District Court New South Wales Medium Neutral Citation: R v Bates [2024] NSWDC 291 Hearing dates: 24 May 2024 Decision date: 30 May 2024 Jurisdiction: Criminal Before: Coleman SC DCJ Decision: (1) Count 1: term of imprisonment of 5 years 8 months, with a non-parole period of 3 years 6 months. (2) Count 2: term of imprisonment of 5 years 6 months, with a non-parole period of 3 years 4 months. (3) Aggregate term of imprisonment of 7 years, with a non-parole period of 4 years 3 months. (4) The sentence commences on 9 February 2023 and expires on 8 February 2030. The offender is first eligible for release to parole on 8 May 2027. Catchwords: CRIME — Sexual offences — Sexual assault — Consent Legislation Cited: Crimes Act 1900 (NSW), s 61I. Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A, 21A(2), 21A(3). Cases Cited: DPP v De La Rosa [2010] NSWCCA 194. Fisher v R; R v Fisher [2021] NSWCCA 91 at [89]. R v Cranston [2023] NSWSC 1004 at [3]. Category: Sentence Parties: Director for Public Prosecutions (NSW) (Crown) Shane Bates (Offender) Representation: Counsel: J Smith (NSW) (Crown) C Wong (Sir Owen Dixon Chambers) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) APG Law (Defence) File Number(s): 2021/00176702 Publication restriction: Pursuant to s 578A Crimes Act 1900 (NSW), there is to be no publication of any matter that identifies or is likely to lead to the identification of the victim in this matter. JUDGMENT 1. The offender, Shane Bates, is to be sentenced today for two counts of sexual intercourse without consent, an offence under section 61I of the Crimes Act 1900 (NSW). Count 1 was penile vaginal intercourse. Count 2 was cunnilingus. Each offence carries a maximum penalty of 14 years' imprisonment and has a standard non-parole period of seven years. Finding of Fact 1. The offender was tried before a jury and convicted of these offences on 28 July 2023. I am required to make findings of fact on which the offender is to be sentenced. 2. In sentencing an offender after a jury verdict, the relevant principles with respect to the findings of facts for sentence were set out by Payne JA in R v Cranston [2023] NSWSC 1004 at [3] as follows (omitting the reference to authorities there cited): 1. A sentencing judge has a duty to make as far as possible findings of fact relevant to the issues that will inform the sentence. I will omit the references to the authorities that his Honour included. 2. Sometimes, however, it may be impossible for the sentencer to resolve a given factual question in a way that tends to either increase or decrease the sentence. In that case, the sentencer must leave that matter to one side and proceed on the basis of what can be found. 3. If a party at a sentencing seeks to rely on a particular fact, that party has the onus of proving the fact in question. There is, however, no general joinder of issue in sentencing and, unlike the trial, no generalised onus of proof. 4. If the prosecution seeks to rely on a fact, they must prove it beyond reasonable doubt. If the offender seeks to rely on a fact, the standard of proof is on the balance of probabilities. 5. After a jury returns a verdict of guilty, the sentencer is constrained to making findings of fact that are consistent with the jury's verdict. 6. A sentencer cannot know in many cases exactly what facts the jury found or what evidence they accepted. The sentencer is constrained by a verdict only when that verdict, by necessary implication, reveals that the jury accepted particular evidence or resolved facts in a particular way, and; 7. Within this constraint, the sentencer can make findings as they see fit. There is no requirement to accept all of the Crown's case as put to the jury, nor is the judge required to take a view of the facts most favourable to the accused." 1. It is with those principles in mind that I make the following findings of fact having considered the evidence and being conscious that facts averse to the offender must be proved beyond reasonable doubt. As this is a sentence following a jury verdict, as the principles I have referred to above note, I must make findings of fact consistent with the jury's verdict. Facts 1. The victim in this matter did not know the accused. She had only met him as a work colleague of two males, Adam Harris and Jacob Rich, she had met earlier in the evening and with whom she had been socialising and drinking in two pubs in Armidale. 2. The offender joined his two colleagues and the victim at a second hotel for a relatively short time before the group walked back to the motel where the offender and his two colleagues were sharing a motel unit. The victim had limited conversation and social interaction with the offender before the offending occurred. 3. The victim was drunk and described herself as a "seven" on a scale of one to ten of increasing intoxication at the time they left the second hotel. She was stumbling quite a bit and slurring her words. 4. The offender was also intoxicated. Whilst he had only joined the others at the second pub for a relatively short period of time, the evidence of Mr Harris was that he was intoxicated. 5. Not long after being at the unit, the victim and Mr Harris went into Mr Harris' bedroom and had consensual sexual intercourse. 6. After the intercourse, Mr Harris left the room and the victim had fallen asleep. 7. Mr Harris joined Mr Rich and the offender in the lounge room where they were drinking and playing some music on a phone. 8. After a short time, Mr Harris and Mr Rich went outside to have a cigarette. They were outside for 10 to 15 minutes and when they came back the offender was not in the lounge room. 9. The victim woke up to someone having penile/vaginal sex with her. She was on her side and partially on her stomach. The other person was next to her. Initially the victim thought it was Mr Harris, but she then turned and saw it was the offender. 10. The victim told him to stop a number of times whilst trying to move away from him. 11. The offender continued to have penile/vaginal intercourse with the victim who continued to say "no" and "stop". The offender was naked. 12. The offender stopped after a few seconds and got up on his knees and brought his erect penis towards the victim's face. The victim turned her body away from him. 13. The offender moved his whole body towards the victim's legs and tried to force her legs apart. The offender then performed oral sex on the victim by using his tongue and mouth on her vagina. 14. The victim told the offender to stop, tried to kick him away and tried to move away from him. 15. The offender held one of the victim's legs when she tried to kick him. 16. The offender at some point stopped licking the victim's vagina and she moved away from him. 17. The offender said to the victim that she "wanted it" and "when she wanted it she could not take it back". He told her it was not a free bed and she should get out. 18. The offender got dressed and left the room. 19. After the offender left, the victim took a few minutes and then got dressed. She heard the offender saying that she "wanted it" and she was a "fucking bitch". 20. When the victim went into the lounge room, Mr Harris and Mr Rich were there. 21. The victim thought that Mr Harris knew about the offender going into his bedroom and was upset with him. 22. Mr Harris saw that the victim was very distressed and she kept saying to him, "How could you let this happen?". Mr Harris was trying to find out from her what had happened, but she obviously did not want anything to do with any of them. 23. The victim took her phone and left the unit. 24. Mr Harris followed the victim out, asking if she was okay and if she wanted him to call her a cab. She said she did not want him to. 25. The victim continued to be upset and left. 26. Mr Harris stated that when he went back into the unit, he asked the offender what happened and the offender said that they had had sex and she went crazy. 27. The victim walked home. On the way she messaged and called a friend, Mr Ben Smith. She was quite hysterical and upset and initially Mr Smith had difficulty understanding what had happened. The victim said, "I believe I've been raped." 28. When Mr Smith was unable to contact the victim, he went to her home, where he called the police who entered the victim's home. 29. The victim told uniformed police and then a detective that she had been sexually assaulted. 30. The victim was examined by Dr Maxwell and samples were taken. 31. The offender's DNA profile matched that of a second male contributor to a sample taken from the victim's high vagina and to a sample taken from her vulva. 32. I note in respect of the findings that I have made I have adopted the proposed findings of fact of the Crown. In the sentence hearing I enquired of Ms Wong, counsel for the offender, whether she accepted the findings of fact proposed by the Crown and whether there were any additional facts she submitted should be found. As I understood her reply, she submitted she did not cavil with the proposed findings save that she submitted that there should be findings in line with the version given by the offender when the offender agreed to be interviewed following his arrest on the basis it was only audio recorded. The recording was played to the jury and they had the benefit of the transcript of the interview as an aide memoire. 33. In the interview the offender denied engaging in penile vaginal intercourse and stated that the oral sex in the form of the cunnilingus was consensual and that he stopped as soon as the victim asked him to do so. The offender said that he was fully dressed. 34. He said that before he went into the bedroom, Mr Harris had come out of the bedroom and then went back into the room. The offender said he heard Mr Harris say, "Is it okay if one of the boys come in?" The offender said he heard the victim say, "Yeah." The offender said that he then went into the room. He said the victim was awake. He said the lights were on and she was naked on the bed. He said she initiated a kiss with him before he performed the oral sex on her. He said she had asked him to stop and he did and left the room. He said he remained fully clothed at all times. 35. The offender said that the victim stayed in the room for about half an hour after the oral sex and when she came out she was not upset. He said Mr Harris told him she got into a taxi. 36. As I have observed, if I make findings averse to the offender, I must be satisfied beyond reasonable doubt of that matter. It can be seen that there is a difference in the versions of what occurred when Mr Harris left the bedroom after he had had consensual sexual intercourse with the victim and when the offender went into the room. There is also a difference in the offender's version of what occurred in the room with the victim, that is, the offender said that there was no sexual contact or actions by him except consensual cunnilingus and he stopped as soon as the victim asked him to. 37. I should refer to one additional evidential matter before dealing with this. The victim did say that when she left the bedroom to leave, she repeatedly asked Mr Harris why he let "that happen", that is, the offender coming into the room and having sex with her. She said that Mr Harris said "that I agreed to it before he left the room". She said she told Mr Harris, "I did not agree to that and if I did, I was too drunk to agree to that" - see transcript 23 line 44 to 50. 38. Mr Harris in his evidence did not recall any conversation with the victim about her "agreeing to it" before he left the room. He said, "I don't know why I would have said that, nah." - see transcript 129 line 47. 39. The other of the three men who were with the victim that night, Mr Rich, said he could not remember any conversation where Mr Harris asked the victim if she wanted one of the other boys to go into the room - see transcript 72 at lines 1 to 5. 40. Counsel for the offender submitted that the relevance of any conversation Mr Harris is said to have had with the victim about whether one of the other boys could go in is to the state of mind of the offender as to whether the victim consented to any sexual contact with him. She submitted that it should be found that the conversation occurred and this led to him having an honest belief that the victim had consented to sexual activity, with him accepting that the jury must have found that he had no reasonable basis for such a belief. 41. There are several problems with this submission. First and most obviously, even if the conversation had taken place between Mr Harris and the victim, Mr Harris could not give consent for any sexual activity to occur between the victim and the offender. 42. Second, even if the victim did say or he thought that the victim did say that one of the boys could come in when Mr Harris left, the relevant time to assess the offender's belief as to whether the victim was consenting to any sexual intercourse is at the time of the intercourse. True it is that conduct before sexual activity can be taken into account in considering the offender's state of mind as to whether the offender knew that the victim consented or did not consent, but it is at the time of the intercourse that the question of consent is to be determined. However, there had been no discussion between the victim and the offender of any sexual activity. 43. Third, the jury must have rejected the offender's version of events. That is because the offender's version of events was that there was no penile vaginal intercourse, but only consensual cunnilingus. The jury returned guilty verdicts on the counts involving penile vaginal intercourse and cunnilingus such that they must have found that the victim did not consent and that the offender knew she was not consenting. 44. The issue here is whether I can find that the knowledge of the accused that the victim was not consenting was actual knowledge, recklessness or that he believed she was consenting, but had no reasonable basis for that belief. What finding I make in this regard can be relevant to the objective seriousness of the offending. The Crown submits I should find actual knowledge whereas counsel for the offender submits I should find that he believed she was consenting, but had no reasonable basis for that belief. 45. I do not accept that the offender had a belief that the victim had consented to the penile/vaginal intercourse. As I have said, his version was that there was no penile/vaginal intercourse, but only consensual cunnilingus. He cannot have had a belief about consent to a sexual act he says did not happen. Further, counsel for the offender's submissions accept that the victim woke up during the penile/vaginal intercourse. The offender's version was that the light was on when he entered the room. He must have known she was asleep. Even if there had been conversation between Mr Harris and the victim that I have referred to, as I have noted, it is at the time of sexual intercourse that the issue of consent is to be determined. A person cannot consent when they are asleep. I find beyond reasonable doubt that the offender actually did know that the victim had not consented to the penile vaginal intercourse. 46. I also do not accept that the offender believed that the victim consented to cunnilingus. I accept that she had told the offender to stop during the penile vaginal intercourse and that he forced her legs apart and performed oral sex on her. She was resisting, telling him to stop and trying to kick him and move away from him. I find that he actually knew that the victim was not consenting to the cunnilingus. Objective Seriousness 1. Any form of sexual intercourse without consent is a serious offence. The significant maximum penalties and standard non-parole periods are legislative guideposts to the seriousness with which such offending is rightly regarded. 2. Each of the parties have referred me to various authorities dealing with an assessment of the objective seriousness of sexual intercourse without consent offences. I do not intend to refer to all of them, but I have had regard to the principles I have been taken to in the parties' written submissions. I accept that any form of non-consensual sexual intercourse is itself an extreme form of violence that must be denounced by the Courts. 3. I cannot make any finding as to the exact duration of the penile vaginal intercourse, however, I infer that it was relatively brief as the victim was woken by the act of intercourse occurring. The cunnilingus was also brief, but the victim was resisting and pushing the offender away with his leg while saying no. I do not mention the duration of the two acts of intercourse to downplay the objective seriousness of the offending. I accept the Crown's submissions that, by reference to the authorities cited in their written submissions, the duration of offending is not a measure of its seriousness. 4. Additionally, that there was no violence or threats made by the offender does not diminish the seriousness of the offending. Here the victim was asleep when the offender penetrated her vagina with his penis. This, in my opinion, makes the offending more serious. As I have found, the offender must have known the victim was asleep and she could not consent, but he nevertheless penetrated her. I thus reject the defence submission that the seriousness of the offending is lessened because there was an absence of coercion, intimidation or manipulation. 5. For the penile/vaginal count the victim was asleep. Of course, the offending then was opportunistic (or described in Fisher v R; R v Fisher [2021] NSWCCA 91 at [89] as "rank opportunism") and there was no planning, and for the cunnilingus the offender forced her legs apart and she resisted and told him no. Each offence was a gross violation of the victim's body and dignity when she was intoxicated and vulnerable. 6. I cannot accept the defence submission that the offending falls to the lower end of the range for offences of this type. In my opinion, having regard to all of the circumstances, I accept the Crown's submission that the penile/vaginal offence and the cunnilingus offence each fall at about the mid-range of objective seriousness for offences of this type. I note that the offender's self-induced intoxication cannot be used to explain his behaviour or as a mitigating factor. Aggravating / Mitigating Factors 1. It is not suggested that any of the statutory aggravating factors in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) apply in this case. 2. The offender does have a record of criminal offences although this is his first sexual offence. His prior offending is for driving, drug and larceny/goods in custody type offending. His prior record does not aggravate this offending, but it means he is not entitled to leniency. 3. As to mitigating factors in s 21A(3), the Crown submits, and I accept that the offending was not part of a planned or organised criminal activity. Subjective Circumstances Psychological Assessment Report of Dr Leon van der Linde, dated 6 October 2023 1. As to subjective circumstances, there is in evidence the psychological assessment report of Dr Leon van der Linde dated 6 October 2023. There is also a sentencing assessment report dated 1 September 2023. Background 1. The offender was born in Newcastle. He is now 43 years of age. 2. He describes his developmental years as "not very good at all" as he was regularly beaten by his mother and his step-father, and sexually molested by his mother and his uncle. His medical records note that his father was recorded as "unknown". He was in foster care when he was around 11 years old and when he was 12 years old he went to live with his uncle and aunty. 3. He reported he found it difficult to focus on school due to undiagnosed ADHD and PTSD conditions which were formally diagnosed, he reported, at the age of 27 at the Dooralong Transformation Centre, a rehabilitation program for individuals affected by mental health and addiction issues. He said he was expelled from school at age 14 for being disruptive and has had no schooling since then. 4. Since the period of rehabilitation I have mentioned, he has relapsed using alcohol to cope with his emotional troubles. 5. The psychologist reported that the offender was unwilling to discuss the offences for which he was charged, but said that the complainant and himself were very intoxicated at the time and in his recollection the sexual activity was consensual. Psychometric Screening 1. Dr van der Linde took a number of screening tests on Mr Bates. Indeed, most of the report is taken with the results of this screening rather than the psychologist giving opinions on more relevant matters. 2. According to the DSM‑V brief form Mr Bates' results indicated a severe level of "negative affect" which refers to emotions such as anxiety, depression, stress, sadness, guilt, anger and shame. 3. On the emotional detachment scale Mr Bates' responses were consistent with a person who is hesitant to connect with others and maintain relationships. 4. Mr Bates' responses, according to the psychologist, indicates he does not tend to exhibit antagonistic behaviour or that he has problems exercising control over his emotions. His responses also indicate he has no issues relating to psychoticism. 5. According to the SASS-21, Mr Bates indicated severe levels of depression which supported a diagnosis of major depressive disorder. 6. Mr Bates' results place him at the severe end of the anxiety spectrum. This was consistent, the psychologist said, with several anxiety disorders and he also exhibited an extreme level of stress. 7. The K10 test indicated that he was experiencing psychological distress. 8. The UNCOPE test identified Mr Bates, according to the psychologist, as being at a high risk of suicide. Review of Psychometric Screening 1. The review by Dr van der Linde opined that Mr Bates' poor mental health at the time of the offences and his experiencing issues of post-traumatic stress disorder, depression, anxiety and addiction were highly clinically relevant. He noted Mr Bates described his depression as him constantly "feeling sad" and preferring "to invert into myself". 2. Mr Bates confirmed that he had detachment difficulties and indicated he did not generally have issues with antagonism and was not an angry person. Concerning the findings regarding disinhibition, Mr Bates indicated to the psychologist he was generally not too bad, but sometimes struggled with navigating his emotions. He was adamant he did not experience suicidal ideation, but confirmed he used alcohol excessively. Conclusions 1. Dr van der Linde opined in summary that incarceration was: 1. likely to exacerbate the offender's pre-existing mental health issues. 2. that the offender's intoxicated state when the offending took place had likely affected his ability to make rationally informed decisions. 3. that the lack of appropriate psychological intervention played a role in Mr Bates' deteriorating mental health and inappropriate behaviours, and; 4. that his disappointment in his behaviour, in the psychologist's opinion, bode well for his rehabilitation prospects. 1. I note that it was not concluded by the psychologist in terms that any mental health condition suffered by the offender at the time of the offending contributed in a material way to the offending conduct so as to attract the principles in DPP v De La Rosa [2010] NSWCCA 194 and reduce the moral culpability of the offender. Insofar as a submission was made to the contrary by counsel for the offender in her written submissions, I reject it as I do not believe it can be supported on the evidence. Medical Records 1. There was also before me a patient health summary of Mr Bates setting out various medical issues suffered by Mr Bates including prior diagnosed amphetamine and cannabis use disorders, borderline personality vulnerabilities and acquired brain injury, although I observe with respect to this injury that there is no evidence it is linked in any way to the offending. There was consistent reference to post-traumatic stress disorder, mental health issues and the use of medication, particularly as a result of childhood trauma. There was also reference to prescribed medicines to treat mental health conditions. 2. All of these matters will be taken into account in the subjective case of the offender as part of the sentencing synthesis. As I have said, however, I do not consider that there is any matter in the offender's subjective case that reduces his moral culpability for the offending. 3. In terms of the offender's prospects of rehabilitation it is clear that the offender needs some assistance with his mental health issues and drug abuse problems. Whilst this is his first sexual offence, he maintains that the intercourse was consensual. This displays no insight into his behaviour. He did, however, express sincere regret and remorse for his actions and acknowledged the vulnerability of the victim when she was intoxicated, but at the same time blamed his own intoxication. I am prepared to accept he has some remorse, but it is not of significant weight as it was not made by him in evidence before me. 4. I regard his prospects of rehabilitation as reasonable if he obtains help for his mental health and drug and substance abuse issues. 5. The sentencing assessment report assessed him as being of a medium risk of reoffending. If he obtains the assistance I have mentioned, I do not regard him as a serious risk of sexually reoffending. Sentencing Principles 1. I must have regard to the purposes of sentencing in s 3A Crimes (Sentencing Procedure) Act. The Crown submitted that all of the stated purposes of sentencing in that section apply. There is some force in that submission although, of course, that is probably the case in all sentences, with some purposes having more application than others. 2. Here, I consider that specific and general deterrence are important purposes of sentencing. Sexual offences are offences which have devastating, often lifelong, effects on victims and I expressly acknowledge the harm that such offending does cause to victims. 3. These offences were committed against an intoxicated victim who, at the time of the first offence being committed, was asleep. The second offence involved her resisting, as I have described, until the offender desisted. He then lied about what had happened and tried to shift blame to the victim by saying that she had said another of the boys could come in. As I have observed, even if such a thing was said by her, this did not and could not amount to consent to any sexual contact between her and the offender. People, particularly males, must know that consent must be given at the time of any sexual intercourse. I should add that the intoxication of the offender is not relevant to his knowledge as to whether the victim was consenting and nor is it a mitigating factor. 4. There is no doubt in my mind, and it was not submitted otherwise, that the s 5 threshold has been crossed and that no other sentence other than one of imprisonment is appropriate. 5. By reason of the struggles with his mental health and drug abuse issues, it is accepted that the offender will find custody more onerous. I will make a finding of special circumstances so that there is a longer period on parole for him to obtain treatment and assistance necessary. I also note the submission of counsel for the offender which referred to the hardship of the offender being in custody during part of the COVID crisis and in my opinion this also adds support to a finding of special circumstances. 6. I will impose an aggregate sentence. I acknowledge that I must have regard to the principles of totality. There is an issue about cumulation or concurrency of the sentences as the two offences occurred very quickly after each other in the same incident. 7. Counsel for the offender submitted that the sentence for the first offence, the penile/vaginal intercourse, can comprehend and reflect the criminality of both offences. Thus, it is submitted that the sentences should be wholly concurrent. 8. The Crown submitted that the two offences involved distinct criminal acts the criminality of which could not be encompassed by a completely concurrent sentence. It was submitted that whilst there should be a level of concurrency, some degree of accumulation is required to reflect the fact that there was penile vaginal intercourse followed by cunnilingus. 9. I accept the Crown's submissions. I do not think that wholly concurrent sentences are appropriate. I do not think that, having regard to the nature and seriousness of the offending, the criminality of the second offence would be comprehended by wholly concurrent sentences. There will, however, be a significant degree of concurrency as the offences were in the same incident. 10. Each party agreed that to take into account the time spent in custody by the offender in respect of these matters rounded up to 470 days, the sentence should commence on 9 February 2023. 11. I note that each sentence carries with it a standard non-parole period of seven years with a maximum penalty of 14 years. I will take the standard non-parole period into account as part of the sentencing synthesis as I must, however, I will not be imposing a non-parole period of seven years for either offence. To do so would, in my opinion, result in a sentence that is not proportionate to the offending and to the principles of totality, concurrency and cumulation that I have mentioned. I must, however, indicate a non-parole period for each of the sentences. Sentence 1. Mr Bates, for the offences for which you were found guilty by the jury, you are convicted: 1. For the count 1 offence, I indicate a term of imprisonment of 5 years 8 months. I indicate a non-parole period of 3 years 6 months. 2. For the count 2 offence, I indicate a term of imprisonment of 5 years 6 months. I indicate a non-parole period of 3 years 4 months. 3. I impose an aggregate term of imprisonment of 7 years. 4. I set a non-parole period of 4 years 3 months. 1. The sentence will commence on 9 February 2023 and expire on 8 February 2030. 2. The first date you will be eligible for release to parole is 8 May 2027. *** 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: 16 July 2024