R v Starke (a pseudonym) [2023] NSWDC 377

District Court New South Wales

Medium Neutral Citation: R v Starke (a pseudonym) [2023] NSWDC 377 Hearing dates: 1 September 2023 Date of orders: 15 September 2023 Decision date: 15 September 2023 Jurisdiction: Criminal Before: Priestley SC DCJ Decision: See [54 - 56] Catchwords: CRIME — Sexual offences — Aggravated sexual assault — Inflicts actual bodily harm CRIME — Domestic violence — Stalking or intimidation – Intend fear of physical harm Legislation Cited: Crimes Act 1900 (NSW) Crimes (Domestic and Personal Violence) Act 2007 Crimes (Sentencing Procedure) Act 1999 Crimes (High-Risk Offenders) Act 2006 Cases Cited: Muldrock (2011) 244 CLR 120 Texts Cited: NA Category: Sentence Parties: Rex (The Crown) Starke (a pseudonym for The Offender) Representation: Counsel: Franklin for The Crown Davies for The Offender

Solicitors: Parmenter for The Office of the Director of Public Prosecutions Coombes for The Offender File Number(s): 2021/00068019, 2021/00122912 Publication restriction: Section 578A Crimes Act applies

Reasons on Sentence 1. On 25 October 2022, the offender was found guilty by a jury of two of three offences alleged in an indictment dated 17 October 2022. One of the offences of which he was found guilty was sexual intercourse without consent knowing the victim was not consenting, a prescribed sexual offence, so that in accordance with section 578A of the Crimes Act these reasons will be anonymised, and the name of these reasons will be a pseudonym. 2. The offender was found guilty of the following counts: 1. That on or about 2 February 2018 at XX in New South Wales he did have sexual intercourse with the complainant without her consent knowing she was not consenting and did so in circumstances of aggravation namely that immediately after the offence the offender did intentionally inflict actual bodily harm to the complainant. This is an offence in contravention of section 61J(1) and has a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years. 2. That on or about 6 March 2021 at XX in New South Wales the offender intimidated the complainant with the intention of causing her to fear physical or mental harm. This is in contravention of section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 and has a maximum sentence of five years imprisonment. There is no standard parole period. 1. The jury returned a verdict of not guilty in respect of a further charge under section 13(1) alleged to have occurred on 7 March 2021. 2. In relation to the maximum sentences and, in respect of the section 61J offence, the standard non-parole period, those matters are taken into account as legislative guideposts to assist in arriving at the appropriate sentence. In relation to the standard non-parole period I note that in Muldrock (2011) 244 CLR 120 at [29] the High Court made clear that it has application even when the offending is not considered to be in the "middle of the range of seriousness" as that term is used in section 54A of the Crimes (Sentencing Procedure) Act ("CSPA"). The standard non-parole period, and the maximum sentences, are an indication of the legislative view of the seriousness of the offence to assist in arriving at the appropriate sentence.