R v Andrew COLE [2009] NSWDC 255

R v Andrew COLE [2009] NSWDC 255

The aggravated sexual assault was objectively towards the upper range because it occurred in the complainant's home, against a vulnerable recently widowed complainant, with children present, and involved force and threats to sexually assault the children. The offender's paranoia explained his entry into the house but did not significantly connect with the decision to force the complainant to perform fellatio, and his forensic patient status did not alter sentence length. His early guilty plea warranted a 25 per cent reduction, but his serious criminal history, poor prospects of rehabilitation, community protection, and the distinct criminality of detaining for advantage required...

Jurisdiction
Australia
Judgment Date
21 August 2009
Procedural Posture
Criminal Sentence / Sentence Following Early Guilty Plea
Outcome
Sentenced to imprisonment for both offences.
Legal Topics
['aggravated Sexual Intercourse Without Consent' 'detaining for Advantage' 'mental Illness' 'forensic Patient' 'preventative Detention' 'guilty Plea Discount' 'partial Accumulation']
['criminal Law' 'sentencing'] ['aggravated Sexual Intercourse Without Consent' 'detaining for Advantage' 'mental Illness' 'forensic Patient' 'preventative Detention' 'guilty Plea Discount' 'partial Accumulation']

Case Brief

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Procedural Posture

Criminal Sentence / Sentence Following Early Guilty Plea

Legal Issues

  1. 1 ['What sentences should be imposed for detaining for advantage and aggravated sexual intercourse without consent.' "Whether the offender's mental illness and forensic patient status should affect the sentence." "Whether the offender's early guilty plea and remorse warranted a sentencing discount." 'Whether sentences should be wholly concurrent or partially accumulated.' 'Whether protection of the community and preventative detention were relevant sentencing considerations.']

Ratio Decidendi

The aggravated sexual assault was objectively towards the upper range because it occurred in the complainant's home, against a vulnerable recently widowed complainant, with children present, and involved force and threats to sexually assault the children. The offender's paranoia explained his entry into the house but did not significantly connect with the decision to force the complainant to perform fellatio, and his forensic patient status did not alter sentence length. His early guilty plea warranted a 25 per cent reduction, but his serious criminal history, poor prospects of rehabilitation, community protection, and the distinct criminality of detaining for advantage required...

Court Disposition

Sentenced to imprisonment for both offences.

Orders

  • ['For the offence of detaining for advantage, fixed term of five years imprisonment commencing on 31 July 2008.' 'For the offence of aggravated sexual assault, non-parole period of ten years commencing on 31 July 2010 and head sentence of fourteen years.' 'The offender will be eligible to be released to parole on 30...