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Having sexual intercourse without the victim’s consent

Robert John McCann was convicted of four counts of aggravated sexual assault and one count of indecent assault. He challenged his sentence on appeal. In R v McCann [2004] NSWCCA 48, the Court of Criminal Appeal denied his application.

Even if the sentence improperly punished the offender more than once for the same conduct, no shorter sentence would be imposed if the offender were resentenced

The sexual offences

The sexual assault convictions involved violations of section 61J of the Crimes Act (NSW). The crime is committed by having sexual intercourse without the victim’s consent when aggravating circumstances are present. The infliction of actual bodily harm is the aggravating circumstance that applied in McCann’s case. The maximum sentence for aggravated sexual assault is 20 years of imprisonment.

Indecent assault is a violation of section 61L of the Crimes Act (NSW). The crime requires the commission of an act of indecency during the course of an assault. The maximum sentence is 5 years of imprisonment.

The criminal conduct

The victim was an overseas student who rented a bedroom in McCann’s apartment. McCann told the victim that she would not have to pay rent if she removed her clothes. When she refused, McCann told her she would have to move. As the victim went to her bedroom to pack her bag, McCann followed her and demanded sex. He punched her, forced her onto the bed, removed her pants, and placed his mouth on her vagina. He then had sexual intercourse with her.

The indecent assault charge was based on fondling the victim’s breasts. The sexual assault counts were based on having oral contact with the victim’s vagina, penetrating her vagina with his finger, penetrating her vagina with his penis, and forcing her to have oral contact with his penis.

A jury found McCann guilty of all five counts. The jury presumably rejected McCann’s testimony that the victim consented to the sex acts and that she became violent after they ended.

Sentencing remarks

At sentencing, the judge noted that McCann was much larger than the victim. The judge credited a psychologist’s conclusion that the victim suffered from post-traumatic stress disorder because of the attack. She also accepted evidence that McCann was raised in an abusive environment, that he abused alcohol because he learned that behaviour from his father, and that his alcohol dependence has improved due to a stable relationship and attendance at Alcoholics Anonymous meetings.

The judge assessed McCann’s risk of reoffending as moderate-to-low, but concluded that no sentence other than imprisonment would be appropriate. The judge concluded that McCann’s alcohol abuse and sleep apnea were special circumstances that justified a shortened non-parole period.

The judge imposed five concurrent sentences. The longest of those was a seven year sentence with a four-and-a-half year non-parole period.

Challenge on appeal

Two grounds for appeal were based on the contention that the judge improperly increased the sentence on two counts because the victim pleaded with McCann to desist before he committed those assaults and McCann committed the acts without regard to her clear communication that she did not consent to his conduct. The Court of Criminal Appeal concluded that the judge had discretion to view those circumstances as aggravating facts that warranted longer sentences.

The Court of Criminal Appeal also rejected the contention that the sentencing judge gave insufficient weight to McCann’s obesity and sleep apnea, factors that would make his imprisonment more onerous. The Court concluded that the judge clearly took those matters into account in finding special circumstances.

Finally, McCann argued that the judge erred by considering a single infliction of bodily harm as an aggravating factor in each of the four sexual assaults. He argued that a single infliction of bodily harm should be an aggravating factor for only a single sexual assault and that the judge therefore improperly imposed multiple punishments for a single act.

Without resolving the legal argument, the Court of Criminal Appeal noted that even if McCann were to be resentenced without consideration of the aggravating factor on three counts, the severity of his conduct would warrant imposition of the same sentence on the count to which the aggravating factor applied. Since all the other sentences were concurrent, the overall sentence would not be changed. In light of that position, McCann and the Crown agreed that the legal issue need not be resolved. Accordingly, the Court of Criminal Appeal granted leave to appeal and dismissed the appeal.

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

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