Director of Public Prosecutions v Jones (No 2)
[2023] ACTSC 99
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Jones (No 2) |
Citation: | [2023] ACTSC 99 |
Hearing Date: | 14 April 2023 |
DecisionDate: | 5 May 2023 |
Before: | McCallum CJ |
Decision: | (1) For the offence of sexual intercourse without consent, the offender is convicted and sentenced to a term of imprisonment for two years and six months commencing on 4 May 2023 and expiring on 3 November 2025. (2) For the offence of committing an act of indecency without consent, the offender is convicted and sentenced to a term of imprisonment for one year commencing on 4 May 2025 and expiring on 3 May 2026. (3) I set a non-parole period of 15 months commencing on 4 May 2023 and expiring on 3 August 2024. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse without consent – act of indecency without consent – where offender knew the victim was not consenting – whether age and power disparity aggravate the objective seriousness of the offences – offender with no prior criminal history – where offender maintains his innocence notwithstanding the jury verdicts |
Legislation Cited: | Crimes Act 1900 (ACT) ss 54(1), 60 Crimes (Sentencing) Act 2005 (ACT) ss 10(2), 11, 12, 33, 65 |
Cases Cited: | Baker v R [2022] NSWCCA 195 Director of Public Prosecutions v Earle [2023] ACTSC 93 Yeung v R [2018] NSWCCA 52 |
Parties: | Director of Public Prosecutions Liam Jones ( Offender) |
Representation: | Counsel B Morrisroe ( DPP) J Maher ( Offender) |
| Solicitors ACT Director of Public Prosecutions Armstrong Legal ( Offender) | |
File Number: | SCC 233 of 2021 |
McCALLUM CJ:
Liam Jones has been found guilty by a jury of one count of sexual intercourse without consent being reckless as to whether the victim was consenting, contrary to s 54(1) of the Crimes Act 1900 (ACT), and one count of engaging in an act of indecency without consent being reckless as to whether the victim was consenting, contrary to s 60(1) of the Act. He now stands to be sentenced for those offences.
The offence of sexual intercourse without consent carries a maximum penalty of imprisonment for 12 years. An act of indecency without consent carries a maximum penalty of imprisonment for seven years. The maximum penalty for an offence stands as a sentencing yardstick reflecting the penalty that would be imposed in the worst category of case. There is no suggestion that the offences here fall into the worst category. 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. The present offences do not fall in the most serious category but nor do they fall at the least serious end of the range. That is because the victim was asleep, or pretending to be, throughout the entire episode. For that and other reasons, there can be no doubt that the offender knew she was not consenting to have her body used for his sexual gratification. There are additional aspects of the offending which aggravate its seriousness, to which I will return.
The purposes of sentencing are to ensure that the offender is adequately punished for the offence in a way that is just and appropriate; to prevent crime by deterring the offender and other people from committing the same or similar offences; to protect the community from the offender; to promote the rehabilitation of the offender; to make the offender accountable for his or her actions; to denounce the conduct of the offender and to recognise the harm done to the victim of the crime and the community.
The weight to be given to any of those purposes is to be determined according to my assessment of the circumstances of the case. In making that assessment, I am required to consider the matters identified in s 33 of the Crimes (Sentencing) Act 2005 (ACT). To the extent that they are relevant here, I will address those matters now.
Nature and circumstances of the offences
The first is the nature and circumstances of the offences. The offender met the victim through their work at the Dendy Cinemas in Civic. The offender was the duty manager when the victim commenced employment as a junior team member in May 2021. He was her direct supervisor and was responsible for training her. The offender was then 26 while the victim was 18.
A few days after the victim started working at the Dendy, she and the offender “matched” on Hinge, a dating application. They began communicating outside of work. The victim came to consider the offender as a friend. Once in early June 2021, having met up after work, they had consensual sexual intercourse. They remained friends afterwards.
On 17 June 2021, the offender went with the victim to visit her mother. During that visit, the victim’s mother spoke to the offender about the victim’s struggles with her mental health. The offender and the victim discussed that issue further on the way home. The offender disclosed to the victim that he had experienced irrational thoughts, such as spitting water on people. During the same conversation, the victim confided in the offender about a previous sexual assault and how much it had broken her.
When they arrived at the victim’s house, the victim told the offender that she had work in the morning and was feeling tired. She also told him that she had vaginal thrush and was in a “bit of pain”. She said she did not wish to engage in any sexual activity that night and would likely be unable to for some time.
The victim went to bed. Without invitation, the offender joined her. The victim turned over to go to sleep with her back to the offender and started playing a podcast. Both the victim and the offender were fully clothed at that point.
About fifteen minutes later, the offender started feeling all over the victim’s body. She said nothing and lay still, slowing her breathing to pretend she was sleeping. She said her bodily response was that she “froze in shock”, a phenomenon that is becoming better understood as a common reaction to unwanted sexual contact. The offender slowly moved his hand down and started touching her vagina through her underpants. He then moved his hand inside her underpants and touched her vagina directly.
The touching continued. At one point, the offender took his hand out of the victim’s underpants and smelt his fingers before putting his hand back inside her underpants. He then put one or two fingers inside her vagina, moving them in and out. This act constitutes the count of sexual intercourse without consent.
The offender said nothing during this whole time. The victim lay still and continued to pretend to be asleep. In her evidence at the trial, she explained that, having learned earlier in the day about the offender’s irrational thoughts, she thought that it may trigger some reaction if the offender knew she was awake. She believed that, if she seemed asleep and unexcited, he would stop touching her.
At one point, the victim felt the offender flicking her bottom with his finger and laughing. He continued to touch her body and vagina for some time. Several times he smelled his fingers after touching her vagina. At one point, the victim saw light through her closed eyes and assumed the offender had taken out his phone.
At around 4 or 5 am, the victim felt a tickle in her throat and sat up coughing. That was the first time she had moved or given any indication that she was awake. The offender asked if she was okay. She responded that she was fine and lay back down on her side. The offender patted her back and said, “okay, go back to sleep”. About 10 or 15 minutes later, the offender started to touch the victim again and put his hand inside her underpants. The victim continued to pretend to be asleep.
At one point the offender grabbed the victim’s own arm and slowly placed her hand on the outside of her underpants, over the area of her vagina. He firmly pushed her fingers onto the outside of her vagina, moving them up and down, while laughing. This conduct constitutes the act of indecency without consent. The victim then moved her hand and turned further away. The offender waited a minute before continuing to touch the victim’s vagina again with his own hand.
Sometime after she had sat up coughing, the victim fell asleep. She estimated that the entire incident lasted about “four to five hours”. She based that estimate on the number of podcast episodes that played throughout the incident, each of which she said lasted for about an hour. In the trial, the offender challenged the reliability of that estimate. I accept that there could be a measure of inaccuracy in the victim’s estimate and that the period over which the offender was touching her may have been shorter than she perceived. Based on her evidence, I am nonetheless satisfied beyond reasonable doubt that the offender touched the victim sexually over a period of some hours.
Separately, the offender submitted that the two individual acts for which he is to be sentenced were of short duration and that he should be sentenced on that limited basis. It may be accepted that the individual acts relied upon to establish the counts on the indictment were relatively brief and of course that is the conduct for which the offender stands to be sentenced. The significance of other sexual touching over the lengthy period within which the offences were committed is not to sentence the offender for uncharged acts but because it rebuts any suggestion that his offending was impulsive or spontaneous. He had the opportunity to reflect upon his conduct towards his sleeping victim over many hours.
The next morning, the victim awoke and moved away from the offender. He at that point was wearing only boxer shorts, a matter he explained by saying that he “got really hot” during the night.
The victim left for work. She called a friend on the way there and disclosed what had happened. Her friend encouraged her to send a message to the offender and to report the incident both to police and to Dendy Cinemas.
The victim took up her friend’s suggestion and had a Snapchat conversation with the offender as follows:
[Victim:] You know I was awake that whole fucking time right
[Offender:] what do you mean?
[Victim:] last night
[Offender:] I'm sorry [NAME REDACTED]
[Victim:] are you?
[Offender:] I really am, that was really wrong of me and I don't know why I did it. I have no excuse though. I just shouldn't have done it. I'm so sorry to have made you feel uncomfortable. I'll leave your house right away. I really am sorry [NAME REDACTED].
The victim disclosed the assaults to her mother and the senior manager at Dendy Cinemas the same day.
Subsequent events
On 21 June 2021, Dendy Cinemas emailed the offender informing him of an allegation of sexual harassment, notifying him that he was suspended from work and inviting a response as to why his employment should not be terminated.
The offender sent the following response by email two hours later:
I am writing to you in response of the email in which has been sent to me. First and foremost, the allegations and complaint raised against me are true and I do not deny them in any form. What occurred on the evening of Thursday, June 17th and the morning of Friday, June 18th between myself and my colleague unfortunately did happen. I am not attempting to come up with any excuses for my behaviour, as I believe you cannot justify reasons and attempt to make amends for something so vile. I do, however, regret my actions more than anything and with my past few days off I have spent almost all the time reflecting on what I did and how it's affected my victim, not only for now but the future. I apologised on the day to her, stating that I made a mistake during the night and I haven't attempted to contact her since. I'm not like this, and I don't understand why or how it happened, but unfortunately it did happen and I can't take that back. I genuinely like the staff member who has made these allegations, she is very kind, friendly and is a great staff-member, I understand if she wishes to leave Dendy Cinemas Canberra due to me, I also completely understand if she has requested for me to be terminated.
As someone who has been sexually assaulted by a colleague, I understand the hurt, humiliation and hate that my colleague is experiencing right now and will for some time, and even though it has placed me in a situation, I'm honestly glad that she spoke up about it. As well, as someone who has gone through it, I should have had some better judgement, knowing full well even if I hadn't gone through it, that it is wrong.
As the allegations raised against me are true, I understand completely if my employment with Dendy Cinemas Canberra is terminated, I don't particularly wish to fight for my job given the circumstances in which I have to make justifications on something so disgusting. I was originally going to speak to you about my plans on resigning at the end of the year to give you plenty of time to train up a few more Duty Manager's and for me to help train others in tasks that I know, I always felt like Michaela leaving us so suddenly without training others threw us into a difficult situation, I didn't want my exit from Dendy to be like hers. I do wish to stay employed at Dendy Cinemas Canberra, although as noted, I understand the situation. If in the case that I am, luckily, allowed to continue my employment at Dendy, I believe it would be best case scenario to roster myself and her away from each other, I don't want her to miss out on shifts, so I would happily change mine to help. I don't want her to feel uncomfortable at work, and if any changes that are made to make her feel comfortable I will accept them.
Arrest of the offender
About a week later, the victim reported the incident to the police. The following month, the police arrested the offender. He informed them that he knew what he was being arrested for.
Upon his arrest, the offender participated in a recorded interview. He admitted that he had slept in the victim’s bed on the relevant night and that he had sent the Snapchats and the email to Dendy Cinemas. However, he contended that he was apologising only for what he knew had happened (that he had slept in her bed and removed some of his clothes). He said he was not fully aware of the allegations as he was never given an opportunity to discuss what they were. He tried to call the author of the email twice shortly before sending his reply. He sent his email regardless because he accepted he had made an employee feel uncomfortable and apologised to “get it off [his] conscious [sic]” and “make everything fine”.
Procedural history
Apart from the night of his arrest, the offender has remained on bail throughout the proceedings. He was first tried by jury before Norrish AJ in a trial commencing on 31 May 2022. That jury was unable to reach a unanimous verdict and was discharged on 7 June 2022. The offender attempted suicide that evening by taking all of his prescribed medication at once.
The second trial commenced before me on 6 February 2023. The jury returned verdicts of guilty on 8 February 2023.
The offender gave evidence at his first trial before Norrish AJ in which he denied doing anything of a sexual nature on the night in question. That evidence was played by consent at the trial before me. It included an implausible explanation of the offender’s apologies in the Snapchat exchange and the email to Dendy Cinemas in which the offender claimed all that happened was that he fell asleep on top of the covers, fully clothed and that, while he initially put his arm around the victim, he then took it away and they both fell asleep.
As to the Snapchat exchange, the offender claimed he was “very unsure” of why the victim was upset and thought it was because he had put his arm around her, or because she woke up to him in his underwear, or because he “pushed the boundaries by staying the night”. When pressed as to why he presumed he could stay over, he stated the victim’s bed was “extremely comfortable” compared with his own.
As to his email to Dendy Cinemas, the offender said, “I was never given any allegations, nor the proof. What choice did I have to write but to say that I did it.” He said his response was based on the understanding that it referred to the “gross misconduct” of him, being a senior staff member, meeting up with an 18-year-old, who was the “lowest worker you could work at”, plus making the victim feel uncomfortable. He said that the reference to his having been “sexually assaulted” was a “typo” for “sexually harassed”.
The jury must be taken to have rejected that account and been persuaded beyond reasonable doubt by the victim’s evidence. That is unsurprising. She was an intelligent, careful, powerful and articulate witness.
At the proceedings on sentence the offender maintained his denial that anything sexual happened that night while at the same time professing remorse. I will return to the significance of his mixed stance on that issue.
Impact on the victim
I am required to take into account the effect of the offending on the victim: s 33(1)(f) of the Crimes (Sentencing) Act. She provided a victim impact statement which she read aloud to the Court at the proceedings on sentence. Her statement eloquently explained the trauma caused by the actions of the offender and was at the same time testament to her strength and resilience.
The victim stated that the offending has changed her completely. She has receded from her previously extroverted, funny and positive self. She used to be independent and hardworking. She now describes herself as a “shell of who [she] was”. She suffers ongoing symptoms of trauma including freezing, thinking she has seen the offender; flashbacks; nightmares and poor sleep; the worsening of her mental health to an all-consuming level; and memory loss. She described having an inability to remember important past events with friends and family, contrasted with the clear memory and constant reliving of “every second” of what the offender did to her.
As a result of the offences, she now “hates [her] body” and feels trapped within it. She has developed a fear of being touched, even to clean herself in the shower, and a phobia of intimacy. She also has a diminished ability to trust people. Her bed, formerly a place of safety and comfort, has become “a place of fear, betrayal and trauma”. The offences have also had an impact on the victim’s mother, family, friends and partner. There have also been practical consequences, the victim stating that, as a result of the offences, she has had to leave the apartment and her employment.
Objective seriousness
36. It is necessary to make an assessment of the objective seriousness of the offences and the degree of responsibility of the offender: s 33(1)(i) of the Crimes (Sentencing) Act. The prosecutor noted the “unifying principles” accepted by the Court of Appeal in Wyper v The Queen; R v Wyper [2017] ACTCA 59 at [114]:
(a) Sexual offences are regarded as objectively serious offences by the courts;
(b) The serious nature of sexual intercourse without consent demands that the sentencing purposes of deterrence, denunciation and recognition of harm to the complainant be given prominence;
(c) A period of full-time imprisonment is usually necessary to give effect to the above sentencing principles.
The application of those principles must always be assessed according to the individual circumstances of the case.
The prosecutor also relied on the list of factors that may inform the assessment of the seriousness of a sexual offence (which is “descriptive, rather than prescriptive”) provided in Jurj v The Queen [2016] VSCA 57 at [80] and 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.
Counsel for the offender, Mr Maher, submitted that, while offences of this nature are serious, the offending here falls at the lower end of the spectrum given the absence of many of the Jurj factors. I accept that there was no apparent pre-meditation; that the offender acted alone; that the offences did not involve violence beyond that inherent in any sexual offending; that no weapon was used; that the victim was not left with any lasting physical injury and that, in the absence of penile penetration there was no occasion for the use of a condom.
Mr Maher emphasised the lack of “additional” violence in the offending. However, as the New South Wales Court of Criminal Appeal has observed, all sexual offending by its nature is an extreme form of violence: R v Hartikainen (unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Meagher JA and Newman J, 8 June 1993). Certainly, more serious cases can be found such as those involving particular violence, active restraint and physical injury. I accept that the absence of such aggravating factors is relevant.
However, some of the aggravating factors in the list to which I have referred are present here. As submitted by the prosecutor, the “slow”, “careful” and “gentle” nature of the offending must be assessed in the context that the offence was one of stealth involving elements of humiliation in the invasive manner in which the offender treated the victim’s body in the belief that she was asleep. As I have explained, the lengthy period over which the offending took place is not irrelevant because it displaces any suggestion of spontaneity or ambiguity as to consent. The offending involved a degree of humiliation and a cynical abuse of the victim’s trust and friendship.
Having regard to those factors, the prosecutor submitted that the offending falls within the mid to upper-mid range of objective seriousness. While submissions as to where an offence sits on a range are not uncommon, the Court is not required to pinpoint the seriousness of an offence with geometric precision: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [28]-[29]; Yeung v R [2018] NSWCCA 52 at [19]-[30]; R v Toumo’ua [2019] ACTCA 9 at [24]. The practice of specifying a point on a range developed in New South Wales in the context of a different statutory sentencing regime that was understood (incorrectly, as the High Court held in Muldrock) to require that approach.
I prefer to record my assessment of the seriousness of the offences descriptively. I do not accept that the level of seriousness of the offences was as low as contended on behalf of the offender. The offences involved the deliberate violation of the victim’s body by stealth and in defiance of her express communication that she did not wish to engage in sexual activity that night because she had vaginal thrush and was in pain. In ignoring a clear statement of lack of consent, the offender showed disdain for the victim’s right to respect, sexual autonomy and safety in her own bed. The element of humiliation in the offender’s bizarre act of sniffing his fingers after he had inserted them in the victim’s vagina after he had been told she was infected with thrush is particularly disturbing. So too is his contemptuous act of “flicking” her in the buttocks, evidently for his own amusement. The victim gave the following evidence in her statement to police:
Q168. Did he do any movement to try and wake you up or - - -
AUm, he was like, flicking me, like my bum and everything. Like flicking me and laughing, um, but I didn’t - - -
Q169. Yep. Sorry, what do you mean by flicking you?
A Like with his finger like - - -
…
Q171. How – how hard was he flicking you?
A Pretty hard.
Q172. Okay.
ALike it stung but I didn’t move because I didn’t want him to think I was awake and wanted to do anything with him.
Perhaps the ultimate humiliation was the offender’s conduct in forcing the victim’s hand to touch her own genital area. Her evidence (which I accept) was that he was laughing then too. His unguarded conduct at a time when he thought the victim was asleep gives the lie to the professed respect for women he has expressed to his supporters in the context of these sentencing proceedings. The seriousness of the offending is also aggravated by the fact that the offender had been made aware only that day of the victim’s history of mental health challenges and sexual trauma. That is a relevant personal circumstance of the victim known by the offender: s 33(1)(d) of the Crimes (Sentencing) Act.
It is also relevant, in my view, to have regard to the power dynamic between the offender and the victim. He was significantly older than her and was her superior in their place of employment. Mr Maher relied in this context on the decision of the New South Wales Court of Criminal Appeal in R v Shortland [2018] NSWCCA 34 at [15], [87] (Basten JA, Hulme J and Hidden AJ) as authority for the proposition that “in cases of non-consensual intercourse between adults, age difference is rarely likely to be relevant when determining the objective seriousness of the offence”. That was a case involving a 31-year-old offender and 25-year-old victim. I do not think the remarks relied upon support the broad proposition contended for. They have in any event been clarified in subsequent decisions of that Court: see Mohindra v R [2020] NSWCCA 340 at [57]-[58] (Basten JA); Baker v R [2022] NSWCCA 195 at [22]-[24].
Knowledge of lack of consent
Mr Maher further submitted that, unlike comparable cases where a sleeping victim has awoken and protested, the offender here “did not ignore any overt warnings or protestations by the victim”. It was not suggested that this was a mitigating factor; only that a potentially aggravating factor was absent. In my assessment, the point is of little significance. So far as the offender knew, the victim was asleep. That is a clear enough warning of lack of consent. Further, as noted by the prosecutor, the victim had made a “clear and outright verbalisation of a lack of consent or any consent being forthcoming” to the offender before she went to bed.
This was not a case in which sexual touching began while a person was asleep with a rational expectation that consent might be forthcoming when she awoke. I am satisfied beyond reasonable doubt that the offender waited strategically until he thought the victim was asleep before committing each offence. I draw that inference on the basis that he waited for a period after she first lay down before touching her; that when she sat up coughing, he told her to “go back to sleep” (emphasis added) and that he waited again for some time before resuming the assault. He also waited after the victim moved her own hand away from where he had placed it before again touching her himself.
When confronted by the victim on Snapchat the next day, the offender feigned ignorance about what had happened until she stated she had been awake. I have no doubt that he perceived her to be asleep throughout the entire period. Obviously it follows, and must have been clear to him, that she had no capacity to give consent. That is a factor that increases the objective seriousness of the offending, as well as the degree of responsibility of the offender for the offences: s 33(1)(i) of the Crimes (Sentencing) Act.
Circumstances of the offender
I am required to consider the personal circumstances of the offender. These are addressed in the pre-sentence report tendered at the proceedings on sentence.
The offender is now 28 years old. He had a relatively uneventful upbringing. He was born in Canberra. The author of the report records that the offender was raised in a supportive, stable household with two brothers. The offender describes his parents as supportive and recognises he is lucky to have “such a tight-knit family”. He has been in a relationship with his current partner for six months and lives with her in a home owned by her parents. Both the offender and his father describe this relationship as the best thing that has happened to him. He is currently employed as a retail manager but intends to complete an apprenticeship in construction.
The offender completed Year 12 but struggled to do so after a significant physical altercation between himself and a friend. He has suffered from depression since that incident. He also has been diagnosed with insomnia. As already noted, he has previously attempted to commit suicide but says he currently feels supported.
The offender has no criminal history, has been consistently compliant with the conditions of his bail and has been assessed to have a “low risk” of general recidivism based on the many pro-social and protective factors in his life. He has significant support from his family, his partner and her family, confirmed in the letters of character reference provided to the Court by his father, mother, brother, partner, and his partner’s parents. Each letter attests to his character as a hardworking and valuable member of the community.
Lack of remorse
While those considerations count in his favour, the offender’s attitude towards his offending is a source of significant concern. I am required to consider whether he has demonstrated remorse: s 33(1)(w) of the Crimes (Sentencing) Act. At times, he has purported to do so. However, every time he has acknowledged responsibility for his offending conduct, he has later recanted. His ultimate position is to deny any sexual conduct, in effect branding the victim a liar.
First, in his message to the victim the day after the sexual assault, the offender acknowledged what he did, accepted that it was “really wrong” and said he was sorry but had no excuse and “just shouldn't have done it”.
Then, in his email to his employer, he offered a profuse apology for his “vile” actions and their impact on the victim. He claimed to regret his actions “more than anything” as “the allegations raised against [him] are true”. He said he did not “understand why or how it happened, but unfortunately it did happen” (emphasis added). He even explained that he understood what had occurred that night as someone who had himself been “sexually assaulted by a colleague” (emphasis added). He said he understood the hurt, humiliation and hate that the victim was experiencing and would “for some time”.
Upon his arrest, however, he denied any unlawful conduct, offering the implausible explanation that he only admitted the allegations because he did not know what they were.
He maintained his pleas of not guilty throughout two trials. After the verdicts of guilty were returned, he stated in a letter to the Court that he “accepts the verdicts” and feels remorse for the victim but maintains his innocence.
The most extraordinary backflip of all is the position recorded by the author of the pre-sentence report. In his first interview with that person, the offender said he agreed with the prosecution’s case and that he “felt horrible” about the offending. Weeks later, he contacted the agency again, claiming that he was mistaken in accepting the facts and only did so because he believed he had to. He again protested his innocence.
The author concluded, after a number of interviews, that the offender “displayed limited insight into the consequences of his behaviour and its impact on the victim” and that he denied responsibility for the offences. He was described as being “unable to show genuine victim empathy”.
In my assessment, that is a gentle understatement. I do not accept that the offender has demonstrated any real remorse. His attitude now is cynical and self-serving, just as it was shown to be by his laughter during his offending.
Mr Maher noted that a lack of remorse cannot in itself lead to a more severe penalty. That is true. It is, however, relevant in assessing the offender’s prospects of rehabilitation and the weight to be given to specific deterrence. Mr Maher submitted that the experience of these proceedings will have addressed that need. I do not accept that submission.
As I have previously observed, sexual assault is well understood to cast a long shadow of trauma on victims: R v Incandela (No 4) [2022] ACTSC 139 at [9]. Undoubtedly, an aspect of that harm is the trauma of having to give evidence including being cross-examined and, as I have said, branded a liar. I am acutely aware of the fact that I am forbidden from increasing the sentence because the offender chose to plead not guilty. How to grapple with the obvious imperative for sex offenders facing terms of imprisonment to lie rather than go to gaol is a matter for parliament, not the judiciary.
However, in assessing the need for specific deterrence and the offender’s prospects of rehabilitation, I am entitled to have regard to the fact that, in professing remorse while denying any wrongdoing, the offender demonstrates that there has been no real reckoning in his mind with his offending conduct.
I accept that he is a relatively young man with education, employment, social support, no substance issues and no criminal history. However, having regard to his attitude to the offences, I cannot be confident that the offender has good prospects of rehabilitation, as submitted on his behalf.
I am required to have regard to current sentencing practices: s 33(1)(za) of the Crimes (Sentencing) Act. I have recently undertaken that exercise in another case: Director of Public Prosecutions v Earle [2023] ACTSC 93 at [46]-[54]. I accept on the basis of my consideration of comparative decisions in this jurisdiction that the punishment for an offence of sexual intercourse without consent contrary to s 54(1) in a case where (as here) the offender knew the victim was not consenting will ordinarily include a term of full-time imprisonment.
Section 10(2) of the Crimes (Sentencing) Act provides that the Court may impose a sentence of imprisonment only if satisfied, having considered possible alternatives, that no other penalty is appropriate. In the present case, the prosecutor submits, and the offender accepts, that a sentence of imprisonment is the only appropriate sentence. I agree.
It remains necessary to consider how the sentence should be served. Section 11 of the Crimes (Sentencing) Act confers power in certain circumstances to order that a sentence be served by intensive correction in the community, while s 12 confers power to suspend all or part of a sentence of imprisonment.
Mr Maher submitted that it would be open to the Court to order that the sentence be served by way of an intensive correction order in the present case, relying on the decision in Wyper. To support that course, Mr Maher submitted that the objective seriousness of the offences is low and that the offender has positive subjective features and good prospects for rehabilitation. As I have explained, my assessment of each of those factors is less favourable than contended for on behalf of the offender. I am of the view that, in the circumstances of this case, an intensive correction order would be inadequate to give effect to the purposes of sentencing.
I have also concluded that it would not be appropriate to suspend the sentence of imprisonment to be imposed in this case. That is because, in circumstances where the offender maintains his innocence and demonstrates no real remorse, I cannot be confident as to what fixed period would be appropriate as the minimum period he should spend in custody in the interests of justice. In the absence of an honest reckoning with his offending conduct, the consideration of his release should properly be a matter for the Sentence Administration Board.
It follows that a sentence of full-time imprisonment will be imposed. As the terms I am about to impose will total three years, I am required by s 65 of the Crimes (Sentencing) Act to set a period during which the offender will not eligible to be released on parole.
In so doing, I have had regard to the offender’s mental state. He has underlying chronic mental health conditions and has at times been suicidal. His general practitioner, who has been his doctor since he was a child, noted in a letter to the Court that “it would be severely detrimental to his mental health if he is incarcerated”. Regrettably, that is often the case. I have, however, had regard to that likely hardship and have set a shorter non-parole period than would otherwise have been the case.
Sentence
Liam Jones, please stand:
(1) For the offence of sexual intercourse without consent, the offender is convicted and sentenced to a term of imprisonment for two years and six months commencing on 4 May 2023 and expiring on 3 November 2025.
(2) For the offence of committing an act of indecency without consent, the offender is convicted and sentenced to a term of imprisonment for one year commencing on 4 May 2025 and expiring on 3 May 2026.
(3) I set a non-parole period of 15 months commencing on 4 May 2023 and expiring on 3 August 2024.
| I certify that the preceding seventy-two [72] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice McCallum Associate: Date: 5 May 2023 |
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