R v Jonathan Anthony Deane [2019] NSWDC 109

District Court New South Wales

Medium Neutral Citation: R v Jonathan Anthony Deane [2019] NSWDC 109 Hearing dates: 25 March 2019 Decision date: 28 March 2019 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Full time custodial sentence. For orders see [60] Catchwords: Sexual intercourse without consent Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Diaz v R [2018] NSWCCA 33 Doe v R [2013] NSWCCA 248 Ibbs v R (1987) 163 CLR 447 R v Hibberd (2009) 194 A Crim R 1 Category: Sentence Parties: Director of Public Prosecutions (Crown) Jonathan Anthony Deane (Offender) Representation: Counsel: M Fernando (Offender)

Solicitors: E Navea (Crown) File Number(s): 18/201720 Publication restriction: Pursuant to s 578A of the Crimes Act 1900, no material may be published identifying, or that may lead to identifying, the complainant

REMARKS ON SENTENCE 1. The offender is charged with one offence of sexual intercourse without consent pursuant to s 61I of the Crimes Act 1900. The maximum penalty proscribed by Parliament for the offence is 14 years imprisonment, and there is a Standard Non-Parole Period proscribed of 7 years imprisonment. 2. The offence occurred on 30 June 2018 in the circumstances described below. The offender was arrested on 30 June 2018 and as at the date of the sentence hearing, has been in custody for 8 months and 26 days. 3. The sentence hearing took place on 25 March 2019 at Moree District Court. The Crown Sentence Summary became Ex A. It included a Statement of Facts which may be summarised as follows. 4. The offender was born on 26 March 1995 and was 23 years old at the time of the offence. He was in Australia on a working holiday from the United Kingdom and had been working as a farm hand on a property near Pilliga, New South Wales. 5. The victim was also 23 years of age, and was working on the same property as a farm hand. Prior to the offending conduct, they shared a house on the farm and each had their own bedroom. They were not in a relationship and had never had any form of intimacy, but were friends. 6. On Friday 29 June 2018, the offender and victim travelled together to Narrabri, New South Wales, to enable the offender to collect some replacement parts for his car and the victim to do some shopping. Whilst in Narrabri, the car developed a mechanical problem and the offender and victim decided to stay at a motel overnight. They booked one room with two beds. During the evening the offender and victim attended two hotels where they both consumed approximately nine alcoholic drinks. After leaving the second hotel, they returned to their motel room where they consumed a bottle of wine that they had purchased earlier. 7. During the evening, both the offender and victim fell asleep on the same bed fully clothed. During the night, the offender had woken up and snuggled up to the victim in a "spooning" position, with his left hand over the victim's body. It was approximately 5.30am on 30 June 2018, and the complainant was asleep. 8. Using his left hand, the offender undid the clasp of the victim's bra and fondled her breasts underneath her shirt and jumper. He then slipped his left hand down the front of her pants and into her underwear, inserting the middle finger of his left hand into the victim's vagina to the second knuckle on his finger. He then commenced kissing the victim on her lips. 9. At that point the victim woke up in a state of shock and did not do anything for approximately five to 10 minutes, during which time the offender had his finger in her vagina. She eventually said words to the effect of "cut it out", at which point the offender stopped touching her but kept his arm around her. The victim then got out of bed and took her phone to contact a friend. 10. The victim walked into the reception area of the motel to call a friend in Ireland. The offender followed her and asked her to go back to the room so they could talk, saying, "Did I go too far?" The victim told him to go away and leave her alone and he complied. 11. The victim called a friend from the farm on which they worked and asked that person to come and pick her up. She then spoke to a friend in Ireland and attempted to call other family members. 12. When her co-worker arrived to pick her up, they returned to the motel room to retrieve the victim's belongings, however, the offender was not in the room. Whilst still in Narrabri, the victim received two messages from the offender asking her to come back so they could talk and subsequently telling her that he was going to the police station because, "I know what I did was wrong". 13. Earlier, at about 6.50am, the offender had attended the Narrabri Police Station, which was at that time unattended. There was a telephone available to connect with Tamworth Police Station and the offender had used this phone to contact the Tamworth Police, saying: "I've done something stupid. Something that where I'm from you would get punished for." 1. He provided his own and the victim's details, including her telephone number, which prompted the police to make a call to the victim's phone, whereupon they left a message stating that they were calling to check on her welfare and asking that she contact Narrabri or Tamworth Police. 2. The offender waited for police to arrive at Narrabri Police Station and when Senior Constable Skillicorn arrived, the offender entered the station and said: "I want to report that I've sexually assaulted someone. I've done something bad and I want to report it." He was placed under arrest and taken into custody. 1. The offender participated in an ERISP interview in which he made full admissions. He told police that when the victim had got out of bed and taken her phone, he realised that he done the wrong thing and he had tried to apologise. The offender had consented to a forensic procedure and following investigation, DNA matching the profile of the victim was located on his middle finger. 2. Exhibit A also included a report from police outlining no convictions in New South Wales and it was common ground that the offender had no convictions whatsoever in the UK.