R v Vichnevskii [2024] NSWDC 599

District Court New South Wales

Medium Neutral Citation: R v Vichnevskii [2024] NSWDC 599 Hearing dates: 17 December 2024 Decision date: 17 December 2024 Jurisdiction: Criminal Before: Noman SC DCJ Decision: Sentence of 3 years and 8 months imprisonment, with a non-parole period of 2 years to date from 12 April 2023. The term will expire on 11 December 2026 with eligibility to be released on parole arising on 11 April 2025. Catchwords: SENTENCING – Penalties – Imprisonment – sexual intercourse without consent – vulnerable victim – lower to mid-range of objective seriousness – letter of apology – timing of the plea – question of genuine cognitive impairment Legislation Cited: s.61I Crimes Act 1900 (NSW) Category: Sentence Parties: Rex; Alexander Vichnevskii Representation: Counsel: Crown: S Gul Defence: F Sinclair File Number(s): 2022/171660 Publication restriction: Statutory non-publication order in relation to the victim and anything that may identify them

JUDGMENT 1. On 11 December 2020 the offender, Alexander Vichnevskii was admitted as an inpatient in a mental health unit. He was aged 65. The agreed facts disclose a history of mental health issues. On the following day, 12 December 2020, the offender sexually assaulted another patient. By his plea of guilty entered in this jurisdiction he has accepted his guilt over that conduct. 2. The victim was admitted on 5 December 2020. She was aged 17. She also had a number of mental health issues as disclosed in the agreed facts. 3. The offender and the victim each had a private room on the same floor. They met the day prior to the offending. The offender had made a number of sexualised comments. At about 9.30pm on the day of the offence the victim was standing in her doorway talking to another patient. The offender approached and made sexualised comments about a pillow the victim was holding. The victim did not respond in any sexualised manner. 4. The offender placed his hand on the victim's genital area outside of her clothing. The victim retreated into her room. The offender placed his hand on her mouth, closed the victim's door and forcefully pushed her on the bed. He restrained her hands and used his tongue to kiss her. He removed her underwear and digitally penetrated her genitalia for about 2 minutes. The victim told him to stop and grabbed his hand. The offender covered her mouth. The offender was masturbating. He again digitally penetrated her. Both occasions support the one offence. The offender soon after stood up and ejaculated onto a towel. The offender left the room closing the door behind him. 5. The victim remained in her room. She complained about an hour later to a nurse and then to police in the morning. 6. When interviewed, the offender denied the offence although he admitted to masturbating and ejaculating onto a towel in his own room. 7. The offender declined to provide a DNA sample and a court order was obtained. The offender was further linked to the offending by DNA. The offender was not charged until 14 June 2022. 8. The offender was committed for trial. He entered a plea 8 months later. The timing of the plea, within days of the date listed for trial, attracts a reduction of 5% to the sentence. He is to be sentenced for an offence of sexual intercourse without consent contrary to s.61I Crimes Act for which the maximum penalty is 14 years imprisonment and there is a standard non-parole period of 7 years. Both the maximum penalty and the standard non‑parole period operate as legislative guideposts and represent Parliament's assessment of the seriousness of the offence. 9. I am required to assess the seriousness of the offence. This includes a consideration of the type of sexual intercourse supporting the charge with an appreciation there is no definitive hierarchy. The act of digital penetration was relatively brief. There was some force used to facilitate the act. The offender was a stranger to the victim. The offender had more than once instigated sexualised comments directed to the victim that were not reciprocated. The victim was markedly younger than the offender. The victim was assaulted in her own room albeit not a domestic residence. The victim was in a vulnerable position given her mental health struggles that resulted in her inpatient status. The offender was also an inpatient. Despite this, I am satisfied beyond reasonable doubt that given the circumstances in which the offence occurred that he actually knew of the lack of consent. The particular offence presents as unplanned although there was evidently some earlier sexual interest in the victim. 10. It was submitted on behalf of the offender that the offending reflects poor judgement rather than predatory intent. I do not make this finding. 11. The Crown submitted the offence fell at the lower end of the mid-range of objective seriousness. It was submitted on behalf of the offender that the offending fell at the lower end of the low range of objective seriousness. I accept the Crown's characterisation. 12. The offender is now aged 69. 13. At the time of offending the offender had no criminal history. In 2023 he was dealt with without conviction for failing to appear in accordance with his bail. His record entitles him to leniency. There is only one institutional misconduct offence. 14. The offender wrote directly to the Court. He indicated he felt ashamed for his conduct and regretted his offending. He also wrote of the impact to him as a consequence of being placed on remand. 15. I am assisted by a patient health summary from the offender's previous treating GP. In 2018 moderate cognitive decline was recorded and in 2020 an alcohol use disorder was noted. There are various physical issues and medications listed. 16. Dr Gary Nicholls, Clinical Director, Primary Care, Justice Health, prepared a report to assist the Court. He documented a number of health issues including a medical history and a list of medications. 17. Dr Gordon Elliott, Consultant Psychiatrist, Justice Health provided a report. Dr Elliott had access to the offender's electronic medical record, which included earlier psychiatric assessments in 2022 and 2023, to assist in preparing the report. This included documenting inappropriate sexualised behaviours directed at female staff. In 2023 a cognitive assessment recorded mild cognitive impairment and increasing alcohol use with a later assessment indicating 'moderately advanced' cognitive impairment. He was noted to be poorly compliant with efforts to assist him in the community. Within the community he benefitted from NDIS assistance. 18. When asked about the agreed facts the offender claimed he had been forced to agree to the facts and that he had been assaulted by police. He made assertions about his legal representation. None of this accords with the circumstances of his plea or reaching agreement over the facts. 19. Dr Elliott recorded a personal history that the offender provided. This included being born in Ukraine when it was part of the Soviet Union. He emigrated as an adult in 1992. He worked briefly before acquiring a disability pension. His daughter returned to Ukraine as a baby and is now in her 30's. 20. Dr Elliott opined the offender to be an inconsistent and selective historian and to be at times deliberately misleading. There was a question over the level of cognitive impairment given inconsistencies. Further, despite a diagnosis of major depression in earlier admissions there was no correlation with pervasive depression. There was a suggestion of personality traits. 21. In addressing diagnosis, Dr Elliott allowed for the possibility of genuine cognitive impairment and significant frontal lobe impairment causative of issues with judgement and disinhibition. However, he stated he held concerns about the offender feigning and embellishing cognitive symptoms and malingering. 22. Despite the words within the letter to the Court I do not accept there to be genuine remorse. I accept the plea entails an acceptance of responsibility. 23. Given the circumstances of the offending, and the equivocal medical evidence, I do not determine that any mental illness informs the offending to warrant a lessening of his moral culpability. 24. I have had regard to the purposes of sentencing. 25. One of the purposes is to recognise the harm done to the victim of the crime and the community. This type of offending causes alarm within the community and it also has a tangible impact on the victim. As recorded in the agreed facts there was immediate distress. The victim has provided a Victim Impact Statement detailing the perceived harm. This includes harm occasioned to her emotionally, physically, financially and socially. The victim also read a shorter version to the Court. There has been a significant impact to her that continues despite the passage of 4 years and receiving professional assistance to address the trauma. The inevitable harm to her should be and is acknowledged. 26. General deterrence and denunciation are important considerations in sexual offending. Sexual offences against others will not be tolerated within the community, including within mental health facilities. I do not consider the significance is moderated by any mental health issue. 27. Given the recorded reports of sexualised conduct to female staff, consistent with the sexualised conduct to the victim prior to the offending, personal deterrence plays a continuing role. 28. I cannot make a reliable assessment of the offender's prospects of reoffending and of rehabilitating. I accept this is his first offence although it occurred within a framework of sexualised comments reflecting what may reflect sexual disinhibition. He may or may not have cognitive decline that may enhance disinhibition. The offender has written to the Court that he will not reoffend. His prospects are unknown. 29. I have considered the various mental and physical health issues raised in the tendered material. I accept the offender's preference to be in the community and to benefit from NDIS support. I do not consider that a sentence of imprisonment is more onerous based on mental illness or age such as to warrant amelioration. 30. I note the submissions on behalf of the offender, referring to the period on remand, that he should be released with or without conditions. I do not consider the period on remand does meet what is required. 31. A sentence of full-time imprisonment is required. 32. I make a finding of special circumstances. This is the first custodial sentence. I appreciate the observations that he has not been compliant with those providing community support. The offender requires a higher level of support and supervision. 33. The offender is convicted. The offender has been on remand since 16 April 2023 and there are an additional 4 days of pre-sentence custody. Sentence will be backdated to 12 April 2023 to reflect pre-sentence custody. 34. The sentence imposed is one of 3 years and 8 months imprisonment, with a non-parole period of 2 years to date from 12 April 2023. The term will expire on 11 December 2026 with eligibility to be released on parole arising on 11 April 2025. This is a variation to the statutory ratio to one of 54%. No lesser non-parole period would address the seriousness of the offending.