District Court New South Wales Medium Neutral Citation: R v Knight [2023] NSWDC 658 Hearing dates: 21/8/23-25/8/23, 1/12/23 Date of orders: 1/12/23 Decision date: 01 December 2023 Jurisdiction: Criminal Before: Bourke SC DCJ Decision: Convicted and sentenced to a term of imprisonment of 3 years with NPP of 16 months (23/8/23-22/12/24). Catchwords: Crime – Sentence – Sexual intercourse without consent Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Jonson v R (2016) 263 A Crim R 268 Kelly v R [2022] NSWCCA 189 R v Daley [2010] NSWCCA 223 R v Edwards (1996) 90 A Crim R 510 R v Gavel [2014] NSWCCA 56 Simpson v R [2014] NSWCCA 23 Category: Sentence Parties: NSW DPP – Crown Trever Knight - Offender Representation: Mr K Fitzgerald for Crown Mr P Nematalla for Accused File Number(s): 22/19188 Publication restriction: Statutory non-publication order in relation to the identity of the victim or anything which might lead to her identification remarks on sentence 1. The offender Mr Trever Knight is for sentence in relation to a single offence of sexual intercourse without consent, under s 61I of the Crimes Act 1900. The maximum penalty for that offence is 14 years imprisonment and Parliament has specified a standard non-parole period of seven years. I have taken into account the maximum penalty and the standard non-parole period as guides or yard sticks in the sentencing exercise. The offender pleaded not guilty and was tried by a jury. However, the jury found him guilty in August this year at the conclusion of that trial. FACTS 1. The facts for sentence are to be determined by me and must be consistent with the jury verdicts. Matters in aggravation must be proved beyond reasonable doubt while matters in mitigation need only be proved on the balance of probabilities. The Crown has helpfully provided a document entitled "facts proposed by the Crown" as made out on the evidence at trial. which is an annexure to the Crown's written submissions. I note that counsel for the offender accepts that this evidence accurately reflects the relevant parts of the evidence from the trial. Having said that, I acknowledge that of course, the offender maintains his innocence. 2. The facts that I find are as follows. I should note that there is a statutory provision which prohibits any person from publishing the name or any other details that might identify the victim. The victim of this matter is Ms GG, who at the time was aged 32, the offender at that time was aged 51. The offence occurred at the home of the offender where he lived with his former partner Ms MJ, for whom he acted as the full time carer . The victim had known MJ since she was little through her mother and called her "Aunty J". The victim had known the offender for eight or nine years and she was close to him prior to these events, and used to call him "Uncle Lurch". 3. On Friday 21 January 2022, the victim had been working in a restaurant in the afternoon. She finished work about 9pm. She had arranged to meet with her new partner, out the front of the home of the offender and MJ. The victim and her partner drove there in separate cars. When they arrived, the offender was out the front of the house sitting in a fold out chair in the garage. He had been drinking beer. The three persons engaged in some conversation and shortly afterwards MJ came out the front door and greeted them. The four persons then headed inside. 4. The victim consumed some beers and also some spirits during the night. Her partner was the designated driver. The four people engaged in general conversation during the night, listened to music, and MJ started singing karaoke. Later in the night, around, or just after midnight, the offender was in the garage and called out the victim's name. She was in the lounge room at the time. The victim went out to the garage. She was wearing a loose, flowing dress. The offender then gave the victim a hug and the victim described the events which then followed in the following terms, which I accept beyond reasonable doubt, "He started hugging me and then he started breathing really heavily and I sort of tried to move out of the way. The garage was really cluttered, I couldn't really go. It just-- it happened so fast. I recall him holding me with one hand and putting his other hand up my dress, forcefully trying to get through to my undies. And then he tried to get his fingers in and when he did he started moving them around. It lasted for maybe like, a minute or two and I was sort of able to get loose from his grip and run back into the house and I just wanted to leave." 1. The victim clarified in evidence that when she said "get his fingers in", she meant into her vagina. She said it was two fingers that the offender had used, but he had tried to fit in a third one. The offender had also said to her something along the lines of, "I know you want this", to which the victim said, "no, please you don't want to do this. Please stop.". While this was happening, the offender was holding the victims' arm with his other hand. Photographs tendered at trial show bruises to the victim's arms, hands and wrist. 2. Eventually, the offender loosened his grip and the victim ran back inside the house and told her partner Mr Martin that she wanted to leave. She and Mr Martin then left and went outside to Mr Martin's car. While they were in the car, the victim received three text messages from the offender which said as follows. Firstly, "So, I can still smell and taste you. Are you home safe?". Secondly, "Let me know. Send me a dirty pic. Lol". And thirdly, "sorry we crossed a line in your and mine relationship. I respect and love you. I don't want to fuck that up. If we get a chance, I want to make love to you." 3. Upon the receipt of these text messages, the victim became upset and started screaming and crying. She went back to the house to confront the offender and said to him, "How could you do this to me?". She also said to MJ, "Lurch has sexually assaulted me.". Following this confrontation, the victim and her partner left and subsequently made a report at a police station. Those are the facts upon which I proceed to sentence in relation to the offence. OBJECTIVE SERIOUSNESS 1. Turning then to my consideration of the objective seriousness of the offence. The maximum penalty and the specification of the standard non-parole period are indicators that the offence before the Court must be regarded as a serious one. However, it is necessary of course that I make an examination of the seriousness of this particular example of that offence. 2. The sexual intercourse without consent offence in this case involved the penetration of the victim's vagina by the offender's fingers. While the type of penetration for this sort of offence, whether it be penile or digital or some other type, is relevant, there is no hierarchy of different forms of penetration. Rather this is just one factor to be taken into account in assessing the objective seriousness of a particular offence. 3. Other matters, including the duration of the offence, any humiliating features, any violence or injury or threats, as well as other matters, may also be relevant (see Simpson v R [2014] NSWCCA 23). In this case the penetration occurred after the offender called the victim to come to him where he was located outside the house. He then hugged her, and while holding her, placed his hand up her dress, placed more than one finger into the victim's vagina and then moved his fingers around. The victim was struggling to break free during this and was saying "No, please you don't want to do this" and "Please stop". The offender however did not stop but said something like "I know you want this". I have no doubt, and nor apparently did the jury, that the victim did not "want this". She was placed by the offender in a very confronting and frightening situation where her bodily and emotional integrity was flagrantly breached and which caused her to freeze, a reaction that is common in many victims of such assaults. It was a situation to which she had made not the slightest contribution other than by trusting that the offender wanted to hug her out of good intentions. 4. I am also satisfied beyond reasonable doubt that the offender held onto the victim's arms tightly during this incident and that some of the bruises to her arms shown in trial Exhibit 3 were caused by him at this time. Which ones I cannot say with clarity. I do not treat this bruising however as an aggravating matter because to do so may involve De Simoni error. Rather I treat the evidence of bruises as supporting my finding that the offender held onto the victim tightly to facilitate the offence and enabling it to go on for a longer period than it otherwise would have. In making these observations I have been careful not to treat the offence as an aggravated form by reason of either the infliction of injury or the deprivation of liberty. 5. Although the victim said she thought the penetration of her vagina occupied a minute or two, it seems to me that it would have been very difficult for her in her shocked and frightened state to estimate time accurately. I have no doubt that it must have felt for her to have been a long time. I am satisfied beyond reasonable doubt that the penetration of the victim's vagina lasted for at least a minute. Given the invasive and frightening nature of the offence however that was a considerable period of time. It was not brief, momentary or fleeting and in any event, as was said in Kelly v R [2022] NSWCCA 189 at para 33, the duration of offending is no measure of the seriousness of an offence. 6. As has been said in other cases, sexual offences, even of a relatively short duration, can have lifelong effects (see for example R v Gavel [2014] NSWCCA 56 at para 110). As the Court also said in R v Daley [2010] NSWCCA 223 at para 48 an offence of short duration does not necessarily or usually reduce the objective seriousness. 7. After committing the offence, the offender effectively "added insult to injury" by sending the victim the three text messages to which I have earlier made reference. These had the understandable effect of adding to the victim's distress. The offender's claim that these were just joking banter was, in my opinion, lame and unbelievable. A conclusion to which the jury appears also to have come. 8. It was argued by the Crown that the offence is aggravated because it was committed in a home, albeit the offender's home. This concept of an offence being committed in a location that is a home stems from the principle that any person's home, even if it is not the victim's home, should be a place of safety. However the fact that an offence is committed in a home is not a matter that automatically operates to aggravate an offence (see Jonson v R (2016) 263 A Crim R 268). Rather, the Court must make an assessment of whether this aspect is truly an aggravating matter in the particular case. 9. In my view the circumstances of this case, where the victim was visiting her "Aunty J" and "Uncle Lurch", and where the offender called her outside before committing the offence on her, is not a situation where presence in a home operates to make the offence worse. Rather it seems to me that the more relevant aspect was the nature of the relationship between the offender and the victim. It was this relationship that brought her to the house and it was this relationship which caused her to approach the offender when he called her outside. It was also this relationship which led to the victim initially consenting to being hugged by the offender. In my opinion, therefore, the offence involved a violation of that relationship. The victim regarded the offender as an Uncle or father figure who she looked up to for support. The offender violated that relationship by committing this offence for his own sexual gratification and in circumstances where I am satisfied beyond reasonable doubt that he had actual knowledge that there was no consent. 10. I accept however, that the offence was impulsive and not planned. It was an offence, which in my view, arose from the offender's lowered inhibitions due to the effects of alcohol. While this might help explain the offending, it in no way excuses the offence or mitigates its seriousness. 11. Having regard to the matters I have noted, I regard this offence as being a relatively serious example of the offence of sexual intercourse without consent, although below the notional mid-range and towards, although not in, the low range. VICTIM IMPACT STATEMENT 1. A Victim Impact Statement was read to the Court this morning on behalf of the victim. While the Crown does not rely upon the contents of that report as aggravating the offence, the statement confirms the understanding and expectation held by modern courts about the effects of sexual assaults on victims. Those effects are usually experienced by victims for a long time afterwards and, in some cases, are lifelong. The Victim Impact Statement before the Court confirms that this case is no different. In making that statement I am not suggesting that necessarily the effects in this particular case will be lifelong, but I do accept that the impact upon the victim is significant, and as I said, consistent with that described by most victims of such offences. SUBJECTIVE MATTERS 1. Turning then to subjective matters relating to this offender himself. He is now 53 and was 51 years of age at the time of the offence. He has no prior criminal record. His subjective case has been placed before the Court by means of a volume of written material. The report of psychiatrist Dr Ellis notes the following in so far as matters that are relevant: The offender was born in Sydney. His parents separated when he was aged three and he was raised by his mother and an uncle. He has a number of half siblings from his parents other relationships. He said he was a difficult child and was diagnosed with Attention Deficit Hyperactivity Disorder and expelled from school at age 14. He worked for a time in an abattoir and enlisted in the army at age 18 where he worked as a medic and he saw active service overseas during Operation Desert Storm. While experiencing his overseas service he was wounded, suffering shrapnel injuries and some damage to the area near his right eye from a bullet or bullet fragment. He was compassionately discharged at age 24, when his son became ill. After that, he worked for the New South Wales Ambulance Service for three years and in the security industry for about five years and also ran a security business. During the last nine years or so he has been in receipt of a carer's pension because he has been the primary carer for his former partner, who suffers a range of medical and psychological problems. The offender himself has a significant number of physical problems and had a heart attack in 2016 which required the insertion of stents. He now has ischemic heart disease with mild weakness of heart pump function and atrial fibrillation. He suffers diabetes also and recurrent leg blistering, ulceration and associated infections. He is on a range of medications. His cardiologist says however that his medium term prognosis is good if he remains on his medications and manages his lifestyle appropriately. 1. In this regard, the offender has a history of significant alcohol abuse which no doubt has contributed to several of his medical issues. He was at the time of the finding of guilt significantly overweight. However he has, since being in custody, lost more than 20 kilograms and says that prison has been good for him in that he has stopped drinking and smoking and now gets some regular exercise. 2. Dr Ellis has diagnosed the offender with Post-Traumatic Stress Disorder arising from his military service and also Substance Abuse Disorder, namely tobacco and alcohol. Dr Ellis says, however, that this latter condition is in remission while the offender is in custody. Dr Ellis also says that while services are available in custody to cater for psychiatric problems like that experienced by the offender, these are limited in availability. 3. He notes further that the offender is likely to spend his time in custody in protection areas and that access to rehabilitation, and I conclude other services, will likely be reduced. I accept that the offender's Post-Traumatic Stress Disorder, as well as his various physical problems, will make his time in custody more onerous. HARDSHIP TO OTHERS 1. There is a considerable body of material showing that the offender's incarceration has had serious adverse consequences for the offender's former partner MJ. Although she is now commencing to receive assistance under the National Disability Insurance Scheme, this access to care and supervision is very small in comparison to the 24 hour assistance that was provided previously by the offender. 2. The principles in relation to hardship to family members and others are fairly well settled in relation to State offences and are essentially consistent with what was said by Gleeson CJ in R v Edwards (1996) 90 A Crim R 510. In that case his Honour said at p 515: There is nothing unusual about a situation in which the sentencing of an offender to a term of imprisonment would impose hardship upon some other person...it may be taken that sending a person to prison will more often than not cause hardship, sometimes serious hardship, and sometimes extreme hardship, to another person. It requires no imagination to understand why this is so. Sentencing judges and magistrates are routinely obliged, in the course of their duties, to sentence offenders who may be breadwinners of families, carers, paid or unpaid, of the disabled, parents of children, protectors of persons who are weak or vulnerable, employers upon whom workers depend for their livelihood, and many others, in a variety of circumstances bound to result in hardship to third parties if such an offender is sentenced to a term of full time imprisonment. 1. It was not argued in this case, that is Mr Knight's case, that exceptional circumstances are made out. I acknowledge that submission was, or lack of submission, was appropriate in this case. However it seems to me the impact on MJ is considerable and it is a matter that I have taken into account as part of the subjective matters relating to this case. It is a matter in particular that will form part of my reasons for a generous finding of special circumstances. REMORSE AND REHABILITATION 1. Turning then to aspects relating to remorse and prospects of rehabilitation as well as future risk. There is no remorse in this case because the offender maintains his innocence. He told the author of the Sentencing Assessment Report that the victim is a "prolific liar" and is motivated by seeking some sort of monetary compensation. 2. I utterly reject these suggestions. In my view the victim was a compelling witness and the Crown case was a fairly strong one, especially given the content of the explicit text messages, trial exhibit 2, which the offender sent to the victim after assaulting her. It was no surprise that the jury found the offender guilty. 3. However, I do consider that this was an out of character offence. The offender has made it to age 51 with no prior criminal history. He is described in glowing terms in the various testimonials tendered on his behalf. He has apparently dedicated himself over the past years to helping his former partner, who was, until the offender was incarcerated, largely dependent on him for her daily care needs. 4. In terms of future risk the offender was assessed on the LSI-R tool, noted in the Sentencing Assessment Report, as being a medium low risk. However the Crown concedes that his actual risk is more likely lower than that and is more in the below average range as noted in the case note report from Corrective Services psychologist Ms Ainsworth. 5. In my view the offender is a very low risk of reoffending, provided he controls his use of alcohol. I think his prospects of rehabilitation are reasonably good. DETERMINATION 1. In determining the sentence, I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 which I do not intend to recite. 2. I am satisfied that for the purposes of s 5 of that Act no penalty other than one of fulltime imprisonment is appropriate. 3. As I have said, I intend to make a generous finding of special circumstances based upon the following matters: 4. Firstly, that this is the offender's first time in custody. 5. Secondly, my finding of reasonably good prospects of rehabilitation and low risk of reoffending. 6. Thirdly, the offender's psychiatric condition, Post-Traumatic Stress Disorder, which I am satisfied will make his custody more onerous. In this regard I note the decision in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1. 7. Fourthly, his significant health issues and difficulty in obtaining prompt and optimum treatment whilst in custody. 8. Fifthly, the fact that the offender will likely serve all of the sentence in protective custody which, as noted by Dr Ellis, will restrict him or likely restrict him, at least in having access to some programs and other services. 9. Sixthly, the impact of the term of imprisonment upon MJ. 10. When I refer of course to "special circumstances" I am referring to the adjustment of the specified ordinary ratio between head sentence and non parole period. 11. You can stand up Mr Knight, I will just announce the sentence formally. 12. I impose a head sentence of three years imprisonment. I impose a non parole period of 16 months, that is one year, four months. 13. That sentence will date from 23 August 2023 so as to take into account the time already served, which includes since 25 August 2023 when the jury returned its verdict and the prior two days that was served in January 2022. 14. The head sentence therefore will expire on 22 August 2026. The non parole period will expire on 22 December 2024. ********** 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 November 2024