District Court New South Wales Medium Neutral Citation: R v Hutchings [2019] NSWDC 876 Hearing dates: 19 December 2019 Decision date: 19 December 2019 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Sentenced to a term of imprisonment of 3 years. Non parole period of 1 year 6 months. Catchwords: SENTENCING- sexual intercourse without consent- intoxicated semi-conscious victim SENTENCING- relevant factors on sentence- early guilty plea- intoxication- victim unaware of offence- victim impact- need to vindicate victim's dignity- negative impact of gaol sentences on offender considered - special circumstances Legislation Cited: Crimes Act 1900 Cases Cited: R v Thompson (2000) 49 NSWLR 383 Texts Cited: Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497 Category: Sentence Parties: Benjamin Hutchings (the offender) Director of Public Prosecutions Representation: Solicitors: Mr D Quirk (for the offender) Crown: Ms T Lasschuit (for Director of Public Prosecutions) File Number(s): 2018/00378386 Publication restriction: The name of the complainant is not to be published, nor is any other material that could lead to the identification of that complainant: s578A of the Crimes Act 1900. SENTENCE – ex tempore revised 1. Benjamin Hutchings was born in 1971. In December 2018 he was drinking with friends following Christmas celebrations. While he has had trouble with the law before, primarily assaults and matters involving domestic violence, he has never before committed a crime that would bring him to the District Court of New South Wales. 2. At various times in his life Hutchings has drunk to excess and it is clear that on this night he had had too much to drink. But that does not, and cannot, excuse what he did this night or mitigate his sentence. 3. There is an extensive facts document before the Court, which I have had an opportunity to read a number of times. The complainant is present. Earlier today I read out her Victim Impact Statement. While the public has to know what occurred I do not intend to disturb her unnecessarily by going into all the details. 4. The complainant was working in Wollongong as a DJ at a local hotel. After work she and friends returned to their rooms at another hotel and, as they were perfectly entitled to do, partied on. The group came in contact with others and a convivial evening was had. People were moving between a number of hotel rooms. One of them people was this offender who was there that night with a group of his own friends. 5. The complainant drank too much and her friends, concerned for her, took her back to their room. For reasons that were not explained the offender chose to go to the hotel room where the complainant was. He knocked on the door. The complainant, in daze, opened the door to him and then went back to the bedroom to lie down. Nothing she did could have induced anyone, intoxicated or not, to think that she was consenting to anything, let alone a sexual act. She did not consent to any sexual act. But the offender went into her room moved part of her clothing and performed cunnilingus on her. He also removed some of his own clothing. 6. The complaint's friends returned to the room and saw what was happening. They saw the complainant trying to push the offender off. They confronted the offender. There was yelling. The offender was told to leave, which he did. The complainant was dazed and confused. 7. Soon after police spoke to the offender. His version of events that could have excused his behaviour if it had been accepted by a jury. To his credit he accepted, while before the Local Court, that he had, in fact, committed a serious crime against the complainant. He entered a plea of guilty, which he adhered to today. 8. The crime for sentence is sexual intercourse without consent: s 61I Crimes Act 1900. It carries a maximum penalty of 14 years' imprisonment and for an offence which, taking into account only the objective features falls in the middle of the range, carries a standard non-parole period, that is a minimum sentence, of seven years. There are reasons here for departure from that standard non-parole period. They include the early plea of guilty, matters beyond the utilitarian value of that plea and the circumstances of the offence, which put this matter below the middle of the range; for reasons I will outline. Nevertheless it is accepted that only a full-time custodial sentence can be imposed. 9. It needs to be said, and said again, that non-consensual sexual intercourse, in whatever form, is a form of violence against women. The offence does not require physical hurt or evidence of significant violence. Any form of forced sexual intercourse carries with it implied humiliation and shows a complete lack of appreciation for that person's physical and mental wellbeing. 10. The complainant was in a particularly vulnerable situation. Her friends, who had been looking out for her, had put her in a position where they believed she would be safe. She was entitled to have a drink. There is no rule that says that somehow because someone has drunk to excess that they consent to any crime being committed against them. Her vulnerability was taken advantage of and there was a disgraceful interference with her intimate, personal integrity. An act of sexual violence was committed against her. 11. The community has to understand, and the offender has to understand, that in such circumstances punishment, and serious punishment, will be inflicted on offenders to reflect not just the community's disapproval but to attempt, so far as is at all possible, to vindicate the dignity of the victim. 12. I take into account what was set out in the Victim Impact Statement. It is sadly not uncommon to read and hear complainant's say that their initial reaction is one of shame and disgust with themselves. The young lady here should not feel that. It was not her fault; nothing she did precipitated this offence or encouraged this offence. As she says, everyone in the community should be free to go out, drink as much as they like in a hotel and not be sexually assaulted. While her world view has been changed I hope that she will, with help and support, move forward in her life and put this matter behind her. The offender cannot put it behind him because he must be appropriately punished and will be going to gaol. 13. There is a letter from the offender. It was not sworn, it was not on oath. It is hard to judge, even if it was on oath, how heartfelt and remorseful it actually is. But he notes that he has read the complainant's statement and says he now has greater insight. He apologises to his wife and his children. He speaks of his obligations as a father; obligations that he clearly had no regard to when he committed this offence. He asked that I accept his early guilty plea as part of his remorsefulness; and I do. It is a practical demonstration of remorse by an early plea as it the complainant was aware form an early point that's she would not have to give evidence at trial: R v Thompson (2000) 49 NSWLR 383 at [3]. 14. Hutchings also expresses his sorrow for the hurt that he has caused the complainant and for her ongoing pain and anguish. She is entitled to dismiss that apology, but the Court must give it some weight as reflecting the sober reflections of a man who has acknowledged by his plea that he did wrong. 15. He participated in a Sentence Assessment Report interview with Ms Robson. It sets out his personal history. He has a job. His wife has in a letter to me sets out the hardship that will be inflicted upon her and the family, financially and otherwise, because their principal provider will be locked away. 16. There is nothing in Hutching's criminal record to indicate that he has ever done anything like this before. What he said to Ms Robson shows some superficial insight and remorse. Her initial response was he is at low risk of re-offending. But an assessment by Ms Mackrell, a senior psychologist with Community Corrections, notes a number of risk factors present in his background. They include; emotional collapse, collapse of current supports, substance abuse, hostility and sexual entitlement. 17. Hutchings will be going to gaol for the first time. Judges do not ignore the lived experience of custody. To lock someone away in gaol means that they lose all their liberties. They are placed in an environment with other male offenders, many of whom have committed offences of violence, many of whom have committed sexual offences and a significant number of whom feel that they are entitled to assault, sexually or otherwise, others in the community, particularly women. Gaols are violent places full of violent men. People going to gaol for the first time often experience emotional trauma and emotional collapse. Coping with the gaol environment requires people harden themselves. 18. Gaols are not great places for rehabilitation. When a person has substance abuse problems they may have an opportunity to engage in programs and it is hoped that they will but gaols are more generally places for removal and punishment. 19. The risk of re-offending can sometimes be increased by a custodial sentence. They lose contact with pro-social contacts in the community, including family and work support. The longer the sentence the more pro-social aspects of a person's personality are put aside and the more risk there is of breaking pro-social supports in the community. 20. Prisoners on release from gaol need assistance in re-learning how to live a normal community life. And a gaol sentence means that obtaining employment is so much harder on release. As a consequence a number of significant studies have shown that there is, paradoxically, a crime-producing effect if someone is sent to gaol for too long; particularly if they lose all hope of proper restoration to the community on release. 21. While these are important considerations at the same time, a judge has to formulate an appropriate punishment. As Madam Crown points out both parts of the sentence, including the non-parole period, have to reflect the purposes of sentencing, and the minimum term to be spent in custody must appropriately reflect the objective seriousness of what was done. 22. I must consider the act of sexual intercourse and the surrounding circumstances. I punish Hutchings for that offence not what might have happened, had he not been interrupted. The nature of the sexual intercourse is a consideration but the specific act is not the most important factor. 23. I have to give weight to the guidance offered by the maximum penalty, the statistics to which I have referred and to other cases to which I have been referred. Use of alcohol is not, as I have said, a mitigating factor, but it is clear that if the offender can address what appears to be an alcohol problem his chances of reoffending are less. 24. Mr Quirk submitted that special circumstances be found, given that Hutchings has never previously been imprisoned. It is unlikely that he will qualify for any of the sex offender programs in custody, but he may benefit from one on release. Such assistance was recommended by the senior psychologist. He will need assistance in adjusting to normal community life. 25. All are sound reasons for a significant finding of special circumstances. I am as confident as I can be, given that he has never offended in a like nature before, that he will not reoffend if given an opportunity to prove himself on parole in the community. The experience of the Court, reinforced by what the Bureau of Crime Statistics has taught us, is that the longer and more intensively supervision on parole lessens the risk of reoffending: see Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497. 26. I am indebted to Ms Lasschuit for her comprehensive written submissions, which I have taken into account, and similarly to Mr Quirk for his submissions to the Court. 27. The sentence I impose should not be taken as a measure of the harm inflicted on the complainant, it could never do that no matter how long it is. The real punishment, in a sense, is the knowledge that everyone has to have that anyone who takes advantage of a vulnerable woman by having sexual intercourse with them will go to gaol and go to gaol for a period that is meant to be telling. Orders 1. Mr Hutchings, in relation to the offence before the Court had it not been for your plea of guilty a sentence of four years would have been imposed upon you. You will be sentenced to three years imprisonment. 2. There will be a non-parole period in this matter of one year and six months which will commence today. You will be eligible for release to parole on 18 June 2021. There will be a non-parole period of 18 months from that date. If you breach your parole you could end up serving the whole of the 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: 29 April 2020