District Court New South Wales Medium Neutral Citation: R v Brookes [2020] NSWDC 440 Hearing dates: 22 July 2020 Date of orders: 14 August 2020 Decision date: 14 August 2020 Jurisdiction: Criminal Before: Letherbarrow SC DCJ Decision: 1. Imprisonment consisting of a non-parole period of 2 years and 5 months commencing on 18 August 2018 and expiring on 17 January 2021. 2. Total sentence of 3 years and 9 months commencing on 18 August 2018 and expiring on 17 May 2022. 3. No action on the breach of the two Community Corrections Orders. Catchwords: CRIME — Sexual offences — Sexual assault SENTENCING — Penalties — Imprisonment SENTENCING — Aggravating factors — Home of victim SENTENCING — Subjective considerations on sentence — Special circumstances Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v May [1999] NSWCCA 40 R v Daley [2010] NSWCCA Markarian v The Queen [2005] HCA 25 Callaghan v R (2006) 168 A Crim R 145 Category: Sentence Parties: Regina (Crown) Ronald Brookes (Offender) Representation: Counsel: Mr Chatterton (Crown) Ms Fernando (Offender) Solicitors: Director of Public Prosecutions (Crown) O'Brien Solicitors (Offender) File Number(s): 2018/00389317, 2018/00102259, 2018/00096087 Publication restriction: Statutory non-publication order re identity of victim REMARKS ON SENTENCE Introduction 1. The offender appears for sentence after a jury found him guilty on 27 February last of the single count in the indictment presented against him, namely that on 16 December 2018 at Ashfield in the State of New South Wales, he had sexual intercourse with the victim without her consent, contrary to section 61I of the Crimes Act 1900. This offence is punishable by a maximum penalty of 14 years imprisonment as well as being subject to a standard non-parole period of seven years. The Evidence 1. At the sentence hearing which took place over two days in July 2020, the Crown tendered its usual sentence summary which contained, inter alia, the offender's criminal history in New South Wales, Western Australia and Queensland, as well as his custodial history in New South Wales, together with various "parole papers" which came into being as a result of the offender having just been released to parole at the time of his subject offending. 2. Next the Crown handed up a victim impact statement which was read on her behalf by the victim's support person. Such statement reveals the very serious consequences offending like that in the present matter can have upon a victim. 3. Next the Crown tendered the papers in relation to the breaching of two Community Correction Orders which were occasioned by the commission of the subject offending and which I have been asked to deal with. 4. Finally, the Crown hand up an "Outline of Crown Submissions on Sentence" which I had marked for identification. 5. On behalf of the offender, Ms Fernando of counsel, tendered a forensic psychiatrist's report from Dr Furst dated 25 June 2020, together with three references including ones from the offender's mother and father. In addition, Ms Fernando tendered an affidavit from the offender affirmed on 22 July last and upon which he was not required for cross examination. Finally, Ms Fernando handed up two sets of written submissions which I marked for identification, the first going to the matter generally and the second dealing with the defence's position as to what should occur in relation to the breaches of the two Community Correction Orders to which I have just referred. 6. The offender himself was not called to give oral evidence on sentence. 7. Whilst preparing these remarks I noticed that the Crown said nothing in its written submissions about the issue of special circumstances. Mr Crown also did not addressed me orally on the issue. In these circumstances my Associate, at my request, invited him to do so by way of some additional written submissions. When these were received, my Associate invited Ms Fernando to add to her written submissions on this topic. I will have the Crown submissions on this topic marked for identification 4 as will be the further written submissions from Ms Fernando and the relevant email correspondence involving my Associate. The Facts 1. There was little dispute between the parties as to what facts should be found on sentence consistent with the jury's verdict. What dispute there was surrounded the degree of force that the offender used against the victim during the sexual assault. Despite this difference, both parties agreed that this was not a case where the offender knew or must have known that the victim was not consenting but rather was a situation where the offender held an honest belief that the victim was consenting but there were no reasonable grounds for that belief. In this regard, both parties relied upon the contents of the jury note MFI J3 and what could be drawn from it. In my view, this is a dangerous and perhaps impermissible enquiry. Whilst I agree that this is a case where an offender had no reasonable grounds for holding an honest belief that the victim was consenting at the relevant time, in reaching that conclusion I have not had regard to the jury note in question but rather have based my conclusions on the evidence at trial. 2. In these circumstances, I find the following facts consistent with the jury's verdict: 1. The offender and the victim first become involved in a sexual relationship in early 2018. That relationship involved drug use. 2. From 10 August 2018 to 9 December 2018 the offender was in gaol consequent upon committing certain offences against police. Shortly after his release to parole for those offences, he messaged the victim around lunchtime on Wednesday 12 December and told her he was coming to her residence. The offender arrived around 6PM. The offender and the victim then shared a meal before having consensual sex. The offender then left. 3. The offender also visited the victim on Thursday 13 December and Friday 14 December and probably engaged in sex with her on each occasion. 4. On the morning of Saturday 17 December the victim received a text from the offender which stated: "Hey baby got some G and a refill of food." In her evidence, the victim said that "G" was an illegal drug also known as GHB or GBH. She also said that "food" meant methylamphetamine or "ice". 5. During that Saturday evening at the victim's residence, both the victim and the offender took ice by way of injection as did a friend of the victim's, Donald Chamberlain, who was staying at her residence. The victim described herself as a regular user of ice at this time. 6. Around 1am on Sunday 16 December, the victim said she was very tried and went into her bedroom to go to sleep. 7. At some point after the victim had gone to bed, the offender went into the victim's bedroom and they had consensual sex for some time, stopping when the victim said she wanted to sleep. 8. The victim then fell asleep. At some point thereafter the offender stood by the side of her bed. He then pulled the bedclothes off her and aggressively pulled her towards him by grabbing her ankles or legs. He then rolled her on to her side and commenced to have "rough" penile/vaginal intercourse with her after removing her underwear. The offender quickly ejaculated and left the room. 9. Based upon the consensual intercourse that had taken place between them over the past few days, the offender honestly but unreasonably believed that the victim was consenting to the act of intercourse in question. As the offender said in his answer to Q227 of his ERISP: "Although I didn't get an explicit yes, I didn't hear the very loud no." Pre-Sentence Custody 1. On 10 August 2018, the offender was arrested and charged in relation to two counts of intimidating a police officer in the execution of their duty and one count of resisting an officer in the execution of their duty. Such offences were committed that day. For each offence the offender was sentenced on 11 December 2018 to 12 months imprisonment with a non-parole period of four months with all three sentences commencing on 10 August 2018. 2. At the conclusion of these three four-month non-parole periods, the offender was released to parole on 9 December 2018. The subject offence was committed on 16 December 2018, some seven days later. The commission of the subject offence whilst on parole for the three earlier offences is, of course, an aggravating feature. The offender was arrested for the subject offence on 18 December 2018 and has been in custody since. 3. However, the position here is a little complicated in that on 9 January 2019, the offender's parole for the three offences committed on 10 August 2018 was revoked by the Parole Authority and he was sentenced to serve the balance of his parole being a period of seven months and 25 days. This balance of parole expired on 11 August 2019. 4. Here it would seem that the revocation of the offender's parole was entirely a result of his committing the subject offence. 5. In these circumstances, I have a discretion to backdate the commencement of any period of imprisonment imposed in relation to the subject offence so that it commences before his arrest for same on 18 December 2018: see Callaghan v R (2006) 168 A Crim R 145. In my view, a period of four months is appropriate. Accordingly, the sentence of imprisonment which I will shortly impose will commence on 18 August 2018. The Offender's Criminal History 1. The offender was born on 22 March 1974 and was aged 44 at the time of the subject offending. He is now aged 46. His record in New South Wales commences with numerous dishonesty offences committed in July 2001 for which he received fines. His next offending in this State was not until 2007 when he received fines for driving whilst unlicensed and negligent driving. In 2009 he was convicted of possessing a prohibited drug and having custody of a knife in a public place. Again, these were dealt with by fines. 2. Thereafter, his New South Wales record consists of numerous further convictions for drug possession, being in custody of a knife and driving related offences. 3. In October 2012 he received three section 9 bonds, two for possession of a prohibited drug and one for contravening an apprehended domestic violence order. He also received a fine for having custody of a knife in a public place. In 2013 he was convicted of offences of driving under the influence of alcohol or other drugs and negligent driving on two separate occasions, all for which he received section 9 bonds. Things didn't change over the balance of 2013 and 2014 with the offender again being dealt with by way of section 9 bonds and fines for several further offences of possessing a prohibited drug. 4. The offender was sentenced to his first term of imprisonment in November 2014 at Newtown Local Court for two offences namely, having custody of a knife in a public place and failing to appear in accordance with his bail acknowledgement. He was sentenced to 3 months imprisonment for both offences, however, these were suspended upon him entering into section 12 bonds. 5. In late 2016, the offender received two sentences of imprisonment for drug possession commencing in August 2016 and concluding in November 2016. This period of imprisonment seemed to have little impact upon the offender as is in July 2017 he was convicted of three counts of possessing a prohibited drug, having a knife in his possession in a public place and for having goods in his custody suspected of being stolen. For these offences he received a total of six months imprisonment concluding in January 2018. Further, on the same day he was sentenced to imprisonment for 4 months for driving a vehicle under the influence of drugs. 6. In July 2018, the offender was placed on two section 9 bonds for having custody of a knife in a public place on two separate occasions. These bonds were called up in December of that same year. These bonds were revoked and he was placed on two Community Correction Orders. 7. As mentioned, on 11 December 2018 he was dealt with at the Burwood Local Court in relation to three matters, two being intimidating a police officer in the execution of their duty with the third being resisting an officer in the execution of their duty. For these offences, he received three totally concurrent 12 month terms of imprisonment commencing on 10 August 2018 and concluding on 9 August 2019 with each subject to a 4 month non-parole period. The offender was released on parole on 9 December 2018. 8. The offender's record in Western Australia commences in January 1999 and concludes on 18 February 2002. Such record is essentially comprised of driving type offences although there are three offences in relation to cultivating cannabis as well as possessing a smoking implement in November 1996. 9. In Queensland in 2012 and 2014, he was dealt with by way of a fine and a good behaviour recognizance in relation to committing a public nuisance and dishonestly obtaining property respectively. 10. Overall, the offender's record is rather lengthy and seems to revolve around drug and knife possession as well as the breaching of various bonds by similar conduct. In my view, it disentitles him to leniency. The Offender's Subjective Circumstances 1. As the offender did not give oral evidence before me, his subjective circumstances must be drawn from the report of Dr Furst, the various references and the offender's own affidavit. In these circumstances, one must be somewhat cautious in accepting such evidence. 2. The offender was born in Melbourne but brought up in Western Australia. His father is Caucasian and his mother is Japanese. The offender told Dr Furst that he was "bullied throughout his high school years" and that he "felt like an outsider". He told Dr Furst that he had experienced symptoms of depression and anxiety from his early teenage years which persisted into his late teenage years. 3. After obtaining his year 12 certificate, he commenced working at his parent's property maintenance business. This employment enabled him to gradually purchase his own home. Around this time the offender met a female in her early twenties named Michelle. The offender and Michelle were involved for about 18 months in total, during which time she delivered twin boys, J and N. They lost Joshua to SIDS when he was only three months of age. The offender blamed himself for J's death as he was attending to N who was crying uncontrollably at the time. The offender told Dr Furst that Michelle also blamed him and that as a result their relationship broke down and an attempted reconciliation failed. However, their brief reunion led to the offender's daughter S being conceived. The offender was then involved with two other women in relationships of some duration. One of these relationships was with the victim in these proceedings. 4. As to his drug and alcohol history, the offender told Dr Furst that he commenced smoking cannabis between the ages of 16 to 21 and that he also drank in excess for a short period between the ages of 18 to 19. He then used amphetamines from around 2000 to 2010. However, he also told Dr Furst that he was using 0.1g "ice" per day after being released from custody in December 2018 when he was visiting with the victim. 5. Dr Furst was of the view that the offender had ongoing symptoms of depression and anxiety dating back to around February 2019. He also told Dr Furst that he had been assaulted by three inmates at Parklea Correctional Centre in August 2019. 6. By way of treatment, the offender has been prescribed Avanza and Seroquel for daily use which he said had helped him in relation to his sleep and anxiety. 7. The offender maintained to Dr Furst that the sex in question with the victim was consensual. However, he indicated that "he now accepts the outcome of his recent trial." What this means is unclear. 8. As to his opinion, Dr Furst stated that the offender "continues to feel depressed, anxious and guilty at the current time, having residual symptoms of his major depressive disorder." 9. Additionally, Dr Furst was of the view that the offender had a long-standing substance abuse disorder especially in relation to amphetamines and methylamphetamines. He also opined that the offender's use of drugs has most likely been "a maladaptive means of coping with emotional stress" and has also allowed him to "block out" painful memories and guilt feelings, "albeit temporarily". 10. As to his risk of reoffending, Dr Furst was of the view that such risk was "towards the lower end of the spectrum compared to other adult male sex offenders". 11. Dr Furst also opined that the offender presented as a "medium risk of reoffending in a nonsexual manner." 12. There seems to be no real connection between any mental health condition that the offender may have been suffering from and the offending itself. However, I do accept that he has residual symptoms in relation to a major depressive disorder which will make any time in custody more onerous. 13. There is no evidence of any restrictions in relation to his physical health. Only Appropriate Sentence 1. It was common ground between the parties that the only appropriate sentence in the current matter is one of full-time custody. I agree and so find. Remorse 1. There is no direct evidence of any remorse for the victim, although in his reference the offender's father states that the offender has told him that he "is extremely remorseful and ashamed". In her affidavit the offender's mother states that the offender is "ashamed by the nature of the charge" but maintains his innocence thereof. Prospects of Rehabilitation 1. As mentioned, Dr Furst concluded that the offenders likelihood of reoffending in a sexual manner fell towards the lower end of the spectrum compared with other adult male sexual offenders. He also concluded that the offender had a medium risk of reoffending in a nonsexual manner due to his long-standing drug use. Indeed, Dr Furst expressed the view that the offender's "risk of re-offending will largely turn on his capacity to maintain abstinence from drugs of abuse, which has clearly been a struggle for him over the last 20 years." 2. I agree with Dr Furst's opinions in this regard. 3. In his affidavit, the offender showed some real insight into the primary cause of his offending being his drug use and if he can follow through on his expressed desires to take advantage of whatever educational programs are available to him once sentenced then his prospects of rehabilitation are, in my view, above average. 4. However, if he is unable to cease his self-destructive drug use his prospects of rehabilitation are, in my view, poor. 5. On the plus side, he seems to have strong family support. 6. As to his future, he speaks of relocating to Queensland to live with an uncle who is on a permanent disability pension for the purpose of becoming his carer. 7. In his affidavit he refers to being informed by his solicitor that whilst in custody in February and May this year he was charged with possession of a drug implement. In his affidavit he speaks of his surprise to learn of these offences "as they had not been disclosed to me by corrective services." He then provides an innocent explanation in relation to both such matters. Nevertheless, such matters are of some concern. I note from his custodial record that apart from these two matters he also has several other in gaol offences. 8. Overall, I would not put the offenders prospects of rehabilitation any higher than average. Objective Seriousness of the Offending 1. The Crown submitted that the subject offending fell "at the middle of the range for an offence of this type". In this regard, the Crown referred to the following statement of Abadee J in R v May [1999] NSWCCA 40 at [7]: "It is to be remembered and should be remembered that non-consensual sexual intercourse of itself and without additional violence is, nevertheless, an extreme form of violence and one which the community expect will be taken very seriously by the Courts." 1. In support of its position the Crown argued that the level of resistance "put up by" the victim was a relevant consideration. Further, the Crown submitted that an important factor was the nature of the act of intercourse being penile/vaginal penetration "rather than, for example, digital penetration". In addition, the Crown argued that the brevity of act of intercourse does not ordinarily reduce the objective seriousness of the offending and it should not here: see R v Daley [2010] NSWCCA 223 at [48]. 2. Both parties agreed that the fact that the offence was committed in the home of the victim was an aggravating factor in accordance with s21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999. 3. The defence submitted that the offending fell below mid-range or "just" below mid-range for a number of reasons. Firstly, Ms Fernando argued that the subject aggravating factor is "common to offences of this nature. Secondly, Ms Fernando pointed to the fact that the offender and the victim knew each other, were of a similar age and usually shared a consensual sexual relationship. Thirdly, she argued that there was an absence of any threat or additional physical violence. Fourthly, she relied upon the "opportunistic nature" of the offence and finally, that the offence was based on an offender's "disregard for or lack of a basis on which to believe there was consent." 4. Here the offence was committed in the victim's home being a place where she should feel safe and not threatened. Also, I have found that there was a degree of force used by the offender in positioning the victim prior to intercourse as well as in the act itself. In my view, the offence falls just below the middle of the range for offences of this type. Deterrence 1. The offence of sexual intercourse without consent has always been regarded by the courts as a serious offence. For offences of this type general deterrence is of prime importance. Specific deterrence must also not be forgotten. Special Circumstances 1. Ms Fernando argued that "a number of factors combined to support a finding of special circumstances." In this regard, she relied upon, firstly, that this will be the offender's longest time in custody. Secondly, she submitted that "the ratio between the non-parole period and the head sentence ought to be adjusted taking into account any period of accumulation on the period of revoked parole." Thirdly, Ms Fernando argued that the offender's drug rehabilitation and mental health are matters which would be better addressed during a longer period of supervised parole. Finally, it was submitted that his diagnosed mental health conditions will make his exposure to custody "more onerous". 2. The Crown argued that "the subjective material before the court on behalf of the offender militates against a finding of special circumstances". In this regard, the Crown relied upon the absence of remorse, the offender's (middle) age and the fact that he has previously served terms of imprisonment. 3. In response Ms Fernando stated that she did not seek a finding of special circumstances "on the basis of remorse, youth or that this was the offender's first sentence of imprisonment" but rather such a finding was sought due to the "onerous conditions in custody" caused by the offender's mental health and the fact that he has been assaulted whilst in custody as well as being in a prison where another inmate has recently been murdered and in which there is a confirmed case of COVID-19. As to the last matter, I could find no reference in the evidence to a fellow prisoner having tested positive for COVID-19. 4. Overall, I have found the question of special circumstances to be a difficult one. However, on balance I make a positive finding as to same primarily on the basis of the offender's mental health, although I only intend to vary the statutory ratio to a modest degree. My Approach 1. In arriving at the sentence which I will shortly impose, I have taken into account the statutory goalposts, being the maximum penalty and the standard non-parole period. I have also taken into account all the other matters to which I have referred and applied an instinctive synthesis in accordance with the approach of McHugh J in Markarian v The Queen [2005] HCA 25 at [51]. The Sentence 1. Please stand Mr Brookes. 2. You are convicted of the offence of sexual intercourse without consent. 3. I impose a sentence consisting of a non-parole period of 2 years and 5 months commencing on 18 August 2018 and expiring on 17 January 2021 when you will be eligible for parole. 4. The total sentence is one of 3 years and 9 months commencing on 18 August 2018 and expiring on 17 May 2022. The Breaches of the Community Correction Orders 1. Both parties argued that I should take no action on the two bonds called up as a result of the subject offending. In this regard, Ms Fernando in her written submissions pointed to a number of factors. Firstly, she submitted that the subject sexual assault offence "is of an entirely different nature to these summary offences", being related to the possession of knives and they also took place over 2 years ago. Secondly, she pointed out that one of the bonds has now expired leaving the court with two options, namely, no action or revocation and re-sentence. Further, Ms Fernando argued that on re-sentence the s5 threshold would not be crossed for either of the offences meaning that re-sentencing serves little utility. 2. I agree with both parties submissions as to this issue and take no action on the breach of the two Community Corrections Orders. ********** Amendments 24 August 2020 - Correct cited case and anonymise names. 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: 24 August 2020