R v McMahon [2021] NSWDC 437

District Court New South Wales

Medium Neutral Citation: R v McMahon [2021] NSWDC 437 Hearing dates: 11 June 2021 Date of orders: 18 June 2021 Decision date: 18 June 2021 Jurisdiction: Criminal Before: King SC DCJ Decision: Convicted. Special circumstances found – first time in custody, family hardship Sentenced to a term of imprisonment of 3 years, comprising a NPP of 1 year and 6 months commencing on 17 June 2021 and expiring on 16 December 2022, and a balance of term of 1 year and 6 months to commence on 17 December 2022 and to expire on 16 June 2024. Catchwords: CRIMINAL – sentence after trial - sexual intercourse without consent – aggravating circumstance/s – course of conduct – where jury finding of not guilty in re Count 1 and 2, but guilty in re Count 3 – impact on victim – subjective matters Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act Cases Cited: R v Fisher [2021] NSWCCA 91 Category: Sentence Parties: Regina Patrick McMahon Representation: Counsel: Defence: Ms J Layani-Ellis Solicitors: Crown: Ms S Tasneem, ODPP Mr G Rixon, ODPP Defence: Mr S Tully, Tully & Chiper Lawyers File Number(s): 2019/00157232 Publication restriction: NPO in respect of the name of the complainant and anything that might tend to identify her

Judgment 1. HIS HONOUR: Patrick McMahon appears for sentence in respect of a single offence, being sexual intercourse without consent contrary to s 61A of the Crimes Act 1900. The maximum penalty provided is 14 years' imprisonment, and there is a relevant standard non‑parole period of seven years. 2. I will first refer to some of the relevant history of the matter. 3. The offence was found by the jury to have occurred between 26 and 27 January 2015. It was reported to the police by a friend of the complainant's, and the complainant was taken for a medical examination that day. However, she indicated to the police that she did not wish at that point in time for any action to be taken, but preferred to think about it, in effect. 4. The offender was interviewed immediately after the alleged events were reported and admitted to having had sexual intercourse, in the sense of digital/vaginal penetration, cunnilingus and penile/vaginal intercourse. It was alleged by the complainant that he had also attempted to insert his penis or some other object into her anus, which he denied. In his interview he asserted that the acts admitted to were consensual in the light of the complainant's physical reactions to his physical conduct towards her. He was charged with four counts, being digital penetration, cunnilingus, attempting to have anal intercourse, and having penile vaginal intercourse. Those four counts proceeded as a trial before Whitford SC DCJ in 2020 over approximately a nine day period. The jury was unable to agree on three of the four counts, being the digital penetration, cunnilingus and penile penetration of the vagina. They acquitted the accused in respect of the alleged offence of attempting to have anal intercourse. 5. The matter then came before me on 15 February of this year, and occupied approximately a further eight or nine days in respect of the three counts that the previous trial had left unresolved. On 26 February 2021, the offender was found not guilty in relation to Count 1, being the digital penetration, and Count 2, being the cunnilingus, and guilty in relation to Count 3, being sexual intercourse without consent, knowing that she was not consenting. 6. Clearly, in respect of Counts 1 and 2, the jury were unable to accept that the Crown had proved beyond reasonable doubt that the accused either knew that the complainant was not consenting or had an honest belief that she was consenting but not on reasonable grounds, or that he was reckless as to whether she was consenting or not, but went ahead anyway. In respect of the count on which they convicted him, it would appear that they either accepted that if he had an honest belief that she was consenting it was not on reasonable grounds by that stage of the interaction between them, or alternatively, by that stage he was reckless as to whether she was consenting. 7. Juries are, of course, not asked to specify the particular grounds on which they make their findings, and it is up to the presiding judge to make that determination consistent with the evidence and the verdict. In this matter, I cannot determine between those two alternatives as to how consent was proved to be lacking, as determined by the jury. However, in each case I accept that the offender's moral culpability in relation to the offence is the lesser where either of the alternatives applied, rather than where the finding was that he knew that she was not consenting, and that lesser moral culpability must be reflected in the sentence. What also must be reflected in the sentence, to some extent, is that there was a course of conduct of a sexual nature in respect of which the offender has been found not guilty in relation to the first two alleged acts, even though the accused in his record of interview and his evidence at trial accepted that he had in fact committed those two acts. 8. The facts I find beyond reasonable doubt are as follows in respect of the three counts that I have referred to: 9. The complainant, CL, was a 23-year-old female who had moved into the offender's house in Cumberland Street, The Rocks on 18 January 2015, having located his residence through an internet website called "Flatmates.com". Before moving in, she had arranged to inspect the property and meet the offender and another resident in mid-January 2015. At the time of the offending, the residence was occupied by the offender and his young son, to whom he had regular access and care, having divorced or separated from the mother. There was a flatmate called Celine, surname unknown, and another flatmate called Deborah Macedo; Ms Macedo was due to move out shortly, so the victim stayed in the offender's room while the offender shared another room with his son. Ms Macedo's room and the offender's son's room were on the first floor of the house. Above that floor were Celine's room and the offender's room. 10. During the first week of the victim's stay at the residence she went to work during the day and would sometimes bump into the offender on returning home, and they might have dinner together after work and talk. On Australia Day, 26 January 2015, the victim was out with friends during the day and returned home in the late afternoon. The offender was home, and he and the victim shared a meal together in the dining room. After dining, they had glasses of rum from a bottle of "Ron Zacapa" and were talking. The drinks were all freely poured, with the offender admitting to pouring the first two drinks and the victim stating that the offender poured all the drinks. After they had finished drinking, the victim started feeling dizzy and no longer felt sober. An issue in the first trial, re-visited in the second trial before me, was the size of the bottle of rum and its contents at the time they commenced consumption. The victim's evidence in the first trial and in the following trial was that it was a 750 ml bottle of rum, but in cross-examination in the first trial, having been shown photos of a 700 ml bottle, she had accepted that it may have been a 700 ml bottle. She had bought the bottle duty free on an overseas trip. Her evidence was that it was approximately half-full, whatever size it was, at the time they commenced drinking, and between them she believed they had each consumed approximately half of what was in the bottle. 11. I accept from the evidence in the trial that the bottle was in fact established as being a 750 ml bottle because although no bottle was produced there was at least a photograph of the empty bottle in the premises on the floor next to a stove in the kitchen area, and it was banded with a straw or cane band which was consistent with photographs exhibited in the trial of a 750 ml bottle which distinguished it from a 700 ml bottle. As to how much either of them drank, it is impossible on the evidence to make any real assessment. As I have said, the complainant believed they drank about half of what was left in the bottle between them, and her evidence was that she became significantly intoxicated, while the offender's evidence was that he was not significantly affected by what alcohol he had drunk. The victim's evidence was that after they had finished drinking she started feeling dizzy and no longer felt sober. She went upstairs the bathroom and then returned downstairs to find the offender had moved from the dining area to the lounge room and was then sitting at one end of a couch. She said goodnight and that she was going to bed, and the offender asked her if she wished to stay and watch TV. She agreed to do that and sat on the couch at the other end of the couch from the offender. She was initially sitting upright, but eventually lay her head on the armrest and at some point fell asleep. 12. Her evidence was that she became conscious with the offender digitally penetrating her and then performing cunnilingus on her before again becoming unconscious, and subsequently becoming conscious to feel her anus being stretched, before losing consciousness again and regaining it to find the offender on top of her, having penile vaginal intercourse in a forceful manner. She described it as him "going hard and pretty rough". She had noticed during this course of time that her bra had been undone and her dress left on, with her underwear completely removed. After the intercourse ceased, she went upstairs to the bathroom, and noticed bleeding from her genital area where she used toilet paper and her vagina felt sore and inflamed. 13. When the complainant was medically examined the following day, Dr Rosemary Isaacs found a red/purple bruise covering one quarter of her cervix. Dr Isaacs, whose expertise was not challenged, said that this was, in her lengthy experience, a most unusual injury, and that it was likely caused by particularly forceful contact of a penis onto the cervix. However, Dr Isaacs was not able to rule out the possibility that it could have been caused by digital penetration, even though less likely than penile penetration. Dr Isaacs also observed that the victim had an abrasion on her labia minora consistent with penetration. She stated that the abrasion could have been caused by among other things repetitive movement of an object, which could include a penis, across the top layer of the labia; there was tenderness associated with the abrasion, which Dr Isaacs described as pain on touch. 14. The victim, having gone upstairs and noticed bleeding, subsequently texted a friend and spoke to her ex, and rang her ex-boyfriend, indicating that she had been sexually assaulted by the landlord. As I have previously referred to, the following day she informed a further friend, indicating to her that she did not wish the matter to be reported, but that friend in fact rang the police, who then attended on the complainant. 15. The Crown has relied on the doctor's evidence in respect of the injury observed to the cervix as relevant to the act of penile vaginal intercourse. However, in my view, Dr Isaacs' evidence was equivocal, and I cannot on the evidence determine whether it was or was not the result of either digital penetration or penile penetration. In any event, as to the significance of the injuries, whether the bruising to the cervix or the abrasion to the labia minora, in terms of the seriousness of such injuries Dr Isaacs' evidence was that they would be resolved within a matter of days. 16. The offence occurred in what had become the home of the victim within a relatively short period after she had taken up residence and in fact did not yet have her own room. The offender was the victim's landlord; the victim was entitled to feel safe in her own home, even though shared with the landlord, and was entitled to expect that her landlord would not prey upon her by having penile/vaginal intercourse in the absence of consent. Section 21A(2)(e)(b) of the Crimes (Sentencing Procedure) Act provides that there is an aggravating circumstance if the offending occurs within the home of the victim. 17. In the light of what I have said about the fact that the offending occurred in what was a sequence of admitted events where the jury were unable to find that the first two acts of intercourse were in circumstances where the offender, on any basis, appreciated that she was not consenting, and where the act of which he has been found guilty then occurred in the ongoing circumstances with a lack of any significant injury and where the particular duration of the act itself is unclear, I find that the objective seriousness of the offence falls below the mid-range of objective seriousness and towards the lower end of objective seriousness for such offences. 18. The Court has been provided with a Victim Impact Statement, which was read to the Court by the complainant. It has been submitted by the Crown that the Victim Impact Statement indicates that the harm to the victim goes beyond what might ordinarily be expected as the common or expected sequelae of offending of this nature. The Victim Impact Statement was eloquent testimony of the significant effects that offending of this nature of any type has on victims, whether male or female. The penalty provided for such offences takes into account that significant adverse sequelae will occur to those who are the victims of such offending. The Crown has submitted that the Victim Impact Statement is consistent with what was found in R v Fisher [2021] NSWCCA 91 (Adamson J at 256) to go to beyond the ordinarily expected consequences. However, in my view, while I accept that the victim has been significantly affected, and that effect is likely to adversely affect her in relation to her ability to relate to other people, particularly males, and is likely to continue to cause her problems psychologically for at least many years, if not for the remainder of her life, such consequences, in my experience, are entirely within what can be reasonably expected, and I do not find that the Victim Impact Statement elevates the expected consequences beyond what can ordinarily be expected and is already taken into account by the maximum sentence provided.