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. The offender's evidence 1. The offender relied on a report from Mr L Brabant, forensic psychologist, dated 12 March 2019. The report was based on an interview conducted by AVL on 27 February 2019, lasting 90 minutes. It set out the offender's background history. He described a childhood in a close and supportive family, in which he was particularly close to his mother. He had two younger sisters who he also developed close bonds with during their teenage years. His father was often absent from the family home due to his employment which resulted in some distance between the offender and his father. 2. The offender attended three different High Schools and progressed from High School to college at the age of 16 to study agriculture. He completed college after four years and commenced work as a dairy man and part-time tractor driver. He had a stable employment history until he moved to Australia in October 2017, whereupon he worked in the farming industry until his arrest on 30 June 2018. 3. Under the heading "Social and Relationship History", the author took a history that due to frequently moving schools, the offender had some difficulty forming friendships during his High School years. However, he formed close friendships with other students at college and in his various work places. These were predominantly with males due to the nature of the agricultural industries in which he worked. He had never had a long-term romantic relationship and had limited sexual experience. He did, however, have egalitarian and positive relationships with some women in his life including family members and teachers. He held no hostile attitudes towards women. 4. The author noted that the offender had a sound understanding of sexual consent. 5. Upon psychological assessment, the author was of the opinion that the offender met the diagnostic criteria for ADHD. He also reported experiencing psychological distress in relation to his current legal situation. This was commensurate with the position he was in. 6. The offender was also assessed for the risk of sexual recidivism. On Static‑99R testing, he was assessed as being in the average risk category relative to other male sexual offenders. His dynamic risk was assessed as a moderate density of criminogenic needs relative to other male sexual offenders. A composite score of the two methods of testing placed him at an average risk level. 7. The author noted that the offender's criminal conduct appears to have occurred in the context of alcohol intoxication, which would have negatively impacted on his already impaired behavioural inhibition from his un-medicated ADHD. Further, his lack of sexual experience likely contributed to his offending, as he had limited experience negotiating sexual boundaries and interactions with females. It was the author's opinion that he did not require sex offender specific intervention. 8. Exhibit 2 was an affidavit from the offender's mother, Annette Deane, affirmed on 18 February 2019. She described the offender as having always been very easy-going and never in trouble. She described him as being "sociable", but not a big drinker. 9. She first found out about the offending when her son rang her from custody. She was shocked and could not believe what she was hearing as it was completely out of character for him. She spoke to the offender often by phone. Other than a visit from the prison Chaplain, he had not anyone else visiting him in custody. 10. Mrs Deane deposed that when the offender is able to return to England, he will return to the family home where he will be "welcomed by the whole family". The Crown submissions 1. The Crown submitted that the offending here was very serious offending in which general and specific deterrence had a place in the sentencing process. 2. Objectively, the offending was just below the mid-range for an offence pursuant to s 60I of the Crimes Act 1900, however, it was not the worst case scenario for an offence under that section. 3. The Crown submitted that the fact that digital penetration took place was not determinative of the objective seriousness of the offending, and there was no hierarchy of sexual offences, relying on Doe v R [2013] NSWCCA 248 at [54]. 4. In assessing the objective seriousness of the offending the court would take into account that the offender inserted his middle finger into the victim's vagina to the second knuckle for a period of between five and 10 minutes. The extent of the penetration and the time over which it took place elevated the objective seriousness of the offending. The Crown acknowledged that there was no violence involved in the offending, however, it was preceded by fondling of the victim's breasts. There was no basis for the offender forming a reasonable belief that the victim consented because she was asleep and therefore vulnerable at the time and he had taken advantage of that. 5. Once the victim became aware, she sought to create distance between herself and the offender. Whilst there was no Victim Impact Statement, it was clear that she suffered emotional harm and trauma as a result of the offender's criminal conduct, as expected in this type of offending. 6. The Crown submitted that an aggravating factor pursuant to s 21A(2)(eb) was that the offending took place in a motel room shared by the victim and the offender and therefore it was the victim's temporary home. The Crown acknowledged that the offender also had a legal right to be there. 7. The Crown acknowledged that pursuant to s 21A(3), mitigating factors here were that the offending was not planned, the offender had no prior criminal history and was otherwise a young man of good character. Further, the Crown acknowledged that the offender's post-offence conduct demonstrated a high degree of remorse. Further, by going immediately to the police and making full admissions as to his criminal conduct, the offender could be entitled to a further discount pursuant to s 23 of the Crimes (Sentencing Procedure) Act 1999 ("CSPA"), however, the offending would have been reported by the victim in any event, she having already complained to several people about it. His early report, however, had ensured the preservation of forensic evidence and therefore the Crown submitted that a modest discount should be allowed because the offending would otherwise have been discovered. 8. The Crown conceded that the offender was entitled to a 25% discount on sentence in respect of his early plea of guilty. It was anticipated that his heavy intoxication at the time of the offending, together with his delayed sexual development, would be put forward as an explanation for his offending. However, the offender suffered no mental health issues which would reduce or diminish his moral culpability. 9. The Crown submitted that the offender would suffer no more hardship in custody than any other non-national offender. His conduct required denunciation and therefore the s 5 threshold was crossed, notwithstanding it was not the worst case for this type of offence and was below mid-range, an Intensive Correction Order was not available for a proscribed sexual offence of this kind. The offender's submissions 1. Counsel for the offender relied on a thorough written outline of submissions. In respect of the objective seriousness of the offending, the offender referred to the High Court's decision in Ibbs v R (1987) 163 CLR 447, and submitted that the gravamen of the criminality here lies in the offender taking advantage of his friend while she was asleep. The fact that the nature of the sexual act was digital penetration renders the offence less serious than were the intercourse to have been any of the other categories of sexual penetration encompassed by the section. The submissions made it clear that the offender was not suggesting there was a hierarchy of sexual acts, some forms of which may be regarded as more serious than others. Assessment of the objective seriousness, it was submitted, ought include the context within which the activity took place and all other circumstances particular to the offending. 2. Here, the offender and the victim were the same age and were known to one another, as they were both on working holidays from the UK and both working on the same farm. They shared a motel room after their car had broken down and had been out the previous evening drinking and socialising together. 3. Further, the offending involved no threat of physical violence preceding or accompanying the intercourse, nor was there any coercion. Rather, the offender engaged in sexual conduct while the victim was asleep and when she awoke, he appreciated her disinterest in the sexual activity, and desisted immediately. The offending took place over a period of five to 10 minutes. In considering the overall objective seriousness of the offence, the court would take into account: "(a) A lack of any aggravating factors. (b) The pair were known to one another and shared a platonic relationship. (c) The nature of the sexual intercourse. (d) The absence of any threat of violence. (e) The absence of coercion. (f) The opportunistic nature of the offence, and (g) The offender's disregard (or recklessness) to consent, and (h) The offender's cessation on appreciating the victim's lack of consent." 1. It was submitted that the objective seriousness of the offending fell at the lower end of the range for an offence against s 61I. 2. The offender also relied on a number of subjective factors. The offence was not planned and was opportunistic, the offender had no significant record of previous convictions and was a person of good character, and the offender was unlikely to re-offend and had good prospects of rehabilitation. 3. It was not in issue that the offender was entitled to a 25% discount for his early plea of guilty and had demonstrated remorse. 4. Counsel for the offender set out a number comparable cases for the court to consider. Ultimately, it was submitted that should the court conclude that the s 5 threshold had been crossed, there should be a finding of special circumstances based on the fact that the offender is still a young man, he is somewhat immature, his first time in custody, and as a foreign national, any period of custody was more onerous due to the lack of local social support. 5. In her oral submissions, Counsel rehearsed the written submissions regarding the assessment of the objective seriousness of the offending here. It was submitted that the offending was opportunistic and had involved a disregard by the offender for consent, which was completely inappropriate and criminal conduct because the victim was asleep. However, he had stopped immediately she awoke, and had demonstrated his reaction by going directly to the police station. 6. It was not conceded that an aggravating factor pursuant to s 21A(2)(eb) was that the fact that the offender and victim were in a motel room meant that the offending conduct took place in a temporary home of the victim. 7. Counsel for the offender emphasised the subjective factors to be taken into account and particularly the full and frank admissions the offender had made to the investigating police. Counsel had not advocated an Ellis type discount because of the early complaints the victim had made to others and the likelihood that the offender would be subject to police investigation, however, the court should take into account his level of cooperation in assisting the authorities and the facilitation of the administration of justice that resulted from that cooperation. 8. It was submitted that this was not a case where the offender's good character played a role in how he came to either meet the victim or facilitate the offending. Therefore his good character could be taken into account. Further, he was unlikely to re-offend and had good prospects of rehabilitation, having qualified to college standard in the UK and having a strong family background to return to. Given his limited sexual experience, the actuarial assessments for recidivism were quite limited for a young man in his position. 9. It was submitted that the offender was entitled to a 25% utilitarian discount in respect of his early plea of guilty. This was a case that was borderline in respect of the s 5 threshold. The objective seriousness of the offending was within the low range and there were very strong subjective matters to be taken into account. It was described as "a compelling subjective case". 10. Counsel submitted that if the court found the s 5 threshold was crossed, a finding of special circumstances should be made pursuant to s 44 of the CSPA. Determination 1. Section 3A of the C(SP)A 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. In assessing the objective seriousness of the offending for an offence of sexual intercourse without consent pursuant to s 61I of the Crimes Act, I have had regard to the whole of the circumstances of the offending. The offence was constituted by the digital penetration by the offender of his middle finger into the vagina of the victim for a period of up to 10 minutes. In R v Hibberd [2009] 194 A Crim R 1, the Court of Criminal Appeal held, consistently with the High Court decision in R v Ibbs, supra, that digital penetration is not necessarily less serious than penile penetration, emphasising that the seriousness of the offence turns on the facts of the case at hand – see Diaz v R [2018] NSWCCA 33 at [53]. Here, the offender took advantage of the victim who was vulnerable because she was intoxicated and asleep. When she did wake up, she was shocked and did nothing for a number of minutes before making it clear that she did not consent, and the offender desisted. The absence of any threat of violence or of coercion are relevant to the assessment of the objective seriousness of the offending here. Having regard to all of the circumstances of the offending, I find that the objective seriousness of the offending here was below mid-range and towards the middle of the low range for an offence pursuant to 61I. It still constituted serious offending. 2. I do not find that an aggravating factor here, pursuant to s 21A(2)(eb) was that the victim was in a temporary home. Both the offender and the victim had agreed to share a motel room with two beds in it, for one night only. The offending was opportunistic and there was no planning involved. That was a mitigating factor pursuant to s 21A(3)(b). Other mitigating factors were that the offender was a person of good character (s 21A(3)(f)); the offender has good prospects of rehabilitation (s 21A(3)(h)); the offender expressed remorse immediately and by his plea of guilty (s 21A(3)(i) and (k)); and the offender assisted law enforcement authorities (s 21A(3)(m)). 3. Pursuant to s 29(3) of the CSPA, the absence of the Victim Impact Statement does not give rise to an inference here that the offending had little or no impact on the victim. I accept the Crown submission that for an offence of this kind the victim would clearly have been traumatised psychologically by the offending. I have had regard to the maximum penalty proscribed by Parliament for an offence pursuant to s 61I of 14 years imprisonment, together with the Standard Non-Parole Period of 7 years imprisonment for that offence. The maximum penalty and Standard Non-Parole Period are guideposts in the sentencing process. 4. General deterrence is important in this sentencing process. A clear message must be sent to the community and like-minded members of the community that Parliament has proscribed a lengthy maximum term of imprisonment for such an offence and that the courts would impose severe penalties in appropriate case. Specific deterrence is also important here, in that the offender must understand that he has, by his criminal conduct, caused harm to the victim and to the community generally. 5. I have had regard to the lack of criminal antecedents of the offender. He was a young person of 23 years of age at the time of the offending with no criminal offences whatsoever. Whilst the courts must approach the subjective matters outlined in third party reports such as Ex 1 with circumspection, where the offender has given no evidence, I do find that the offender was somewhat immature socially and had a delayed sexual development. 6. Otherwise, there are significant subjective matters to be taken into account. The offender had a good employment record and was on a working visa in Australia. I accept his mother's opinion of him, and note that he will return to a supportive family environment upon his return to the UK. 7. The offender is also entitled to a utilitarian discount of 25% in respect of his early plea of guilty. I also find that he is entitled to leniency in respect of his immediate demonstration of remorse for his criminal conduct, and his cooperation to the authorities, which enhanced the administration of justice in this matter, by both preservation of the forensic evidence and the full admissions he made to police. I accept that he is entirely remorseful for his offending and notwithstanding the clinical assessment, he is a low risk of re‑offending by way of sexual recidivism. 8. Further, as a foreign national, I find that the offender will suffer hardship in custody. In almost nine months he has had no visitors and he no doubt faces immediate deportation upon his release from custody. I find that there are special circumstances pursuant to s 44(2) of the CSPA based on his young age, his immaturity, the hardship he will endure whilst in custody, and the fact that this is his first time in custody. 9. I find that the s 5 threshold in the CSPA has been crossed and having considered all possible alternatives, no penalty other than imprisonment is appropriate here. I do, however, intend to vary the statutory ratio between head sentence and non-parole period. I intend to sentence the offender to a head sentence of 2 years imprisonment, and a non-parole period of 12 months to commence on 30 June 2018, and to expire on 29 June 2019. Orders 1. I make the following orders: 1. You are convicted of the offence of sexual intercourse without consent pursuant to s 61I of the Crimes Act 1900. 2. I sentence you to a non-parole period of 12 months to commence on 30 June 2018 and to expire on 29 June 2019. 3. The balance of term will be from 30 June 2019 for a period of 12 months. 4. Your parole eligibility date will be 29 June 2019. ********** 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: 09 April 2019