R v Rotner [2016] NSWDC 298

District Court New South Wales

Medium Neutral Citation: R v Rotner [2016] NSWDC 298 Hearing dates: 31 March 2016 Date of orders: 31 March 2016 Decision date: 31 March 2016 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Sentenced to an aggregate sentence of imprisonment consisting of a non-parole period of 6½ years and a head sentence of 9½ years Catchwords: CRIMINAL LAW- Sentence – sexual intercourse without consent – Supply prohibited drug Legislation Cited: Crimes Act Cases Cited: Hartikainen. (Unreported NSWCCA 8 June1993) Category: Sentence Parties: The Crown Daniel Samuel Rotner Representation: Counsel: Mr K Averre - Offender

Solicitors: Director of Public Prosecutions File Number(s): 2015/39017 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

SENTENCE 1. HIS HONOUR: There is to be no publication of anything which would identify or tend to identify the name of the complainant in this matter 2. When sentencing for an offence sexual intercourse without consent it is important to bear in mind the words of former Gleeson CJ in Hartikainen. (Unreported NSWCCA 8 June1993). His Honour said that non-consensual sexual intercourse is an "extreme form of violence". The accuracy of his Honour's observations are well borne out by the circumstances of the offences for which I must sentence the offender today. 3. Mr Rotner stood trial on three charges. One was of having sexual intercourse with Ms R knowing that she was not consenting to that sexual intercourse. He was found guilty by a jury of that offence. 4. Mr Rotner also faced a charge of supplying Ms R with a prohibited drug. He was also found guilty of that offence. There was a third charge on which Mr Rotner was found not guilty, a charge of stealing from a dwelling. 5. The maximum penalties for the offences which Mr Rotner must be sentenced are significant, 14 years in the case of the sexual intercourse without consent matter and 15 years in the case of the drug supply matter. In addition, there is a standard non-parole period of seven years for the first offence. I have taken both the maximum penalties and the standard non-parole period into account in determining the sentences to impose upon this offender. 6. The main witness for the Crown at trial was of course Ms R. She gave evidence that she had a number of medical concerns which caused her pain. She was on a variety of prescription medication. One day her neighbour suggested that taking the drug, ice, might help alleviate some of her symptoms. It was this neighbour who introduced her to Mr Rotner who then began to supply her with drugs on occasions, small quantities of drugs, for about $100 at a time. By their verdict the jury clearly accepted Mr Rotner's drug supply activities. 7. Ms R gave evidence that on 5 February 2015, after having consumed a great deal of ice supplied to her by the offender, he turned up at her premises, walked into the bedroom, and called her in telling her to get down on her knees. Her evidence was that in that position he forced his penis into her mouth and she was forced to perform oral intercourse upon him until he ejaculated. The ejaculate went into her mouth and on her face. 8. Despite a threat made to her by the offender in an effort to prevent her revealing to the authorities what he had done Ms R did tell her friends and then the police what had happened to her. The offender was arrested and he has remained in custody to this day. 9. I did mention that Mr Rotner was also charged with stealing from Ms R's dwelling. Her evidence was that at the time Mr Rotner took the property out of her premises she was "very, very high", so much so that "I didn't even realise he was robbing me and I could not even say anything because I was very, very high". Given her acknowledged inability to actually comprehend what was going on at the time the offender took property from her, the verdict of acquittal on that count is not surprising. 10. Ms R was, as the Crown submitted, an unsophisticated witness who gave her evidence with the assistance of a Hungarian interpreter. She responded to the suggestion that the sexual intercourse which occurred was consensual and indeed it was her idea in the first place by telling the cross‑examiner that she was old enough to be the offender's grandmother. Whether or not this is biologically possible there is certainly a significant age gap between the offender and the complainant. I have no doubt at all that I should accept what Ms R said beyond reasonable doubt. 11. These offences were undoubtedly serious, but one is much more serious than the other. The offender took advantage of Ms R's vulnerability, vulnerability for which he was largely responsible having supplied her with drugs, to perform the act of sexual intercourse upon her. 12. I should at once note that it is important not to double-count. It would be wrong for me to regard the supply of drugs to Ms R as an aggravating circumstance of the sexual intercourse without consent matter at the same as I sentence Mr Rotner for the offence of supplying drugs to Ms R. I will be careful not to do that of course. 13. Not surprisingly, the sexual intercourse offences had a profound impact upon Ms R. It is an awful thing to say what I am about to say but I must. The consequences that Ms R reports in a victim impact statement tendered by the Crown are commonplace. Many, if not all, victims of sexual violence such as I have just described report similar distressing consequences to those about which Ms R speaks. She says, for example, that for the first month "I was crying day and night. I washed my hair every day because I felt the spot where his hand held me down and I felt dirty". She reports trouble sleeping. She reports nightmares. She reports problems with her relationship with her boyfriend. And of course having to give evidence in these proceedings brought many aspects of the distress felt by Ms R to the fore once again. She began, for example, to have nightmares again. 14. She summarises matters this way: "I lived through the most horrible of horrors with the rape and the innumerable nightmares. I am still not alright mentally/emotionally and he dirtied my body with what he did. I can only hope the good Lord will help and the whole thing ends and I can return to my boyfriend with all my emotions. That is my wish". 1. Those consequences were entirely foreseeable. An important part in assessing the sentence to impose upon an offender is to assess the harm caused by his offence. As I have made clear, that harm was significant. 2. Part of my task is to assess the objective gravity of the offender's conduct. I repeat, this was an offence of forced fellatio performed upon Ms R by a man who did not wear a condom, who had a clearly visible sore on his leg, and who continued until he had ejaculated both in Ms R's mouth and upon her face. 3. During the trial she expressed a fear of disease, a fear of disease I am satisfied was genuine arising in particular from the sore she observed on the offender's thigh while she was being forced to perform oral sex upon him. 4. There is no hierarchy of the various forms of sexual intercourse without consent covered by s 61(H) of the Crimes Act. What I have described is a particularly intimate form of sexual connection. I regard this offence as a most serious example of an offence of sexual intercourse without consent. 5. I note a number of other features too. There was an aspect of assault beyond the act of sexual intercourse itself. The offender held Ms R so that he could do what he wanted with her. He threatened her with violence - indeed he threatened to shoot her - should she report the matter to the authorities. The offence occurred in her home and as I have already noted Ms R was vulnerable both through her intoxicated state and her medical problems which included a lack of mobility. 6. Mr Averre says I should regard it as a mitigating feature that the offence was not planned. There is no evidence that it was planned and there is no evidence that it was not. I will not accept that as a mitigating feature in the absence of any evidence. 7. The offender did not give evidence either at trial or during today's sentencing proceedings. A psychological report was tendered without objection from the Crown. The offender is an only child but he has a large extended family and numerous cousins with whom he had close relationships. There is nothing in his background which would suggest any reason for the offender to have committed these offences or other offences which occur on his criminal history. 8. In particular, his mother was a hard worker and a good provider. Mr Rotner told the psychologist that he never went without, and that his mother was not one of those parents who did not impose any boundaries on her child. He told the psychologist that she was hard but fair with discipline. She continues to support him even today. 9. The offender went to Year 10. He told the psychologist he enjoyed his time at school and had many friends although it was clear that he had learning difficulties. There was some bullying because of these difficulties but he was able to ignore it. It helped that his cousin attended the same school as him and so that cousin stuck up for him. 10. After leaving school he has had various jobs such as being a kitchen hand, a removalist and completed a 12 month course in panel beating which included some work experience as a car mechanic. 11. As well as a learning difficulty which places Mr Rotner in the bottom two per cent of the population as far as his IQ his concerned, he has also experienced anxiety and depression since he was a teenager. He has been prescribed medication at times but it is clear that depression has been part of Mr Rotner's life for some time. 12. Not surprisingly things have got worse since his incarceration. He also feels stressed in custody. Mr Rotner is Jewish and reports that Lebanese inmates in custody cause problems for him which have led to him being held on protection. 13. It is no longer the case that I would assume that Mr Rotner will serve the entirety of his sentence on protection, nor is it the case that I must assume that that circumstance will necessarily involve harsher conditions of custody than would otherwise be the case. I will however take into account that there is a risk that Mr Rotner will serve his sentence on protection and there is a risk that that will involve harsher conditions of custody. 14. There is no suggestion that Mr Rotner's intellectual disability or his depression or his anxiety had any connection with the offence of sexual intercourse without consent. 15. The offender has a criminal history which includes offences of violence. Indeed he was on parole at the time of this offence. This is another area where I must not double count. The offender's parrole was revoked after having been charged with these offences. It would be wrong for me to regard the fact that he was on parole as an aggravating circumstance and not pick an appropriate commencement date for the sentences I will shortly announce. 16. As I mentioned earlier, clearly the offence of supplying drugs to Ms R is less serious than the other offence for which Mr Rotner must be sentenced. He supplied her with relatively small quantities of drugs over a relatively short period of time. This was low-level dealing. Nevertheless as the maximum penalty indicates supply of drugs is a serious offence there must be some additional punishment for that offence to reflect that fact. 17. The offender did not plead guilty. Of course he is not to be punished for that. He is not to be punished for the fact that Ms R's need to give evidence in this matter caused her nightmares to return. I mention the absence of a plea of guilty for two reasons; firstly, so that when anyone looks at the sentences I will impose and compares them with other sentences imposed for similar offences that person will have to bear in mind that some of those offences will be for people who have pleaded guilty and have thus received a discount on sentence. 18. The other relevance of the absence of a plea guilty is that Mr Rotner continues to deny committing the offences in the first place. Why he committed them, the motive for him doing so, remains something of a mystery. All that I can really assume is that he did so for mere sexual gratification. He was apparently prepared to violently assault Ms R for that purpose alone. 19. I make a finding of special circumstances in the offender's favour. His criminal history suggests that there will need to be some close supervision of him upon his release from custody in order to minimise the risk that he will commit further offences. 20. Sometimes the purpose of a period of parole is misunderstood. Often parole is granted to an offender not as a favour to him or her but as a way of minimising the risk that the offender will commit offences in the future. So my finding of special circumstances is not done as a favour to Mr Rotner, it is done for purpose and one purpose alone; to protect the community as much as I can. 21. Mr Rotner will spend a significant period of time in custody and upon release from custody supervision by the Probation and Parole Service will be of benefit to the community. That it will also be of benefit of Mr Rotner is very much a secondary consideration. 22. I will impose an aggregate sentence of imprisonment. Were it not for the imposition of an aggregate sentence I would have imposed the following sentences: 23. The offence of sexual intercourse without consent, sentence of nine years with a non-parole period of six years. The offence of supplying a prohibited drug, a sentence of 18 months. 24. Instead I impose the following sentence: 25. There is a non-parole period of six and a half years to date from 10 December 2015 and a head sentence of nine and a half year. The non‑parole period will expire on 9 June 2022 which is the first day on which Mr Rotner will be eligible to be released to parole.