District Court New South Wales Medium Neutral Citation: R v McAlister [2024] NSWDC 357 Hearing dates: 5 June 2024 Date of orders: 7 June 2024 Decision date: 05 June 2024 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Community Corrections Order for a period of 3 years Catchwords: CRIME — Sexual offences — Sexual intercourse without consent CRIME — Sexual offences — Sexual assault SENTENCING — Mitigating factors — Good character — Plea of guilty — Remorse — Unlikely to re-offend SENTENCING — Penalties — Community Correction Order SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — Objective seriousness — Purposes of sentencing — Sentencing statistics SENTENCING — Sentencing procedure — Instinctive synthesis — Short adjournment for Duty Parole Court Report SENTENCING — Subjective considerations on sentence — Youth — Deprived childhood — Mental illness — Health issues — Vulnerable in gaol Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Blackman and Walters [2001] NSWCCA 121 R v Thompson (2000) 49 NSWLR 383; [2000] NSWCCA 309 Yardley and Betts (1979) 22 SASR 108 Texts Cited: B Gilbert, "Attrition of Sexual Assaults from the New South Wales Criminal Justice System" (2024) Bureau Brief, Bureau of Crime Statistics (BOCSAR), 170 Category: Sentence Parties: Scott McAlister (the offender) Public Prosecutions (NSW) (Crown) Representation: Counsel: S Howell (for the offender) Solicitors: Morrisons Law (for the offender) J Loosley solicitor for Public Prosecutions (NSW) (Crown) File Number(s): 2023/102135 JUDGMENT – ex tempore revised Introduction 1. When he was before the Local Court, Scott McAlister indicated that he would plead guilty to an offence of committing Sexual Intercourse Without Consent Knowing that the Complainant was not Consenting: Crimes Act 1900 (NSW), s 61I. He adhered to that plea today. The offence carries a maximum penalty of 14 years' imprisonment and a standard non‑parole period of 7 years. Both the maximum and the standard non-parole period are important guides to the exercise of my sentencing discretion. Content should be given to that standard non‑parole period. 2. One important purpose of sentencing is to protect the community, particularly future complainants. The imposition of custodial sentences of some length, is meant to deter people such as McAlister, from taking advantage of vulnerable complainants, exerting control over them, and disrespecting them and their bodily integrity. Courts must also recognise the importance of women coming forward and reporting matters such as this. 3. A severe sentence can recognise the harm done to the victim, although no complainant or victim of such an offence should ever make any direct correlation between the punishment imposed and the harm they suffer. Given the many purposes of sentencing that must apply to every sentencing exercise, a direct correlation is impossible. Agreed Facts 1. The offender and the complainant were both born in 1990. They had known each other for some time. They had lost touch but about a month before the offence they had reconnected. They, it would appear, enjoyed each other's company, and would spend time together. They were comfortable in each other's company. The complainant felt that she could trust the offender. 2. On 25 March 2023 the two met up. The complainant had some family chores to do. The offender was asked along for the drive. They returned to her home and spent time together. She told him she was going to have a sleep and went to her bedroom. He was not asked to leave. This was not unusual. At other times when she'd had a nap he would stay or he would leave, call her later and return. 3. She took off her trousers, lay under the blanket and fell asleep. She woke with the offender lying next to her. She could feel his finger inside her vagina. When she realised what was happening, she said "Stop and get out of the house". The offender stopped immediately. She got up and walked out of the bedroom. He followed her. He asked her if she hated him. He was upset. She told him to get out of the house and he left. 4. Entirely understandably the complainant was upset and angry. She spoke to friends, her mother and then police. On 29 March 2023 the offender was arrested. He was cooperative with the police. He provided DNA samples by consent. The sample's DNA profile was subsequently matched with the DNA profile taken from the complainant during a Sexual Assault Investigation procedure at Wollongong Hospital. Objective seriousness 1. The complainant was sleeping in her own home. She trusted the offender. That trust was breached. She was vulnerable because she was asleep in her own home. It is impossible to say how long the offence occurred for as she was asleep when it commenced but it would appear to be a relatively brief period. He stopped when she told him to. 2. An offence such as this is completed by the act of penetration itself. A sleeping woman cannot consent to sexual intercourse. The offender knew she was sleeping and therefore unable to consent. It is clear from her reaction that any perception he that his advances would be welcome was wrong. And the evidence before me indicates that the foundation for that belief had not been laid. 3. Any offence involving the interference with the bodily integrity of a woman by penetration of their genitals is, of itself, a serious offence. Here, there is absent many of the factors commonly associated with this offence. For example; penile/vaginal intercourse carries with it a risk of disease or pregnancy. The event was, so far as the consciousness of the complainant is concerned, brief. It terminated immediately on her saying "stop". There was no persistence. There was no violence other than the act of penetration itself. There were no threats, intimidation, or coercion. While the absence of aggravating factors does not mean that the offence is not serious, this matter falls well towards the bottom of any notional range of matters of what are by definition, very serious matters. 4. Mr Howell, who appears for the offender, in written submissions suggests that, by comparison with many other examples of this type of offence, this matter was a "regrettable misjudgement" and not opportunistic. 5. I do not accept that submission or the terminology suggested. This was a serious crime, not a misjudgement. In oral submissions today Mr Howell added nuance to that submission. He noted that McAlister must have known the complainant would wake up. His actions, show his state of mind: he was somehow expecting her consent on waking; and that there might be or would be reciprocation. On receiving the response he did not want he did not persist or continue. He showed the immediate regret followed by acceptance of responsibility. 6. When it comes to assessing where an offence lies on a spectrum of objective seriousness all relevant circumstances must be considered; including the nature of the intercourse concerned and the extent of intrusive contact. It would thus be wrong to characterise this offence as a "regrettable misjudgement". McAlister knew the complainant was not consenting, however there was no persistence once she said "stop". 7. Mr Loosely, the solicitor who appears for the Director of Public Prosecutions, notes that the offence was opportunistic, a matter that is important to my assessment of objective seriousness. I accept what was done was opportunistic, in the sense that McAlister was well aware that she was asleep before he embarked on this action. 8. The Crown submit that so serious was the offending that only a custodial sentence is warranted, even when all matters, including s 5 Crimes (Sentencing Procedure) Act 1999 (NSW), are considered. A custodial sentence, they submit, is required because of the objective facts and to meet two important purposes of sentencing. The first is, recognition of harm to the complainant, which they characterise as exploitation of her vulnerability and violation of her bodily integrity. The second is, deterrence of others. 9. The Crown also note some need for specific deterrence and punishment, but here, all the material before me indicates that the offender has been deterred and is unlikely to offend again. The Crown position is that when these matters are synthesised, they should be taken into account in formulating the length of the sentence and any non‑parole period, not how the sentence is to be served. 10. Mr Howell's response is that the question of crossing the threshold, after which a custodial sentence must be imposed, is not a two staged process; it involves an assessment of all relevant matters. And, that when I synthesise all relevant matters, a sentence falling short of full-time custody served by way of an Intensive Community Correction Order with support and treatment and possibly community service, could meet the purposes of sentencing. 11. I will return to those submissions shortly. It is accepted that the material before the Court indicates that the man for sentence is unlikely to reoffend. He has a number of matters in his background that should be taken into account. Other matters 1. I note that the complainant is in Court. There is no Victim Impact Statement. The absence of a Victim Impact Statement does not mitigate, nor does it allow me to draw any conclusion that she did not suffer as a consequence of the offender's criminal action. 2. The plea of guilty came early. The otherwise appropriate sentence will be reduced by 25% to take into account the utilitarian value of that plea. 3. In matters such as this, as the Court of Criminal Appeal noted in R v Thompson (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [3], an early plea in acceptance of responsibility has considerable benefit. It meant that there was no trial. It meant that there was no challenge to the complainant's account. It also involves an acceptance of what she said as being true and correct. Further, a guilty plea can, as the Court made clear in Thompson, also be taken into account when considering the disposition of the matter: at [160 (iv)]. Subjective case 1. I have the benefit of a comprehensive report from Ms North, a forensic psychologist, and a reference from his former partner. There is evidence relating to his TAFE and other training courses. The offender did not give evidence but the material before me is not controversial. His criminal record can be put aside, it is minor, and it does not disentitle him to leniency. 2. The offender's former partner, who was with him for many years, said that during their eight-year relationship he had never shown any signs of domestic or sexual violence towards her. And she said, "he never did anything that made me feel uncomfortable or unsafe". He expressed to her his regret and remorse for this crime. 3. She is presently the only person who can provide any support to him. She notes that he has become a recluse and he has lost his job because of the charges and the reporting of it. She says: "It is clear to me he is full of regret, and I believe punishing himself by not enjoying life because of the charge but is showing signs of being affected from depression and anxiety." 1. Ms North confirms that McAlister suffers from depression and anxiety. Any rational person would be depressed and anxious of the thought of going to gaol, but she notes that he has struggled with symptoms of depression and anxiety since 2019. These symptoms escalated after he was charged primarily as a consequence of him thinking about the consequences of his behaviour and the potential punishment that might be inflicted on him. 2. Ms North expressed concern given she noted his sense of hopelessness and suicidal ideation. 3. Ms North's report sets out McAlister's personal history. As a child he suffered neglect and lack of care. He did not receive the physical and emotional care that most in our community expect. 4. He was neglected. DOCS intervened in the family. He spent time with foster families. He went to a youth refuge at age 16 because he was sick of physical abuse from a parent. He has issues relating to abandonment by his mother. Despite behavioural issues as a child, he has been able to work and obtain work certificates, including a Certificate III in Community Services as a Disabilities Support Worker. His job in this field was terminated once it became known this offence had occurred. 5. He has kept to all the conditions of his bail. He has a history of asthma. He has accommodation but he will lose that accommodation if he is gaoled for any period of more than six months. 6. Ms North believes a differential diagnosis of reactive attachment disorder can be made because of his dysfunctional family background and exposure to physical and emotional abuse and neglect. 7. She found no indication of any sexual deviance. The Static Test Risk Assessment puts him within the average risk for reoffending. But Ms North notes that in his history there are many protective factors in play which reduce that risk. But he will need assistance. He will not get that assistance in custody as he would not qualify for any custodial treatment programs. 8. He remains willing to accept referral to a sex offender program in the community. He will need help monitoring the mental health conditions which are set out in the report. He will require offence specific treatment, an engagement with a psychologist. Assistance he is unlikely to get in custody. 9. It would appear that this type of offence is unlikely to be repeated. Synthesis 1. Mr Howell took me to the Judicial Commission statistics. I am familiar with them. Gaol sentences are imposed in 95% of cases where someone pleads guilty to this offence. I could discern no pattern from the small number of cases where non‑custodial options are recorded. 2. While consistency in sentencing is important, judges must look not to statistics but to all the circumstances of the individual case. 3. There is no rule that a person must be sentenced to a term of imprisonment for a s61I Crimes Act offence. Although, as the Crown point out, generally, when they are not, "exceptional circumstances" are found. Recently, the Bureau of Crime Statistics published a report which highlighted the high attrition rate of sexual assault matters between complaint and conviction: B Gilbert, "Attrition of Sexual Assaults from the New South Wales Criminal Justice System" (2024) Bureau Brief, Bureau of Crime Statistics (BOCSAR), 170. 4. It noted that only a very small number of complaints proceed to court and only a minority of the accused eventually charged have the case proven against them, either by way of a guilty plea or a guilty verdict. And further, only a small percentage of those entered guilty pleas. The report noted that those found or pleaded guilty received severe sentences. The statistics reveal that there is a significant chance that punishment can be avoided by denial and letting the police and court processes take their course. 5. Severe penalties provide a disincentive to the making admissions, even with the reduction allowed for early guilty pleas. The option of leniency is available to sentencing courts. It should not be removed by a blanket insistence on custodial penalties for any sexual act involving penetration. If it is this may further reduce any incentive to offenders to admit their crimes, cooperate with the course of justice and to seek help. 6. I am prepared to accept that the offender is remorseful and empathetic to the harm he caused the complainant. That may be of small, if any, comfort to her as it is her dignity that he violated. 7. He has the capacity to prove he is a better man than the man who committed this offence. 8. One important aspect of sentencing involves protection of the community but at best, gaoling someone only removes them from a period. It rarely makes them a better person. He has no experience of gaols or the criminal justice system. Here because of his age, his physical ill health, his youthful appearance, and his obesity, he will be vulnerable in gaol. 9. Experience has shown that the protection of the community is often better contributed to by the offender's successful rehabilitation and this aspect of sentencing should never be lost sight of. It assumes particular importance in the case of first offenders, and I classify him as one, and those who have not developed a set of criminal habits: Yardley and Betts (1979) 22 SASR 108 applied in Blackman and Walters [2001] NSWCCA 121. 10. In making that comment I recognise that rehabilitation is not the only purpose of sentencing. Those other purposes are reflected in the authorities to which I have been referred, and my own sentences for these matters, I accept custodial sentence are almost invariably imposed. There is an expectation that sex offenders will suffer severe punishment as the penalty should, if at all possible, reflect the court's view of the seriousness of the crime and let other wrongdoers know the retribution which will fall upon them if they commit similar offences. Mitigating factors can be given full weight, but they cannot be allowed to lead to the imposition of a sentence which is disproportionate to the gravity of the offence committed. 11. This rings me back to the dilemma posed by the competing submissions of the parties here. 12. A serious offence was committed on someone who trusted this offender. The offence was of relatively brief duration, but he exploited the fact that he was in her house with her permission, that she trusted him and that she felt comfortable going to sleep while he was remaining in the house. 13. I have to acknowledge the potential harm that the offence could have caused her, not just physically, but psychologically. 14. On the other hand, we have a young man who has never offended in this way before and is unlikely to offend again. A young man who is in need of psychological assistance, who would be vulnerable in gaol. 15. It needs to be stated and restated, gaols are nasty, vile places where the prospects of rehabilitation are often impaired rather than enhanced, particularly if, as would be required here, only a short non‑parole period was imposed. 16. In custody McAlister would not get any psychological assistance, he would not get any treatment, he would lose his stable accommodation. 17. He has, to date, overcome a background of neglect, a background which often brings people before the court when young for very serious offences. A custodial sentence would set back that process. It would, in my view, be backward step, particularly when one notes the particular circumstances of this offence. 18. I accept a victim is entitled to say, "well the gaol door should shut on him because of what he did to me". I accept that she may have that sentiment but if a short custodial sentence would achieve very little, and would expose someone to harm, and if it can be avoided; it should be. The community interest is in fostering the offender's progress to rehabilitation, already shown by this offender, must be recognised. This serious crime appears to have been a one-off offence which is unlikely to be repeated. He has already suffered significant harm by; the way he has responded to the offence, his loss of employment, and the psychological damage arising from a recognition of what he did to his former friend. 19. The s 5 threshold is not crossed. A full-time custodial sentence is not required. I propose to impose a Community Correction Order for some length. 20. The conditions of that order should, if at all possible, involve a Community Service Order. As a consequence, I will adjourn the matter until 11 o'clock Friday for the preparation of a Duty Report. 21. Resumed proceedings: Unfortunately, the report I requested could not be provided. Six weeks was required. On the last occasion I indicated that despite the seriousness of the offence and the available maximum penalty and minimum standard non-parole period, a non-custodial sentence would be imposed. I do not propose to adjourn the matter any further. Orders 1. The offender is convicted. 2. I impose on him a Community Corrections Order for 3 years from today's date. The following standard conditions apply: 1. He must not commit any offence; 2. He must appear before a court if called to do so at any time during the term of the Community Corrections Order. 1. Additional conditions: 1. You must participate in any sex offender rehabilitation program as directed by Community Corrections; 2. You must receive sex offender treatment or other mental health treatment as directed by Community Corrections; 3. You must engage in any other treatment or rehabilitation program as directed by Community Corrections; 4. You must not visit any place where the complainant works or resides; 5. You must submit to supervision by Community Corrections officers for as long as they deem necessary; 6. There is a further condition, you must participate in any sex offender psychological assessment as directed by Community Corrections. ********** 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: 19 August 2024