District Court New South Wales Medium Neutral Citation: R v Wharehinga [2019] NSWDC 640 Hearing dates: 22 July 2019 Date of orders: 22 July 2019 Decision date: 22 July 2019 Jurisdiction: Criminal Before: M L Williams SC DCJ Decision: A term of imprisonment of 2 years, 3 months with a non-parole period of 15 months: at [13]. Catchwords: SENTENCING — Aggravating factors — Vulnerable victim SENTENCING — Mitigating factors — Plea of guilty — Remorse — Rehabilitation — Unlikely to re-offend — Good character SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Objective seriousness — Purposes of sentencing SENTENCING — Subjective considerations on sentence — Special circumstances Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Texts Cited: Nil Category: Sentence Parties: Regina (Crown) John Wharehinga (Offender) Representation: Ms Keay (Crown Prosecutor) Mr Valentin (Counsel for the offender) File Number(s): 2018/269186 Publication restriction: STATUTORY NON PUBLICATION APPLIES Section 578A Crimes Act 1900 (any matter that may identify the complainant(s)) Judgment 1. On 1 September 2018 a 46 year old man, with no prior criminal record, took advantage of the intoxicated state of his partner's best friend, and committed a serious sexual assault upon her. It leads to him pleading guilty at an early opportunity, justifying 25% discount for the utilitarian value of that plea to a charge under s 61I of the Crimes Act 1900, of sexual intercourse without consent, carrying a maximum 14 years imprisonment with a standard non parole period of seven years. Those penalties are yardsticks to be used in the sentencing process which must take into account the purposes of sentence set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. 2. Mr Valentin of counsel for the offender concedes that a term of full time custody is required by the circumstances of this case and it is unnecessary for me to consider any alternatives. 3. The evidence is confined to the agreed facts on sentence and brief oral evidence from the offender. There is no Sentence Assessment Report, but the Court has sufficient material as to the offender's subjective circumstances to proceed to sentence. 4. In short, the victim who was two years younger than the offender had known him for about five years, they were close friends and regularly socialised at weekly darts competitions. On 1 September she went to his house to play darts and socialise. His partner and children were there. She had some beers and whiskeys and butterscotch schnapps during the night. She was ultimately found to have a blood alcohol concentration after the offence of .112, and expert evidence summarised in the agreed facts shows that her blood alcohol concentration would have been .263 at about the time of the offence, meaning she would have been significantly affected to the extent that her cognition was compromised. 5. She left the house at about 8.30pm and continued to play darts and drink with the offender's partner. She came back at about 10 o'clock and resumed drinking. She became intoxicated and vomited and urinated on herself. She took herself into the shower and then went to bed. She felt pretty drunk and laid down on the couch in the garage. Sometime later she recalls having no clothes on from the waist down. She picked up her clothes and as she was getting dressed the offender walked into the garage. She said, "What have you done?" She pushed him and said, "What did you do?" He said, "You know I've always liked you". She felt uncomfortable in the vaginal area. She called a taxi. The offender went inside and told his partner that the victim was waiting for a taxi. She recognised the taxi driver and she said to him, "I think I've been raped". She also said that to her son when she arrived home. She sent a message to her boyfriend in similar terms later that morning saying, "I think I've been violated. It was fucking Johnny" referring to the offender. 6. She was taken to hospital and spoke to Police. She was asked whether it felt like there was penetration to which she replied "Yes". She was upset and clearly crying.On examination there was an area of tenderness near the entrance to the vagina and there was a discharge. DNA swabs confirmed that the offender had been involved. 7. He was arrested on that morning and declined to answer any questions in an interview. But as I have indicated, he pleaded guilty at an early opportunity. 8. He has a partner and six children and has been in regular employment as a furniture removalist. He said that he had stopped operating that business so that he could deal with these matters. 9. Mr Valentin of counsel helpfully summarised his position in a written outline of submissions which was not the subject of any significant challenge from the Crown. He has significant ties to the Goulburn area. He is involved in junior sport. He is the primary breadwinner for the household and obviously a full time custodial sentence will have an impact upon his family. It is not suggested that rises to exceptional hardship, but it is a matter to be taken into account on sentence. 10. There is clearly a basis for a finding of special circumstances and variation of the statutory ratio, given that this is his first time in custody and the manner in which he will be kept in custody. 11. Mr Valentin concedes that I must take into account the abhorrence with which the community views sexual assault offences and the strong need for general deterrence. I accept his submission that it is below mid-range of objective seriousness. He concedes that her vulnerability is an aggravating factor due to her intoxication. There are a number of mitigating factors apparent, namely, the plea of guilty, the expression of remorse, the good prospects of rehabilitation and the fact that he is unlikely to reoffend and prior good character. 12. As Mr Valentin puts, it is clearly not a case for the standard non‑parole period to assume particular significance, but it is a matter that can be taken into account. 13. The orders that I will make are: 1. The offender is convicted of the offence. 2. I impose a sentence of imprisonment of 2 years 3 months, to commence on 19 July 2019 and expiring on 21 October 2021. 3. I impose a non-parole period of 15 months expiring on 21 October 2020. 4. I find special circumstances. Note – These extempore remarks were revised without access to the court file ********** Amendments 11 November 2019 - Removal of name of son at [5]. 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: 11 November 2019