R v Hines [2020] NSWDC 511

District Court New South Wales

Medium Neutral Citation: R v Hines [2020] NSWDC 511 Hearing dates: 30/7/20 Date of orders: 30/7/20 Decision date: 30 July 2020 Jurisdiction: Criminal Before: Bourke SC DCJ Decision: Sentenced to imprisonment for two years with a NPP of 12 months. Catchwords: Crime – Sentence – Sexual intercourse without consent Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 Cases Cited: BP v The Queen [2010] NSWCCA 159 Bugmy v The Queen [2013] HCA 27 Perkins v R [2018] NSWCCA 62 Category: Sentence Parties: NSW DPP – Crown David Hines - Offender Representation: Ms Hooper for Crown Mr Abdi for Offender File Number(s): 2019/306558 Publication restriction: Non-publication of the identity of the victim.

sentence 1. Mr David Hines is before the Court for sentence on an offence under s 61I of the Crimes Act 1900 (NSW) being an offence of sexual intercourse without consent. The maximum penalty for that type of offence is 14 years' imprisonment and it attracts potentially a standard non-parole period of seven years' imprisonment. Each of those are, of course, guidelines in the sentencing exercise. He pleaded guilty at the earliest opportunity and he is entitled to a discount on the sentence that he otherwise would receive of 25%. 2. The facts of the offence are, in summary, as follows. The offender and the victim had been close friends since they met at school in Tamworth. As at December 2018, the offender was living in Randwick and the victim was living in Quakers Hill. As friends, they hung out together about once a month when they would meet up for drinks or dinner or to watch movies and, because of the distance between their houses, the offender would often on these occasions sleep over at the victim's house. 3. There was one occasion in March 2019 when there was consensual sexual intercourse between them, but after that it was agreed that that was a mistake, and that they should just continue to be friends. 4. On 12 July 2019, which was the date of the offence, the offender and the victim arranged to meet up for some dinner and drinks and it was agreed that the offender would sleep overnight at the complainant's house afterwards. They met up at about 7 o'clock that night and went to a hotel at Rouse Hill where they each drank some five or six alcoholic drinks and then, about 10.30 or so, went to another hotel in Castle Hill where they drank some further alcohol. 5. At about 1am the hotel was closing and the accused got himself another drink while the victim waited outside. After that, they took an Uber ride to the victim's house at Quakers Hill. By that time, the offender was heavily intoxicated and the victim was herself intoxicated, although not quite so much, and is described as being moderately intoxicated. 6. Once they got to the victim's house, they each had a cigarette outside and got ready for bed. The victim changed in the bathroom into some pyjamas consisting of an oversized jumper and she was wearing some underpants also. She got into her bed and the offender also got into that same bed and the victim then fell asleep. 7. However, around 4.40am, she woke up and felt the offender touching her on the breasts and she also noted that her underpants had been pulled down to around her knees and she could feel the offender inserting a finger into her vagina from behind, such that it caused her pain. He was also grinding his erect penis against her hip and bottom area and kissing her on the back of the neck and making groaning noises. Understandably, she froze and she tried to move her body away from the offender but was unable to do so because his body weight restricted her moving. 8. After a few minutes, the offender rolled onto his back and the victim got out of bed, went to the back of the house and shortly afterwards, called and messaged her flatmate, who was in the next room, asking for his help. The flatmate, shortly after that, responded to her and then, after being told something about what had happened it seems, told the offender to leave, which he did. 9. Early in that morning after he had left, a number of text messages were exchanged between the offender and the victim, and those are set out in the agreed facts. I will not read them all out, but those that are of relevance I regard in particular as being the following. 10. The offender said, "I'm sorry. I didn't realise how much it hurt you emotionally. I'm obviously an idiot because of that," to which the victim replied, "It doesn't matter how much it hurt me. It is a fucked thing to do in general. I was fucking asleep," to which the offender replied, "I actually didn't know you were asleep. I'm drunk myself so I didn't pay attention (obviously I should have)." To this the victim replied, "How hard is it to tell that someone is asleep? If they don't move or say anything, then clearly they're asleep." And then, "You are never to speak to me again. I hope you're happy losing a four year friendship." The offender replied: "I genuinely didn't realise, but that's no excuse, I know. Not much I can do but say sorry. If you don't speak to me, if you don't want me to speak to you again I won't. I know I fucked up our four year friendship and there was a lot more good to come but I did fuck up and as I said, not much I can do but say sorry, so I'm sorry." 1. The victim replied, saying, "I like how you think that a pathetic excuse for an apology can fix this. You have no idea the mental state this put me in." The offender replied to this, saying, "I did say it is no excuse of what I did and there's nothing I can do about it, no matter if I say sorry or not." He also said, among other things: "I realise now that what I did was wrong. I release you're really hurt from this. I'm not sure what else I can do except say sorry and cop what's coming to me (which is probably gaol). I'm sorry from the heart. I never wanted to fuck this friendship up. Sorry." 1. There were some further messages between the two people in which the victim said, "So you admit to sexually assaulting me and indecent assault," to which the offender replied: "Woah, I don't admit because as I said before, I honestly didn't realise that you were asleep, although because it feels like that to you, I'll cop whatever comes to me." 1. There were some further messages between them, but the offender later said: "I honestly didn't realise you tried to stop me. I wouldn't have gotten angry and I'm not that type of bloke to get mad because I've been told no. If you had stopped me, I would have went to sleep and forgotten about it, and I know it shouldn't have happened. I know it won't help anything but I do apologise once again for hurting your feelings. It was never my intentions at all." 1. The victim later called Helpline and also spoke with police. She consulted with a doctor and provided a statement to police on 1 October 2019. The offender was arrested and taken to Chatswood Police Station where, after legal advice, he declined to be interviewed. Those, in summary, are the agreed facts upon which I am required to sentence the offender. 2. In terms of the objective seriousness of the offence, firstly, Parliament has indicated by reason of the significant maximum penalty of 14 years' imprisonment and the standard non-parole period of seven years' imprisonment which, as I said, are guides in the sentencing exercise, that this type of offending is objectively quite serious. Indeed, very serious. 3. As was submitted by the Crown, the offender took advantage of the victim and violated her sexually while she was asleep. It was the closeness of the relationship which supplied the occasion upon which he was able to carry out that offence. While the offender's intoxication at the time gives context to this uncharacteristic behaviour, it provides no excuse or mitigation of the offence at all. 4. Furthermore, the digital penetration of the victim's vagina caused her physical pain and the assault was not merely a fleeting incident, given that the victim's underpants had been pulled down, her breasts touched and that the offender was grinding his erect penis against her hip and buttock area while kissing her on the back of the neck. I note also that the victim tried to move away but she was unable to do so as the offender's body was restricting her movement. 5. Although the offence was not accompanied by any violence other than the violence inherent in the sexual assault, it certainly cannot be described as trivial or momentary. I approach the offence on the basis that the offender was reckless as to whether or not the victim was consenting to the sexual contact. In other words, that he realised the possibility that the victim had not given consent and went ahead anyway, or simply did not consider the question, treating it as irrelevant. 6. The offence is aggravated, as the Crown submitted, by reason that it occurred in the victim's home, and indeed in her bed, where she should have been entitled to feel safe. 7. It was submitted by the Crown that overall, the offence falls below the mid-range of objective seriousness, although not at the bottom of the low range, whereas the offender submitted that the offence falls towards the middle of the low range for objective seriousness. 8. In my view, there is little difference between these two characterisations and I categorise the offence as being below the mid-range but towards the lower range of seriousness when compared with other offences under s 61I of the Crimes Act. That, of course, is not in any way to trivialise the offence. 9. The Court has had the benefit of a Victim Impact Statement in which the victim explained, eloquently and succinctly, the effects that the offence has had upon her. I do not treat those effects as aggravating the offence, but the contents of the Victim Impact Statement are consistent with the Court's own experience of the harm which is often if not almost invariably caused to victims by this type of offending. I have no doubt that it was a frightening and degrading incident and one that will remain with the victim for a very considerable period of time, if not her entire life. 10. I accept, as was submitted for the offender, that the offence was not planned but was an opportunistic and spontaneous act. I also accept that the offender's plea of guilty is some evidence of his acceptance of responsibility for the offence and this is also consistent with the text messages that he sent to the victim after the offence, in which he said, among other things: "I realise you're really hurt from this. I'm not sure what else I can do except say sorry and cop what's coming to me, which is probably gaol." 1. Turning to subjective matters relating to this particular offender. He is currently 21 years of age and was 20 at the time of offending. At the time of the offence he had no prior criminal history at all and clearly was a person, as the Crown accepts, of good character. The offender's background has been placed before the Court in the form of a psychological report, the contents of which the offender affirmed in evidence. 2. He was born in Bourke in New South Wales and is of Aboriginal background. Regrettably, due to domestic violence between his parents, he was removed into foster care when he was around five years of age and he still has memories of his father's violence towards his mother and of being removed from the family home. After being removed, he had the unfortunate but regrettably not uncommon experience of moving between numerous foster placements - indeed, as many as seven or eight - and lived in a number of outback cities in New South Wales before settling in an apparently good and stable foster placement in Port Macquarie when he was aged about 10 to 12. 3. It is much to the offender's credit that he completed year 12 and obtained his HSC and that after this he obtained employment and worked as a Client Service Officer with the Department of Family and Community Services. Although after this he had some issues associated with hanging around the wrong people and using drugs and alcohol, he is to be commended for his decision to get out of that environment and move to Sydney so as to make a fresh start. 4. He was successful in this regard and since March 2019 he has been working with a firm of surveyors. He has also, during approximately the last four months, engaged in a new relationship with a young lady and he remains on good terms with his foster family in Port Macquarie, who he regards as his real parents. He is also supported by a character reference from a friend who holds a responsible position with the Royal Australian Navy, and who speaks very highly of the offender and of his qualities as a football player. 5. The offender has expressed, as the Crown accepts, significant remorse and regret for his actions. This has been expressed not only to the psychologist but also in the offender's evidence. His remorse and regret for his actions are also demonstrated in the Agreed Facts, which note the text messages which he sent to the victim the morning after the offence. 6. It remains of some concern to me, as was noted by the psychologist, that the offender possibly continues to have an alcohol problem. The offender acknowledged this in his evidence before me and said that he tends to drink more when stressed or angry, but that since March 2020, he has been seeing a counsellor and trying to limit his alcohol consumption. In my view, it will be important in his future rehabilitation that he continue to seek counselling and to exercise great care in his use of alcohol. 7. The importance of this is demonstrated, in my view, by the fact that since the offence, he has come before the Local Court on two occasions, both of which appear to be associated with excessive use of alcohol. Overall, he appears to be an intelligent and impressive young man who is likely to lead a valuable life and who is likely, once he puts this episode behind him, to be able to pursue a successful working career and family life. His success in this regard however, will, as I have already observed, depend heavily upon controlling his consumption of alcohol. Subject to this qualification, I consider that he has fairly good prospects rehabilitation and I consider his risk of reoffending in a similar manner is low. 8. As has been said in a number of decisions, including the High Court of Australia's decision in Bugmy v The Queen [2013] HCA 27: "An offender's childhood, where it involves deprivation or violence, may be relevant in explaining the offender's subsequent conduct and may substantially reduce an offender's moral culpability for a criminal act. That is because exposure to deprivation and family violence may impact upon an offender's capacity to exercise control and demonstrate sound judgment, however, the effects of social deprivation and its weight in the sentencing exercise is a matter for individual assessment (see Perkins v R [2018] NSWCCA 62 per Fullerton J at para 100.) 1. In other words, each case will depend up its facts. In this case, given the background referred to in the psychological report, which was confirmed by the offender in his evidence, it was accepted by the Crown that these principles are applicable. While the evidence in this case does not point to a background involving extreme violence, alcohol and drug use, or deprivation to the extreme as is seen in many cases that come before the Court, I do regard the offender's background as being of real significance, and in my view, it reduces his moral culpability to some degree. 2. There is also his youth. He is 21 now and was 20 at the time of the offence. An offender's immaturity is a matter that a Court is entitled to take into account in the instinctive process that is involved in sentencing. In particular, and as observed by Hodgson J in BP v The Queen [2010] NSWCCA 159: "Emotional maturity and impulse control develop progressively during adolescence and early childhood and may not be fully developed until the early to mid-20s." 1. In particular, I am conscious of growing research that this is particularly the case with young men. I take into account the relative youth of the offender in the sense that while he must be punished for his actions, an important element in that punishment must be some allowance for the importance of his rehabilitation. Nonetheless, offences of this kind must be met by punishments that incorporate a significant element of deterrence both of the individual and of others. 2. I am satisfied, as was submitted both by the Crown and by the offender, that the only appropriate punishment in this case is one of full-time imprisonment. In determining the period of imprisonment and in particular the minimum term, I take into account that the offender's custody will commence in the middle of the current coronavirus pandemic. In those circumstances, his access to personal visits by family or friends is likely, given current restrictions, to be limited, at least for some time to come, and this will likely make his custodial experience a more difficult one. 3. I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. I make a finding of special circumstances for varying the ordinary ratio between non-parole period and head sentence based on the offender's relative youth, the fact that this will be his first term of imprisonment, the desirability of his receiving supervision for a considerable time after his release, and the restrictions associated with the current pandemic. 4. I convict the offender. I impose a head sentence of two years' imprisonment. I set a non-parole period of 12 months. My reasons for not adopting the standard non-parole are those set out in these remarks and I note that the Crown accepted that a departure from the standard non-parole period is justified in this case. The sentence will date from today. The head sentence will expire on 29 July 2022 and the non-parole period on 29 July 2021.