R v Little [2007] NSWDC 224

Reported Decision : 6 DCLR (NSW) 308

New South Wales District Court

CITATION: R v Little [2007] NSWDC 224

HEARING DATE(S): 16/04/07 19/04/07

JUDGMENT DATE: 19 April 2007

JURISDICTION: Criminal

JUDGMENT OF: Conlon SC DCJ

DECISION: Convicted. Sentenced to a non-parole period of 15 months with an additional term of 9 months. Find special circumstances.

CATCHWORDS: Indecent Assault - ADHD

LEGISLATION CITED: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)

CASES CITED: Regina v SY and Regina v KS (2003) NSWCCA 291

PARTIES: Crown Adam Little (Accused)

FILE NUMBER(S): 06/41/0154

SOLICITORS: Mr M Stollery (Crown) Ms N Keays (Accused)

JUDGMENT

1 HIS HONOUR: The offender appears for sentence following his plea to a charge that on 22 February 2006 at Goulburn, the state of New South Wales he did assault Melissa Lee Cartwright and at the time of such assault did commit an act of indecency on Melissa Lee Cartwright. The offence carries a maximum penalty of five years imprisonment.

2 The agreed statement of facts is exhibit A and it reads as follows: "On 22 February 2006 the complainant Melissa Lee Cartwright (date of birth 14/8/75) was living at unit 25 Bungonia Flats, located at 75 Goldsmith Street, Goulburn. These premises are owned and operated by the New South Wales Housing Commission. Ms Cartwright had been living at the flats since November 2005. The accused was also a resident of the flats and resided in unit 23 on the floor below Ms Cartwright. At about 10.30am on 22 February 2006, the complainant was visited at her unit by a friend Edwina Niewiadomski-Furlong and her de facto Graham Taylor. These persons were also residents of the flats and lived upstairs. Arrangements were then made between Edwina, Graham and the complainant to attend the Empire Hotel on the main street of Goulburn. The complainant left a telephone message with her mental health counsellor cancelling her counselling session that morning. The three then attended the hotel to play the poker machines. The three remained at the hotel for two to three hours. During this time the complainant drank two schooners of VB beer which made her feel ill. Edwina had success on the poker machines and with the winnings purchased a six pack of bourbon and Coke premixed cans at the bottle shop before they all returned to the Bungonia Flats. Edwina and Graham returned to their unit and Ms Cartwright accompanied them. At the unit, Graham packed a cone of marijuana and the three of them smoked the marijuana from the glass bong which they shared. Ms Cartwright was also sipping on one of the cans of bourbon and Coke. Whilst they were sitting and talking there was a knock at the door and in walked the accused Mr Adam Little who Ms Cartwright had seen around the flats, however they had never met. Edwina who was a friend of the accused introduced them. Edwina noticed the accused had three large slash wounds to his left arm. He was drinking a stubby of Tooheys beer. He asked Edwina if he could borrow her bong to which she agreed. He then left he unit and returned a short time later with two stubbies of beer, gave one to the complainant. She took a sip, however it was warm and she poured it down the sink. The accused then left the unit with the bong. After about a half an hour Edwina requested the complainant go down to the accused flat to retrieve the bong. Ms Cartwright subsequently went downstairs and knocked on the door of unit 23. The accused answered the door and invited her inside. In the flat were two friends of the accused, a Daryl White also known as "Smasher" and Rory. They were drinking beer and offered the complainant one which she accepted. She remained there drinking and talking for a good while. Eventually Edwina came to the unit and retrieved the bong and then left. Ms Cartwright and the accused subsequently left his unit together and went to Edwina's unit. More marijuana was consumed from the bong. Ms Cartwright and the accused then walked together to the Empire Hotel to purchase another six pack of bourbon and Coke. They returned to the Bungonia Flats where the accused obtained some beer from his unit and went to Ms Cartwright's unit. She put some music on and they sat on the lounge drinking and talking. At this point the accused asked "Do you want to go into the room?" indicating the bedroom. She replied "No, I just want to sit here and listen to music". He then asked her "Do you want me to stay or go?" and she replied "That is up to you". The accused then left the unit and invited Ms Cartwright to come down to his flat and wait for his friend "Smasher". She agreed and they both went to the accused's flat. A short time later "Smasher" arrived. He remained at the unit for about ten minutes before leaving once again. As he left the accused shut the door to the unit. Ms Cartwright asked him to open the door, however he refused. She then got up to open the door and the accused refused again. She asked "Why can't I open it?" The accused replied "Because you're going to get it now". He then approached Ms Cartwright and placed a hand on the top of her shoulder near her neck, tripped her to the ground. She struggled and managed to get up, however she was pushed to the ground again. The accused removed all his clothing and was naked. As she lay on her back on the floor the accused held her down with one arm and removed her shorts and underpants. She was repeatedly saying "no". He lay in a position above the complainant with his penis in a semi-erect state in close proximity to her genitals. Ms Cartwright noticed the wounds on the accused's arms were bleeding. The smell of the dripping blood caused her to feel nauseous and she told the accused she was going to be sick. He got off her and she ran to the bathroom and vomited in the toilet. A short time later "Smasher" knocked at the door. The accused answered it and Ms Cartwright briefly spoke with "Smasher" before returning to her unit. There she took a quantity of prescription Epelon tablets, which is a mood stabilising medication. She then grabbed some cans of bourbon and Coke and went and sat behind the laundry block at the Bungonia Flats. There she saw two neighbours Yvonne Morphett and Robert Costa who noticed she was distressed. She made a complaint of the incident to Yvonne. At about 5.00pm the accused attended a unit of Martin Newby, another resident of the Bungonia Flats. The accused made an admission to the offence and stated that he wanted to apologise to her. Mr Newby then verbally abused the accused. Mr Newby then went to the laundry area and spoke to Ms Cartwright. He noticed she was crying and shaking. He took her to his unit and spoke with her for some hours before she returned alone to her unit. In her unit she passed out from a combination of Epelon medication and alcohol. The following morning Mr Newby attended the Goulburn police station where he advised Constable Beard of the admission made to him the previous day by the accused. Police then attended the Bungonia Flats and woke Ms Cartwright. They noted she was crying. Police then arranged to take her to Goulburn based hospital where a sexual assault investigation examination was conducted by Dr John Egan. She remained at the hospital for treatment regarding the Epelon ingestion. Police seized the clothing the complainant was wearing the previous day. The clothing was later analysed and blood was detected on her shorts and shirt. On 1 March 2006 the complainant made a formal statement at Goulburn police. About 3.00pm on this date police attended caravan 3 at Willows Caravan Park on Old Sydney Road, Goulburn where they arrested the accused. He declined to be interviewed. The accused consented to the taking of a DNA sample. The sample was compared to the blood detected on the complainant's clothing and it was found to have the same DNA profile as the accused."