Director of Public Prosecutions v Hartas
[2024] ACTSC 21
•8 February 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Hartas |
Citation: | [2024] ACTSC 21 |
Hearing Date: | 31 January 2024 |
Decision Date: | 8 February 2024 |
Before: | Taylor J |
Decision: | See [99]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated choke, suffocate or strangle another person – aggravated assault occasioning actual bodily harm – aggravated sexual intercourse without consent – family violence – no meaningful remorse – constrained prospects for rehabilitation |
Legislation Cited: | Crimes Act 1900 (ACT), ss 24(1), 27(1) 28(2)(a), 54(1) Crimes (Sentence Administration) Act 2005 (ACT), s 108(2)(a) Crimes (Sentencing) Act 2005 (ACT), ss 7, 33(1)(f), 34B Family Violence Act 2016 (ACT), s 9(b) |
Cases Cited: | Blundell v The Queen [2019] ACTCA 34 Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 DPP v Dunn [2022] ACTSC 355 DPP v Moala(No 3) [2023] ACTSC 306 Henry v The Queen [2019] ACTCA 5 Hili v The Queen [2010] HCA 45; 242 CLR 520 Hillier v DPP(NSW) [2009] NSWCCA 312; 198 A Crim R 565 Johnson v R [2017] NSWCCA 53 Kelly v Ashby [2015] ACTSC 346 Laipato v The Queen [2020] ACTCA 35 Markarian v R [2005] HCA 25; 228 CLR 357 Mill v The Queen (1998) 166 CLR 59 O’Brien v The Queen [2015] ACTCA 47 Pearce v The Queen (1998) 194 CLR 610 R v Cowling [2019] ACTSC 138 R v Day (No 2) [2022] ACTSC 352 R v Finau (No 2) [2020] ACTSC 193 R v Hancock [2021] ACTSC 52 R v Kilic [2016] HCA 48; 259 CLR 256 R v MAK [2006] NSWCCA 381; 167 A Crim R 159 R v Palmer [2017] ACTSC 357 R v Pham (2015) 256 CLR 550 R v Okwechime [2022] ACTSC 233 R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 R v Tran [1999] NSWCCA 109 R v Way (2004) 60 NSWLR 168 R v Van Duren [2017] ACTSC 132 R v Van Rysewyk [2008] NSWCCA 130 Smith v The Queen [2011] NSWCCA 163 Taylor v The Queen [2014] ACTCA 9 The Queen v Miller [2019] ACTCA 25 Wyper v The Queen; R v Wyper [2017] ACTCA 59 |
Parties: | Director of Public Prosecutions ( Crown) Brad Anthony Hartas ( Offender) |
Representation: | Counsel S Saikal-Skea ( DPP) J Sabharwal ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ( Offender) | |
File Number: | SCC 4 of 2023 |
TAYLOR J:
Introduction
1․The offender, Brad Anthony Hartas, is to be sentenced by this Court for offences he committed against his then partner on 17 September 2022. The offending included acts of violence, including sexual violence, and is a serious example of family violence. While the offender does not have a significant criminal history for offending of this kind, he has limited insight into the nature and gravity of his offending, constraining his prospects for rehabilitation. The victim, through her Victim Impact Statement, articulated the consequences of the offending upon her, revealing the compounding effects of family violence. The community rightly expects the Court to treat these offences seriously.
2․On 29 September 2023 the offender entered pleas of guilty to the following offences:
(i)CAN9213/2022 – Aggravated choke, suffocate or strangle another person, contrary to s 28(2)(a) of the Crimes Act 1900 (ACT) (the Crimes Act). The maximum penalty for this offence is imprisonment for seven years;
(ii)SCCAN376/2023 – Aggravated assault occasioning actual bodily harm, contrary to s 24(1) of the Crimes Act. The maximum penalty for this offence is imprisonment for seven years; and
(iii)CAN11110/2022 – Aggravated sexual intercourse without consent, contrary to s 54(1) of the Crimes Act. The maximum penalty for this offence is imprisonment for 15 years.
Facts
3․At the time of the offences, the offender and the victim, SE, had been in an on and off relationship for between one and five months. They are family members pursuant to s 9(b) of the Family Violence Act 2016 (ACT) (the Family Violence Act).
4․On 17 September 2022, the victim was at the offender’s residence, a unit in a caravan park in Symonston. In the afternoon, the victim and the offender had purchased a four-litre cask of white wine. They both consumed the wine mixed with a ‘slurpee’ drink they had purchased from 7-Eleven.
5․The offender and victim began to argue about the victim’s ex-partner at approximately 3:30pm, continuing to argue throughout the afternoon.
6․Sometime between 7:00 – 8:00pm, the victim received a phone call from her mother and brother. The victim spoke with her family about a birthday party for her father and her son that neither the offender nor victim had been invited to; however the victim’s ex-partner had been invited. The offender was angered by the absence of an invitation.
7․At some point during the call, the offender started to yell at the victim’s brother through the phone. The victim’s brother began to yell back at the offender, causing the victim to hang up the phone. The conversation exacerbated the tension between the offender and the victim. The victim suggested that she and the offender go to the communal camp kitchen and cook dinner.
8․The couple continued to argue as they arrived at the camp kitchen, the offender still upset about the absence of his invitation to the birthday party. The offender threatened to “bash” the victim’s brother, to which the victim responded with words to the effect of, “[i]f you’re going to bash someone, bash me”.
9․The offender grabbed the victim around her neck with one of his arms and her mouth with the other. The offender held his slurpee cup filled with alcohol in the same hand as the arm that was around the victim’s neck.
10․The offender dragged the victim from the kitchen area to the unit, keeping his arm around her neck. The victim repeated the word, “sorry”, to the offender as he dragged her.
11․When the offender got to his unit, he kicked open the door and went inside with the victim. The offender then went to the bathroom. The victim opened the front door, running away from the offender’s unit in the direction of the unit of another resident that she knew and who she hoped would help her.
12․The offender, noticing the victim had left, chased the victim as she ran. He caught up with her outside a different unit, throwing the slurpee cup of wine over her face. The offender then grabbed the victim around the neck and again dragged her back into his unit.
13․Once inside his unit with the victim, the offender kicked his front door shut and dragged the victim onto his double bed, which was positioned against a brick wall.
14․The offender pushed the victim onto the bed and up against the brick wall. The offender got onto the bed, positioning himself so he was on his knees facing the victim. The offender punched the victim twice with a closed fist to the top right-side of her head. The victim was yelling words to the effect of, “stop, stop, stop, let go”, and “not my head”. This was overhead by Ms Pendrick, a resident at the caravan park.
15․The offender pulled down the victim’s black pants and black underwear with both his hands, to her ankles. The victim cried as the offender was doing this, using her hands to push the offender in his stomach to try and get him away from her.
16․The victim was still wearing a one-piece lingerie set comprised of fishnet stockings attached to a bodysuit that did up at the victim’s shoulders. The bodysuit opened at the crotch.
17․The offender used his arms on the victim’s shoulders to push her body down onto the bed, so her head was on the pillow and legs at the end of the bed. The offender was still on the bed, facing the victim, kneeling between her legs. The victim was crying and the offender was telling her to “shut up”.
18․The victim tried to move and jiggle her legs to try and make the offender stop, but then she lay still. The victim’s nose ring was pulled out at some point during this interaction.
19․The offender removed his erect penis from his pants and inserted it in the victim’s vagina. The victim felt pain as the offender penetrated her. The offender was not wearing a condom.
20․The offender penetrated the victim’s vagina for two minutes before removing it. Upon removing his penis, he said words to the effect of, “why is there blood?”. The source of the blood was not able to be determined.
21․Shortly after there was a knock on the unit door. The victim yelled out, “who is it?”. The person at the door responded with words to the effect of, “…open the door, I know what’s going on”.
22․The offender opened the door to see caravan park residents Mr Tate and Ms Pendrick. The victim came out of the front door and was grabbed by Ms Pendrick. The victim was crying as she left the unit and continued to cry on Ms Pendrick’s shoulder.
23․At some point immediately prior to the knock on the door, the victim had phoned her father, and told him that the offender had assaulted her. Her father remained on the phone and heard the interaction between Mr Tate and the offender.
24․The victim said words to Mr Tate and Ms Pendrick to the effect of, “he hit me, he hit me, he hit me in the head”. Mr Tate told the offender that he was, “taking the lady back to my place with [Ms Pendrick] and you can’t do nothing about it mate”. The offender responded with words to the effect of, “yeah, cool”.
25․Mr Tate and Ms Pendrick took the victim to Mr Tate’s unit. The victim told Mr Tate and Ms Pendrick that she had been “bashed” and “raped” by the offender.
26․Mr Tate phoned triple-zero and requested police assistance for the victim, explaining that the victim had been “belted by Brad Hartas” and that the victim had bruising to her eye.
27․Mr Tate and Ms Pendrick observed the victim to have bruising and swelling to the right side of her temple and that her nose ring had been ripped out. These injuries were photographed by police upon their attendance on 17 September 2022 and again the following day.
28․Police were advised by ACT Police Operations at 8:50pm on 17 September 2022 of Mr Tate’s emergency call and they attended the caravan park at 9:10pm.
29․An ambulance was called and attended the caravan park at approximately 9:54pm. The victim was observed by ambulance officers to be tearful and upset. She told ambulance officers that she had been assaulted, and that she felt dizzy, lightheaded and had pain to her head. The ambulance officers observed a small bruise to the victim’s right cheek. They transported the victim to Canberra Hospital in a stable condition.
30․The victim remained at the Canberra Hospital overnight and was discharged the following morning. While at the hospital, the victim was treated for asthma. She declined the offer to be assessed by forensic services following her allegation of sexual assault.
31․The offender was arrested on 18 September 2022.
32․On 21 September 2022, the victim attended Canberra Hospital reporting that she was still experiencing blackouts, had feelings of fainting, forehead pain and soreness to her throat following the assault and strangulation. There is no further record of treatment.
Victim Impact Statement
33․The Victim Impact Statement of the victim was read aloud during the sentencing proceedings. I am obliged to take into account the effect of the offending upon the victim pursuant to s 33(1)(f) of the Crimes (Sentencing) Act 2005 (ACT) (the Crimes (Sentencing) Act).
34․The victim said that “not a day has gone by” where she has not thought about the offending, which she reported “has left [her] with restless nightmares to the point of where [she has] lost sleep”. The victim described still being “highly scared of [the offender] and what he may be capable of next” and that she found herself traumatised, picturing the offending “in [her] mind constantly replaying over and over again”.
35․The victim wrote of the impact of the offending on her family, including her beloved pet dog. The victim described her son as “now very afraid” of the offender.
36․After the offending, the victim was “really scared of men” and “would not go near” her current partner “for at least [two] weeks”. She expressed her gratitude for her partner, who is providing support for her and her children. The victim noted that she suffered major depression and anxiety following the offending. The victim also expressed her gratitude for the neighbours who intervened in the offending.
37․The Court is assisted to understand the extent of the harm suffered by the victim through the provision of the Victim Impact Statement. The many effects of the offending described by the victim reveal the intense and long-lasting consequences of violent offences, including sexual offences. Recognition of harm should feature strongly as a sentencing consideration.
Considerations
Nature and circumstances of the offending
38․An assessment of the nature and circumstances of the offending requires consideration of the objective seriousness of the conduct establishing the offence. An assessment of objective seriousness and where offending conduct sits on the spectrum of offending is an important consideration: R v Kilic [2016] HCA 48; 259 CLR 256 at [19]. The maximum penalty provided for by the legislature “serves as an indication of the relative seriousness of the offence”: Markarian v R [2005] HCA 25; 228 CLR 357 at [31]. The maximum penalties that apply in this matter reflect the community’s intolerance for violent offences committed in the context of family violence. Consistent with observations made in this jurisdiction about the utility of references to low, mid or high range offending (see R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 at [24] and Laipato v The Queen [2020] ACTCA 35 at [156]), McCallum CJ observed in DPP v Moala(No 3) [2023] ACTSC 306 (Moala) at [22] that it is not necessary to express a finding of objective seriousness “as a point on a hypothetical range”. I have assessed the offences consistent that approach. This was, on any view, a serious incident of family violence that included a combination of both physical and sexual violence.
Aggravated intentionally and unlawfully choke, suffocate or strangle another person
39․This is a “rolled up” charge capturing the offender engaging in more than one act of choking. The charge has a greater degree of criminality than a charge which captures only one instance of choking: see R v Hancock [2021] ACTSC 52 (Hancock) at [28] and Johnson v R [2017] NSWCCA 53 at [68]. I assess this charge consistent with the approach set out in Hancock at [28]. The offence can be committed by the application of pressure, to any extent, to a person’s neck (s 27(1) of the Crimes Act) and accordingly can capture a broad category of conduct ranging in consequence from momentary pressure to pressure that significantly interferes with a victim’s ability to draw breathe.
40․The offending in this matter saw the offender put pressure on the victim’s neck on two separate occasions during a continuing course of conduct, including dragging her by the neck to return her to his residence after she made an attempt to flee from him. The choking saw the offender exerting complete physical control over the victim using his hold on her neck to drag her to where he wanted her to be, after she had tried to escape him. This was an effective way of asserting physical dominance over the victim and communicating to her the power he had to control their interaction notwithstanding her desire to leave. In a degrading act immediately prior to the second act of choking, the offender poured a cup of wine over the victim’s face. The victim experienced soreness in her neck as a consequence of being choked.
Aggravated assault occasioning actual bodily harm
41․An assessment of this offence requires a consideration of the nature of the conduct and the consequent injury. The offending occurred in the offender’s residence where the victim was spending time. This conduct involved two blows with a closed fist directly to the victim’s face, a vulnerable area of her body, resulting in the victim experiencing pain, “blackouts” and suffering bruising to the area.
Aggravated sexual intercourse without consent
42․I bear in mind, in coming to assess the objective seriousness of this offence, the factors identified in R v Palmer [2017] ACTSC 357 (Palmer) at [22] as informing the objective seriousness of sexual offences including, for example, the duration of the conduct, whether violence or threats of violence were involved, whether the victim was injured or whether the offender ignored protests from the victim.
43․Against the background of the factors identified in Palmer, I observe that this offence involved penile-vaginal penetration that extended for minutes in the offender’s residence, where the victim was spending time. The intercourse came after the offender had choked the victim and punched her in the face. The victim was crying. The offender forcibly removed her clothes to facilitate the intercourse. This was not a matter of recklessness, in the context of an ongoing relationship, borne of miscommunication. The victim made plain that the sexual intercourse was occurring without her consent and I am satisfied beyond reasonable doubt that the offender knew this to be the case. Demonstrating complete disregard for her physical and emotional wellbeing, the offender went ahead nonetheless. The offender did not use a condom. The victim experienced pain. The offender only stopped when noticing blood during the course of the intercourse, and was soon interrupted by concerned neighbours.
Subjective circumstances
44․The material before the Court includes a Pre-Sentence Report (PSR) dated 16 January 2024, as well as a number of certificates demonstrating qualifications the offender has obtained while in custody and letters provided by the offender’s family.
Pre-Sentence Report
45․The offender is now 36 years of age. He has been known to ACT Corrective Services since 2006 when he was sentenced to a Recognizance Order with supervision for committing an act of indecency without consent. The author of the report noted that the offender was then transferred interstate for a period before returning to the ACT, at which time he was assessed for a sex offender treatment program. The offender was found not suitable for this program due to his risk level and insufficient time remaining on his order to complete such a program. The offender again had contact with ACT Corrective Services in 2019 and 2021 when he was sentenced to Good Behaviour Orders. The author noted that the offender’s compliance with supervision was inconsistent and that breach action was initiated for failing to comply with the Community Service work condition of the order. The author noted that records indicate the offender has demonstrated positive behaviour during his time on remand for the current offences.
46․The offender is one of three children from his parents’ relationship. He recounted witnessing domestic violence throughout his childhood to the author of the PSR. The offender’s parents separated when he was aged 18 years old. The offender resided with his father in the months prior to his death in 2008. He reported now having regular contact with his mother and less regular contact with his brothers since being in custody. He spoke of positive relationships with his extended family. He noted that some of his family members had criminal records.
47․The offender has three children from two previous relationships. His two elder children reside with his mother, enabling regular contact through video calls while the offender is in custody. The offender has ceased contact with his youngest child, who resides with her mother, while he has been in custody.
48․The offender is currently single. He had been in a relationship for six years, which ended about eight months prior to his arrest. The offender is currently subject to two Family Violence Orders: one relating to his ex-partner (FVO 1225/21, expiring 31 March 2024) and another relating to the victim of these offences (FVO 862/22, expiry date not specified).
49․In the eight months prior to being remanded, the offender had been residing in a caravan park. The offender reported to the author of the PSR that if he were to be released, he could reside with his cousin in Richardson, ACT. This information was confirmed by his mother, who has also looked into accommodation provided by a church in Queanbeyan, NSW.
50․The offender told the author that, after finishing Year 10, he completed a butcher’s apprenticeship. The offender then worked as a butcher, before he went on to undertake an apprenticeship in light sheet metal. He then worked as a welder and panel beater before he ceased employment to care for his ex-partner three years ago.
51․In custody, the offender has been working in a gardening position. The offender reported to the author of the PSR that he could secure employment with family upon his release, in gyprocking, which his mother confirmed.
52․The offender declared bankruptcy over two years ago following a dispute regarding a car loan. Prior to being remanded, he received Centrelink payments, and he will be eligible to receive these payments upon release until he secures employment.
53․The offender described having no friends to the author of the PSR, claiming he spends his time with family instead.
54․The offender reported daily cannabis use from the age of 14, with his time on remand being his longest period of abstinence. The offender first used methamphetamine in 2014, resuming use after the breakdown of his long-term relationship. He initially reported his use of methamphetamine as “sporadic”, however further clarification by the author revealed this usage to be up to twice a week for eight months prior to his remand in custody. The offender identified alcohol consumption as his primary concern, informing the author that he consumed up to three litres of alcoholic ginger beer daily in the eight months prior to his arrest.
55․The offender recounted attending a day rehabilitation program for three months in 2021 and indicated a willingness to re-engage in a similar program if required to do so. While in custody, the offender has completed the Brief Intervention Program ‘Thrive’ and has been placed on a waitlist for other programs.
56․The offender detailed experiencing mental health issues since 2019. He reported being diagnosed with a personality disorder in custody, and previously being diagnosed with depression and anxiety. The author reported that the offender is currently taking medication for his mental health, which the offender described as having a positive effect. The offender advised that he plans to re-engage with his General Practitioner when he is in the community for ongoing mental health treatment.
57․ACT Health records reviewed by the author confirmed that the offender has diagnoses of Cluster B personality disorder and depression. The offender was reviewed by Custodial Mental Health Services upon admission to custody, with no signs of major mental illness reported. At this time, the offender was referred to the ACT Corrective Services Specialist Communities for ongoing support and the Primary Health team for routine health care.
58․The offender attempted to minimise the severity of his offending to the author of the PSR, claiming that the victim had assaulted him and that he may have accidentally made contact with her in an attempt to defend himself. He claimed he was remorseful for this, though insisted he had not purposefully assaulted the victim. The offender acknowledged he was affected by alcohol at the time of the incident.
59․The offender told the author of the PSR that he only pled guilty to the offences on the advice of his legal representative, denying that he sexually assaulted the victim and maintaining that any sexual activity that did occur was consensual. Despite this, the offender agreed to participate in a sex offender program if required to do so after sentencing, though only through a community-based program due to his concerns for his safety in custody if he were to attend a program while on remand. The author assessed the offender as being at above-average risk of sexual reoffending. In his evidence in the sentencing proceedings the offender reaffirmed his guilt and accepted the facts relied upon by the prosecution. I will come more to the effect of his comments to the author of the report and his evidence further on in these sentencing remarks.
60․The author of the PSR was of the opinion that the offender appeared eligible for a referral to Restorative Justice and would be able to meet a financial penalty. The author also assessed the offender as suitable for a Community Service work condition. Though the offender acknowledged his previous issues with completing such a condition, he indicated it would not be problematic this time.
61․Due to the risk of sexual reoffending, the author opined that the offender would be suitable for a high level of supervision with ACT Corrective Services. The author noted that the offender has not yet engaged in offence-specific treatment, but that he could be assessed for a sex offender treatment program both in custody and in the community once sentenced.
62․The author of the PSR was of the view that the offender would be suitable for a Good Behaviour Order with a high level of intervention by ACT Corrective Services, noting that supervision would need to include strategies to address areas of risk such as unemployment, finances, lack of prosocial activities, his emotional and personal circumstances and alcohol and illicit substance use. The author suggested that these strategies could include monitoring employment opportunities, referral to services for support with financial management, encouraging pro-social activities to form new networks, monitoring compliance with mental health treatment and treatment for alcohol and illicit substance use.
Other materials
63․Counsel for the offender tendered further material demonstrating the various programs, courses and employment the offender has undertaken while in custody at the AMC. These included:
(a)Statement of Employment Form: Mr D’Arcy, the offender’s supervisor in the kitchen, indicated he has been hard worker, polite and punctual. Mr D’Arcy reported that the offender “shows self-initiative” by seeking extra duties and that “he can work well within a team”.
(b)Detainee Incentives and Earned Privileges Review Form: the offender was described by as “respectful to staff”. It was noted that “[h]e follows directions and completes his employment duties as tasked”.
(c)Certificates of Achievement: Thrive Program Certificate of Achievement, Hepatitis Education and Prevention Certificate of Appreciation, Prepare to Work Safely in the Construction Industry Statement of Attainment, Identify and Report Asbestos Containing Materials Statement of Attainment, Course in Crystalline Silica Prevention Statement of Attainment, Responsible Service of Alcohol Statement of Attainment, Participate in Safe Work Practices Statement of Attainment, Use Hygienic Food Practices for Food Safety Statement of Attainment.
64․Two letters from the offender’s family were also provided to the Court. The first, from the offender’s cousin Ms Buckley, offered her home as accommodation for the offender. Ms Buckley made clear that she was “in full support” of the offender and was willing to “do whatever [she] can to make sure” the offender complies with court orders. The second letter, written by the offender’s mother Ms Edwards, confirmed that employment opportunities were available for the offender with her husband, and that they would both “do [their] best to keep [the offender] on the right track and help him in everyway [sic]”.
65․The offender and his mother both gave evidence at the sentencing hearing.
66․The offender’s mother has been the carer of his two older children for almost a decade. They are now teenagers and live with her. She described very regular contact with the offender, including while he has been on remand.
67․Ms Edwards was very frank in her assessment of the offender’s challenges where the use of illicit substances is concerned. She attributes much of the offender’s engagement with the criminal justice system to the difficulties he experienced after the break down of his long-term relationship with the mother of his teenage children. She reported that as the offender began to use ‘ice’, he experienced homelessness and his relationships suffered. The offender’s mother made clear to the Court, and indeed the offender, that her capacity to support him has been greatly tested by the offender’s conduct, though she considered he was “the best” she had seen him in recent years. She confirmed her ongoing support for him if he remains drug free, that he has accommodation with her niece Ms Buckley and work available with her husband’s business.
68․The offender gave evidence that he has been sober for 17 months and identified numerous certificates he has attained while in custody. He confirmed this is the first occasion that he has experienced full-time custody. He declared that he wished for nothing to do with the victim and expressed a strong intention not to engage with her. Despite comments attributed to him in the PSR, the offender reiterated that he is guilty of the offences and that he accepts the prosecution’s Statement of Facts. He said that while he was willing to complete the sex offender program, he wished to do so outside of the custodial environment. He did not provide any further explanation for that preference during the course of giving his evidence. In cross-examination he again affirmed his guilt and accepted the description of the offences the prosecutor put to him, though described being in a “consensual relationship” with the victim.
69․While the offender confirmed an entry on his criminal history for a sexual offence 17 years ago, he highlighted that he had been in a relationship with his eldest children’s mother for 14 years and “there was never a problem”, describing it as a “positive relationship”. The offender accepted that he was currently subject to Family Violence Orders in relation to his former partner (the mother of his youngest child) and the victim. The offender agreed that the author of the PSR had recorded what he said to her and included them in the report. The offender generally accepted that an expression of remorse was a factor taken into account when determining the sentence that would be imposed upon him.
Criminal history
70․As referenced in the PSR, the offender has a significant criminal history, including offences relating to family violence and a sex offence. The offender’s criminal history also includes driving, property and drug offences in the ACT and NSW. Notably, the offender has consistently reoffended while subject to Good Behaviour Orders.
Time in custody
71․The offender was taken into police custody on 18 September 2022 and has remained in custody since that date. The sentence will be backdated to 19 September 2023 to account for the time the offender has spent in custody referable solely to these offences, less one day from the date he was taken into custody to account for the sentence imposed for the Contravention of Family Violence Orders (CC2022/5034 and CC2022/10774).
Conditional liberty
72․On 1 November 2021, a 12-month Good Behaviour Order was imposed on the offender in the ACT Magistrates Court for the offence of driving while disqualified (CC2020/13300).
73․On 25 May 2022, the offender was charged and granted bail in the ACT Magistrates Court, in relation to contravening two Family Violence Orders against a former partner.
74․By committing the offences on 17 September 2022, the offender was in breach of the Good Behaviour Order imposed in 2021 and the bail imposed in 2022. This is an aggravating circumstance; the offender having betrayed the opportunity to be in the community and pursue rehabilitation: R v Tran [1999] NSWCCA 109 at [15]. The fact that an offender was on conditional liberty is relevant to the determination of the appropriate punishment for an offence and does not influence the objective seriousness of an offence: Smith v The Queen [2011] NSWCCA 163 at [26]. See also R v Way (2004) 60 NSWLR 168 at [90]-[92], Hillier v DPP(NSW) [2009] NSWCCA 312; 198 A Crim R 565 at [30] and R v Van Rysewyk [2008] NSWCCA 130 at [25]. I bear in mind that I must approach this feature of the offending with care so as to avoid double punishment: Kelly v Ashby [2015] ACTSC 346 at [61].
75․The prosecution, in my view sensibly, submitted that the appropriate way to deal with the breach in the circumstances (including that the breach occurred 10 months into the 12-month Good Behaviour Order) is to take no further action: s 108(2)(a) Crimes (Sentence Administration) Act 2005 (ACT).
Guilty pleas
76․The offender entered pleas of guilty to the offences contained on a fresh indictment at a late stage in the proceedings, weeks before the trial was scheduled to commence on 9 October 2023. The trial had an estimate of five days. There is some utilitarian value to the guilty pleas, in particular that they spared the victim from having to participate in a criminal trial. Consistent with Blundell v The Queen [2019] ACTCA 34, I will apply a 15 per cent discount in recognition of the guilty pleas.
Remorse and rehabilitation
77․The offender has not, in my view, demonstrated meaningful remorse. Though he confirmed having some “reflections” on the offending while he has been in custody, he did not explain the nature and extent of those reflections. As I have already noted, he did unequivocally accept responsibility for the offending, but there was no real exploration or explanation for the comments attributed to him in the PSR about the consent of the victim. It seemed to me, observing and listening to him carefully, that the offender views the sexual offence he accepts he committed through the prism of more generally being in a “consensual” relationship with the victim, as though this overarching circumstance provides some justification for his conduct. It reflects a sense of entitlement to behave in the way that he did. It is an attitude consistent with the conduct the offender engaged in – asserting physical domination over the victim, controlling her actions despite her protestations, and degrading the victim. The offender did not directly express remorse for his conduct or the experience of the victim at his hands.
78․Remorse is a factor that influences an assessment of the potential for rehabilitation: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at [41]. The offender has very limited insight into his offending and any challenges he might have engaging with women. This is reflected in the assessment made by the author of the PSR. The situation with the mother of his youngest child involves her seeking protection from him through a Family Violence Order, about which he did not seem to be especially troubled or connect to any broader challenges with his capacity to control his anger or emotions. While the other sexual offence on his criminal history is many years ago, it is not inconsistent with my view that he has some real work to do to truly appreciate the nature and gravity of his conduct. On the other hand, the offender has engaged in numerous educational opportunities while incarcerated, reflecting a desire to use his time meaningfully and to better himself in anticipation of his eventual release into the community. Additionally, he has an incredibly supportive family who want to assist him to truly reform.
79․It may be that the offender will benefit from completing further educational courses specifically targeting his sexual offending and his engagement with women. It is difficult to accurately predict the impact upon the offender of those types of courses, in particular his capacity to acquire insight. The parole authorities will be well placed to assess his development when they come to assess his suitability to be released on parole. For now, his prospects for rehabilitation are limited.
Sentencing practice
80․The provision of comparative cases is intended to promote consistency in the application of relevant principles, not to ensure strict mathematical equivalence as between sentencing outcomes for the same offence: Hili v The Queen [2010] HCA 45; 242 CLR 520. No sentence is a precedent. Sentencing statistics and comparable sentences illustrate, not define, the possible range of sentences available: R v Pham (2015) 256 CLR 550 at 560, [29]. Sentencing practice does not cap the upper nor lower ranges of a possible sentence: Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [51]-[53].
81․I was helpfully provided a table of comparable decisions of sentencing judges in this jurisdiction. The table is detailed and provides information about the circumstances particular to the offence and the offenders.
R v Okwechime [2022] ACTSC 233
82․The offender was found guilty at trial for one count of endangering health (involving a choke) and two counts of sexual intercourse without consent. The offender committed various non-consensual sexual and violent acts upon the victim, including grabbing her neck and chocking her for about 15 seconds, during which time the offender engaged in penile-vaginal penetration. The victim could not breathe and her vision became blurry. The victim suffered bruising to her neck, arm, abdomen and legs. The offender gave evidence at the trial that the intercourse was consensual and was subsequently assessed as showing no remorse. The offender was subject to conditional liberty at the time of the offences. The offender was found to have a low to medium risk of general re-offending and a well above average risk of sexual re-offending. The offender was sentenced to one year and three months of imprisonment for the choking offence, and a further six years and six months of imprisonment for the sexual offences. The total sentence imposed was five years and three months of imprisonment with a non-parole period of three years.
DPP v Dunn [2022] ACTSC 355
83․The offender entered pleas of guilty to one count each of choking, common assault, sexual intercourse without consent and contravening a Family Violence Order. He was in a relationship with the victim. An interim Family Violence Order was in place at the time of the offending. One of the choking counts consisted of the offender putting his hands around the victim’s throat without squeezing and pushing her against a vanity, as well as picking the victim up while she was screaming and putting his hand over her mouth. The victim had difficulty breathing and her lip was injured. A month after that incident, the offender had non-consensual sex with the victim while she was heavily intoxicated and pretending to be asleep. The objective seriousness of the choking charge was assessed as being within the low to mid-range and the count of sexual intercourse without consent within the low range of objective seriousness. The offender “did not have actual awareness that the victim was not consenting. It was a case of advertent recklessness”: at [35]. The offender was sentenced to eight months and 15 days of imprisonment, reduced from 10 months, for the count of choking, and six months of imprisonment, reduced from seven months, for the count of sexual intercourse without consent. The offender was sentenced to a total period imprisonment of two years with a non-parole period of 14 months.
DPP v Moala (No 3) [2023] ACTSC 306
84․The offender was found guilty at trial of one count of choking. The victim had consensual sex with a co-accused and then fell asleep. She later awoke to find the offender on top of her, his hand pushing down on her neck and taking her clothes off. She attempted to resist the offender, striking him. The choking was part of a violent struggle and involved a significant degree of force. The victim’s breathing was restricted and she suffered swelling, redness and abrasions to her neck. The victim was found to be extremely vulnerable at the time the offending began. The offence was assessed as being one of considerable seriousness. Chief Justice McCallum found “no evidence of remorse and no evidence to support any firm conclusion as to the offender’s prospects of rehabilitation”: at [65]. The offender was sentenced to two years of imprisonment with a non-parole period of 12 months.
R v Finau (No 2) [2020] ACTSC 193
85․The offender was found guilty at trial of one count of sexual intercourse without consent. The offender was known to the victim and was at the victim’s home. The offender grabbed the victim, pushed her over and pinned her down. He kicked her pants down to her feet and attempted to prise her legs open while she resisted. The victim repeatedly said “no” and “stop”, physically resisting the offender. The offender became angry, and told the victim, “I want this, I’m here”. The offender covered the victim’s mouth with his hand, causing her to have difficulty breathing. The offender positioned himself to insert his penis into her vagina. The victim hit him in the face; the offender then struck her in the cheekbone and she froze. The offender engaged in penile-vaginal penetration for “less than a minute” without a condom. The victim felt pain. The entire incident went for less than 10 minutes. The offending was assessed as being objectively serious. The offending occurred in the victim’s own home, was associated with physical violence and occurred with the offender’s knowledge that the victim was not consenting. The offender had no criminal history and prior good character. He was sentenced to two years and six months of imprisonment, suspended after nine months upon entering a Good Behaviour Order.
Further cases
86․I have also had regard to R v Day (No 2) [2022] ACTSC 352 (Day), where at [73]-[75] Kennett J refers to R v Cowling [2019] ACTSC 138 (Cowling) and R v Van Duren [2017] ACTSC 132 (Van Duren), both of which considered the offence of choking. Cowling occurred in a family violence context; Van Duren did not. The offending in Day occurred in the context of family violence and involved, amongst other offences, two counts of choking. The offender was found guilty by a jury. In one instance, the victim’s breathing was not interfered with and the choke lasted for seconds. In the other, the force used was greater. The offender had a significant criminal history and his prospects for rehabilitation were approached with “caution”: at [81]. On the first count of choking, he was sentenced to 15 months of imprisonment and, on the second, he was sentenced to 30 months of imprisonment.
Determination
87․The instinctive synthesis that attends to the sentencing task requires the Court to balance all of the relevant factors and principles to arrive at a just and appropriate outcome. The purposes of sentencing are clearly set out at s 7 of the Crimes (Sentencing) Act. Of particular significance in this sentencing exercise is the need to give proper effect to general and specific deterrence, denunciation, punishment and recognition of harm. Sexual offences are inherently violent and are properly regarded as objectively serious by the courts: Wyper v The Queen; R v Wyper [2017] ACTCA 59.
88․As is required, I have had regard to those matters contained in s 34B of the Crimes (Sentencing) Act, including the preamble of the Family Violence Act which encapsulates the approach the community, through the legislature, expects should be taken to family violence, including condemnation of family violence and promotion of offender accountability.
89․In The Queen v Miller [2019] ACTCA 25 the Court of Appeal observed 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.
90․Of course, this guidance cannot operate so as to undermine individualised justice. Each sentencing task requires a careful assessment of all the relevant factors, including the subjective circumstances of the offender and the nature of the offence.
91․In this matter, the offender’s culpability for the offending is high. The conduct he engaged in was deliberate and designed to ensure the victim’s compliance. Women are not the possessions of their male partners. The offender’s conduct was underpinned by a sense of entitlement to behave as he did because he was in a “consensual relationship” with the victim – this circumstance is, of course, not a licence for him to entirely disregard the victim’s feelings and wellbeing as he so very clearly did. As is all too often the case in matters involving family violence, the victim suffered physically and psychologically because of the violence perpetrated against her by the offender.
92․The offender will have to make significant efforts to engage in programs designed to enhance his understanding of the gravity of his conduct if he is to improve his prospects for rehabilitation. While I do not consider rehabilitation to be entirely lost to him, it is clear that he has limited insight into his offending. Rehabilitation remains a factor to take into account, though in the circumstances as I have identified them, does not carry the weight of the other sentencing purposes which are of particular significance.
93․Taking into account all of the relevant factors to which I have referred, I am of the view that the only appropriate outcome, having regard to possible alternatives, is a period of imprisonment: s 10 Crimes (Sentencing) Act. There were no submissions advanced to the contrary. It is the only outcome that properly reflects the purposes of sentencing.
94․There being three separate offences, I must fix a sentence for each offence and then consider questions of accumulation or concurrence applying the principle of totality: Pearce v The Queen (1998) 194 CLR 610 at 623-624. The overall sentence must be just and appropriate reflecting the total criminality of the offending: Mill v The Queen (1998) 166 CLR 59. The offending in this instance was a continuing course of conduct and each count close in time to the other. I consider that some degree of accumulation is required to recognise the separate nature of the counts.
95․The starting point for the choking offence (CAN9213/2022) is 20 months of imprisonment, reduced to one year and five months of imprisonment for the plea of guilty.
96․The starting point for the assault occasioning actual bodily harm offence (SCCAN376/2023) is 12 months of imprisonment, reduced to 10 months of imprisonment for the plea of guilty.
97․The starting point for the sexual intercourse without consent offence (CAN11110/2022) is 32 months of imprisonment, reduced to two years and three months imprisonment for the plea of guilty.
98․The relevant principles in relation to non-parole periods have been discussed in Henry v The Queen [2019] ACTCA 5 at [33]-[37], Taylor v The Queen [2014] ACTCA 9 at [19] and O’Brien v The Queen [2015] ACTCA 47. I have had regard to those principles. The setting of a non-parole period involves the exercise of a wide discretion. These offences are serious and the non-parole period reflects the minimum term that justice demands the offender serve before he can be considered for release into the community. Rehabilitation is of course a factor, in particular when assessing what is required in order to protect the community. After careful consideration, in my view a non-parole period of around 60 per cent is appropriate.
Orders
99․For those reasons I make the following orders:
(1)On the breach of the Good Behaviour Order on CC2020/13300, I find the breach proved and take no further action.
(2)On the count of aggravated choke, suffocate or strangle another person (CAN9213/2022), I sentence the offender to one year and five months of imprisonment commencing on 19 September 2022 and expiring on 18 February 2024.
(3)On the count of aggravated assault occasioning actual bodily harm (SCCAN376/2023), I sentence the offender to 10 months of imprisonment commencing on 19 October 2023 and expiring on 18 August 2024.
(4)On the count of aggravated sexual intercourse without consent (CAN11110/2022), I sentence the offender to two years and three months of imprisonment commencing on 19 February 2024 and expiring on 18 May 2026.
(5)The total sentence imposed is three years and eight months of imprisonment commencing on 19 September 2022 and ending on 18 May 2026. The non-parole period commences on 19 September 2022 and expiring on 18 December 2024.
| I certify that the preceding ninety-nine [99] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Taylor. Associate: Date: 8 February 2024 |
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