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. SUBECTIVE MATTERS: 1. Before the Court is the offender's criminal history which indicates that he has never been convicted of any criminal offence either before or after this event. I accept that he should be regarded as a person of good character. The Court has available a Sentence Assessment Report under the hand of Steffi Mathews, Community Corrections Officer, dated 7 June 2021, a New South Wales Department of Corrective Services Case Report from staff member Xiao-Ou Zhu to assist with the prediction of sexual recidivism, and a comment on treatment needs and suitability for sexual offender programmes. 2. In addition, tendered on behalf of the offender, is Exhibit M1, being a reference from Ms Thavrak Em, a digital designer at Woolworths and the current partner of the offender, dated 31 May 2021; a letter from Ms Aimee Hartog dated 3 June 2021; a reference from Mark Bamford, solicitor, dated 3 June 2021, who was called during the course of the trial to give evidence in respect of character; a letter from Dr Willem Gheysen, a Maternal Foetal Medicine Fellow now residing in Melbourne, dated 4 June 2021, who has known the offender since January 2019 when he first arrived in Sydney; a letter from Stephen Seeto, the principal of Rhodes Medical Imaging, who has known the offender since 2005 as his personal trainer, but who has otherwise developed a close family relationship with the offender and the offender's child, Zenon; a reference from Jeffrey Stuart, the managing director of a firm entitled Slipstream Resources Pty Limited, dated 3 June 2021; the offender and Mr Stuart first became acquainted when the offender became his personal trainer, and he has subsequently become the personal trainer of Mr Stuart's daughter. It is apparent from the reference that a family relationship has grown up between Mr Stuart's family and the offender and his family. 3. There is a further reference from Martin Conley, who has known the offender for 13 years, the referee being a company secretary with the Australian operations of two global banking institutions. Again, he first became acquainted with the offender when the offender became his personal trainer, he has also developed a close personal relationship which goes beyond the offender's occupation, and has had the opportunity to observe the offender on many occasions in social and family situations. There is a further reference from Nita Koukedes, being a now retired psychotherapist/counsellor, dated 9 June 2021, who has provided assistance to the offender in the past; I will return to that. There is a final reference from Mrs Monica McMahon, the offender's mother, dated 9 June 2021. 4. Ms Koukedes indicates that she first met the offender in November 2011 when he sought counselling in respect of the divorce proceedings he was then attempting to adjust to, including the co-parenting of their young son, Zenon. He was counselled approximately every two weeks over the course of a year. 5. During that time, he disclosed to her that he had an early history of abuse, being both physical and coercive control, especially by his mother. He also informed her that when he was some six or seven years of age, he was sexually abused by a maths tutor until responsible adults intervened. That offending against him is confirmed by the letter from his mother. He next sought counselling in around March 2014 for about six months, the trigger apparently being that he then had a female partner who was a boxing champion, but after coming off her medication for a psychiatric condition, had significantly assaulted the offender, causing him to be hospitalised. 6. The third occasion on which he sought counselling from Ms Koukedes was in 2016, which is of course after these allegations in respect of this matter had been made, and the report indicates that he continued counselling over about a six month period, attending every two weeks and then monthly. He reported the allegations to the psychologist, and it is said that, "Principally he came because he wanted to reinforce the learnings he had gained through counselling so far". That was the last counselling she provided to him, but she states in respect of her assessment of him, "I found Pat to be open, honest, self-reflective and conscientious, progressing well in learning and applying his understanding with demonstrated responsibility and accountability. The therapy was geared to help reveal learned distortions and supply for lacks in learning from early childhood around self-worth and respectful relationships." 1. While some of the references have the limitation of being only relationships basically revolving around the offender's provision of personal physical training of the individuals, many of the references go well beyond that point and are highly favourable in terms of the referee's opinion of the offender. I accept those opinions are genuine. 2. I note in respect of the offender's mother's reference, she currently is living overseas somewhere unstated, presumably either in Gibraltar or the United Kingdom. She continues to indicate her ongoing support for her son. 3. Ms Em indicates that she is a Cambodian citizen currently present in Australia on a student visa, and has been in Australia for the past three and a half years, and for the past three years in a relationship with the offender. That relationship has produced one child who was born in February 2020. She expresses her firm support for the offender and that the alleged offending, to her observation, is entirely uncharacteristic of him. She reports that the offender is a loving and caring parent to his son, Zenon; she refers to him as the glue that holds the family together, and her anticipation is that without the offender around "things would deteriorate very quickly and place me in a precarious position that would cause considerable duress. Neither Patrick nor I have any family in Australia, Patrick's family is in Europe and mine are based in Cambodia." She goes on to deal with the problems created by COVID in respect of international travel and how she does not expect to be able to receive any support from her family in the near future, or from the offender's family, at least by way of physical support, and is fearful that if she was to be injured in any significant way which required attention, she would not be eligible for Medicare, and if incapacitated it would be difficult to find someone to care for their child. Her occupation is as a digital designer for Woolworths, but so far that firm has not offered her a visa sponsorship, which apparently means that she could find herself having to leave Australia in the absence of the offender's presence and support. 4. The offender's mother also indicates a feeling of helplessness in relation to being unable to travel to Australia to support the offender's family due to COVID and also due to the offender's father's deteriorating health. They have maintained their support by remaining in constant contact. There are some difficulties with Mrs McMahon's reference, only in the sense that she refers to him as a youth having joined the Mediterranean Rowing Club and developing a number of close friendships with persons who have since been appointed to positions of great responsibility. There are no references from any of those persons, and it seems that the offender has been in Australia for approximately the last 18 years, although that is not specifically stated in any of the material before me. The fact that as a youth he had friendships with persons who in Gibraltar have gone on to significant positions of trust and authority is, in my view, not a matter of great weight, although I will take it into account; similarly, her reliance on the fact that he has a great uncle who was "a hallowed member of the Royal Institute of British Architects in the City of London. Cecil was also nominated later in life to become Lord Mayor of London." She relies, in relation to that great uncle, on his having had a significant contribution in the offender's upbringing. 5. However, I accept that the travel restrictions create significant problems for her, as well as her husband's ill-health, in being able to attend Australia to provide support, just as I accept Ms Em's assertion that she is at significant risk in the sense of being present only on a student visa, and unable to obtain support from her family by way of their attendance. 6. As to the Sentence Assessment Report, it indicates that the offender has been self-employed as a photographer and personal trainer for the last 20 years. Under "History of Antisocial Behaviour", it states "This is Mr McMahon's first offence, highlighting no history of antisocial behaviour". Under "Attitudes", the report describes Mr McMahon's responses towards the offence as ambiguous. Mr McMahon indicated to the SAR officer that the victim and he would have "had a relationship if they had time to get to know each other more"; he disclosed they "clicked". When attempting to seek clarity on Mr McMahon's attitude towards the situation, he reported that "the verdicts speak for themselves", and that it was tragic and surreal. Considering that he denies the offence of which he has been convicted, and has already lodged an appeal in the Supreme Court from that conviction, it seems that his reference to it being tragic and surreal relates to his own personal circumstances rather than being a reflection on the complainant's circumstances. 7. As to sex offending, he has been assessed as of low average risk of sexual reoffending, and in my view, considering his age and history, it would be appropriate to find that he falls well below the average risk of sexual reoffending. As to his insight into the impact of the offending, the report states, "Mr McMahon failed to show insight into the impact of his offending, he regularly described negative aspects of the victim's life, such as her reported abusive past, in what appeared his way of justifying why the victim had reported his actions as non-consensual". As to his risk of reoffending, according to the Level of Service Inventory, he was found to be a low risk of reoffending; I accept that assessment. 8. One matter that I have not yet referred to is the delay in the proceedings, the matter having been reported in 2015, in circumstances where the victim did not wish the police to immediately proceed, nothing happened until 2018, when she informed the police that she wished action to be taken. On 17 May 2019 the victim, CL, made what I would refer to as a "pretext call to the offender" subject to recording. He was not in fact charged until after that call, that being on 20 May 2019. I have already referred to the fact that there was a trial of approximately eight or nine days in 2020, and a further trial this year of approximately eight or nine days. There has of course been a significant delay between the commission of the offence on 26/27 January 2015. However, very shortly after that date the offender was informed by police that no further proceedings would occur, so the distress caused by any delay must be far less significant than it would otherwise have been. Nonetheless, it is evident that the making of the allegations caused the offender to seek psychological assistance: that is, it clearly had an effect on him. And, of course, since he was charged on 20 May 2019, the matter has remained unresolved until the conclusion of the second trial. That delay until the conclusion of the second trial is in fact far less than normally occurs in relation to matters such as this. However, I accept that the delay in general is a matter which must be taken into account when determining sentence. He has spent only one day in custody, being 20 May 2019. 9. I have already referred to the prospect of reoffending, either sexually or otherwise, as being low. The matter was a defended trial, and it is apparent that the offender continues to assert his innocence, having already lodged an appeal prior to sentence. In those circumstances, it is not possible to find any genuine remorse or contrition. As to the prospect of reoffending, the offender was 41 years of age at the time of the offending and is now 46. In my view, considering his lack of any criminal history at any time, there is a reasonably good prospect of rehabilitation, despite the fact that he continues to assert his innocence. 10. I have taken into account all of the matters that I have referred to in determining an appropriate sentence. Although I have found that the matter falls below the mid-range of objective seriousness, the standard non-parole period still has some relevance to play in the task of determining sentence, just as the maximum penalty provided also has relevance. Without referring to them specifically, I have had regard to each of the cases referred to in the submissions of Ms Layani-Ellis on behalf of the offender, and I have also referred to the statistics available through JIRS, indeed I have spent significant time drilling down through the individual matters that are available on JIRS in relation to offences of this nature. I was significantly assisted by the particular cases that were referred to by Ms Layani-Ellis in her submissions. 11. However, sexual offending of any nature must be regarded seriously. Because of the adverse consequences to those who are the victims of such behaviour, both specific deterrence and general deterrence are important matters to take into account in respect of sexual offending. 12. However, in the case of Mr McMahon, noting what I have said about the low risk of reoffending and reasonable possibility of rehabilitation, despite his continuing denial, and taking into account his age, in my view specific deterrence is not as relevant as it might otherwise be, although it remains relevant. General deterrence must always remain relevant in relation to such matters as this because of the frequency with which offending of this nature comes before the courts and the clear intention of the legislature to ensure that sentences provide a genuine deterrence to those who would commit such offences, whether it be in circumstances where the victim is significantly affected by alcohol or otherwise. 13. Taking all of those matters into account, I have determined a sentence. I intend to find special circumstances on the basis that this will be the offender's first period of custody, and in particular taking into account, although it has not been raised as an exceptional circumstance, his family relationship with his current partner and the age of his children, his son now being approximately 13 or 14 years of age, and there being one child of something over one year of age. I accept, as I have indicated, that a term of imprisonment will present some hardship for his partner, and at least their child, and is likely to have some adverse effect in relation to his son, Zenon. Despite those matters, this matter clearly, in my view, has passed the s 5 threshold; no submission to the contrary has been made, and implicitly the submissions made by Ms Layani-Ellis on behalf of the offender accept that the s 5 threshold has been passed and that a sentence of imprisonment is appropriate. As I have previously referred to, he has spent one day in custody when arrested, and that must also be taken into account. 14. Mr McMahon, would you please stand. You are convicted in respect of the offence of between 26 January 2015 and 27 January 2015 at The Rocks in the State of New South Wales did have sexual intercourse with CL without the consent of CL, knowing that she was not consenting, contrary to s 61I of the Crimes Act 1900. You are sentenced to a non-parole period of one year, six months. Taking into account the one day already spent in custody, that will commence as of yesterday, 17 June 2021, and you will be first eligible for parole on 16 December 2022. The balance of term is one year, six months, meaning that the total term of the sentence, expressed differently, is three years with a one year, six month non-parole period. That is, I have varied the statutory relationship between the non-parole period and the balance of term by reducing the non-parole period to being only 50% of the total term, for the reasons previously expressed. Is there anything of significance that I have not referred to? TASNEEM: No, your Honour. LAYANI-ELLIS: No, your Honour, just in the special circumstances, your Honour referred to the children of the offender. It was indicated in my submissions as well that his current partner is pregnant. HIS HONOUR: Currently pregnant? LAYANI-ELLIS: Yes, she is. HIS HONOUR: I am sorry, I did have that in mind, but I couldn't actually find it in the paperwork this morning. LAYANI-ELLIS: No, sorry, your Honour, it was in the submission. They do have a one-year-old and they also are expecting one. HIS HONOUR: Was it actually referred to you in your written submissions? LAYANI-ELLIS: Yes, that's why, your Honour. HIS HONOUR: I should have reminded myself of that. I did have it in mind that there was another child on the way, but in performing the paper chase that I have just done through the paperwork, I was not actually referring to your written submissions, although I had read them several times. I will just indicate that it was in effect taken into account, even though not referred to. LAYANI-ELLIS: Thank you, your Honour. HIS HONOUR: Ms Layani-Ellis, I understand you wish to make a bail application pending the appeal. I first of all wish to deal with some other matters, so I am not going to deal with the bail application at the moment, and although I have just imposed a sentence of imprisonment, your client can step out of the dock for the moment while I get Mr Ingray up from the cells. It is probable that I will have time to deal with the bail application before the next matter is listed at 12 o'clock, although I will confess that although I have had your material, Ms Laylani-Ellis since 11 June, the Crown's submissions in respect of the bail application only came in this morning or last night. TASNEEM: Yes, I apologise, your Honour. HIS HONOUR: That's all right, Madam Crown, I have read them. I won't say that I have digested everything. TASNEEM: The majority of it is legislation extracts anyway; the actual submissions are relatively short ********** 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 2021