercourse without consent, the sexual intercourse included penile penetration of the complainant. It was concluded that the offence, in terms of its objectiveness, was at the lower end of the objective seriousness. For a range of reasons. The intercourse, in this matter, was short, the duration. It would appear the penetration had occurred and there was immediate rejection by the complainant and properly so. There was no use of force or coercion by the prisoner. The intercourse was such that, it would seem, based upon the agreed facts, there was no physical injury suffered by the victim. There was no evidence of planning, as I said, the offending was opportunistic. There was no evidence of any "degrading contact". It was clear that when the victim "resisted", the prisoner desisted. 3. The feature of this case that perhaps warrants some distinction, from the supposedly comparable cases, nearly all of which are concerned with penile/vaginal intercourse, is the difference in age between the victim and the prisoner. Here it is a matter of substance. It is of "significance" in the sense that it explains the circumstances in which the prisoner and the complainant were together or knew one another. I do not accept what is said at [87] - [88], as suggesting that the difference in age, as a significant gap as it is here, is not of substance in assessing the objective gravity of the offending and I have taken it into account. All that was held in Shortland was that the circumstances of the difference in age between the two persons, both persons being adults, was not a matter that bore upon the objective gravity of the offences. It must be born in mind that while the victim here was not a "child", for the purposes of criminal law, she was a child, in the general legal sense and the prisoner's age and relationship with her was one where he, obviously, ought to have known better to take advantage of the situation in which he found himself. 4. It was pointed out by Justice Hidden, by reference to another judgment of the Court of Criminal Appeal, that the difference in age may be a relevant matter, in cases of sexual assaults committed against children. I believe his Honour particularly was referring to cases where that is pleaded as an aggravating factor and he noted Justice Beech-Jones' observation in the case that he was referring to, that "the age difference between a sexual offender and their perpetrator can affect the objective seriousness of the offending" and thus, does here. 5. Which brings me back, if I may, having taken into account both the comparative sentencing purposes of those judgments and the relevant observations about matters of principle, to what was the essence of the submissions made by learned counsel for the prisoner in his written submissions and his oral submissions. He made a submission to me that the threshold, pursuant to s 5, had not been met, that is, that it was not a matter that required necessarily, the imposition of a term of imprisonment. With that assessment I disagree and apart from other features of the case, particularly the difference in age is a reason to reject that submission. 6. He further submitted that if the threshold, as he described it, had been passed, in relation to s 5, that I could impose a sentence of imprisonment that would, with a finding of special circumstances, permit a non-parole period, equal to or less than the period of time he spent in custody. Again, by reference to the character of the objective seriousness, I could not, in the context, for example, of what was decided in the decision of May, conclude that a non-parole period of that length reflected the circumstances of the case, including the objective seriousness of the offending. 7. I agree with the assessment or the submission of the learned counsel for the prisoner that I can make a finding of 'special circumstances', pursuant to s 44 of the Act. In my view, there is a need for appropriate supervision, for an extended period of time, to permit the prisoner to receive assistance, in relation to adjusting to community living and also to receive direction and guidance, in relation to drug ingestion, particularly cannabis use and addressing some of the matters identified in the psychologist's report. 8. I have noted, in assessing the objective seriousness of the matter, the submissions of counsel for the prisoner and, by and large, I have agreed with what has been presented in his submissions. Likewise, in relation to mitigating factors, I am prepared to accept most of the matters that he has identified. 9. I am prepared to find, on balance, notwithstanding the assessment by use of the 'actuarial instruments', that the prisoner, in context, is unlikely to re-offend and I am prepared to accept, in the context of him serving the first term of imprisonment in his life, at this age, that he has good prospects of rehabilitation, on the basis that the term of imprisonment may serve as a salutary lesson. 10. In sentencing the prisoner, in this regard, noting those mitigating factors, I am still required to have regard to the purposes of sentencing, under s 3A and that requires adequate punishment, deterring the prisoner and others, protecting the community from the offender, to the extent that such protection is required. I do not regard the prisoner as a threat to the community. His prior conduct towards the victim, as I have earlier observed, would be inconsistent with him being a threat to the community. I am required to make him accountable for his actions, denounce his conduct, as reflected in the way in which the victim presented her Victim Impact Statement, as well as recognise the harm done to the victim, as reflected in that statement but I am also required to promote his rehabilitation. It must be said, as the High Court said in Veen (No 2) v R [1988] HCA 14, that the purposes of sentencing sometimes point in different directions; in many sentences exercises that is so. 11. So far as the Crown's helpful submission are concerned, I have dealt with the statistics that were provided to me, I do not need to go any further, in relation to that matter. I discussed the shortcomings of the statistics with the learned Crown at the time. 12. The Crown took issue with the likelihood of him re-offending. I have to judge that matter, in terms of finding it in his favour, on balance, by reference to the wider picture. But I have noted and accept the Crown's submission about the aggravating factor of being an offence committed in the victim's home, in the circumstances I have outlined. The Crown did not submit that I should not find special circumstances. I have already dealt with the submissions made by the Crown relating to the issue of trust. 13. There is, of course, one shadow over the case, in the context of there being a standard non-parole period and that is the requirement to have regard to Pt 4, Div 1A of the Act. 14. For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the Table of that division, taking into account only the objective factors affecting the relative seriousness of the offence, is in the middle of the range of seriousness, as I have said. I do not agree with the submission of counsel for the prisoner that this is at the lowest end but it is in the low range of objective seriousness of offences of this type, particularly having regard to the character of the penetration and the circumstances or the context in which it occurred. That is taking into account s 54A(2) of the Act. 15. Section 54B provides that the standard non-parole period for an offence is a matter to be taken into account by a court, in determining the appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender. That includes, of course, a consideration of s 21A(1) and the incorporation into sentencing and reasoning of common law principles, the relevant aggravating factors that are found, beyond reasonable doubt and the intensity or significance of them in the scheme of things, and the mitigating factors, under s 21A(3), as well as the determination of special circumstances. All these matters were matters contemplated by the Court of Criminal Appeal, in the judgment in Shortland and in the discussion in Cowling, in respect of those supposedly "comparative cases" referred to by that Court. 16. It is thus, in these circumstances, I have come to the conclusion that I should impose a sentence that starts at three years imprisonment, with a discount of 25%. That leaves a sentence of two years, three months. I have determined the non-parole period should be approximately 50%. I need to ensure that there is a sufficient period of supervision, to provide the direction that I believe the Parole Authority should provide the prisoner. I have rounded the non-parole period down by a couple of weeks. It seems to me, with respect, that one year, one month or two months, is the minimum period of time the prisoner requires for that supervision and in any event, if the prisoner cannot comply with the supervision, the parole authority will revoke his parole and he will go back into custody. 17. In terms of the issues that relate to the Form 1 matter, I have taken into account what the Court of Criminal Appeal said in the guideline judgment from 2002, I do not need to reiterate the discussion in that judgment. There will be many times when matters on a Form 1 will require a much greater sentence to be imposed on the principal sentence because for, amongst other things, it may show, by the offending on the Form 1, that the offending for sentence, that is the principal offence, is not uncharacteristic or impulsive or unplanned or whatever. But the matter on the Form 1 is a 'summary' matter and it is directly connected to the contextual circumstances in which I have considered the objective seriousness of the offending, that is the prisoner and the victim smoking cannabis before the offence was committed. 18. I appreciate there will be occasions when matters on a Form 1 will require greater weight to be given to denunciation and retribution, thus substantially increasing what would otherwise be the objectively appropriate sentence for the principal offence if it stood alone, if I may paraphrase the more eloquent words of Chief Justice Spigelman but this is not that case, having regard to that offence. 19. In relation to the principal offence, you are convicted. Taking into account the matter on the Form 1, you are sentenced to a term of imprisonment, by way of a non-parole period, of one year, one month, commencing on 1 July 2018 and expiring on 31 July 2019. The balance of sentence of one year, two months, is to expire on 30 September 2020. The total sentence, therefore, is two years, three months, comprising the non‑parole period and the balance of the sentence. Do you understand the sentence I have imposed? 20. OFFENDER: Yes your Honour. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 June 2020