R v Ivanov [2023] NSWDC 408

District Court New South Wales

Medium Neutral Citation: R v Ivanov [2023] NSWDC 408 Hearing dates: 27/6/23-5/7/23, 25/8/23 Date of orders: 25/8/23 Decision date: 25 August 2023 Jurisdiction: Criminal Before: Bourke SC DCJ Decision: Convicted and sentenced to a term of imprisonment of 4 years 9 months with a NPP of 3 years (19/6/23-18/6/26). I find special circumstances. Catchwords: Crime – Sentence – Sexual intercourse without consent – Reckless infliction of actual bodily harm Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Category: Sentence Parties: NSW DPP – Crown Mark Ivanov - Offender Representation: Ms K Henry for Crown Mr J Clarke for Accused File Number(s): 19/210305 Publication restriction: Statutory non-publication of the identity of the victim.

remarks on sentence 1. The offender Mr Mark Ivanov stood trial before a jury from 27 June 2023 on a single count indictment for an offence of sexual intercourse without consent in circumstances where immediately afterwards he inflicted recklessly actual bodily harm to the complainant. 2. On 5 July 2023 the jury found the offender guilty of that offence and he now must be sentenced for that, being an offence under s 61J(1) of the Crimes Act 1900. The maximum penalty for that offence is 20 years imprisonment and it is subject to a standard non-parole period of ten years. The maximum penalty and also the standard non-parole period are important guideposts in the sentencing exercise to which I have had regard.

FACTS 1. The facts are to be determined by myself but must be consistent with the jury's verdict. Matters in aggravation must be proved beyond reasonable doubt while matters in mitigation need only be proved on the balance of probabilities. 2. The Crown has set out in its written submissions a summarised form of the essential factual matters making up the relevant evidence of the offence. While the offender maintained his innocence, his counsel appropriately conceded that the Crown's summary accurately reflects the evidence that the jury must have accepted. 3. I find the following facts. The offence occurred on 30 November 2018 at Gladesville. The offender met the victim for the first time at the Establishment Bar on George Street in Sydney. 4. The victim and the offender first came into contact with one another at about 1.10am inside that bar when the offender approached the victim and began dancing with her. After this they remained in each other's company dancing, talking and at times kissing and cuddling until they left the venue at about 2.19am. The victim got into the offender's car after he had offered to drive her to where she was staying in Sydney. 5. However, after being driven for about ten minutes the victim realised that they were not heading in the right direction and she questioned the offender. He told her that he was taking her to a house belonging to a family member. However he drove to a carpark in some parklands called Gladesville Reserve and said he needed to rest. The victim got out of the vehicle pretending to urinate to give herself some time to think. 6. When she got back into the rear seat of the vehicle the offender said words to the effect of "let's have sex, I have a condom." However, the victim said no and told him that she did not feel safe having sex in a public place like that. She however began massaging his hands and shoulder in the hope that he would relax and would take her home. 7. After a minute or two the offender got out of the front driver's seat of the vehicle and into the back seat where the victim was. He then pushed her back against the car door and closed and locked the doors. He held her left arm up over her head and used his other hand to open her legs, pull her underpants aside and he then inserted his penis into her vagina. 8. The complainant told him to stop more than once and fought with him trying to push him away. After the offender had ejaculated without using a condom, he got out of the car and walked around to the door against which the complainant had been pushed. He opened that door and pulled the complainant/victim out of the car and dragged her across to a grassed area after which he called her a bitch and a slut. The victim suffered bruising and scratches to her arms and legs as the offender dragged her from the vehicle and onto the ground and those injuries were depicted in photographic exhibits that were placed before the jury. Those are the essential facts upon which I proceed to sentence.