National Domestic and Family Violence Bench Book

• R v Argyle (a pseudonym) [2021] NSWDC 267 (18 June 2021) – New South Wales District Court

  ‘Aggravated sexual intercourse without consent’ – ‘Children’ – ‘Coercive control’ – ‘Emotional and psychological abuse’ – ‘Past domestic and family violence’ – ‘People living in regional, rural and remote communities’ – ‘People who have experienced trauma’ – ‘People with children’ – ‘People with disability and impairment’ – ‘Post-traumatic stress disorder’ – ‘Pregnancy of victim’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Social abuse’ – ‘Victims as (alleged) perpetrators’

  Charges: Aggravated sexual intercourse without consent x 2.

  Proceedings: Sentencing.

  Facts: The offender was in a relationship with the co-accused. The co-accused forced himself on the offender’s younger sister, aged 17. The younger sister was visiting the house of the offender and co-accused to assist with the offender’s pregnancy. The offender assisted the co-accused, or interacted with the victim in certain ways, such as holding the victim’s hands, at the co-accused’s request.

  Issue: Sentence to be imposed.

  Decision and Reasoning: The judge refused to impose a custodial sentence and instead imposed a community corrections order for a period of 2 years: [101]. The judge accepted that the objective gravity of the offending was low: [64]. This was so despite the fact that the offences occurred in the offender’s home and that the offending amounted to a breach of trust that the offender’s younger sister was owed: [63]. The offender acted spontaneously in response to the co-accused’s actions and was unable to control the situation: [65].

  The offender had diminished moral culpability due to the untreated sexual abuse she faced as a child, her own cognitive impairment and the causal connection between her intellectual capacity and her offending: [67]–[70]. Further, she was operating under duress due to her own experiences of the ‘coercive controlling behaviour’ of the accused and her fear that he would harm her or her unborn child: [69]. This diminished moral culpability indicated that specific and general deterrence were not relevant sentencing factors: [75]. The judge considered that moral culpability was a more appropriate touchstone for sentencing, as opposed to objective gravity of the offending: [85].

  In addition, the co-accused would have succeeded in the offending regardless of the complicity of the offender, the offender was in genuine fear of the co-accused and the offender, keeping in mind her cognitive impairment, was trying to make the situation better for her sister: [72]–[74]. Further factors tending towards a non-custodial sentence were that the offending was almost 15 years ago ([92]), hardship would be caused to the offender and her two young children ([96]), the offender’s physical and intellectual disabilities would make custody more onerous and treatment for her trauma was only readily available in the community ([99]).