District Court New South Wales Medium Neutral Citation: R v Quintyn Aloese [2018] NSWDC 210 Hearing dates: 27 July 2018 Decision date: 03 August 2018 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Full time custodial sentence For orders see [72] Catchwords: Sexual intercourse without consent; intentionally choke victim; domestic violence related; aggregate sentence Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Cases Cited: Baradi v R [2018] NSWCCA 143 Pearce v R [1998] HCA 57 R v Hamid [2006] NSWCCA 302 Category: Sentence Parties: Director of Public Prosecutions (Crown) Quintyn Aloese (Offender) Representation: Solicitors: C McKay (Crown) R Hussey (Offender) File Number(s): 17/295666 Publication restriction: Nil REMARKS ON SENTENCE 1. The offender is being sentenced in respect of the following two offences: Sequence 2 – Intentionally choke with recklessness (DV) pursuant to s 37(1) of the Crimes Act 1900. The maximum penalty for this offence is 10 years imprisonment. Sequence 3 – Sexual intercourse without consent (DV) pursuant to s 61I of the Crimes Act 1900. The maximum penalty for this offence is 14 years imprisonment. There is a Standard Non-Parole Period of 7 years imprisonment. 1. The offender has asked that the following matters be taken into account on a Form 1, relating to sequence 3 above: Sequence 1 – Common assault, for which the maximum penalty is 2 years imprisonment. Sequence 4 – Use intimidation/violence to unlawfully influence, for which the maximum penalty is 2 years imprisonment. The offender has admitted his guilt in relation to both those matters on the Form 1. The same two offences are subject of a Certificate pursuant to s 166 of the Criminal Procedure Act 1986. 1. The offences occurred on 29 September 2017. The offender was arrested shortly after the offences took place, and has been in custody since that date. The sentence hearing 1. The sentence hearing took place on 27 July 2018 at Newcastle District Court. The Crown Sentence Summary (Ex A) included a Statement of Agreed Facts on Sentence, which may be summarised as follows. 2. The offender had been in a domestic relationship for a period of two years with the victim, Ebony Toevai. In around August or early September 2017, that relationship ended, due to the offender's aggressive behaviour towards the victim, which included previous instances of physical and psychological domestic violence. On one occasion, the offender called the police on himself. After the relationship ended, the offender and victim remained living together in premises at Beresfield, sleeping in separate bedrooms. 3. On Friday 29 September 2017, the victim, having returned home from work, was in her bedroom speaking with a male friend on the phone. The offender entered her room and began asking questions about her new friendship. He asked the victim if she would have sex with him and the victim said "No". He kept asking, and she kept saying "No", and then he started to kiss her neck. The victim left the room to have a shower in an attempt to end the interaction. 4. After showering, the victim was wrapped in a towel. She went into the dining room area to find some clothing, and the offender followed her. She then returned to her bedroom, followed by the offender. Shortly after they entered the victim's bedroom, the offender pushed the victim onto the mattress and again started to initiate sex, telling the victim he was "horny". 5. The victim told the offender that "She didn't want to do it", and he replied "But I want to". He told the victim that he wanted it to be the last time, and said "If I don't have sex with you, I'm going to have sex with somebody else, you're the only one I've ever wanted". 6. The offender then removed the victim's towel and started to kiss her neck and breasts. The victim kept saying "No" and "Don't do this", and started crying and pleading for the offender to stop what he was doing. She continued to physically resist the offender and tried to break free, saying "No" and "I don't want to". The offender asked the victim "Why?", to which the victim replied "Becaue we're not together, it's not the same, this isn't you", to which the offender replied "But this is me, this is who I am". 7. The victim continued to resist and the offender became increasingly physically aggressive, and at one point, whilst holding the victim down with his body weight, slapped her on the right cheek. This was the offence of common assault, sequence 1 on the Form 1. 8. He then placed his hand around the victim's throat and squeezed for a period of time, pressing his thumb into her neck, causing her to become light‑headed, and to cough and choke. This was the conduct comprising the offence in sequence 2, intentionally choke person with recklessness, pursuant to s 37(1) of the Crimes Act 1900. 9. The physical struggle continued for approximately five to 10 minutes, during the course of which, the victim recalled saying "No" on at least 10 occasions. She continued to cry and plead with the offender, saying that she did not want to have sex with him. 10. The offender lifted the victim's legs up, forced his body between her legs, and attempted to move his face towards her genital area, however, the victim moved away backward from the offender. The offender then put his fingers into the victim's vagina. He then pushed her legs apart and pushed his penis into her vagina. The offender then continued to have penile-vaginal sexual intercourse with the victim for about three to four minutes. This was the conduct that comprised sequence 3, sexual intercourse without consent, pursuant to s 61I of the Crimes Act 1900. 11. After withdrawing his penis, the offender said to the victim "How does it feel to be fucked after I fucked Jess this afternoon without washing". This caused the victim to be concerned about becoming pregnant and also contracting an STD. 12. The offender then asked the victim "Do you think that was rape?", and when the victim ignored him, he kept asking in an aggressive manner "Would you consider that was rape?". 13. The victim nodded her head up and down but did not say anything. The offender then said, 'Stay here and talk to me, you're not going anywhere until you talk to me". 14. The victim then covered herself and dialled 000 on her phone, reporting the matter to the police. While she was on the phone, the offender said, "Go on call the police, when I get bail I will come and get you". This constituted the offence of intimidation to unlawfully influence, sequence 4 on the Form 1. 15. A short time later the police arrived, and the offender was arrested. The offender participated in an electronically recorded interview in which he made full admissions to getting jealous and angry, and deliberately assaulting and sexually assaulting the victim. The Agreed Facts state that he showed remorse in relation to the offences upon the victim. The victim experienced pain in her face where the offender had slapped her and pain and bruising to her neck as a result of the choking. 16. The offender was aged 20 years at the time of the offence and had no criminal record. The offender's evidence 1. The offender relied on two reports from Ms Danielle Hopkins, clinical psychologist, dated 2 July 2018 (Ex 1), and 20 July 2018 (Ex 2). The offender also tendered a Remand Domestic Abuse Course certificate, which became Ex 3. 2. The offender gave evidence in which he told the court that the information he had given to the psychologist was true, correct and accurate. He described the day of the offending, namely 29 September 2017, as "the worst day in my life". He conceded that what had occurred was a serious example of domestic violence and reflected a pattern of conduct he had previously engaged in. 3. The offender stood by what he had told the psychologist in relation to his attitude around the offending, namely, "I hate myself for it. I hope it's not as bad as I think it could be, but I know how painful it could be for her mentally. I should have gone and got help ages ago". 4. When asked what he would say to the victim, who was present in court during the sentence hearing, he said that he no words or actions to say how sorry he was for his criminal conduct. He stated that he was truly sorry for what he put her through, and the suffering he had caused. It was not the sort of person that he was or wanted to be. 5. The offender had told the psychologist that he had previously wanted to get help for "it", being his history of violence towards the victim during their relationship. Whilst in custody, he had sought out the Remand Domestic Violence Course himself, and had also seen the Chaplain regularly and had spoken to him about the charges he was facing and his offending. He had been supported mentally by the Chaplain. 6. The offender had also gained a trusted position as a sweeper whilst in custody. He had time to reflect on his future, and intended to live with his grandmother in Newcastle upon his release. He also intended to seek full time work as a factory hand, his previous employment. The offender also had a passion for social work and wanted to help people who had gone through violence and foster care, similar to his own upbringing. 7. The offender was aware that the psychologist had opined that he had symptoms consistent with a Borderline Personality Disorder. He wanted to be pro-active to manage that condition upon his release, and would seek the help of Community Corrections to do so. He would also engage wholeheartedly with supervision for his mental health issues, and any domestic violence relapse prevention programs that were available. The offender gave evidence that being in custody had had a big impact on him and his family, and he gave evidence that he realised that he needed help, but that he would not be back in court, meaning that he did not intend to re-offend. 8. In cross-examination, the offender gave evidence that he realised that he should have got help for his violence towards the victim earlier, and that the violence he had exhibited towards her during the relationship was unacceptable. He accepted that he had told the psychologist that he understood the notion of consent as permission, and was aware that the victim did not consent by verbalising "No" and pushing him away. He agreed that the offending took place over a period of time, which included the time the victim spent having a shower. He was aware for the whole of that period of time that the victim did not consent to having sex with him. Whilst his solution previously was to get her to leave the house, he agreed he had the opportunity to leave. The offender gave evidence that the Remand Domestic Abuse Program had been helpful to him, and that he would seek other domestic violence support on his release from custody. 9. The psychologist, Ms Hopkins, had interviewed the offender by audio-visual link on 30 May 2018 for one hour and 35 minutes. In her report dated 2 July 2018 (Ex 1), she set out the offender's background history. He was the eldest of four children and his parents had separated when he was six years of age. He was placed into foster care at that time, as his mother had mental health issues. He had been exposed to regular domestic violence between his parents prior to their separation. He was placed in kinship foster care with his paternal grandparents from his late childhood until he was 15 years of age. His interactions with his biological parents during his childhood was sporadic and inconsistent, and whilst under the care of his grandparents, he was exposed to physical abuse. He absconded at 15 years of age to avoid the physical abuse and had no contact with his paternal grandparents since that time. He was placed in another foster care arrangement between 15 and 17 years of age, and then from 17 until 19 years of age he lived with his father. However, they argued a lot. 10. Since leaving school in year 12, the offender had maintained constant employment, at first in a fast food restaurant, and then factory work. He had career aspirations of social work, although it was unlikely that he would able to pursue work in that field given his criminal history. 11. Under the heading "Psycho-sexual history", the offender disclosed an incident of sexual abuse when he was seven years of age by an older male friend of the family, who had touched him inappropriately. He denied that that incident had any bearing on his offending. 12. The offender had commenced his first relationship, with the victim, when 19 years of age. They began to co-habit in August 2016, however, the relationship became increasingly volatile. He first acted aggressively towards the victim in around March 2017, and on one occasion, he slapped her and then he called the police, but no further action was taken. He had told the victim on a number of occasions to leave, however, she maintained their relationship. In early September 2017, following another act of aggression, he then ended their relationship, although they remained living in the same premies. 13. Ms Hopkins opined that the reported symptomology was consistent with Borderline Personality traits. No diagnosis could be made after such a brief assessment, however, the offender had endorsed chronic self-harm and suicidal ideation since he was 11 years of age. Following assessment, she opined that the offender would represent a moderate risk of re-offending by way of sexual offending, without treatment. Such assessments, however, she noted should be treated with some caution. 14. Ms Hopkins recommended that the offender have access whilst in custody to further sexual offender specific intervention and would be suitable for placement in the CORE Program. Prior to his release he should be assessed to determine his future treatment requirements. 15. In a supplementary report dated 20 July 2018 (Ex 2), Ms Hopkins set out the criteria for a diagnosis of Borderline Personality Disorder. She stated that it was inappropriate to diagnose that condition upon one assessment, and that it was important to note that the offender was only 21 year of age. Because of the turbulent developmental period during his adolescence, personality disorders are not diagnosed prior to 18. In the offender's case there was no pattern established given his age across relationships. Ms Hopkins opined that the highest evidence-based treatment for Borderline Personality symptomology is Dialectical Behaviour Therapy (DBT), which is a long-term treatment lasting between six and 12 months. The offender's submissions 1. The offender relied on a detailed written outline of submissions. The offender was 20 years of age at the time of the offending and this was his first criminal offence. There was one aggravating factor pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 ("CSPA"), and that was pursuant s 21A(2)(eb), namely, that the offending was committed in the home of the victim. 2. Mitigating factors pursuant to s 21A(3) were as follows: (e) the offender had no prior record of convictions (f) the offender was of prior good character preceding the offending (g) the court may find that the offender is unlikely to re-offend, should he continue his engagement with Domestic Violence Relapse Prevention program, in tandem with ongoing psychological care in the community. (h) the offender has very good prospects of rehabilitation, and (k) the offender enter pleas of guilty in the Local Court on 4 April 2018. 1. In assessing the objective seriousness of the offending behaviour, the court would take into account the following: - the degree of violence involved the offender initially restraining the victim on her bed, which then progressed to a slap, followed by choking. - the form of sexual intercourse was highly invasive, given that it was primarily penile/vaginal intercourse. - the act of sexual intercourse was of short duration, confined to a three or four minute period, although it was acknowledged that the totality of the offender's criminal behaviour took place over a period of 15-20 minutes. - the victim suffered physical harm by way of pain to her face and bruising to her neck, although not to the point of actual bodily harm, - in addition to the act of sexual intercourse itself, comments made by the offender as to his purported previous sexual liaison that day, and the risk of a pregnancy would have heightened the victim's distress and humiliation. - the offender and victim were known to each other and had previously been in an intimate relationship. It was, however, accepted that the relationship had ceased prior to the offending, and the fact that the offending occurred in a domestic context does not mitigate nor lessen the gravity of the offending. - The offender was 20 years old at the time of the offending and there was no evidence of planning. It was in part borne of the offender's inability to come to terms with the end of the relationship with the victim, and to adequately regulate his emotions. In this regard, the offending was spontaneous and opportunistic. - The offender participated in an ERISP interview with police and made full admissions as to the offending. He displayed immediate regret, and in conjunction with his early pleas of guilty, has demonstrated remorse and contrition. 1. It was submitted on behalf of the offender that the offending fell slightly below the mid-range on the scale of objective seriousness for offending of this kind. 2. The offender submitted that there were strong subjective matters to be taken into account. He was 20 years of age at the time of the offending, and was now 21 years old. The offender's formative years had been marred with familial instability and transient living conditions. He had been exposed to domestic violence within the family unit was removed into foster care at aged six. 3. Despite the adversity in his upbringing, the offender had demonstrated an aptitude for furthering his education and employment. The offender had successfully undertaken the Remand Domestic Abuse Program whilst in custody, and had demonstrated willingness to address his domestic violence offending. Ms Hopkins, clinical psychologist, had recommended appropriate treatment for his Borderline Personality Disorder. 4. Following a discharge from custody, the offender will reside with his maternal grandmother in Newcastle and has good prospects of returning to work. 5. It was submitted that the offender is entitled to a 25% utilitarian discount on sentence in respect of his pleas of guilty, which also indicated remorse on his part. The offender is also entitled to leniency, relying on his prior good character and lack of criminal record. 6. It was conceded, however, that the offending constituted a serious example of domestic violence offending, and principles of general and specific deterrence, together with denunciation, should be given weight in the sentencing exercise, although this should be balanced against the rehabilitation of the offender, relying on R v Hamid [2006] NSWCCA 302, per Johnson J at [86] – [88]. It was conceded that no penalty other than a sentence of imprisonment would be appropriate pursuant to s 5 of the CSPA, and it was further conceded that only a sentence of full time imprisonment would be appropriate. 7. On the question of totality, it was submitted that whilst sequences 2 and 3 are separate offences, the offending took place in one course of criminal conduct and therefore the court was invited to consider full concurrency when sentencing the sentences to be imposed. 8. The offender also sought a finding of special circumstances pursuant to s 44 of the CSPA, based on the offender's young age, the opinion of the clinical psychologist that he demonstrated behaviour consistent with symptoms of Borderline Personality Disorder, and the need for intervention to manage his mental health issues and relapse prevention programs. 9. In further oral submissions, the offender's solicitor submitted that whilst the offending was a very serious example of domestic violence, it was unusual, given the lack of criminal antecedents of the offender. He had exhibited remorse following his arrest, to the psychologist and also in his sworn evidence. 10. The offending, it was submitted, was borne of a significant inability to regulate his emotions and exhibited a lack of planning, although it was conceded that this type of offence is usually opportunistic. 11. It was submitted that the degree of violence involved was not at the higher end, however, there was some exacerbation involved in the humiliation of the victim after the offending, by way of the comments the offender made to her. The Crown submissions 1. The Crown agreed that an aggravating factor of the offending was that the offences occurred in the home of the victim. Use of force was an element of both offences and therefore was not an aggravating factor pursuant to s 21A(2)(b), but could be taken into account in assessing the objective seriousness of the offending. 2. In relation to the offender's submission that it constituted spontaneous offending, the Crown submitted that the offending did occur over a period of time, during which there were opportunities for him to either leave the premises or stop the offending. It was clear that the offender had insight into his propensity for violence, given his previous problems with violence in the relationship towards the victim. 3. The Crown accepted that the objective seriousness of the offending here fell around mid-range and possibly slightly below it. The Crown also conceded that the offender was entitled to a 25% utilitarian discount on sentence, and that he had expressed remorse and had some insight into his offending. 4. As domestic violence offences, general and specific deterrence, together with denunciation, were important in the sentencing process. 5. The Crown submitted that as both offences were part of a course of offending, the principle of totality requires some small accumulation of sentence, as they were separate and discrete offences. 6. Finally, the Crown conceded that the court should make an order of special circumstances pursuant to s 44(2) of the CSPA. 7. In short submissions in reply, the offender agreed with the Crown's submission that there should be no reduction in his moral culpability for the offending, based on his Borderline Personality Disorder symptoms. Rather, that went to the question of whether special circumstances should be found. Determination 1. Section 3A of the CSPA sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community." 1. I find the objective seriousness of the offending in respect of sequence 2, intentionally choke person with recklessness, was below the mid-range for an offence pursuant to s 37(1) of the Crimes Act 1900, but in the upper part of the lower range for such an offence, based on the history outlined above. 2. The objective seriousness of the offending in respect of sequence 3, sexual intercourse without consent, pursuant to s 61I was of a much higher order. Whilst it was just below the mid-range for such an offence, upon which the parties agreed, it still constituted most serious offending. An aggravating factor of the offending pursuant to s 21A(2)(eb), was that the offending took place in the home of the victim. 3. Whilst there was no Victim Impact Statement tendered by the Crown, it is clear that the victim had not consented to having sex with the offender on numerous occasions, both before and during this incident, and that he understood only too well that she was not consenting. His humiliating conduct following the offence should also be taken into account. 4. The opinions expressed by Ms Hopkins, clinical psychologist, as to the symptoms of a Borderline Personality Disorder, based on a short assessment of the offender, do not in any way lower his moral culpability of the offending here. Not only did he know that the victim was not consenting, he had insight into his own propensity for violence during the relationship, which had ended some weeks prior to this incident. The offending was borne of his own inability to regulate his emotional response to that situation, when he overheard the victim on the phone to another male. 5. Both general deterrence and specific deterrence are important in the sentencing process for domestic violence related offences. A clear message must be sent to the community that the Parliament has proscribed heavy maximum penalties for such offences, and that the court will impose lengthy terms of imprisonment in respect of such offences. A clear message must be sent to like-minded persons in the community that they will be punished for domestic violence offences. A requirement of powerful denunciation by the community for such offences must also be taken into account – see Baradi v R [2018] NSWCCA 143 at [101]. 6. Further, specific deterrence is important here, as the offender had insight into his own propensity for violence during the relationship, and he must understand that if he continues to act in this way, he will spend lengthy periods in custody. 7. I have had regard to the maximum penalty of 10 years imprisonment for the offence of intentionally choke person with recklessness, pursuant to s 37(1) of the Crimes Act 1900, and the maximum penalty of 14 years imprisonment and Standard Non-Parole Period of 7 years imprisonment for the offence of sexual intercourse without consent, pursuant to s 61I of the Crimes Act 1900. The maximum penalties and Standard Non-Parole Periods are guideposts in the sentencing process. 8. I have also taken into account the two matters on the Form 1, namely sequence 1, common assault, pursuant to s 61 of the Crimes Act 1900, constituted by slapping the victim to the face, and sequence 4, use intimidation/violence to unlawfully influence person, by saying to the victim, "Go on call the police, when I get bail I will come and get you". That is an offence pursuant to s 545B(1)(i) of the Crimes Act 1900. Both offences carry a maximum penalty of 2 years imprisonment. Taking into account the matters on the Form 1, must lead to some accumulation on sentence in respect of Sequence 3, to which they relate. I have certified that I have taken those matters into account. 9. I further note that the offender is entitled to a 25% utilitarian discount on sentence in respect to his early pleas of guilty. His lack of criminal antecedents also entitles him to leniency, and I accept that he has demonstrated remorse and contrition for his criminal conduct, immediately following his arrest, to the psychologist, and also in his sworn evidence. I accept that he is truly sorry to the victim for the offending. 10. I have taken into account the substantial subjective matters put on behalf of the offender. He had a dysfunctional childhood in which he was exposed to domestic violence, both by his own parents and subsequently by those in whose care he was placed. Notwithstanding that, he pursued his education to year 12, and has been in steady employment since leaving school. 11. Significantly, the offender was 20 years of age at the time of the offending, and his youthful age must be taken into account. He has shown insight into his offending and whilst assessed as a moderate risk of recidivism for sexual offending, with appropriate intervention and relapse prevention therapy, he should be regarded as at a low risk of re-offending. He has already commenced his rehabilitation by completing the Remand Domestic Abuse Program whilst in custody, which was the only program available to him to date. He also has been allocated a sweeper job, which is a position of trust within the correctional centres. Further, the offender has a place to live upon his release from custody and is determined to return to full time work following his release. 12. I make a finding pursuant to s 44(2) of the CSPA of special circumstances, based on his young age, the fact that this is his first time in custody, the need for a lengthy period of supervision for his mental health issues, and the need for him to undergo relapse prevention intervention by way of anger management and domestic violence programs. 13. I am satisfied that no penalty other than a sentence of imprisonment is appropriate pursuant to s 5 of the CSPA, and only a sentence of full time imprisonment is appropriate in this case. Given that both offences were part of the same course of criminal conduct, I am satisfied that on principles of totality and proportionality, as set out in Pearce v R [1998] HCA 57, partly concurrent sentences should be imposed. 14. I therefore intend to sentence the offender to a fixed term of 9 months imprisonment in respect to sequence 2, intentionally choke person with recklessness, pursuant to s 37(1) of the Crimes Act 1900 (NSW), to commence on 29 September 2017. 15. In respect of sequence 3, I intend to sentence the offender to 3 years and 9 months imprisonment, with a non-parole period of 2 years and 6 months, to commence on 29 December 2017. Orders 1. I make the following orders: 1. You are convicted of the offence in sequence 2, intentionally choke person with recklessness (DV), pursuant to s 37(1) of the Crimes Act 1900 (NSW). 2. I sentence you to a fixed term of 9 months imprisonment in respect to that offence, commencing on 29 September 2017. 3. You are convicted of the offence in sequence 3, sexual intercourse without consent (DV), pursuant to s 61I of the Crimes Act 1900 (NSW). 4. I sentence you to a non-parole period of 2 years and 6 months imprisonment, commencing on 29 December 2017 and terminating on 28 June 2020. 5. The balance of term will be 1 year and 3 months imprisonment, commencing on 29 June 2020 and terminating on 28 September 2021. 6. The total sentence for both offences will be 4 years imprisonment, with a non-parole period of 2 years and 9 months. 7. Your parole eligibility date will be 28 June 2020. 8. I have certified and taken into account the matters on the Form 1. 1. You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some later date. You should understand that your parole will be subject to stringent conditions, one of which is not to commit offences whilst on parole. Other conditions will include things such as who you associate with, where you live and doing what your parole officers direct. If, during the time you are on parole, you breach any condition of parole, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of your sentence. ********** 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: 06 August 2018