[2017] NSWSC 1710

Judgment Summary Supreme Court New South Wales

R v Attwater; R v Maris [2017] NSWSC 1710 Fullerton J The Supreme Court has sentenced Adrian Attwater to an aggregate sentence of 19 years imprisonment with a non-parole period of 14 years and 3 months following verdicts of guilty to manslaughter and aggravated sexual assault, and sentenced Paul Maris to an aggregate sentence of 9 years imprisonment with a non-parole period of 6 years and 9 months following verdicts of guilty to aggravated sexual assault and hindering the discovery of evidence. The particular of aggravation in each offence was that non-consensual sexual intercourse had occurred in the company of each other. At approximately 6:46 am on 27 January 2011 Ms Daley was pronounced deceased by paramedics at Ten Mile Beach near Iluka in northern New South Wales after they responded to a triple-0 call placed by Mr Maris. When police attended a short time later they found a pile of recently burnt materials partly covered with sand, being a mattress and clothing, located under a vehicle that had been driven by Mr Maris. Both offenders gave accounts to police at the scene in which they described having engaged in consensual sexual intercourse with Ms Daley in the back of the vehicle the previous evening. They both said they had all been drinking for many hours. Mr Attwater told police that he had only become aware that Ms Daley was unwell when she collapsed into a state of unconsciousness in the ocean the following morning. The cause of Ms Daley’s death was identified at post mortem as blunt force genital tract trauma associated with significant blood loss ultimately leading to hypovolemic shock. A toxicology report confirmed Ms Daley’s blood alcohol concentration at the time of death as 0.303g/100mL. It was not in issue in Mr Attwater’s case at trial that the injuries were the direct cause of her death or that the genital tract injury was inflicted by him during sexual intercourse. By its verdict the jury was satisfied beyond reasonable doubt that the sexual intercourse with Ms Daley was unlawful, being without her consent in circumstances where he knew she was not consenting and that the unlawful act of sexual intercourse, in the course of which the fatal injuries were inflicted, was objectively dangerous. In respect of Mr Maris, by its verdict the jury was satisfied that the aggravated sexual assault and hindering of the police investigation into Mr Attwater’s offending by Mr Maris burning the mattress and clothing had been proved beyond reasonable doubt. Mr Attwater contested a number of facts on sentence which he submitted were not resolved by the jury’s verdict. These included: whether Ms Daley’s consent to sexual intercourse was negatived because the extent of her intoxication rendered her unconscious, or whether This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the Court’s judgment.

there was a reasonable possibility that she was conscious at the time of sexual intercourse but did not consent because her level of intoxication was substantial; whether Mr Attwater had no honest belief that Ms Daley was consenting to sexual intercourse or whether he genuinely believed, though unreasonably, she did consent; whether the vaginal injuries which caused Ms Daley’s death were the result of Mr Attwater forcefully and repeatedly penetrating her vagina, incorporating his fist, or whether the injuries were caused by him using only his flattened hand; and whether and to what extent Mr Attwater’s attitude towards Ms Daley, including his treatment of her as a sexual partner, informed an enquiry into his state of mind at the time of intercourse. Her Honour resolved each of the matters adverse to Mr Attwater. Counsel for Mr Maris did not submit that there were any facts relevant to his sentence proceedings that were not resolved by the jury’s verdicts. Her Honour assessed the manslaughter of Ms Daley as an offence of extreme objective seriousness, and assessed the objective seriousness of the sexual offending of both offenders as high, with Mr Attwater’s sexual offending being the more objectively serious. In assessing the objective seriousness of the hindering offence, her Honour considered that police were deprived of forensic evidence which would have supported proof of Mr Attwater’s sexual offending. There was no evidence of remorse or contrition by either offender. Her Honour found their prospects of rehabilitation were guarded. There were no other factors in either of the offenders’ subjective circumstances which her Honour considered carried significant weight in mitigation of sentence. The delay of approximately five and a half years between the initial charging of both offenders in April 2011 and their arraignment in December 2016, was a factor her Honour considered moderated, to an extent, the aggregate sentences to be imposed on both offenders. Mr Attwater was sentenced to an aggregate term of imprisonment of 19 years, comprised of a non-parole period of 14 years and 3 months commencing on 5 September 2017 and expiring on 4 December 2031, with a balance of term of 4 years and 9 months expiring on 4 September 2036. Mr Maris was sentenced to an aggregate term of imprisonment of 9 years, comprised of a non-parole period of 6 years and 9 months commencing on 5 September 2017 and expiring on 4 June 2024, with a balance of term of 2 years and 3 months expiring on 4 September 2026.

This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the Court’s judgment.