R v Murray [2015] NSWDC 286

District Court New South Wales

Medium Neutral Citation: R v Murray [2015] NSWDC 286 Decision date: 25 February 2015 Jurisdiction: Criminal Before: Conlon DCJ Decision: In respect of the charge of robbery, sentenced to a fixed term of imprisonment of two years to date from 31 March 2014 and to expire on 30 March 2016. His Honour did not specified a non-parole period as it was subsumed in the sentence below. In respect of the charge of aggravated sexual assault, sentenced to a non-parole period of nine years to date from 31 March 2014 and to expire on 30 March 2023. Sentenced to an additional term of three years imprisonment to expire on 30 March 2026. Accordingly, that is a head sentence of 12 years with a non-parole period of nine years. Four further matters on the form 1 taken into account in respect of that sentence. Catchwords: Aggravated sexual intercourse without consent Cases Cited: Ingham v R [2014] NSWCCA 123; R v Robinson [2002] NSWCCA 359; Veen v The Queen (No 1)(1979) 143 CLR 458; R v Harrison (1997) 93 ACRIMR 314 Category: Sentence Parties: Crown (Regina) David John Marlin (Offender) Representation: Counsel:

Solicitors: File Number(s): 2014/98091

Judgment 1. The offender, David John Marlin, appears for sentence following his pleas of guilty to one charge of aggravated sexual intercourse without consent (contrary to s 61J carrying a maximum penalty of 20 years imprisonment) and one charge of robbery contrary to s 94 carrying a maximum of 14 years imprisonment. He has requested that four further matters be taken into account on a form 1 schedule. 2. A summary of the agreed facts in the Crown bundle of documents, exhibit A, is as follows, and it is, of course, consistent with the CCTV footage which has captured the incident in its entirety. At about 11.35pm on 29 March 2014 the victim arrived at the Campbelltown Railway Station. She was intending to take a train to Wolli Creek and thereafter to proceed in the direction of either Bondi or Cronulla. She had previously been diagnosed with bipolar disorder, anxiety and panic attacks and was on twice daily Seroquel medication. 3. Whilst on the station platform, the offender observed her squatting next to a vending machine and adjusting her underwear. She was also listening to music through her headphones, something she did to keep calm. The offender approached her and said, "Hot babe", and then, "The train is here, honey". She said, "Thanks" and then got on the train. What happened from that point 4. on has been clearly captured on the CCTV footage (exhibits B and C) from within the carriage of the train. As I have indicated, the CCTV footage is broken up into what occurred downstairs in the train, which is exhibit B, and what occurred upstairs, exhibit C. 5. After entering the train, the victim moved to her right to the end part of the carriage and she stood in front of a seat facing a window. She was still listening to her music through her headphones. The footage shows the offender seated opposite. The victim was oblivious to his presence and continues looking into her reflection in the window, restyling of her hair, adjusting the hemline of her skirt, applying deodorant and adjusting her underwear exposing part of the buttocks. She still has her back to the offender and does not look at him at any stage. Her focus remains towards the window. 6. Whilst this was occurring, the offender is looking in her direction. He said words like "Hot arse", stood up and he then approached her. This confrontation was very brief as she said, "Get away from me. I'm not like that". He said, "I can give you $50". She immediately walked around him and moved to the upstairs section of the carriage. A young man was seated up in that section. The offender remained downstairs where he was earlier seated. 7. The CCTV footage shows the train stopping at Minto and then Ingleburn. It appears the young man seated upstairs near the victim got off the train at Ingleburn station. Shortly after the train leaves Ingleburn station, the offender stands and walks up the stairs. About three and a half minutes has passed since the victim walked past the offender and went to the upstairs section of the carriage. 8. The footage shows the offender approaching the victim who was standing between two seats with her back to him. The offender then reaches 9. out with his left hand as if to shake hands. She does not appear to look in his direction but merely puts out her right hand. 10. Without warning, the offender immediately launched into a vicious attack commencing with a king hit to her face, knocking her down into the seat. She called out, "Please don't hit me". He then forcefully kissed her on the mouth and sucked her neck. He then forcefully put his hand up under her skirt and inside her stockings and underpants. He forcibly kisses her on the mouth a second time and then delivers another blow to her face. She then puts her hands up to her forehead to protect herself. During the assault he called her a "prick tease" and said, "Kiss me". He forcefully kissed her on two more occasions. His hand was still under her skirt and her body can be seen moving on the seat from the force of the digital penetration. 11. During the act of digital penetration he pulled across her top and took her mobile phone that she had placed inside her bra. Whilst he was still pushing his fingers in and out of her vagina, the victim noticed that the train was pulling into a station (Macquarie Fields). She said, "Give me my phone". He refused. He then ran down the stairs and managed to exit the train just prior to the closing of the electronic doors. 12. The victim remained on the train. At Panania Station she activated an alarm. She said through the intercom, "I've been raped". She then got off the train. Police arrived and took her back to a police station. 13. On the morning of 31 March 2014 the victim was examined at Liverpool Hospital Sexual Assault Unit. The doctor noted bruising inside her upper and lower lips. There was a bruise on the left side of her neck consistent with the offender having sucked her neck. The doctor noted restricted movement in her neck, a small bruise on the back of her neck and a tender red area in the vaginal introitus. 14. Police then obtained stills from the CCTV footage. They were ultimately shown to the offender's mother who identified him. At 3.40pm on 31 March 2014 a search warrant was executed at the offender's unit in Cartwright. He was not home at the time. Police located the victim's phone on his bedside table and seized clothing consistent with those shown in the CCTV footage. 15. Later that day at 5pm the offender was arrested at Campbelltown Railway Station. He was asked, "Have you been told why you've been arrested?", he said, "Yes. Sort of. It's about Saturday night with that girl on the train". 16. He took part in a recorded interview. He stated that he had been out on that evening at Campbelltown RSL having a few drinks for his birthday. Later he was standing on Campbelltown station and saw the girl "Doing a pole dance to the chair and to the chip machine". He said there was no conversation prior to some discussion about which train to catch. 17. After getting on the train he said the girl "put her legs up on a seat and she was fixing herself up and then not long after that, she had a short black dress thing on and raised it and showed her backside and G-string". He gestured that she was reaching in the area of her inner thighs to correct her stockings. 18. He claimed the victim then said, 'Do you like what you see?" and he replied, "Cute arse, babe. Cute arse". He claimed she said, "If you want, come and get it". He then walked over to her and she said, "Not down here. Come up here", and she went and sat upstairs. He said he waited for the man sitting up there to leave and then he went upstairs. He said he asked her, "What's your name, babe?" and she said, "I don't have to tell you my name". He said he put his hands out and said, "I'm Dave", and then fell on her and "Yeah. We just started mucking about. Kissed her". He also said he felt her breasts. He said, "We just started kissing and playing around with her, touching her". He agreed he had inserted a finger in her vagina once. When asked if he thought there was anything "strange" about the victim, he said, "I think she was a bit off her head or something. I'm not sure but". When it was suggested that he hit her, he said, "I don't recall doing that. I don't recall hitting her". 19. The interview was then suspended and he was shown the CCTV footage. At the point where it shows him hitting the victim he asked for it to be stopped and said it was "disgusting". He agreed that the footage showed him hitting the victim causing her to fall to the seat, but claimed he had no recollection of that occurring. Even despite being shown the CCTV footage, he maintained the victim was kissing him as he kissed her. He was asked if he said words to the effect, "You shouldn't prick tease", he agreed he said, "Something like that". He explained that he meant "Just the way she was dressing and, you know what I mean, she did say to me, 'If you want it, come upstairs'".