R v Ross [2016] NSWDC 416

District Court New South Wales

Medium Neutral Citation: R v Ross [2016] NSWDC 416 Hearing dates: 15 December 2016 Date of orders: 15 December 2016 Decision date: 15 December 2016 Jurisdiction: Criminal Before: Berman SC DCJ Decision: The offender is sentenced to imprisonment consisting of a non-parole period 5 years and a head sentence of 8 years. Catchwords: CRIMINAL LAW – Sentence – Sexual intercourse without consent Category: Sentence Parties: The Crown Anthony Alexander Ross Representation: Counsel: Mr W Creasey – Crown Mr B Bickford - Offender Solicitors: Director of Public Prosecutions Turnbull Hill Lawyers - Offender File Number(s): 2015/140052 Publication restriction: There is to be no publication of the name of the complainants or of any material which may tend to identify the complainants

SENTENCE 1. HIS HONOUR: One evening in May 2015 a woman I will call "A" had a get-together with a few of her friends at her home in Swansea Heads. Part way through the evening the offender turned up, uninvited and unwelcome. He was a friend of A's partner who was unable to attend the get-together because she was in custody. 2. The offender was intoxicated, aggressive and, so it would seem, clearly had intentions towards A. He was seen at one stage to touch her on her thigh, an advance she rebuffed. 3. After having consumed some drugs and alcohol A went to bed. She had a recollection of, at one stage, the offender being in her bedroom sitting on her bed charging his phone, but her next memory is of waking up to find the offender having sex with her. In forceful terms she told him to stop, which he did. A then left her bedroom and made immediate complaint to her friends about what the offender had done to her, going to the police a couple of days later. 4. Accordingly the offender was charged with an offence of having sexual intercourse with A without her consent. He denied that the sex was without her consent, giving evidence at his trial that she had been an enthusiastic participant in the sexual activity which he agreed took place in A's bedroom. 5. The jury found him guilty after a relatively short trial. That verdict was a surprise to no one. There was not the hint of any suggestion at all that A had acted in such a way as to give the offender the idea that she might be willing to have sex with him, and indeed, as it turned out, at the time the offender penetrated A's genitals with his penis there was a tampon in her vagina because she was menstruating. The jury were entitled to think that a woman who wishes to have consensual sex, and who has a tampon inserted at the time, is likely to remove that tampon before intercourse commences. 6. Further the offender had no explanation for some bruises which were later seen on A's inner thighs. Those bruises were consistent with fingertips being used to forcefully spread A's legs so that the offender could have sex with her. 7. Consistent with the jury's verdict I will sentence the offender on the basis that without any encouragement at all from the complainant he had sexual intercourse with her while she was asleep. Not only did she not consent to that sexual intercourse, she was completely unable to do so because she was asleep. The offender took advantage of her vulnerability to do what he did. 8. The offence for which the offender is now to be sentenced has a maximum penalty of 14 years imprisonment with a standard non-parole period of seven years. I have taken into account both the maximum penalty and the standard non-parole period in determining the appropriate sentence. My reasons for not imposing the standard non-parole period appear in these remarks on sentence. 9. The offender was born in Sydney and lived there till he was about seven. The family, his mother, father and a younger brother and sister, moved to the Newcastle area. The offender has had learning difficulties throughout his life. Although there was some suspicion that he suffered from ADHD it was not until he was an adult that diagnosis was made. He was given a prescription for a drug to treat that condition but chose not to take it in an ongoing way. 10. A psychological report prepared, it must be noted, before his conviction for this matter, speaks of the offender's sensitivity and hostility in social interactions which probably serve as formidable obstacles to the development of close relationships with the result that he is likely to be withdrawn and isolated. That observation by a psychologist seems to be borne out by the offender's relationships with friends and family. 11. What is most apparent both from the evidence in the trial, and the evidence tendered today on sentence, is that the offender has a significant problem with drugs. More than most, it would seem, drugs are a factor in him becoming a most unpleasant person when he is using them. 12. The psychological report refers to the offender's behaviour during attempts by the psychologist to obtain an accurate assessment as to the offender's personality. The psychologist describes his behaviour whilst he was on drugs, which description is entirely consistent with the way he was described on the night that he sexually assaulted A. Clearly he was drug affected at the time of his offending, but it is equally clearly the law that self-induced intoxication is not a mitigating factor. 13. On the other hand, as Mr Bickford points out, that is not to say that the fact that he was under the influence of drugs at the time he forced himself upon A is irrelevant. The prospects of him re-offending are clearly linked to the prospects of him continuing to use drugs, and the circumstance that he was under the influence of drugs can throw light on what led to the offence in the first place. 14. This was a most serious form of the offence. The offence was committed in A's home while she was vulnerable in the extreme. Whilst there is of course no hierarchy of the various forms of sexual intercourse, it is to be noted that the offender had penile/vaginal sexual intercourse with A, the most intimate form of sexual connection whilst he was not wearing a condom. 15. On top of that we turn to what the offender knew. I am satisfied beyond reasonable doubt that he was fully aware that A was asleep when he began to have sexual intercourse with her, thus he was fully aware that she was not consenting, and indeed not even in a position to consent, at the time he began to have sex with her. On the other hand it must be recognised that the offence occurred over only a very short time, and once A became fully awake and told him to stop, he did so. 16. The offender has a number of offences on his criminal history but nothing approaching this seriousness. All his previous offences have been dealt with in the Local Court with no previous custodial sentences imposed. As the Crown pointed out, at the time he committed this offence against A he had committed a number of other offences at around the same time. 17. I cannot say that the offender has good prospects of rehabilitation, indeed Mr Bickford did not suggest that I would, but that is not to say that he has no prospects of rehabilitation. He has at times been able to hold down a job, a job where, as part of his employment, he would need to be drug free. He was also, for a considerable time, caring for his daughter as a single father, and so the prospects of the offender's rehabilitation are not as bleak as they might otherwise have looked. All of course will depend on what happens with his drug use once he is released from custody. It is certainly not the case that he is remorseful. Mr Bickford did not suggest otherwise. 18. One of the most important factors in determining a sentence to impose upon an offender concerns the harm that that offence caused. A victim impact statement was tendered today by the Crown. In it A speaks about the significant impacts upon her of the offender's wrongdoing. I will read out a small part of it. "Before all of this I considered myself a happy-go-lucky kind of person. Now I physically cannot leave the house. I feel anxiety and now I do not trust people. I knew there were people out there like him but never thought it would happen to me." 1. That harm is entirely foreseeable from an offence of this type. It is regrettably commonplace. Women who are sexually assaulted often report consequences of the kind A has spoken about. The harm that such offences cause is an important aspect in deciding that there needs to be a significant component of general deterrence built into the sentence that I will ultimately impose upon the offender. 2. Other purposes of sentencing are there as well. Personal deterrence is of importance, as is retribution and denunciation. There is no reason that any aspect of the sentencing process should not be given full weight in the case of this offence, and this offender. 3. The offender has been assaulted in gaol causing a significant injury to him. As a result he has been moved from the general prison population. There is a risk that he will serve a significant part, perhaps even all of his sentence, whilst in protection, and there is a risk that if he does so his conditions of custody will be harsher than those of the general prison population. I have taken both of those matters into account. 4. I accept that there are special circumstances in this case. They relate to this being the offender's first time in custody, his significant drug history, and his difficulties in concentrating, which will all suggest the need for a longer than usual period of supervision on parole once the offender is released from custody. 5. On the other hand it is a fundamental rule in sentencing that not only the head sentence, but also the non-parole period, must reflect the objective gravity of an offender's conduct. As I hope to have demonstrated, this was an offence of significant seriousness. 6. The sentence I impose is as follows: I set a non-parole period of five years to date from 10 August 2016, and a head sentence of eight years. The non-parole period will thus expire on 9 August 2021, on which day the offender is eligible to be released to parole.