Calatzis v Jones

[2023] ACTMC 33

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Calatzis v Jones

Citation: 

[2023] ACTMC 33

Hearing Date: 

14 August 2023

Decision Date: 

31 August 2023

Before:

Chief Magistrate Walker

Decision: 

Bond to be of good behaviour and supervised for 3 years.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Act of indecency without consent – Objective seriousness - Totality

Legislation Cited: 

Crimes Act 1900 ss 60(1), 375(15)(a)

Crimes (Sentencing) Act 2005 (ACT) ss 7(2), 10

Crimes (Sentence Administration) Act 2005 (ACT) s 86

Cases Cited: 

DPP v Jones [2023] ACTSC 99

DPP v Earle [2023] ACTSC 93

Jurj v The Queen [2016] VSCA 57

R v Palmer [2017] ACTSC 357

R v Toumo’ua [2017] ACTCA 9

R v Ali (no 4) [2020] ACTSC 350

Szabo v MS [2018] ACTMC 9

R v Miller [2019] ACTCA 25

Markarian v the Queen [2005] HCA 25; 228 CLR 357

Parties: 

P Calatzis (Informant)

L Jones ( Defendant)

Representation: 

Counsel

S Pitney ( Informant)

J Maher ( Defendant)

Solicitors

ACT Director of Public Prosecutions (Informant)

Armstrong Legal ( Defendant)

File Number:

CC 10730 of 2022

CHIEF MAGISTRATE WALKER:

1․The offender Liam Jones pleaded guilty to a single act of indecency without consent contrary to s 60(1) of the Crimes Act 1900 (ACT) (Crimes Act). On conviction, the offence carries a maximum penalty of 7 years imprisonment. Mr Jones consented to the jurisdiction of this court; s 375(15)(a) of the Crimes Act sets a jurisdictional limit of 5 years imprisonment.

2․The offence occurred against a background of friendship with the victim through their previous employment. That friendship extended to an earlier occasion of consensual touching, including cuddling and kissing in early 2020.

3․On 18 April 2021, after an evening with friends, the victim found herself alone in Civic. She checked her Instagram account and discovered that Mr Jones was also in the city. She messaged him and they agreed to meet. Both were intoxicated. They walked around the city talking and kissing consensually. It was cold; they agreed to go to the victim’s home. She told him “you can come over but we are not having sex”. He responded “yep, that’s ok”.

4․They travelled in an Uber hire car to her home in Campbell. The victim had a housemate; in order to avoid waking that person, they went to the victim’s bedroom. The victim removed her clothing including a bra and stockings but left her underpants on. Mr Jones also removed his clothing leaving his underpants on. They got into bed together side by side. Mr Jones consensually “spooned” the victim, that is cuddled her from behind. She said goodnight to him.

5․Mr Jones then slid his hand inside the victim’s underpants and rubbed her clitoris in a circular motion for about 10-20 seconds. The victim sat up and said “you can’t handle being here”. Mr Jones replied “I know”.

6․The victim got out of bed and ordered Mr Jones an Uber hire car. Both got dressed and went outside to wait for the car. When it arrived, they hugged consensually. Mr Jones left in the car and the victim went back inside.

7․The following day, Mr Jones and the victim exchanged friendly messages.

8․The victim made a complaint to police in two interviews on 25 May 2022 and 22 July 2022.

9․The victim’s impact statement speaks to the devasting impact the offence had on her emotional health.

10․At the time of this offence, Mr Jones had no criminal convictions. The offender has since been convicted of more serious sexual offences against another member of the work group of friends, being offences of sexual intercourse without consent and committing an act of indecency without consent. Those offences post-dated this offence by about 2 months. He is serving a total sentence of 3 years imprisonment in respect to that offending for the period 4 May 2023 to 3 May 2026; a non-parole period of 15 months expires on 3 August 2024.

11․As her Honour Chief Justice McCallum observed in sentencing Mr Jones in DPP v Jones [2023] ACTSC 99;

“the range of culpability in sexual offending is extremely broad, from violent, predatory and humiliating attacks involving deliberately forced penetration to fleeting, impulsive acts where the issue of consent is not addressed in the mind of the offender”.  (See also DPP v Earle [2023] ACTSC 93 at [23].)

12․In DPP v Earle, Her Honour at [18] cited factors which may be considered in assessing the severity of sexual intercourse without consent, from Jurj v The Queen [2016] VSCA 57 at [80] as applied in this jurisdiction by Mossop J in R v Palmer [2017] ACTSC 357 at [22]:

(a) whether the offence was premeditated;

(b) whether the offender acted alone or in company;

(c) how long the attack lasted and whether the victim was raped more than once;

(d) whether the offending involved violence or threats of violence;

(e) whether a weapon was used;

(f) whether the victim was injured in the course of the rape;

(g) whether the victim was humiliated or degraded;

(h) whether the offender used a condom;

(i) whether the victim was particularly vulnerable; and

(j) whether the offender ignored warnings or protests by the victim.

13․The prosecutor submitted that these factors could be considered in this case. I find little of direct relevance to these facts in that list.

14․The prosecutor submitted that this case was an example of an act of indecency at “the more serious end” given hand to genital contact. She also pointed to the victim’s level of intoxication as an indication of her vulnerability and the statement made by the victim that “we are not having sex” as a basis for the inference that Mr Jones was on notice of the lack of consent. The fact that the offence occurred in the victim’s home is also identified as an aggravating factor. This was certainly expressed as harmful by the victim.

15․The prosecutor also submitted that the fact that Mr Jones had been the victim’s supervisor was an aggravating factor.

16․In this case the victim had indicated to Mr Jones prior to them attending her home that they would not be having sex. There is no information before me as to why this comment was made but Mr Jones acknowledged and agreed with it so was certainly aware of the victim’s state of mind at that time. Subsequently, they engaged in what might ordinarily be considered the precursors to consensual sex, that is they stripped to near naked, got into bed together and spooned. It is from that point that Mr Jones’ conduct must be assessed. It is put on Mr Jones’ behalf that his failure to consider consent at that point was reckless. It is on that basis that the plea was entered.

17․Whilst the incident occurred in the victim’s home, not only was Mr Jones invited there, he was also invited into the victim’s bed. The hand to genital contact is in itself a serious act but in circumstances where the pair were already in a consensual skin to skin intimate contact situation, the act must be characterised as an extension of that contact. The context is an important factor in assessing the level of moral culpability for this offence.

18․I do not accept the submission that the former employment relationship is an aggravating factor given that the employment relationship had ceased some time prior to the offending.

19․The incident was brief. Mr Jones stopped immediately it was made clear to him that his advance was unwelcome. He complied immediately with the victim’s implied request that he leave.

20․The prosecution submit that the victim’s level of intoxication rendered her a vulnerable victim. However, the circumstances point to the contrary. She initiated contact with Mr Jones, she set the ground rules for that contact, and when from her perspective those ground rules were breached, she responded immediately to remove him. This speaks to a woman very much in control of the situation.

21․What of the earlier agreement that there would be no sex between the two that night? The prosecution does not cavil with the defence submission that Mr Jones was reckless as to whether the victim consented to his conduct. He accepts as much by his plea. I am satisfied that the landscape of the arrangement between them had changed markedly from the point at which the victim stated that there would be no sex to the point at which they got into bed together almost naked and spooned. Mr Jones was wrong; this did not mean that the victim consented to him touching her genitals. But his moral culpability must be assessed against the situation in which they found themselves at the time of the act, as well as having regard to what was said at some earlier point. This does not derogate from the need to be clear as to consent.

22․I assess the offending as a less serious example of an act of indecency.

23․Mr Jones is a 28 year old man from a supportive family. He is in regular contact with them.

24․His mother describes him as being a sensitive and generally quiet person. He experienced depression following the end of a five year relationship which his partner called off. This lead to him becoming depressed. He sought help from a doctor but was inconsistent in his use of anti-depressants, feeling better, ceasing them and then slipping back into the depression.

25․Mr Jones’ GP, Dr Southi, has known him since he was a child and always found him to be respectful. He has attended to Mr Jones’ chronic depression and anxiety. He anticipated that incarceration would have a negative impact on Mr Jones’ mental health, as eventuated. In fact Mr Jones took an overdose of prescribed medication prior to being found guilty on those charges for which he is incarcerated. It is to Mr Jones’ credit that he is addressing his mental health and working positively towards his future.

26․He now has a partner who is aware of his criminal matters but remains very supportive. She finds him considerate and thoughtful. Her mother shares that assessment of Mr Jones; she is not concerned for her daughter’s welfare with him.

27․Since leaving school at 17, Mr Jones has been employed in white collar occupations. He has aspirations of becoming an electrician. He is using his time in custody productively to study and work as a sweeper.

28․Mr Jones has expressed remorse for his conduct referring to his regret and shame. The prosecutor submitted that the offender’s expressions of remorse relate primarily to loss of his friendship with the victim and to that extent were self-referential. Significantly, the victim also expressed sadness at the loss of the friendship. Her victim impact statement commenced with “..it would be wrong to ignore how deeply hurt I am to have lost such a close friend..” The prosecutor invites the court to reject Mr Jones’ asserted remorse, guilt and shame, as corroborated by his referees, as the basis for the assertions are unclear. He is further criticised for failing to articulate how his offending may have impacted the victim whilst stating his regret that she has to live with the memory. He is criticised for failing to demonstrate remorse, although how he might do that is not articulated.

29․I accept as genuine Mr Jones’ expression of remorse extending as it does to his regret in failing to appreciate the victim’s position on consent and the impact of his offence on her. The recognition of the loss of friendship does not derogate from his broader expression of remorse.

30․His plea of guilty may also be characterised as evidence of remorse. He initially pleaded not guilty to two charges and a brief of evidence was prepared, the matter was resolved at the pre-hearing mention stage. The prosecutor submitted that as the plea of guilty to the offence was entered following negotiations resulting in withdrawal of a charge of sexual intercourse without consent, the full 25% discount ought not be applied. Mr Jones submitted that a 20-25% discount was appropriate, noting the utilitarian benefit of the plea.

31․I note the observations of the Court of Appeal in R v Toumo’ua [2017] ACTCA 9 to the effect that an offender may benefit from the utilitarian value of an early plea, or from a lower sentence or fewer charges following negotiations, but that they should not benefit from both. This case is not one in which two charges of differing severity could be applied to the same conduct. On the facts in this case, the charge of sexual intercourse without consent could not have been made out. It is an unfortunate reality that in the ACT, a defendant is often not provided with evidence of the case against them until they enter a not guilty plea meaning that fulsome legal advice cannot be given at an earlier stage. Here the guilty plea was entered on the first occasion after service of the full brief. I am satisfied that a 25% discount is properly applied.

32․My attention was drawn to a number of similar cases to facilitate consideration of comparative sentences.

33․In DPP v Earle, the offender and victim had been in an intimate relationship; they had more recently rekindled a friendship, the offender had stayed at her home on occasion and they had kissed on one of these occasions. The offence occurred on a later occasion in which the offender was invited to stay over and consume intoxicating substances. The conduct consisted of him rubbing her clitoris whilst spooning from behind whilst she was asleep and as she awoke, “scooping” her down and removing her underwear. 12 months imprisonment was imposed for the act of indecency. The offending was part of a course of conduct in which the offender went on to perform non-consensual sexual intercourse in the form of penile penetration. The prosecutor submits that this is a useful comparator. I consider that the conscious act by Earle to take advantage of a sleeping woman creates a marked difference between that case, however, I note that that offender too was a relatively young person of prior good character.

34․In R v Ali (no 4) [2020] ACTSC 350, the offender and victim were work colleagues, the acts of indecency were squeezing the victim’s breast and attempting to pull her pants down. There was no consensual intimacy between them. Those offences were committed in conjunction with an act of sexual intercourse without consent. The acts of indecency each attracted sentences of imprisonment of 2 months, served concurrently with each other and partially concurrent with a sentence of imprisonment on the sexual intercourse without consent charge. The offender was a more mature man with a limited criminal history.

35․I was also referred to a sentence imposed by my brother Magistrate Theakston in Szabo v MS [2018] ACTMC 9. The facts there are similar as to the physical act of touching the vulva and clitoris but in that case there was no consensual intimate contact beforehand and the victim was asleep with no possible indication of consent. The offender, of previous good character and young, as in this case, was sentenced to a period of imprisonment, suspended on entering into a good behaviour bond with a community service obligation.

36․The Sentencing Database for this offence in the Magistrates Court discloses a range of sentences imposed from a good behaviour order through to imprisonment, with over 60% of cases attracting a sentence of imprisonment in some form and approximately 40% served by way of fulltime custody.

37․I have had regard to the sentencing objectives detailed in s 7 of the Crimes (Sentencing) Act 2005 (ACT) and relevant factors for consideration detailed in s 33.

38․I have had regard to the guidance of McCallum CJ in Earle as to the weight to be attributed to s 7 sentencing principles. There Her Honour addressed the question of general deterrence having regard to the observations of the Court of Appeal in R v Miller [2019] ACTCA 25 at [44]:

“The primary sentencing considerations for sexual offending are punishment, deterrence, denunciation and recognition of the harm done to the victim. In the proceeding before the primary judge there was little by way of remorse demonstrated by the respondent beyond his plea of guilty to the offence. Personal deterrence should have been a relevant consideration at that time. General deterrence, or deterrence of others from committing like crimes, is always an important consideration in imposing a sentence for sexual offending. The above does not deny the relevance of rehabilitation in sentencing offenders such as the respondent, but in sentencing for sexual offences rehabilitation will ordinarily be given lesser weight than the other considerations to which we have referred due to the gravity of the offending.”

39․Significantly, Her Honour went on to observe at [44]:

“Such comments are important for general guidance and in supporting consistency in sentencing, but they must not be hardened into immutable rules. To apply statements of broad application in that way would put a gloss on the terms of s 7(2) of the Crimes (Sentencing) Act and would subvert individualised justice and the process of instinctive synthesis that this Court is required to undertake in accordance with decision of the High Court in Markarian v the Queen [2005] HCA 25; 228 CLR 357.”

40․General deterrence is an important factor in this case, as is recognition of the harm done to the victim.

41․I take into account that this is effectively the offender’s first offence. In doing so I must be cognisant of subsequent, more serious offending in terms of assessing his prospects of rehabilitation and the need for specific deterrence.

42․Despite his subsequent offending, I consider that the offender has excellent prospects for rehabilitation.

43․I must also consider Mr Jones’ existing sentence in terms of what is practically available given his current incarceration along with what penalty might have been imposed had these matters been sentenced either chronologically or together. Had Mr Jones been dealt with for this offence prior to his later offending, I am reasonably confident that the latter offending would not have occurred.

44․I have had regard to s 10 of the Crimes (Sentencing) Act 2005 (ACT) which provides that the Court may impose a sentence of imprisonment only if satisfied, having considered possible alternatives, that no other penalty is appropriate. Considering this offence in isolation, despite the submissions of both the prosecutor and defence, I do not consider that this threshold is crossed. It follows that neither an intensive corrections order nor a suspended sentence of imprisonment would fall to be considered as both require an initial finding that a sentence of imprisonment is appropriate and in any event cannot be served during the existing sentence.

45․I consider that a financial penalty is inappropriate to the character of this example of the offence.  Community service cannot be performed whilst an offender is in custody.

46․Without regard to the later offending and the existing sentence, I would have been minded to impose a lengthy good behaviour order with conditions geared towards addressing any likelihood of further offending such as appropriate educational programs. Such programs as may be available whilst a person is on probation under a good behaviour order are not available in custody.

47․Having regard to all of the circumstances, I consider that a good behaviour order is the most appropriate sentence as any breach, for example whilst Mr Jones is on parole in due course, leaves open the option of resentencing if my optimism as to Mr Jones rehabilitation transpires to be ill-founded.

48․On charge number 10730/22, I record a conviction.

49․Mr Jones, you are to give your undertaking to be of good behaviour for a period of three years from today. The core conditions which attach to that order pursuant to s 86 of the Crimes (Sentence Administration) Act2005 (ACT) will apply.

I certify that the preceding forty-nine [49] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Magistrate Walker.

Associate: Olivia Ferguson

Date: 7 September 2023