District Court New South Wales Medium Neutral Citation: R v Collins [2020] NSWDC 276 Hearing dates: 08 May 2020 Date of orders: 05 June 2020 Decision date: 05 June 2020 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraph 66 Catchwords: CRIMINAL LAW – severity appeal – indecent assault and domestic violence offences – whether Intensive Correction Order should be substituted as punishment for full-time custody Legislation Cited: Crimes Act 1900 (NSW), ss 61, 61L, 61M Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 17 Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 66 Cases Cited: Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] 56 NSWLR 146 Munda v Western Australia [2013] HCA 38 Patsan v R [2018] NSWCCA 129 Peiris v R [2014] NSWCCA 58 Category: Principal judgment Parties: Director of Public Prosecutions Mr NJ Collins Representation: Counsel: Ms T Evers for the appellant Solicitors: Solicitor for the Director of Public Prosecutions Riviere Law for the appellant File Number(s): 2018/332140 Publication restriction: Nil Decision under appeal Court or tribunal: Local Court of New South Wales Jurisdiction: Criminal Citation: Unreported Date of Decision: 19 November 2019 Before: Magistrate AW Railton File Number(s): 2018/332140 Judgment INTRODUCTION 1. This is an appeal on a sentence imposed in the Gosford Local Court (Magistrate Railton) on 19 November 2019 in respect to which the appellant was sentenced to a term of imprisonment of 21 months with a non-parole period of 12 months, expiring on 18 November 2020. The appellant sought and obtained bail pending this appeal and so has not entered into custody. 2. The sentence was imposed in respect of a guilty plea on the offence that, contrary to s 61L of the Crimes Act 1900 (NSW), on 27 October 2018, at Copacabana, the appellant assaulted Kristy Rochester and at the time of the assault committed an act of indecency on her. 3. The maximum penalty for this offence, when tried on indictment, is 5 years' imprisonment. When tried summarily, as it was here, the maximum punishment is 2 years' imprisonment and/or a fine of $5,500. 4. The appellant requested that the learned Magistrate take into account two additional offences on a Form 1, they being, that on the same date and in the same place, the appellant: 1. intimidated Kristy Rochester with the intention of causing her to fear physical or mental harm, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW); and 2. assaulted Kristy Rochester, contrary to s 61 of the Crimes Act 1900 (NSW). 1. This appeal is brought pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW). The appeal is by way of rehearing on the basis of the evidence before the Local Court, although fresh evidence may be given (s 17). The Court is required to engage in a fresh exercise of the sentencing discretion on the evidence admitted on the hearing of the appeal. It is, in effect, a de novo appeal. In this appeal, the appellant relied upon fresh evidence in the form of a supplementary report from a psychologist. He also gave sworn evidence. CIRCUMSTANCES OF OFFENDING 1. Agreed Facts were placed before the Local Court and this Court. They may be summarized as follows. 2. The appellant was 42 years old at the time of offending. The complainant, Kristy Rochester, was aged 37 at the time of the offending. The appellant and the complainant were married in 2003. They each had children from previous relationships. They had a daughter together, who is now in her mid-teens. They divorced in 2008, but they recommenced a relationship in 2014. 3. In 2015, the appellant assaulted the complainant, but no conviction was ordered. It did give rise, however, to an Apprehended Violence Order, for the complainant's protection. 4. Around July 2017, their relationship began to deteriorate. Although living together in the same premises, the complainant started to sleep in a separate bedroom to the appellant. 5. In the lead up to the offending events, she was seeking alternative accommodation. On 27 October 2018, she had secured alternative accommodation and was in the process of moving her belongings. 6. On 27 October 2018, from about 6:52pm through to 8:14pm, the appellant and complainant exchanged text messages. The first of those, from the appellant to the complainant, referred to an outburst by the appellant earlier in the day, but explained that the appellant was upset at what he regarded was the complainant ignoring him, whilst getting his assistance to move her belongings. At 7:22pm, he sent a text to the complainant requesting that they have sex that night as a 'farewell gift'. The text indicated the appellant's recognition that the complainant was in the process of moving on. He repeated that request at 8:11pm but at that time, and in the course of further text messages, the complainant indicated that she did not want to have sex with him. 7. Shortly after the last of those texts, the complainant was lying on a couch in the lounge-room, listening to music on her phone with headphones on. Without notice, the appellant grabbed the phone. The complainant asked him to return the phone, but he refused to give it back to her unless the complainant spoke with him. They started yelling at each other and, feeling scared of the appellant, the complainant picked a knife and warned the appellant not to come near her as she would stab him if he did. 8. The appellant left the home, with the complainant's phone and walked down the driveway. The complainant followed him, demanding that her phone be returned. The appellant refused to return it. The complainant then slashed two of the tyres on the appellant's car and thereafter ran back into the home before locking all the windows and doors; with the exception of a window to her bedroom. She then went to sleep. 9. The appellant went for a walk and rang his child from the previous relationship. The child gave the appellant the password for the complainant's phone. The appellant used the password and went into and read private phone records of the complainant. He thereafter returned home. 10. The appellant approached the unlocked window to the complainant's bedroom. He removed the flyscreen and screamed at her to "get the fuck outside now and talk to me" and for her to unlock the door to let him in. The complainant was scared as to what he might do if she did not come out, so she went out. She asked for her phone. The appellant said that she could have the phone but only if she came out and answered some questions first. The complainant opened the back door. After she did so, the appellant threw a beer over her and demanded that she speak with him. This is the conduct which is the subject of the intimidation offence on the Form 1. 11. The complainant left the home and drove to a nearby lookout and sat in the car. She fell asleep. About half an hour later, the appellant arrived at the lookout in his truck. He parked the truck directly behind the complainant's car so as to prevent her from driving away. He approached the complainant's car. The complainant had locked the door. He demanded that she unlock the doors. She was scared and did not want him to damage the car; so she opened the driver's door. The appellant lent in and, with both hands, grabbed her hair and pulled her face towards his face. He said that if she wanted to see her phone again, she had to come home and talk to her. The complainant said she was scared and drove home. Once she arrived, she told him she was ready to talk. 12. The appellant told the complainant that he wanted to talk with her in the main bedroom. After she sat on the bed, the appellant told her to lie down. She did so on the top of the covers on the bed. The appellant started to talk to her. He started to touch her body. The complainant said that she did not want him to do anything and that she had her period. The appellant said that he did not care. He kept touching her breasts and stomach and started to pull her pants down. The complainant froze. 13. The complainant kept her legs tight together, but the appellant put his hand between her legs, forcing them apart and then placed his body between her legs. He removed the complainant's pants and underpants and touched the complainant around the vaginal area with his fingers. The complainant closed her eyes and pretended that what was occurring was not happening. The appellant asked if he could put his penis in her mouth. She refused. He asked her if she could remove her jumper. She refused, but the appellant removed it anyway. She was wearing a black singlet top underneath the jumper. He took a pair of scissors and cut the singlet off, thereby exposing her breasts. 14. The appellant held the complainant down by pinning her wrists against the bed, above her head. He started rubbing his groin against the complainant's groin. The complainant tightened her legs and lifted her buttocks to try to stop him from her assaulting her. The appellant ejaculated on the complainant. He said "I'm finished now, it's all good" then he told her to "fuck off and get out". The complainant got up off the bed, wiped his semen from her body with the cut singlet top. She got dressed and cried and later had a shower. 15. Later the same day, the complainant asked the appellant for him to return her phone. The appellant told her that she would never get back the phone. 16. On 30 October 2018, the appellant agreed to participate in an ERISP interview with police. He made many admissions. What was conveyed by the admissions was that the appellant well understood that the complainant was preoccupied with the return of her phone and her unwillingness to engage in sexual activity with him. In relation to the sex, he admitted holding her hands above her head and pushing his hand above her head. He admitted rubbing his penis on her legs, on her stomach and around her vagina, across her ribs, between her breasts and across her nipples; and admitted that he had ejaculated on her. 17. In the reports of a psychologist, Dr Lennings, the appellant had reported that he had a history of some experimental rough sex with the complainant at different times; including cutting her chamois. He acknowledged, however, that she did not consent to sexual activity on the day of the offending. He told Dr Lennings that, for him, the events overall had reflected previous situations where they had had arguments, and then followed up with 'make up sex' and that he thought that this was one such occasion. Objective seriousness 1. Counsel for the offender submitted that the offending conduct has to be seen in the light of a dysfunctional relationship, involving periodic break-ups. It was also to be seen in the context that the offender was intoxicated at the time of the offending. This last aspect is not apparent in the Agreed Facts. Nor is it apparent in the histories that the appellant supplied to Dr Lennings, or a case note from Ms Leanne Thomas, a different psychologist. I am not satisfied on the balance of probabilities that he was intoxicated. 2. Counsel emphasised that the conduct was partly explicable because of the conduct of the complainant. This involved the complainant brandishing a knife towards the appellant and using (presumably) that knife to slash two of the tyres on the appellant's car. This, she acknowledged, was not an excuse for what the offender subsequently did, but was part of the matrix of circumstances to put the offending in its proper context. Although Counsel eschewed reliance upon provocation as a mitigating factor, such conduct had to be considered in the context of the explanation for his behaviour. Generally, Counsel characterised what occurred as the escalation of a row which started late in the afternoon. The appellant simply wanted to talk through issues with the complainant but she refused to engage. In order to force her to engage in dialogue, the appellant seized her phone and plainly indicated that he would not give it back to her until she did so. 3. As the row escalated, the appellant and complainant did things which they might in retrospect regret. But, as had happened in the past, when, according to the appellant, the appellant and complainant would put the row behind them and engage in 'make up' sex, which was what some people might regard as being rough sex. 4. It was said that, although he was mistaken on this occasion, when he was encouraging the complainant to engage in the sexual activity in this instance, this was reflective of their past history of sexual relations. 5. In my view, this narrative is a rank distortion of what, objectively, occurred. The important contextual circumstances left out of this narrative are that the relationship had completely broken down, so much so that the complainant had secured alternative accommodation. The first of the text messages referred to in the Agreed Facts indicates that the appellant was well aware that she had indicated her "hate" for him and was in the process of moving her belongings. Before the incriminating conduct had occurred, the complainant made it plainly clear that although the appellant was seeking out sexual activity as a "farewell gift" she did not wish to engage in sexual activity with the appellant that evening. The complainant was making it very plain that she did not wish to engage with the appellant on any level that evening. 6. That, however, did not accord with the appellant's wishes or expectations for how the relationship might end. So he resorted to the exertion of psychological and physical force against the complainant in order to get her to do what he wanted her to do. He took property that did not belong to him to engage her attention and refused to return it to her until she acquiesced to his demands. Even after the offending conduct had occurred, he still refused to deliver back the phone to her. I refer here to the conduct that is the subject matter of the offences on the Form 1 that the appellant has requested that I take into account. Those offences betoken demeaning and degrading conduct. 7. Contrary to what was submitted on the offender's behalf, it is also a distortion to suggest that the complainant was not in fear of the appellant. The Agreed Facts are littered with references (paragraphs 6, 7, 8 and 9) indicating palpable fear on the part of the complainant. 8. In relation to the sexual activity itself, and having regard to the context, the appellant acknowledged that his conduct was non-consensual. He had no rational basis for believing that this was consistent with a past pattern of 'make-up' sex, characterised by what some might regard as 'rough' activity. There was nothing in the conduct of the complainant that indicated that she wanted to make up with him. Her attitude during the evening was to have as little to do with him as possible, and that she was scared of him. It was obvious that she did not want any sexual activity at all, rough or otherwise; not only because of the terminal nature of the relationship generally, but her going through her period in particular. To the appellant, however, these considerations had to give way to his intentions and desires as the way to 'close' the relationship on terms that he saw fit. 9. Counsel for the appellant accepted that the offending conduct fell at or slightly above the mid-range of offending for this conduct, but submitted that it was not as high as the Crown submitted that it was. The Crown emphasised that the nature and degree of the assault was indicated by the circumstances of skin-on-skin contact, the rubbing of the complainant's genitals and breasts, and ejaculation. There was, it was submitted, a humiliating overtone to the activity. I agree with this characterisation. 10. I find that to a not inconsiderable degree, the offending conduct was above the mid-range for objective gravity for this conduct. 11. There were no matters of aggravation that I was specifically referred to. THE OFFENDER'S SUBJECTIVE CASE Culpability 1. I referred earlier to the submissions raised on the appellant's behalf explaining the offending conduct from the appellant's perspective. I have indicated my view that this perspective bears little relationship with the objective reality. Nevertheless, it is relevant to the issue of his culpability. 2. His Counsel suggested that not only was the appellant acting in accordance with subjective beliefs about his entitlement to engage in the sexual activity with the complainant, but that he was also naïve, which explains why he made as many admissions as he did to the police. She also suggested that, although he did not have any demonstrable intellectual disability or deficit, he had limited intellectual understanding. Dr Lennings described him in his second report as a dysfunctional man engaged in a highly significant relationship with his former partner. 3. These matters do not, to my mind, reduce his culpability to any significant degree. They are, I expect, characteristics found in many offenders in the domestic violence context. There was, in fact, no convincing evidence of any disability that might render his conduct less culpable. Background 1. The offender is now aged 43 years old. He is a father of three from two relationships. I have noted his relationship with the complainant. He completed his schooling at year 10 and became employed in the automotive industry. 2. He gave evidence on this appeal indicating that he is currently employed by Cleaver's Tyres and save for a period of 3 months, has been continuously employed. 3. He lives with a supportive family on the mid-north coast. They are supporting him with his rehabilitation. 4. He gave evidence that he has a 19-year old son, with whom he is close, who suffers from lung cancer. He has seen the son only twice since the offending conduct had occurred. Guilty plea 1. The Crown submitted, without contradiction, that the learned magistrate had given a discount for the plea of 12.5%. It was not suggested before me that this level of discount was inadequate. Insight, contrition and remorse 1. Before me, the appellant said that he was sorry for his conduct and hoped to get the chance to apologise to the complainant. He said he understood that his conduct was very serious. He said he now understands that he did not just act on the basis of a misjudgement, but had engaged in a criminal offence. 2. Counsel for the appellant submitted that the appellant's insight into his conduct had evolved. 3. I confess to harbouring serious reservations about this evidence. By its form, it was led through leading questions from his Counsel. More substantially, however, there were indications in the reports before the Court that cast doubt on his level of insight. In the sentencing assessment report of a correctional officer before the learned Magistrate, it was said that the appellant lacked empathy for the victim and his preoccupation was the opinion of his children. 4. It is true that Dr Lennings, who I accept was a very experienced and qualified psychologist with expertise on the subject of sex abuse, commented on the appellant expressing to him his regrets about what occurred and sorry about what he had done. 5. But in his supplementary report relied upon in this appeal, Dr Lennings remarked that the appellant still did not appreciate that he was forcing himself upon the complainant, notwithstanding being shown the text message from the complainant indicating that she did not want to engage in sexual activity with him. He also remarked that the appellant was still unable to accept that the relationship had ended. 6. I accept that there was some rather limited remorse and contrition, but remain unconvinced that the appellant has acquired real insight into the wrongfulness of his conduct. That bears upon his prospects for re-offending, to which I will return to in a moment. Antecedents 1. The appellant had previously assaulted the complainant, 3 years before the subject offending. In other words, the subject offending is not the first time he has engaged in acts of domestic violence against the complainant. Likelihood of reoffending and prospects of rehabilitation 1. As noted, the appellant has been on bail since the sentence was imposed. To his credit, he has used his time constructively, being almost continuously in employment. His family support has assisted him in his attempts to rehabilitate himself. He gave evidence that he would be willing to undertake whatever remedial programs that he may be required to undertake, such as to deal with domestic violence, or alcohol abuse. 2. Whilst on bail, he has not been in breach of any conditions. He had not been near the complainant. 3. It was submitted that the period of delay between the sentence which was imposed upon him and this appeal has shown that the appellant can rehabilitate himself. It was mentioned that he had previously overcome a heroin addiction. That demonstrated the appellant's determination. 4. It was submitted that there is a low risk of re-offending. The dynamics of the sexual history with this complainant were unlikely to be repeated. 5. In the sentencing assessment report before the learned Magistrate, the appellant was assessed as having a low or medium risk of re-offending. He had also been assessed as suitable for community service work. In his first report, Dr Lennings said that his behaviour might be explained as a sexual incident in the context of a domestic violence episode in which the primary issue was loss of control and the engagement in non-consensual behaviour was similar to earlier consensual behaviour without recognising that consent was withheld. Dr Lennings opined that he did not present as a high risk of engaging in further sexually violent behaviour. He did, however, remark that the appellant has a poor capacity to manage conflict, is impulsive and drinks too much. 6. He further opined that should the appellant not receive a custodial sentence, he may benefit from the Probation and Parole EQUIPS Domestic Violence program. 7. This evidence was unchallenged and I accept it. That being so, I accept that the likelihood of re-offending conduct of the relevant kind is low. I also accept that the appellant has used the time to rehabilitate himself and has a willingness to undertake pro-active steps to facilitate this. OVERALL SYNTHESIS 1. I must consider the sentencing principles in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). I also take into account the maximum punishment for this offence as a legislative guidepost. 2. Counsel for the appellant accepted that the s 5 threshold has been passed. The real question is whether or not the Court should impose an intensive correction order, rather than order a term of full-time custody. His Counsel impressed upon me as circumstances pointing to that particular option the circumstance that the appellant's rehabilitation, which has already developed since the sentence was imposed, is more likely to be facilitated by this option, rather than by a term of full-time custody. She submitted that the appellant was willing to accede to whatever conditions the Court saw fit to impose. These might include programs for treatment of sex offenders and alcohol abstention. 3. Counsel for the appellant emphasised that the sentence for the s 61L offence was imposed in a summary context. There were, she submitted, 'worse' cases for a similar offence (that being s 61M(2)) considered in the Local Court, including cases where the victims were children, where full time incarceration had not resulted. She referred me to the Court of Criminal Appeal's decision in Peiris v R [2014] NSWCCA 58. In that case, the sentencing judge indicated that he relied upon sentencing statistics from the JIRS database and that he had determined that the sentence he imposed fell within the range of comparable sentences. The Court of Criminal Appeal determined that the conduct, which was of a relatively low degree of criminality, was being punished (by term of imprisonment, as distinct from a suspended sentence) as if it involved a relatively high degree of criminality. 4. The difficulty for the appellant is that, when considering the s 61L offence in its proper context, including the offences on the Form 1, I do not accept that his conduct involved a low level of criminality. 5. Counsel for the appellant also submitted that in view of the appellant's developing rehabilitation, his remorse and acceptance of responsibility and the unlikelihood of his re-offending, the consideration of specific deterrence was of diminished significance. When I raised with Counsel the matters to be determined on the Form 1, she argued that they did not serve to elevate the consideration of personal deterrence. 6. I reject this last submission. In my view, the offences on the Form 1 serve effectively to increase the punishment for the principal offence to reflect not only a greater need for personal deterrence, but also a greater requirement for retribution: Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] 56 NSWLR 146 per Spigelman CJ at [41]-[44] (Wood CJ at CL, Grove, Sully and James JJ agreeing). 7. The Crown submitted that the considerations referred to by the appellant, being personal in nature to the appellant, did not adequately take into account the other sentencing principles in s 3A. In particular, those sentencing principles had to be moulded to the context that the offending conduct was of the nature of domestic violence. In this context, it was to be noted that the appellant's offensive conduct had no regard to the harm occasioned to the complainant who, the Agreed Facts suggested, was scared throughout the episode of the offending conduct. 8. In Patsan v R [2018] NSWCCA 129, the Court of Criminal Appeal (at [41]) emphasised the role of the criminal law in the context of domestic violence and authorised the giving of significant weight to general deterrence, specific deterrence, denunciation and community protection. To the last two considerations, I am also influenced by the consideration adverted to by the High Court in Munda v Western Australia [2013] HCA 38 at [54] regarding the importance of vindicating the dignity of victims of domestic violence. It might be said also that, the other side of that coin is ensuring that the offender is properly made accountable for his violent conduct. 9. In my view, whilst acknowledging the relevance of the appellant's rehabilitation, that consideration is subordinate to the considerations of general deterrence, denunciation and the imposition of adequate punishment, which factor recognises the indignity inflicted upon the complainant. I am conscious of the importance of community safety, especially having regard to s 66 of the Crimes (Sentencing Procedure) Act, and accept that the safety to the community is not seriously imperilled by the appellant if a penalty other than full-time incarceration is imposed. But that consideration is not, in my opinion, paramount in the circumstances of this case. 10. I have considered the sentence imposed by the learned Magistrate. Although I am not bound by it, having regard to the seriousness of the offending conduct (amplified by the offences on the Form 1), as indicated by the maximum penalty that could have been imposed if the proceeding was tried on an indictment, and the circumstances of the offending conduct, it might even be regarded as lenient. I note that, in this regard, even with a reduced discount for a guilty plea, the learned Magistrate imposed a non-parole period which marked a substantial alteration to the statutory ratio. I agree that special circumstances exist here, principally, the assistance that a shorter non-parole period will aid in the appellant's rehabilitation. In the circumstances, I am not prepared to vary it. 11. Mr Collins, please stand. Your appeal against severity is dismissed. Consequently, given that you have at no stage been placed in custody, you are sentenced to a period of imprisonment for 21 months, commencing 5 June 2020 and ending on 4 March 2022, with a non-parole period of 1 year. You will be first eligible for release on 4 June 2021. ********** 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: 05 June 2020