District Court New South Wales Medium Neutral Citation: R v Francis [2020] NSWDC 870 Hearing dates: 4 December 2020 Date of orders: 4 December 2020 Decision date: 04 December 2020 Jurisdiction: Criminal Before: ML Williams SC DCJ Decision: Pursuant to section 8(1) of the Crimes (Sentencing Procedure) Act 1999, I order the offender to comply with a community corrections order for a period of 2 years commencing today: [67]. Catchwords: SENTENCING — Penalties — Community Corrections Order SENTENCING — Mitigating factors — Rehabilitation — Remorse — Unlikely to re-offend SENTENCING — Relevant factors on sentence — Delay — Deterrence — Factual basis for sentence — General principles — Objective seriousness — Purposes of sentencing — Sentencing statistics SENTENCING — Subjective considerations on sentence — Mental illness — Hardship Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54 Greenwood v R [2014] NSWCCA 64 R v HJS [2020] NSWDC 480 R v JS (unreported, NSWDC, Yehia DCJ, 5 April 2019) R v Russell (unreported, NSWDC, Marien ADCJ, 15 March 2019) R v Stacy (unreported, NSWDC, Ellis DCJ, 30 August 2019) R v Thomas [2007] NSWCCA 269 R v Tuala [2015] NSWCCA 8 Texts Cited: Nil Category: Sentence Parties: Regina (Crown) Roger Francis (Offender) Representation: Mr D Coulton (Solicitor for the Office of the Director of Public Prosecutions) Mr J Sabharwal (Counsel for the offender) File Number(s): 2019/215161 Publication restriction: STATUTORY NON-PUBLICATION APPLIES in relation to any matter which may identify the victim, pursuant to s 578A of the Crimes Act 1900 Judgment 1. Roger Francis, aged 57, appears for sentence having been found guilty by a jury of one count contrary to s 61I of the Crimes Act 1900, of sexual intercourse without consent, which carries a maximum penalty of 14 years imprisonment with a standard non-parole period of seven years. He has served one day in custody following his arrest on 11 July 2019. 2. The maximum penalty and the standard non-parole period are yardsticks in the sentencing process which must take account of the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. 3. The agreed facts, consistent with the jury's verdict, are that the offender and the victim became acquainted through a running group called the Capital Hash House Harriers. Members of that group have nicknames. It is unnecessary to deal with those. The victim said in evidence at the trial that she first became acquainted with a running group called Hash House Harriers while she was travelling in Europe. When she returned to Australia about 22 years ago, she joined the Capital Hash House Harriers group. There is no evidence as to the victim's age that I am aware of, but I assume that she is in her 40s. 4. On Saturday 2 December 2017, the victim and the offender, along with other members of the group, went to Batemans Bay to participate in an organised run. A number of the runners, including the victim and the offender, had booked accommodation at a hotel in Batemans Bay. After the run they went to a number of social functions before returning to a room at the hotel occupied by one of the club members and his wife. They were drinking throughout the evening and into the early morning. 5. At about 1am on Sunday 3 December 2017, the victim, the offender and two other members decided to do a nude run along Orient Street, Batemans Bay. They all removed their clothing and started to run along Orient Street near the Police Station. This was observed by a Police officer, who approached the group. The victim and another club member ran back towards the hotel where they got dressed. The offender hid when Police approached, and another club member was apprehended and spoken to. The victim and the other group members then went back to the same room at the hotel, where they were joined a short time later by the offender. They spoke about what had happened and the victim expressed her concerns about the reputation of the club and of the individuals involved. 6. The occupants of the room indicated that the party would need to leave the room so that they could go to sleep. The victim extended an open invitation that people could go back to her room as she had some food and drink. The offender asked the victim if he could have a drink in her room. She had no undue concerns and said, "Sure." 7. No other members went back to the room. 8. The victim still had a drink that she had taken with her. She thinks the offender went to the bathroom. She was sitting on the end of the bed and was still fully clothed. She was feeling quite exhausted and a bit unwell from the day and she laid back on the bed where she went to sleep. 9. The following morning she woke to find she had no clothes on from the waist down. Her shoes, jeans and underwear had been removed, her bra was still on, but undone at the back. The offender was in bed with the victim. He had a shirt on but no pants. She sat up and said in an angry and annoyed tone "Get out" to the offender. He put his pants on and left the room. 10. Later that morning she had a text message conversation with him which indicated that she could not remember what happened, but believed that there had been sexual activity which was without her consent. She was unable to describe any sexual activity in her evidence at the trial 11. The offender indicated something of a sexual nature occurred but that it was consensual. The verdict of the jury would indicate that this version was not accepted. 12. In evidence, it was the offender who indicated that the sexual activity was cunnilingus. 13. The victim did not speak to or have any further contact with the offender. In the days that followed the incident she attended upon a doctor due to vaginal pain. 14. In February 2018, she made a complaint to a friend but did not discuss the full details with him. In July 2019 the offender voluntarily went to Queanbeyan Police Station. He declined to participate in an interview and he was subsequently charged. 15. His record includes two PCA matters in 2012 and 2013 and minor traffic matters dealt with by fines in the ACT on three occasions. 16. The victim has read a victim impact statement to the Court this morning. I take it into account in the way suggested by Basten JA in R v Thomas [2007] NSWCCA 269 as being restricted to the effects upon her. 17. She says rather cryptically that "there are many other things I would like to raise in relation to the other parties involved in this case. However I am aware that I must limit my comments to this case alone, so I will say no more here". 1. She says she expects the entire process has been horrible for all parties involved in the case and states "I know it's taken a heavy emotional toll on me, none of this feels good, I've derived no satisfaction from the offender being charged and found guilty. I have similarly conflicting feelings about the prospect of a custodial sentence" 1. She expresses hope that the offender "will learn and change and become a better person." 2. A Sentence Assessment Report notes that the offender lives in the ACT with a friend and their respective adult sons. He served in the Royal Australian Navy (RAN) from the age of 17 until he was medically discharged 20 years later. He then held a position with a local electricity company for ten years and now he works full time as a control and communications technician with ACT Light Rail. 3. The report notes that he denies the allegations and claims that he believed the contact between himself and the victim was consensual. As I have indicated the agreed facts suggest the jury rejected that version. 4. His belief was clearly set out in his evidence at the trial in which he indicated that when he went back to the victim's room that they were kissing each other and embracing and removed some of each other's clothing and then he performed cunnilingus for under a minute and that she was lying back and then he realised that she had fallen asleep. 5. He said that the victim was cognitive, talkative, she was not stumbling, she seemed aware of everything although he acknowledged in evidence that she would have been over the limit to drive. The agreed facts do not suggest that the victim was other than exhausted and feeling a bit unwell. 6. The report continues to note a perception described by the offender to the psychologist that everyone in the running club was having sex with each other and going to someone else's room and then sex would follow. 7. He described his substance abuse as drinking in a binge pattern, commencing during his time in the RAN and continuing during his association with the running group, but he denied that his alcohol intake was problematic. He commenced attending Alcoholics Anonymous in September 2020 and is abstaining from alcohol. 8. A psychological treatment report outlined a good prognosis for recovery if he engaged in the 12-month treatment program. 9. He has forwarded to the victim a letter of apology in which he expresses his deep regret that his actions had caused her distress. He said he was quite intoxicated at the time and he understands that there is no excuse for his actions and that he is working hard to change his behavioural traits. He has stopped attending functions that revolve around alcohol and enlisted in new activities based on community welfare and help for society. 10. He realises that his behaviour around women when drinking has been poor and needs serious adjustment. He says he has lost most of his friends due to his inappropriate actions and he will no longer be involved in such "reckless etiquette". He does not wish the victim any malice for confronting him and wishes her the best in her endeavours and friendships. 11. In short, he says he is trying very hard to better himself knowing he cannot make up for his poor choices in the past but he is making genuine steps to correct his future traits and responsibilities. 12. A lengthy report of the psychologist Tabitha Frew, is relied upon by the offender with the exception of lines 147 to 179 on page 4 of the report which was deleted by consent. He was referred to the psychologist by his GP for treatment of psychological distress related to the current matters. She saw him on four occasions and she is aware of the circumstances which bring him before the Court. 13. The history set out in the report, as well as the history in the sentence assessment report, has not been adopted in evidence on the sentence proceedings, nor subjected to challenge. The Crown does not take any point about the history and it seems to me to be a reasonable basis upon which to proceed given that, in part, it is consistent with other material beyond the history self-reported by the offender. 14. He refers to a number of hardships or traumatic events in his life: * First being sexually assaulted by an unknown male when he was 15 years old. He was lured into a vehicle with the promise of alcohol by a male in his late 40s, driven to an unknown location and sexually assaulted. * He had a close relationship with his immediate family, especially his mother, who contracted leukaemia and a stroke which left her on life support. He was present when the life support was turned off and his father died of pneumonia a few years later. * He was hospitalised for a week with a delirium induced psychotic episode after contracting malaria while working on a Navy ship in the Solomon Islands. * He fractured his spine as a result of matters involved in his employment with the Navy which led to him receiving a pension. * His second marriage was to a woman who suffered a bipolar disorder, who had difficulties with alcohol and gambling and violent behaviour towards him, including threatening him and their son with a knife; he was granted full custody of his son at the age of five years after they separated. 1. He is diagnosed with an autism spectrum disorder level one without intellectual impairment and a major depressive disorder with mixed features, evidenced by low mood, irritability, negative ruminations, sleep disturbance, anhedonia, psychomotor agitation, fatigue, impaired concentrations and feelings of worthlessness. She candidly acknowledges that there was no connection between the major depressive disorder that he had suffered episodically across his life span and the offending behaviour. 2. I have references in writing from a number of close friends of the offender, including Catherine Clunies-Ross, Tracey Hely and Stuart Gregory; all of whom understand the circumstances in which they are writing the references. They all speak favourably of him as a person and as a friend and that he has expressed remorse. The female referees say they have absolutely no concerns about being with him and have never seen anything in his behaviour that has resembled the offending in this case. Mr Gregory asserts that a full-time sentence would cause considerable hardship for the offender's son and be of no benefit to the community. I note that Mr Sabharwal does not put that this is a case in which there would be exceptional hardship to third parties, within the meaning of the authorities in that area. 3. There is also a letter from a software engineer with his current employer, who also notes that he has expressed remorse and regret for his offending and apologises for his actions, and expresses sorrow for the impact of his actions on the victim and her family and indicates, not surprisingly, that a term of imprisonment would lead to the termination of his employment. He is a valued member of the staff. 4. The Crown's submissions refer to Greenwood v R [2014] NSWCCA 64 as providing guidance in relation to the objective seriousness of the offender. At [29] the Court said, "As the court has said on many occasions, the precise nature of the sexual intercourse which took place is not of primary significance. Certainly there is no ranking of the types of sexual intercourse in some hierarchy of seriousness. The fundamental concern is a consideration of all the relevant circumstances, including the nature of the sexual intercourse involved" 1. Other factors to be taken into account on that issue, apart from the form of the sexual intercourse, was whether there was a degree of violence or physical hurt inflicted, the form of the forced intercourse, the circumstances of humiliation and the duration of the offence. 2. In Greenwood v R the Court said at [31] "It is true that this offence did not involve the use of violence or the administration of some stupefying substance. Nevertheless the condition of the victim was such that she was completely helpless. While the absence of such aggravating features is relevant to the objective seriousness of the offence his offending should be assessed by reference to what it did involve." 1. As the Crown points out the evidence shows that the victim complained about vaginal pain and attended upon a doctor, but it was not until the offender volunteered in evidence that he had performed cunnilingus on her that she had known what had happened. 2. The sentencing judge in Greenwood v R was confronted with a serious offence perpetrated on a helpless and vulnerable victim whose unconscious state provided an opportunity for the applicant to exploit the situation. 3. The Crown notes that there had been no prior sexual relationship between the offender and the victim and that he should be sentenced on the basis of having actual knowledge that she did not consent. 4. The delay in reporting the matter is not a mitigating factor but, as the Crown acknowledges, it assists the Court in considering the prospects of rehabilitation and the likelihood of further offending. In light of the material to which I have referred I accept that the prospects of reoffending are minimal and the prospects of rehabilitation are very good. 5. The Crown asserts that the offence was committed in the home of the victim, an aggravating factor under s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999, but given that the offence occurred in a hotel room booked by the victim for the night, a clear reading of the legislation indicates that that does not come within the meaning of the term "the home of the victim". However, as the Crown points out, it is a place in which she was entitled to feel safe at the time and a matter going to the objective seriousness. 6. The Crown acknowledges a number of mitigating factors including that this was not part of a planned or organised criminal activity, the offender does not have any significant record, he has good prospects of rehabilitation and he has expressed remorse. 7. Bearing in mind the purposes of sentencing, the Crown submits that the offender is an appropriate vehicle for general deterrence. 8. The Crown attaches the statistics in relation to sentencing for these offences after the sentence reforms came into effect on 24 September 2018, which show that five out of 104 cases or 4.8% were dealt with by way of community corrections order rather than full time custody. It is acknowledged that the statistics provide very limited assistance as the facts of the matters are not known, but as will be shown it has been possible to determine some of the limited objective and subjective circumstances from a review of other cases. 9. There is of course force in the Crown's submission that well over 90% of matters involve a term of full time custody. The Crown acknowledges the requirement in s 5 of the Crimes (Sentencing Procedure) Act 1999, that a term of imprisonment should not be imposed unless the court has considered all possible alternatives and come to the view that no penalty other than imprisonment is appropriate. 10. Mr Sabharwal for the offender submits that although he accepts as a fact, following the jury's verdict, that in the days following the incident the victim attended upon a doctor due to vaginal pain, that little weight can be placed upon that pain given that the facts limit the sexual activity to cunnilingus consistent with the offender's oral testimony. I take that to be a submission that it cannot be established beyond reasonable doubt against the offender that any vaginal pain was due to cunnilingus and that is a submission which I accept in the absence of any further evidence beyond that to which I have referred. 11. I accept his submission that the objective seriousness of the matter is below the mid-range and that of course ultimately leads to, along with other factors, the significance of the standard non-parole period being diminished. 12. Counsel accepts that general deterrence has a significant role to play but that given the steps that the offender has taken to reform himself, the need to protect the community is of lesser significance. 13. Counsel accepts that while the victim would have experienced a great deal of distress and upset as a result of the offence, such emotional or psychological harm is not greater or more deleterious than may ordinarily be expected for serious offence of sexual assault such as this, referring to what was said in R v Tuala [2015] NSWCCA 8. 14. The offender's history of sexual assault by an unknown male at the age of 15 is said by counsel to indicate an inability to recognise sexual assault committed upon himself as being consistent with his inability to recognise his offending behaviours at an earlier stage and that the twelve month treatment program recommended by Ms Frew would be a matter which improved the prospects of further successful rehabilitation. 15. Counsel's ultimate submission is that a community corrections order should be imposed rather than a term of full time custody. In support of that submission he takes the court to a number of cases. Firstly, R v HJS [2020] NSWDC 480 a case in which Priestley DCJ imposed an indicative sentence for a charge involving cunnilingus of 18 months with a non-parole period of eleven months. In that case the offender was 60 years old and the offence was committed against an 18 year old female. 16. In the course of sentencing, Priestley DCJ referred to statistics then provided by the Crown. Some cases in which non-custodial sentences were imposed were briefly reviewed. One was a matter of R v JS (unreported, NSWDC, Yehia DCJ, 5 April 2019) concerning an 18 year old offender and a 20 year old victim who had known each other through family for years. Offending was in some ways similar to that in HJS but was markedly different compared to the present case. R v JS was an entirely age-appropriate relationship prior to the offending and can be more sensibly understood without being excused as being brought about in part by mixed messages which his Honour said was not the case in HJS. 17. Another case reviewed by his Honour was R v Russell (unreported, NSWDC, Marien ADCJ, 15 March 2019), involving a 28 year old victim and a 38 year old offender who had been friends for seven years, in the circumstances of a music festival where much alcohol was consumed, the victim performed fellatio on the offender willingly. Whilst unconscious due to alcohol the victim came to with the offender penetrating her from behind. 18. As Priestley DCJ said at [60], "Both these cases [referring to R v JS and R v Russell] are serious examples of sexual intercourse. But they have common features not present in the current case. Namely that there was a relationship of some type between the parties and that there was a degree of miscommunication. Without suggesting that miscommunication excuses this type of behaviour it is obviously relevant on sentence. That type of miscommunication is not present in the case of the offender." 1. A third case surveyed by his Honour in which a non-custodial sentence was given was R v Stacy (unreported, NSWDC, Ellis DCJ, 30 August 2019) which was distinguished by his Honour as the facts showed a history of some relationship between the offender and the victim, and a degree of what could be termed 'miscommunication' in HJS. His Honour had rejected the proposition that the 60 year old offender could seriously have thought that an 18 year old female described as 'hot' and 'sexy' was remotely interested in him, rather the case was one of the offender taking advantage of a situation. 2. As I have indicated the statistics currently show five cases in which non‑custodial sentences were imposed. Four of those cases have been identified as Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54 and R v Stacy, R v Russell and R v JS. 3. Counsel also refers to R v Barton (a pseudonym) [2020] NSWDC 389 another decision of Priestley DCJ involving a 49 year old offender and a 27 year old victim who had been consuming alcohol at a party attended by people all in their 20s apart from the offender. The offender was affected by alcohol to the point of vomiting. The victim had fallen asleep and awoke during the course of offending which involved digital and penile penetration. Terms of full-time custody were imposed. 4. The third case referred to by counsel is the appeal from the decision of her Honour Huggett DCJ in Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54 where there was an unsuccessful Crown appeal against the imposition of a three year community corrections order. Her Honour acknowledged that the imposition of a non-custodial sentence required justification of exceptional circumstances, and although that is not a term of art and one used in the legislation, the sheer small number of non‑custodial sentences is a matter of some considerable significance. 5. The Court acknowledged at [45], that "It was appropriate for the trial judge to have regard to the psychological effects of the offending conduct, and the shame and destruction of his family life which followed, as factors warranting some amelioration of the usual sentencing practice with respect to such offences. It was open to the Court not to impose a sentence of custodial imprisonment which would otherwise be justified by the objective circumstances of the offending" 1. The Crown appeal was dismissed. 2. Counsel submits that HJS and Burton should be distinguished on the basis of the offender's evidence, that he had no consciousness of guilt, he was genuinely surprised when asked to leave the following morning, and in the text message he indicated a complete lack of comprehension of his wrongdoing as found by the jury. Whereas, in HJS and Burton the offenders were clearly aware of their offending. Further, in those cases there was a level of planning throughout the evening but no such evidence in the present case. Further, the nature of the relationships and the relative ages of the victim and the offenders in HJS and Burton, indicates a greater degree of moral culpability than in the present case. In HJS the offender was the victim's friend's father and in Burton the offender was the victim's uncle. No such relationship or significantly relevant age gap in the ages of the offender and the victim exist in the current matter. 3. Counsel also refers to the significant delay in reporting the matter. He acknowledges that his lack of comprehension regarding the victim's vulnerability and therefore her inability to consent is no excuse for his offending conduct, but the offending can more appropriately be characterised as a degree of miscommunication, albeit not reasonably held. 4. Counsel submits a number of distinguishing factors in Barton, including the manner of penetration and the number of offences leading to this being a much less objectively serious matter than Barton. 5. I am ultimately only just persuaded by Mr Sabharwal that this is a case in which a non‑custodial sentence should be imposed. 6. The orders that I make are: 1. The offender is convicted of the offence. 2. Pursuant to section 8(1) of the Crimes (Sentencing Procedure) Act 1999, I order the offender to comply with a community corrections order for a period of 2 years commencing today. 3. The conditions to apply during the term of the order are as follows: STANDARD CONDITIONS 1. You must not commit any offence. 2. Appear before court if called upon to do so at any time. ADDITIONAL CONDITIONS 1. Undertake a rehabilitation or treatment program as recommended by Ms Frew in her reported dated 19 November 2020. Note – These extempore remarks were revised without access to the court file ********** Amendments 11 March 2021 - Delete "this", insert "a" at [3], L5; Delete "for", insert "of" at [5], L10; Insert "the" at [10], L4; Delete "first", insert "First" at [32], L2; Delete "since" at [33], L7; Delete "," at [39], L3; Insert "that" at [44], L1; Delete "sanction", insert "requirement" at [47], L3. 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: 11 March 2021