Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Cowling v R [2015] NSWCCA 213 Hearing dates: 17 July 2015 Decision date: 12 August 2015 Before: Leeming JA at [1]; Hamill J at [62]; Fagan J at [63] Decision: 1. Grant leave to appeal. 2. Appeal allowed, quash the sentence imposed on 9 October 2014, and in lieu thereof, sentence the offender to an aggregate sentence of 2 years and 4 months commencing 9 October 2014, with a non-parole period of 18 months expiring on 8 April 2016. 3. Direct, in accordance with s 50(1) of the Crimes (Sentencing Procedure) Act, that the offender be released at the end of the non-parole period. Catchwords: CRIMINAL LAW - appeal against sentence - offender pleaded guilty to counts of sexual intercourse without consent and indecent assault - grounds of appeal conceded by Crown - whether inferences available to be drawn from statement of agreed facts - relevance of breach of trust by offender - Crown's concessions accepted by Court - offender resentenced Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A, 44, 50, 53A Crimes Act 1900 (NSW), ss 61H, 61I, 61L Criminal Appeal Act 1912 (NSW), s 5 Cases Cited: Badans v R [2012] NSWCCA 97 Barbaro v The Queen [2014] HCA 2; 253 CLR 58 CS v R [2014] NSWCCA 229 Hili v The Queen [2010] HCA 45; 242 CLR 520 Ibbs v R (1987) 163 CLR 447 Karl Suleman v R [2009] NSWCCA 70 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 McCartney v R [2009] NSWCCA 244 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Olbrich v The Queen [1999] HCA 54; 199 CLR 270 Peiris v R [2014] NSWCCA 58 R v Daley [2010] NSWCCA 223 R v JRB [2006] NSWCCA 371 R v Kirkland [2005] NSWCCA 130 R v PGM [2008] NSWCCA 172; 187 A Crim R 152 R v Storey [1998] 1 VR 359 at 369 Sabapathy v R [2008] NSWCCA 82 SV v State of Western Australia [2014] WASCA 123 Category: Principal judgment Parties: Matthew Cowling (Applicant) Crown (Respondent) Representation: Counsel: H Cox (Applicant) N Adams (Respondent) Solicitors: S.E. O'Connor, Legal Aid NSW (Applicant) C Hyland, Solicitor for Public Prosecutions (Respondent) File Number(s): 2013/371841 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Date of Decision: 9 October 2014 Before: Wilson SC DCJ File Number(s): 2013/371841 Judgment 1. LEEMING JA: Matthew Cowling pleaded guilty to one count of indecent assault contrary to s 61L of the Crimes Act 1900 (NSW) and one count of sexual intercourse without consent contrary to s 61I of the Act. Following a short hearing before the primary judge on 3 October 2014, her Honour imposed, on 9 October 2014, an aggregate sentence of imprisonment of 3 years and 6 months, with a non-parole period of 2 years and 5 months commencing on that day, a sentence which incorporated a reduction of 25% for the offender's early guilty pleas. In accordance with s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), her Honour indicated that she would have imposed a sentence of 3 years imprisonment, with a non-parole period of 2 years, for the sexual intercourse without consent count, and a head sentence of 16 months for the indecent assault count. 2. Mr Cowling seeks leave to appeal against that sentence, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). He relies upon two grounds, namely that: "(a) [h]er Honour erred in finding that the offences were aggravated by the applicant abusing a position of trust in relation to the victim, and (b) her Honour erred in finding that the assault was rendered more serious by the applicant's 'persistence in the face of the movements (the victim) made in opposition to the assault'". It will be necessary later in these reasons to explain the facts underlying each of those grounds. For present purposes, it suffices to say that when the application for leave was heard, the Crown formally acknowledged that each of those two grounds had been made out. In those circumstances, it is appropriate that there be a grant of leave. 3. The hearing on 3 October 2014 was relatively brief. The matter proceeded by way of statement of agreed facts, with neither the offender nor the victim giving testimonial evidence. (In these reasons, I follow the course taken in the Court below, and in submissions in this Court, and refer to the complainant as the victim.) Her Honour also had before her documentary material including a pre-sentence report tendered by the Crown and a psychological report tendered by the offender. The circumstances of the offending 1. On the evening of 4 December 2013, the offender was aged 22 and the victim was aged 20. The victim had known him for approximately five years and had been in a relationship with the offender's best friend, Mr Laird. Although the couple had separated prior to the evening on which the offences occurred, they remained friends. 2. On 4 December 2013, Mr Laird returned from a holiday in Cairns and was collected from the airport in Sydney and driven to Newcastle by the offender. During that journey, Mr Laird made arrangements to collect the victim from her home address, with a view to their returning to Mr Laird's address in Charlestown, Newcastle to have some drinks. The offender and Mr Laird purchased a carton of beer and one bottle of pre-mixed bourbon and cola before collecting the victim from her home at around 11.30pm. After arriving at Mr Laird's home, the three started drinking. The victim had only one drink (the pre-mixed bottle of bourbon and cola) throughout the night. The statement of agreed facts continued: "9. Laird went to bed at approximately 3.30am the following morning. The victim and offender remained in the upstairs loungeroom and continued talking. The offender asked the victim a number of times whether she would sleep on the mattress in the spare bedroom. The victim was uncomfortable with the idea of staying in the spare bedroom, where the offender was also sleeping, and the victim told the offender she would remain on the lounge. 10. The victim eventually laid down on the lounge and told the offender she would catch an early bus home. The offender told the victim that he would give her a lift home later that morning. The offender said to the victim, 'You look tired, just go to sleep'. The victim replied, 'There's no point going to sleep now. I'll be more tired when I wake up'. The offender told the victim, 'It's better to get some sleep even if it's just an hour or two. Just go to sleep'. The victim fell asleep. 11. The victim awoke to find the accused touching her bottom and rubbing her anus. The victim pretended to be asleep but moved slightly, hoping this would cause the offender to stop. The victim moved onto her back. 12. The offender put his hand down the victim's pants and touched her vagina underneath her underpants. 13. The offender removed his hands from the victim's underpants and pulled her legs apart by holding her ankles and calves. The victim closed her legs, but the offender again pulled them apart. The victim continued to pretend to be asleep. 14. The offender pulled the victim['s] pants down to her mid-thigh, and then pulled her underpants to the side. 15. The offender licked the victim's vagina in an up and down motion. 16. The offender pulled the victim's pants down further and again pulled the victim's legs apart, and then continued to lick the victim's vagina. 17. The offender stopped and then lifted the victim's top and lifted her bra, exposing her breasts, the offender then put his mouth over the victim's breast and began to suck the victim's breast. After a short period, the offender stopped, and pulled the victim's shirt back down. 18. The offender also pulled the victim's pants back up. 19. The offender tapped the victim on the chin and said, 'Are you coming on the mattress'. The victim acted as though she didn't realise what had occurred and replied, 'No, I'm right'. The offender went to the spare bedroom. 20. The victim was shaking and scared. The victim sent some messages to her niece saying 'I need you. I'm a mess. Don't tell mum'. The victim also told Laird what had occurred before leaving the house, and contacting a friend, who then collected the victim from the McDonald's restaurant at Charlestown. The victim immediately reported the matter to Charlestown Police. 21. The offender attended Toronto Police Station on 10 December 2013 and was arrested. The offender participated in an electronically recorded interview, and told Police that he had no memory of the offences and a limited memory of the evening." Both grounds of appeal are made out 1. Both grounds of appeal are based on her Honour's assessment of objective seriousness of the s 61I offence, at [20]-[35] of her remarks on sentence. First, her Honour rejected a submission that the pre-existing relationship of friendship tended to lessen the seriousness of the offence. Her Honour said: "The fact that this assault occurred in the context of a social event amongst friends adds a layer of seriousness to the offender's crimes in my view. [The victim] was at the home of her good friend, in his company and that of the offender, another friend. There was a relationship of trust between the three, demonstrated by the fact that Mr Laird was prepared to go to bed and leave his friends awake in the lounge room, and by [the victim's] preparedness to go to sleep in the offender's presence. Sleep necessarily involves a degree of vulnerability. Plainly, Mr Laird felt that his friends were safe in his absence, and [the victim] felt that she was safe to go to sleep even whilst the offender remained awake. That the offender abused the trust of not just his friend Mr Laird, but more critically, the trust of [the victim], heightens the gravity of the crime and the offender's moral culpability for it." 1. Her Honour also relied on the continuation of the assault after the complainant's resistance, as indicative of its relative seriousness, as follows: "Here, the act of cunnilingus must be viewed in the context of an assault which had commenced when the victim was asleep, which involved exposing her genitals and breasts, and which had continued on for some period, despite the attempts [the victim] made to cause the offender to stop, by moving her body, closing her legs and so on." 1. Her Honour then summarised this part of her analysis, in a passage which was plainly material to her assessment of objective seriousness, by stating: "The breach of trust involved, and the offender's persistence in the face of the movements [the victim] made in opposition to the assault, renders the act more serious." 1. In my view, the Crown's concession of error in respect of both grounds was properly made. In relation to the first, the offender's written submissions proceeded on the basis that although her Honour did not in terms use the language of the aggravating factor in s 21A(2)(k) of the Crimes (Sentencing Procedure) Act of abusing "a position of trust or authority in relation to the victim", her Honour's remarks were to be read as if such a finding had been made. The Crown's concession was based on the same reading. 2. It is well-settled law that more must be established than a mere breach of trust in order for the statutory factor to be made out. In Karl Suleman v R [2009] NSWCCA 70 at [22], Howie J, with the agreement of McClellan CJ at CL and Hislop J, said of the factor that: "This aggravating factor is not made out simply because the victim trusted the offender for some reason or other[.] ... The relevant factor is that there was at the time of the offending a particular relationship between the offender and the victim that amounted to 'a position of trust'. It is a special relationship existing between them and transcends the usual duty of care arising between persons in the community in their everyday contact or their business and social dealings." See further Peiris v R [2014] NSWCCA 58 at [52]-[54]. 1. Her Honour did not refer to s 21A(2)(k) in terms. Nor did her Honour use the language of the paragraph. No submission framed in terms of the paragraph was advanced by the Crown at the sentencing hearing. If her Honour's language were to be read as amounting to a finding that that factor was made out, then plainly enough there would be error. However, on a fair reading of her Honour's remarks, I would not regard her Honour as having found that statutory aggravating factor to have been established. 2. On a fair reading of the sentencing remarks, I consider that her Honour was merely concluding that the fact that the offender and the complainant were friends and trusted each other meant that the offending conduct was objectively more serious. That reflected the Crown's submission at sentencing ("Your Honour, there's a significant breach of trust, breach of friendship here in these facts"). Nevertheless, that reasoning discloses error. The friendship between victim and offender supplied the occasion and the opportunity for the assaults. That is why the victim got into a car driven by the offender and travelled with him and her former partner to the latter's house at 11.30 at night. But those circumstances did not increase the seriousness of the offender's conduct. 3. In relation to the second ground, her Honour's findings were confined to the statement of agreed facts, and inferences flowing from that statement, which, if unfavourable to the offender, were required to be established beyond reasonable doubt: R v Kirkland [2005] NSWCCA 130 at [13]-[16] (Hunt AJA, Grove and Hall JJ agreeing); SV v State of Western Australia [2014] WASCA 123 at [112] (Mazza JA, McLure P and Pullin JA agreeing); see also Olbrich v The Queen [1999] HCA 54; 199 CLR 270 at [27] citing R v Storey [1998] 1 VR 359 at 369. The statement of agreed facts established that the complainant "moved slightly" after being touched by the offender while pretending to be asleep (paragraph 11) and closed her legs after the offender had removed his hand from inside her underpants and had pulled her legs apart, again while pretending to be asleep (paragraph 13), after which he pulled down her pants (paragraph 14). 4. Those facts are incapable of supporting a conclusion that the offender persisted "in the face of movements made by the complainant in opposition to the assault" rendering the act more serious. In order for that conclusion to affect the objective seriousness of the offending conduct, it was necessary to draw an inference as to the offender's state of mind, namely, that the offender believed the victim was resisting him, or at least was recklessly indifferent as to whether that was the case. Otherwise there was merely an absence of consent. But the facts are silent as to the offender's state of mind, and it cannot safely be inferred that the offender believed that he was persisting over her opposition, in circumstances where the victim continued to pretend to be asleep. This is not to be in any way critical of the victim adopting that course. She should never have been placed in a position where she had to choose between manifestly resisting the offender's assaults, or pretending to sleep and hoping he would desist. But it was with respect wrong for her Honour to find that the offending conduct was more serious on the basis of what was contained in the agreed facts. The Crown correctly accepted that all that could be taken from the statement of agreed facts was that there was an absence of consent. 5. For those reasons, I would accept the Crown's concessions that both grounds of appeal are made out. It falls to this Court to exercise the sentencing discretion afresh: Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [42], by identifying all the factors relevant to the sentence, discussing their significance and then making a value judgment as to the appropriate sentence: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [26]. Objective seriousness 1. The primary judge correctly regarded the objective gravity of the sexual assault as falling at the lower end of the range. It involved no violence or coercion or other threat or intimidation. The statement of agreed facts does not disclose how many seconds or minutes passed during which the assault took place, although its short duration (if that was what is was) would not ordinarily be regarded as a factor which reduced its objective seriousness: R v Daley [2010] NSWCCA 223 at [48]. 2. It is generally accepted that some forms of sexual assault may be regarded as less serious than others, although in every case what matters is the context in which the assault occurs: R v PGM [2008] NSWCCA 172; 187 A Crim R 152 at [26]; CS v R [2014] NSWCCA 229 at [44]; cf Ibbs v R (1987) 163 CLR 447 at 452. The offender's acts of cunnilingus were, in the context in which they occurred, towards the lower end of the large range of conduct defined in s 61H to amount to "sexual intercourse". 3. The indecent assault (sucking the complainant's breast) took place immediately after the sexual assault. Again, there was no violence or coercion or threat or intimidation. The offender withdrew to the spare bedroom after the complainant declined his invitation to join him there on the mattress. 4. Her Honour did not explicitly ascribe a level of objective seriousness to the indecent assault, but once again, I would regard it as falling at the lower end of the range. Relevant to questions of accumulation, the only conclusion available to be drawn from the statement of agreed facts is that both offences were part of the same course of conduct as the sexual assault. 5. In both cases, it is to be borne in mind that the complainant was left shaking and scared following the assaults on her, and took the steps referred to in paragraphs 20 and 21 of the statement of agreed facts set out above. The offender's subjective case 1. No issue was taken with the summary given by the primary judge of the offender's subjective circumstances, from which the following is drawn. (Much in turn comes from what is recorded in the report of the offender's psychologist, Dr Nicholas, which was tendered without objection at the sentencing hearing.) 2. The offender was born on 20 April 1991. His parents divorced when he was 3 years old. The offender's custody was shared by his parents until he was aged 11 years. For the next 4 years the offender lived with his father. He said he was "kicked out of home" when he was 15 and moved between various refuge centres. At the same time he was expelled from school. The offender attempted year 10 at TAFE, but was unsuccessful. 3. The offender said of that period, "My life was chaotic. I was self-harming and using pot and alcohol". His forearms and, so Dr Nicholas was told, his thighs, revealed "train track" scars with multiple parallel lines which were the result of using razor type implements. 4. The offender told Dr Nicholas that he had held a succession of casual and temporary jobs over the years, preferring to work rather than to receive social security. He lost his last position through taking prolonged leave, and applied to receive Newstart allowance. 5. The offender has one daughter, aged 6 years old when he was sentenced, who was in her mother's custody, but whom he had seen regularly. The breakdown of the offender's relationship with the child's mother when the offender was aged about 17 sent the offender spiralling into such heavy drug and alcohol use that he claims to have no memory of the three month period following his separation from his former partner. 6. A subsequent relationship collapsed in early 2014 (after the offending conduct), leading to a four day binge on illicit drugs and alcohol. At the time of sentencing, the offender and his partner had reconciled as the offender had reduced his alcohol intake. 7. The offender reported a similar blackout on the night of these offences to that he experienced at 17. He claimed to be "99% sure that I used pot" and "I was drinking pretty hard". He said that he had no recollection of what had occurred on the evening, but said: "If I've done what they said I've done then I do feel bad about it". Her Honour concluded, and I agree, that the offender's guilty pleas provided some evidence of remorse for his crimes. 8. The offender claimed that he understood the detrimental effects of his substance abuse, and that he had reduced his consumption of drugs and alcohol. There is some confirmation of that in comments made by the offender's partner to the author of the pre-sentence report. 9. In 2010 and 2011 the offender was subject to drug and alcohol counselling as a requirement of parole after serving a prison term for robbery. The pre-sentence report noted that the offender complied satisfactorily with the conditions of his parole. However, he was unable to maintain the progress he made, and slipped back into substance abuse. At around the same time as the robberies, the offender was also convicted of resisting officers in the execution of their duty and contravening an apprehended violence order. 10. In May 2014, while awaiting sentencing for the offences the subject of this appeal, the offender was convicted of driving with high range PCA and negligent driving. He was disqualified from driving for two years, and was being supervised by the Probation and Parole Service as a condition of a s 9 bond imposed upon him. 11. The pre-sentence report stated that the offender would benefit from a period of structured interventions under the supervision of Community Corrections. It recommended that the offender participate in a specialist sex offender program, either in the community or whilst in custody, in combination with drug and alcohol counselling and mental health treatment. 12. Alcohol contributed to the offender's crimes on 5 December 2013, just as it had to other destructive features of his life. The pre-sentence assessment stated: "Mr Cowling appears to attribute his offending behaviour to alcohol use. He has a history of problematic alcohol and other drug use [including] alcohol, cannabis, amphetamines and ecstasy. He has a history of mental health intervention and has been prescribed various psychotropic medications in the past. Mr Cowling has a history of suicide ideation and has two past psychiatric admissions." 1. To similar effect, Dr Nicolas concluded: "Mathew Cowling's early adolescence precipitated ongoing severe dysfunction. He has a marked incapacity to sustain relationships which when lost result in significant emotional distress, unresolved grief and hopelessness. His addiction to alcohol and polysubstance abuse attests to this sense of hopelessness resulting in a cyclic process which supports and exacerbates his Psychological Injury. Matthew Cowling is at high risk of taking his own life." (original emphasis) 1. Dr Nicholas suggested a treatment plan to address the offender's mental health diagnosis. He was of the view that the offender suffered from a chronic Adjustment Disorder of Mixed Anxiety and Depressed Mood and noted some psychotic features indicated by suicidal ideation and self-harming behaviours. He also expressed the view that the offender experienced a psychological injury "precipitating clinical depression and co-morbid severe anxiety", following the offender's history of depressive symptoms since he was 15 years. The offender's prospects of rehabilitation 1. The matter that I have found most problematic is assessing the offender's prospects of rehabilitation. 2. The offender had been assessed by a government psychologist, following a review of the file but no direct interviews with the offender or his family, as "falling in the Moderate to High risk category relative to other male sexual offenders" (original emphasis). That assessment was then restated in the pre-sentence report as follows: "According to the Level of Services Inventory – Revised actuarial risk/needs assessment tool, the offender is assessed as a medium / high risk of re-offending." (sic, original emphasis) 1. It is important to bear in mind what those emboldened words mean, and how they have been derived. That said, neither party directed submissions to the psychological assessment or the pre-sentence report, so that the following reflects views untested by argument. 2. The psychological assessment was based upon a particular methodology ("Static-99R"). It fairly disclosed that that methodology had not been validated against New South Wales offenders. The offender's score in respect of 10 simple questions was compared with scores of some 8,000 offenders from North America, the United Kingdom, New Zealand and Denmark (the report stated that there was no reason to expect substantially different outcomes in New South Wales). The offender scored 5, from a maximum of 12, by reason of the facts that he was under 35, had not been in a live-in relationship for longer than 2 years, had a conviction for non-sexual violence, had four or more sentencing dates, and his victim was unrelated, known to him and female. 3. That is to say, entirely irrelevant to the scoring and assessment of risk of re-offending was the offender's alcohol and substance abuse which had been the occasion for his criminality throughout his life. That is what is meant, I infer, by the statement in the report that "individual characteristics that relate to recidivism rates will not have been explored". 4. The assessment stated that non-Australian offenders who had achieved the same score had recidivism rates of between 11% and 25% over 5 years, and between 23% and 36% over 10 years. That is to say, if the overseas population was comparable, then the most likely result (with a probability of between 64% and 77%) was that the offender would not reoffend in the next decade. The assessment made no attempt to reconcile its conclusion of "medium to high risk of re-offending" and the most likely result that there would be no reoffending over the next decade. The assessment gave prominence to what it regarded as a high relative risk of recidivism, and downplayed a relatively low absolute risk. It is easy to see how this could cause confusion. Indeed, the conflation of relative risk and absolute risk may explain the translation of the assessment of Mr Cowling as in the "Moderate to High risk category relative to other male sexual offenders" in the psychological assessment, to "the offender is assessed as a medium/high risk of reoffending" in the pre-sentence report. 5. The assessment said that 7% of the overseas group scored 5, and only 11% scored more than 5. It was asserted: "The recidivism rate of individuals convicted/charged with sexual offences with the same score as Mr Cowling would be expected to be 2.7 times that of the 'typical' sexual offender". 1. There is an illusory and potentially deceptive precision in that conclusion. Left unstated is what precisely a "typical" sexual offender is, perhaps for the good reason that it is impossible to do so, having regard to the width of conduct proscribed and the variety of ways in which such conduct could be perpetrated. The difficulties in identifying a "typical" offender are obviously exacerbated when data is pooled from overseas legal systems, which doubtless have different offences, different procedures for detection and prosecution, and different approaches to rehabilitation. I readily accept that the statement is meaningful as a matter of statistical analysis, but that does not mean that it translates into decisions relevant to the exercise of the sentencing discretion. 2. Pre-sentence reports are important. They influence decisions made by busy judges which will have significant impacts upon the lives of offenders, those affected directly by their conduct, and the wider community. There is no reason why statistical analysis need play no part in an assessment of risk, especially if it were shown to be at least moderately predictive, and its limitations were borne in mind. Those limitations may be more or less significant depending on the particular case. 3. Although her Honour referred without criticism to some of the conclusions from the "Static-99R" assessment, it would appear that her Honour shared, at least to an extent, my concerns about its utility and reliability. The primary judge was faced with a difficult assessment. Her Honour said: "It is difficult to make any prediction as to the offender's future prospects with confidence in its accuracy. If the offender's claim to Dr Nicholas, to have attained some level of insight into the destructive choices he has made in the past, is real and will remain so beyond his appearance before this Court, then there is some hope that can be held out for the offender's rehabilitation. However, the lost opportunities of the past dictate a degree of circumspection." 1. This Court is in a somewhat better position. It has the benefit of the uncontroverted evidence of the offender, by his affidavit made on 14 July 2015. He said that he was keen to rehabilitate himself, and did not wish to commit any offence against anyone, "especially against someone I know and like". He had applied to participate in the sex offender program, but had not to date been successful. He was willing to do such a program either in custody or in the community. He had not been able to undertake Alcohol and Other Drug Programs, because they were not available at the South Coast Correctional Centre, where he has been since 8 November 2014. He has enrolled in and completed Certificate I "Access to Work and Training" (a course which includes general educational subjects, and practical skills such as first aid and a barista course). In July 2015, he enrolled in the Certificate II course. He said he had strong family support, although since being moved from Cessnock to Nowra had had only two visits from his family because of the distance to travel. He hoped to live with his grandmother at Mildura if released on parole, "to put some distance between myself and past associates especially for the first period after release". 2. The offender had committed no offences against gaol discipline since being sentenced. 3. I respectfully agree with the primary judge that the offender's prospects of reoffending are difficult to assess. In large measure they depend upon his being able, ideally with the assistance of a structured program during his parole, to free himself from the substances which, and associates who, have led to an escalating pattern of criminality over the last eight years. That emerges from the facts individual to the offender and his history, confirmed by the psychologist assessment, rather than a statistical extrapolation. Comparable sentences 1. The maximum penalty for the offence contrary to s 61I is 14 years imprisonment with a standard non-parole period of 7 years. The offence contrary to s 61L carries a maximum penalty of 5 years imprisonment. 2. A very wide range of conduct can constitute sexual intercourse without consent. Statistics compiled by the Judicial Commission for 207 cases between October 2007 and September 2014 show that 88% of offences received a full-time custodial sentence, although 10% received a suspended sentence. Within the 88% of full-time custodial sentences, there is a relatively wide range of sentences imposed: 90% fall within the band from 2½ years to 9 years, with the median being between 4 and 5 years imprisonment. Sentencing statistics can and should provide guidance as a useful yardstick: Hili v The Queen [2010] HCA 45; 242 CLR 520 at [54]; Barbaro v The Queen [2014] HCA 2; 253 CLR 58 at [41]. However, their limitations must also be recognised, especially where, as here, such a wide range of conduct can amount to the offence. 3. The parties were invited, following the hearing, to supply materials to assist the task of resentencing. The Crown provided three decisions, two from this Court, both of which involved multiple counts. More helpful was a table supplied by the offender of 11 decisions of this Court where there had been convictions for offences contrary to s 61I and where the objective seriousness had been assessed as low to below mid-range. The following three decisions are taken from that table; they appeared to share some significant features with the present case. 4. In McCartney v R [2009] NSWCCA 244, there was penile-vaginal sexual assault by a 22 year old man of otherwise good character upon a female victim known to him, who returned to the offender's home early in the morning following a night out, and who made her lack of consent very clear. An appeal against a sentence whose starting point (before a discount for a plea) was 3 years was dismissed, with the Court stating that it was "difficult to conceive how a lesser sentence than that assessed by his Honour could be imposed for this offence": at [26]. There was a finding of special circumstances, and the sentence imposed was imprisonment for 30 months, with a non-parole period of 18 months. 5. In Sabapathy v R [2008] NSWCCA 82, the victim was affected by alcohol, there was penile-vaginal intercourse, by a man of good character with good prospects of rehabilitation. After allowing for a 12% discount for the offender's plea, a custodial sentence of 3 years with a non-parole period of 18 months was imposed. This Court stated that no less severe sentence was warranted in law: at [77]. 6. In R v JRB [2006] NSWCCA 371, a Crown appeal against sentence was allowed. The sexual assault involved penile/vaginal intercourse, upon an intoxicated sleeping friend. JRB had been sentenced, following a guilty verdict at trial, to 3 years imprisonment, but with a non-parole period of only 3 months. That sentence was quashed, and the non-parole period extended to 15 months with a balance of sentence of 21 months (the effect of which was to leave in place the head sentence of 3 years imprisonment). 7. More recently, Badans v R [2012] NSWCCA 97 was a case where there was penile-vaginal intercourse with a sleeping victim, without the use of a condom. A Crown appeal, including on the ground that the sentence of 3 years imprisonment with a non-parole period of 1 year was manifestly inadequate, was dismissed. This Court said that the sentence was "at the low end of the range of sentence for this offence", but was not manifestly inadequate (the very low non-parole period principally reflected the offender's intellectual disability). Resentencing the offender 1. Any sexual intercourse without consent is a serious offence. If it be the case that the offender had no recollection of his assaults because of his abuse of alcohol and other substances, that does not reduce his criminality. Moreover, the offender's criminal history leads me clearly to the conclusion that this is not one of the small minority of cases where a sexual assault should not result in a sentence of full-time imprisonment. Having considered all other alternatives, no penalty other than full-time imprisonment is appropriate: s 5(1) of the Crimes (Sentencing Procedure) Act 1999. 2. The measure of the offender's criminality is less than that manifested in McCartney, Sabapathy and JRB because of the circumstances of the offences, especially, the absence of violence or coercion or intimidation. Against this, the offender's criminal history is considerably worse, and it is very difficult to express a view about the prospects of his rehabilitation. 3. I respectfully agree with the approach adopted by the primary judge that an aggregate sentence is appropriate. Here there was, in substance, a single course of conduct, although amounting to two discrete offences. Further, this is clearly a case where special circumstances for the purposes of s 44 of the Crimes (Sentencing Procedure) Act are made out, having regard to the offender's substance abuse and efforts which need to be made to address that abuse. There should, as well, be a discount of 25% for the offender's guilty plea. 4. In accordance with s 53A(2) of the Crimes (Sentencing Procedure) Act I indicate that I would have imposed a sentence of 2 years and 3 months imprisonment, with a non-parole period of 17 months, for the sexual assault. The notional starting point is a head sentence of 3 years. The objective criminality is somewhat less than that disclosed in McCarthy, Sabapathy and JRB, and there is evidence of remorse, but the offender's antecedents and rehabilitation prospects are poorer. The relatively short non-parole period (the ratio is 63%) is attributable to the evidence supporting the measure of success the offender has had, and is expected to have, in participating in rehabilitating programs. 5. I indicate that I would have imposed a sentence of 9 months imprisonment for the indecent assault. The aggregate sentence will reflect my view that both offences contributed to the overall criminality of the offender's conduct. 6. I would impose an aggregate sentence of 2 years and 4 months, with a non-parole period of 18 months. That sentence is to commence on 9 October 2014, such that the non-parole period will expire on 8 April 2016. In accordance with s 50(1) of the Crimes (Sentencing Procedure) Act, the offender is to be released on parole at the conclusion of the non-parole period. 7. The formal orders I propose are: 1. Grant leave to appeal. 2. Appeal allowed, quash the sentence imposed on 9 October 2014, and in lieu thereof, sentence the offender to an aggregate sentence of 2 years and 4 months commencing 9 October 2014, with a non-parole period of 18 months expiring on 8 April 2016. 3. Direct, in accordance with s 50(1) of the Crimes (Sentencing Procedure) Act, that the offender be released at the end of the non-parole period. 1. HAMILL J: I agree with Leeming JA. 2. FAGAN J: I agree with Leeming JA. ********** 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: 12 August 2015