R v STEVENS [2011] NSWDC 174

District Court New South Wales

Medium Neutral Citation: R v STEVENS [2011] NSWDC 174 Hearing dates: 14 October 2011. Decision date: 14 October 2011 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Convicted - Sentenced to an overall term of imprisonment consisting of a non parole period of six years with a period of eligibility for parole of three years. Catchwords: CRIMINAL LAW - Sentence after trial - Sexual assault - Predatory behaviour - Victim had her drink spiked. Category: Sentence Parties: The Crown John Andrea Stevens Representation: Ms N Williams - The Crown Ms A Moen - Offender Director of Public Prosecutions Brenda Duchen - Offender File Number(s): 2010/64211 Publication restriction: There is to be no publication of the name of the complainant or of any material which may tend to identify the complainant.

Judgment 1HIS HONOUR: John Andrea Stevens appears for sentence today after having been found by a jury to be guilty of a number of serious offences involving a sexual assault of a young woman who was visiting Australia as a tourist. I remind those present that there are orders prohibiting the publication of any evidence which identifies or tend to identify the name of the complainant. 2Late on 16 January 2009 LN went out with a friend. LN was backpacking around Australia and was staying with another friend of hers, Dorthe Elkjaer in a backpackers hostel in George Street. 3When LN went out that evening she was hoping to have a good time. LN had already consumed some red wine in her room at the hostel and was affected by alcohol by the time the two of them got to the Side Bar, which is also on George Street. LN remembers going into the Side Bar and thinking about buying a cocktail but thereafter has a significant gap in her memory. What she next recalls is waking up naked in bed with a complete stranger. This was the offender John Stevens. She had no idea where she was, she had no idea how she got there and she had no idea who she was with. She was dizzy, sick and could not move. In her evidence at trial she described it as if she had just woken up from surgery. 4What followed was a series of sexual acts which took place, as the jury verdict clearly shows, without LN's consent. The first count on the indictment I will pass over for the moment. Although it was the first sexual act which occurred, LN was not aware of it. As far as she knew the sexual acts began by the offender touching LN's breasts, he then inserted a finger into her genitals before performing cunnilingus on her. LN's evidence was that at the time these things were happening she was not able to talk or do anything. She said that she was so tired she simply could not move. The next thing she remembered was Mr Stevens putting his fingers into her anus and then sticking those same fingers into her mouth. 5It was at this point that LN managed to regain some strength. With some difficulty she got up out of bed, found her clothes on the end of the bed and dressed herself. She then went into the bathroom attached to the room where she had found herself. Whilst there she described herself as feeling sick, dizzy, confused and very, very exhausted. Whilst on the toilet she noticed some white liquid coming out of her genitals. She understood that this probably meant that someone had had penile vaginal intercourse with her while she was either asleep or if she was awake she could no longer remember it (this is the sexual act I passed over before). When she left the bathroom she tried to find the door out of the room, but in her confused state she simply could not find it. 6She said in evidence that she was exhausted from the simple effort of going to the bathroom. As there was no where else to sit down in the room, she went and sat back on the bed. Mr Stevens then started to take her clothes off and although LN tried to keep them on she was so tired, exhausted and falling asleep that she could not do anything to prevent him from removing her clothes so that she was naked once more. He then tried to put his penis in her vagina and when that did not succeed he tried to put his penis in her anus, again without success. LN believed that she tried to say no, but it only came out as a whisper because she was very dizzy, confused and exhausted. She tried to push Mr Stevens away but was unsuccessful. He then tried to get her to masturbate him, but LN was so exhausted that even if she had wanted to do what he wanted her to do she could not have. He then finally spread her legs and put his fingers into her genitals once more. 7By now LN had regained some strength. She sat up in bed and told Mr Stevens she wanted to go home. She managed to dress and she asked Mr Stevens where she was. She found her handbag on the floor and Mr Stevens gave her her mobile phone. It did not work and when later inspected by police it was discovered that the SIM card holder was broken. It had not been broken before when LN went out that evening. 8LN and Mr Stevens together left the room that they were in, went down to the street where Mr Stevens put LN into a taxi and paid $20 for the taxi to take LN back to her backpackers hostel. 9By now it was the morning of 17 January 2009. When LN got back to the hostel she immediately complained to Dorthe Elkjaer that she had been raped. She rang her mother overseas and was persuaded to go to a hospital. She did so where, importantly as it turned out, swabs were taken from her vagina. She also agreed that the police should be notified. The police took a statement from her and then attempted to identify who it was that had done these things to LN, but they were not successful. LN cut short her holiday and returned to her family a few days later. 10Attempts were made to identify the premises where these offences had occurred and to identify the offender, but those attempts were unsuccessful. Eventually however, a DNA analysis was carried out on the swabs taken from LN's vagina. It was discovered that that DNA matched that of the offender. The police had records of Mr Stevens' DNA because of a remarkably similar offence he had committed a few years before. In the course of sexually assaulting another complainant he had left some of his DNA behind and it was this that enabled police to identify Mr Stevens as the man who had sexually assaulted LN. The police in Australia contacted LN who was overseas. They told her of this match and asked her whether she wished to proceed. She indicated that she did so and flew to Australia to give evidence against Mr Stevens at trial. 11At that trial he faced ten separate allegations. Five offences of sexual intercourse without consent, two offences of attempted sexual intercourse without consent and three offences of indecent assault all relating to the sexual behaviour that I have identified earlier in these remarks on sentence. The most serious of those offences is of course the act of sexual intercourse without consent, particularised as the offender having penile vaginal sexual intercourse with the complainant, Count 1 on the indictment. He was found guilty by the jury on all ten counts. That verdict did not come as any surprise to me. 12One of the matters that I have to determine concerns whether LN's drink was spiked and if so who did it. In this regard I have considered the circumstances of the offender's sexual assault of a different woman in August 2004, the matter which led to police having records of Mr Stevens' DNA. On that occasion a young woman went out one night and became separated from her boyfriend. She was left in the city with no money and no mobile phone, or at least one that worked. She was approached by the offender while she was crying. He invited her back to a place of work to which he had access, telling her that he would let her use his phone and send her home in a taxi. Once they arrived at the office things took a turn for the worse. The young lady fell asleep. She did not intend to do so but that is what happened. She woke up after the offender had sexually assaulted her. She ran away, complained to some passers-by and the police were contacted. Although the offender did not ejaculate inside the young lady, he ejaculated nearby because some of his DNA was identified upon forensic analysis of the room where the acts occurred. 13There are some similarities between the experience of LN and the young lady I have just described. In each case after meeting up with the offender they woke up to find that the offender was sexually assaulting them. The relevance of this earlier matter is twofold. It firstly helps me determine the factual basis on which I will sentence the offender and secondly it says a lot about the offender's character and the need to personally deter him from further offending of this kind. 14Attempts were made to discover whether LN had been drugged. From the way she described feeling when she woke up it was clearly the case that it was quite likely that she had been drugged in some way. A sample of urine was taken from her but not until after many hours had elapsed. When that urine was tested morphine was identified. Evidence in the trial involving LN was that morphine could be found in a person's urine if the person had taken morphine or heroin or codeine. LN denied taking any of those drugs. I can rule out codeine as the source of the morphine because the evidence at trial was such that if the morphine had come from codeine, some of the parent drug, that is codeine, would have been found in her urine and that was not the case. Thus the source of the morphine in LN's urine was either morphine or heroin. 15I am satisfied and I am satisfied beyond reasonable doubt that LN was drugged at some stage after becoming separated from her friend in the Side Bar, perhaps by morphine or heroin being slipped into a drink she was consuming. I make that finding because of the urinalysis results, the evidence of the expert as to the circumstances in which morphine would be found in a person's urine, the denial, which I accept, of LN that she had voluntarily taken any such drug, the description she gave of the way she felt after she woke up in bed with Mr Stevens and the way in which she described the difference between the way she felt on that occasion and the way she had felt on earlier occasions when she had had too much alcohol to drink. 16I should mention also that it is entirely possible that another drug or drugs, perhaps GHB, was also used to spike LN's drink. The evidence was that that drug metabolises very quickly and so if it had been given to LN in the early hours of 17 January 2009 there would be no evidence of it in her urine sample taken hours later. It is not necessary for me to decide precisely what drug was used to spike LN's drink. I am satisfied that the drink was spiked with a drug and that, together with the alcohol she had consumed voluntarily, led her to be in a state she described in evidence at the trial. 17However I am unable to find beyond reasonable doubt that it was this offender who spiked her drink and indeed the Crown does not suggest that I could make that finding. In any case I note the accused faces no charge that he spiked LN's drink and so I will sentence him on the basis that although LN was very vulnerable due to the effects of alcohol and the drug upon her when he sexually assaulted her, the offender was not responsible for her being in that state. 18Another factual matter which I should determine concerns the state that LN was in when the offender had penile vaginal intercourse with her. As I have said that is Count 1 on the indictment. It will be remembered that LN was unable to describe that act. However the jury was satisfied beyond reasonable doubt that such an act did occur in part at least because sperms cells containing DNA which matched that of the offender were found on a swab taken from LN's vagina. 19It was the Crown case at trial that LN was actually asleep when that act occurred. However given the state of the evidence from those with expertise in the area that I heard at trial, I consider it is possible that LN was actually awake during that act but that the drugs and alcohol which she had consumed caused her to be unable to remember it. It is possible that what LN describes as waking up, was in fact the ability for her to lay down fresh memories returning. Although I make this finding, that is that I cannot say that LN was necessarily asleep when the act of penile vaginal intercourse occurred, I can say that the objective gravity of that matter is not really affected by the question as to whether LN was asleep or awake. Given her state, even if she was awake she was as defenceless as if she was asleep. 20Of course the objective gravity of count 1 is particularly serious. The accused had that form of sexual intercourse with LN which is generally regarded as the most serious form of sexual intercourse covered by the definition of that term. The courts have traditionally regarded the risks of both pregnancy and sexually transmitted disease which are associated with unprotected penile vaginal intercourse, as well as the very personal, intimate nature of such acts as demonstrating that offences of this kind are very serious indeed. Of course in this case I note that the presence of sperm cells on the vaginal swab indicates that the offender had unprotected sex with LN. 21The offender is now fifty-two years of age. As I have indicated he has a criminal history which includes the early sexual assault matter I have referred to. There are other less serious matters on his criminal history as well. He has committed offences in both New South Wales and South Australia where he was born. 22He had an upbringing which was, and I do not wish to understate this, significantly less than was desirable. He was born to a mother who he believes was a prostitute and a biological father who he says was a Judge in South Australia. He was not brought up by them however. Instead he had foster parents. He told the psychologist (and later gave evidence that what he told the psychologist was true) that his foster mother was violent and uncaring who would physically assault him in harsh ways as well as doing similar things to other foster or adopted children in her care. Those violent acts involved weapons as well - garden hoses or belts or things of that kind which resulted in welts and lacerations to his body. His foster father was no use, he was apparently unengaged with the children and did not act in any way to protect Mr Stevens and other children from his foster mother's violent acts. 23At the age of ten he was adopted by his foster mother, but it was also at about this time that his birth mother committed suicide. At the age of thirteen or fourteen he moved out of the family home but lived in a shed at the back of the family property and at fifteen left home joining a travelling carnival. He moved to Sydney in 1985. Not surprisingly, given the history that I have described, he does not maintain a relationship with any of his family members from South Australia. 24He went to school but only completed Year 7 before commencing work. He has had various forms of employment over the years, mostly building working as a plasterer or plasterer's apprentice. He told the psychologist that he prided himself on his strong work ethic and was proud of his ability to provide for his family. He has a number of children. He has been involved in two long term relationships, one of which resulted in Mr Stevens and his partner having seven sons. The relationship was not entirely smooth with Mr Stevens expressing some dissatisfaction as to the level of affection and intimacy between him and what is now his former partner. After their separation there was no contact with his children for some time, but in the twelve months before he went into custody bail refused on these matters in March 2010, he had resumed contact with his children which has been terminated by him as a result of the matters now before me. 25The offender has a limited history involving the use of drugs and does not appear to have been a terribly heavy user of alcohol. Of course the offender denied at trial and continues to deny his guilt on these charges. His description of the events that took place in his room was very different to that given by the complainant. What the offender described was not only consensual but enthusiastic sexual activity on the part of the complainant. The offender of course is not to be punished for having put forward a completely fanciful version of events. He is not to be punished for having pleaded not guilty, but it does remain the case that not only does the sentence I impose not have any component based on the utilitarian value that a plea of guilty would have had, but of course it is impossible to say that Mr Stevens is remorseful for what he has done. 26The offences, particularly those involving sexual intercourse without consent, are serious ones indeed. Parliament has indicated the seriousness with which Judges should treat those offences by nominating the maximum penalty for those offences of fourteen years and a standard non-parole period of seven years. I take into account both the maximum penalty and the standard non-parole period in determining the appropriate sentences for those offences of sexual intercourse without consent. It is clear that there has been an increasing concern with offending of this kind. Indeed when the offence of sexual intercourse without consent was first created in 1981 the maximum penalty was seven years. That has now been doubled and the standard non-parole period which applies to those offences is the same as the maximum penalty when the offence was first introduced. 27Ms Moen said that these offences were opportunistic. That appears to be the case. As I have said I am not going to sentence the offender on the basis that he spiked LN's drink or that he set out on the evening of 17 January 2009 with any plan to commit any offence. On the other hand it is clear that he took advantage of a woman clearly unable to defend herself or to offer any realistic opposition to his illegal conduct. 28The Crown Prosecutor appearing at trial described the behaviour as predatory. If we can remove the somewhat emotive aspect of that description, it is nevertheless accurate. We do not know precisely in what circumstances the offender and LN met, but they were clearly circumstances in which LN revealed herself to be in a poor way which the offender must have then decided to take advantage of. 29Ms Moen submits that no force was used to commit any of these offences. Indeed it appears that none was required. I will take into account in the offender's favour that he did not use force to overcome any resistance on the part of LN because she was incapable of offering any realistic resistance at all. I also recognise that these offences are or have been described as violent in themselves. Forced sexual intercourse with a woman who is not consenting is a violent action. 30The offender was also intoxicated, although that is of little mitigation in the present case. Even highly intoxicated people know that it is seriously wrong to do what the offender did to LN that morning. 31The offender gave evidence on sentence. He described events where he had been assaulted whilst in custody. Adopting the peculiar code of conduct that prisoners do, it appears that spiking someone's drink and then sexually assaulting them is something that is looked at with disfavour by some prisoners. I will repeat I cannot sentence the offender on the basis that he did spike LN's drink, but what is more important is the circumstance that a belief that he did has led to him being assaulted whilst in custody, and it is at least possible that the offender is at risk of further assaults whilst in custody, and that on top of that he is going to do his time in custody much harder than otherwise because of a constant fear of further assaults. I will take those matters into account very much in the offender's favour. 32The offender is now on protection, not one of those forms of protection where association with other prisoners is limited indeed, but nevertheless it is a form of protection. It is no longer the case that that circumstance automatically leads to a reduction in the sentence to be imposed upon an offender, but I do take into account in the offender's favour that there is at least the risk that he will serve the entirety of his sentence on protection and that there is at least the risk that if that occurs the circumstances of his incarceration will be harder than those that would apply to the general prison population. 33In this case, more than most, there needs to be a significant component of personal deterrence built into the sentence that I will impose upon the offender. The remarks on sentence of the Judge who sentenced Mr Stevens for his earlier offence of this kind were put before me. The Judge said that he was satisfied that the risk of further custody would act as a personal deterrent to the offender. It appears that the length of the term imposed on that occasion was insufficient to act as a personal deterrent, because only a few months after the offender's sentence expired he committed this serious series of offences. As well as personal deterrence, general deterrence and retribution are also very important aspects of the sentence that I must impose. 34It is difficult to make a finding that the offender has good prospects of rehabilitation. It is not automatically the case that a person who pleads not guilty does not have good prospects of rehabilitation, but in the present case, given the fact that the offender has sexually assaulted two separate people in the past and has admitted neither offence, there is nothing to suggest that given the same set of circumstances - that is, him coming across a defenceless woman in the future - he would not act precisely as he has acted on those two earlier occasions. 35Ms Moen made a submission that I would make a finding of special circumstances. Ordinarily this is not the sort of case where I would make such a finding. The commission of these offences so soon after earlier similar offending would be a circumstance pointing strongly against making any finding which would involve leniency towards the offender. But in this case I will make a finding of special circumstances. 36The offender has little, if any, family support. He will benefit from the supervision of the Probation and Parole Service upon his release from custody, in particular because of that lack of other family support or even friends to support him. Of course not only will that benefit the offender, but if it does reduce the prospect of further offences being committed, the finding of special circumstances will also benefit others in the community who might have otherwise become the victims of further offending by Mr Stevens. 37The sentences for those offences carrying standard non-parole periods do not involve me imposing the standard non-parole period. The reasons that I have done that are to be found in these remarks on sentence. 38The final thing I want to say before I impose sentence concerns the question of accumulation. Although Count 1 on the indictment is clearly the most serious count and although all the other sexual activity took place during the one connected series of events, it would be quite wrong for anyone, least of all the offender, to think that having committed a serious act of penile vaginal intercourse he would not be punished for further sexual assaults committed at about the same time. On the other hand of course the principle of totality applies. For those reason I will impose concurrent sentences on some counts and partially accumulate others to reach an overall sentence which I believe properly reflects the overall circumstances of this case. I impose sentence as follows. 39For Counts 2, 6, 7, 8 and 9 I impose fixed terms of imprisonment of eighteen months, to date from 12 March 2010. 40On Counts 3, 4, 5 and 10 I impose non-parole periods of three years, to date from 12 March 2011 and head sentences for those matters of four years. 41On Count 1 I impose a non-parole period of four years, to date from 12 March 2012 and a head sentence of seven years. The non-parole period will thus expire on 11 March 2016 on which day the offender is eligible to be released to parole. 42The overall sentence that I have imposed consists of an overall non-parole period of six years with a period of eligibility for parole of three years, making an overall head sentence of nine years imprisonment.