Director of Public Prosecutions v Mack
[2024] ACTSC 227
•16 July 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Mack |
Citation: | [2024] ACTSC 227 |
Hearing Date: | 14 June 2024 |
Decision Date: | 16 July 2024 |
Before: | McCallum CJ |
Decision: | (1) For the offence of sexual intercourse without consent in count 2, you are convicted. I sentence you to a term of imprisonment for 1 year and 8 months starting on 29 May 2024 and ending on 28 January 2026. (2) For the offence of sexual intercourse with consent in count 3, you are convicted. I sentence you to a term of imprisonment for 2 years and 1 month starting on 29 December 2024 and ending on 28 January 2027. (3) For the offence of threatening to distribute intimate images you are convicted. I sentence you to a term of imprisonment for five months starting on 29 December 2026 and ending on 28 May 2027. (4) I fix a non-parole period of 2 years starting on 29 May 2024 and ending on 28 May 2026. |
| CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Sexual intercourse without consent – Threat to distribute intimate image – Where the offender was reckless as to whether the victim was consenting – Weight to be given to sentencing purposes | |
Legislation Cited: | Crimes Act 1900 (ACT) ss 54(1), 54(3) Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 11(3), 33, 35, 36, 53 |
Cases Cited: | DPP v Jones (No 2) [2023] ACTSC 99 R v EP (No 3) [2019] ACTSC 242 R v Finau (No 2) [2020] ACTSC 193 R v SP [2015] ACTSC 121 R v Stevens (No 3) [2017] ACTSC 297 Wyper v The Queen [2017] ACTCA 59 |
Parties: | Director of Public Prosecutions Marquis Monte Mack ( Offender) |
Representation: | Counsel D Swan ( DPP) J Sabharwal ( Offender) |
| Solicitors ACT Director of Public Prosecutions (DPP) Legal Aid ACT ( Offender) | |
File Number: | SCC 58 of 2023 |
McCALLUM CJ:
Introduction
1․Marquis Mack stands to be sentenced today after pleading guilty to two counts of sexual intercourse without consent contrary to s 54(1) of the Crimes Act 1900 (ACT) and one count of threatening to distribute intimate images contrary to s 72E of the Act. The maximum penalty for the offence of sexual intercourse without consent is imprisonment for 12 years. For the offence of threatening to distribute an intimate image, the maximum penalty is a fine of 300 penalty units ($48,000), imprisonment for 3 years or both.
2․Mr Mack pleaded not guilty in the Magistrates Court and was committed to this Court for trial. He pleaded guilty to all charges a month before the date fixed for trial. An offender who pleads guilty is ordinarily entitled as a matter of law to a reduction in the sentence that would otherwise be imposed, depending largely on the timing of the plea: s 35 of the Crimes (Sentencing) Act 2005 (ACT). While the guilty pleas in the present case were not entered at the earliest opportunity, they still have significant value in that they have removed the need for a trial. It is now well understood that criminal proceedings can be very traumatic for complainants in sexual assault trials. In pleading guilty when he did, the offender spared the victim that ordeal, as well as sparing the community and the court the cost and resources of a trial.
3․The offender’s counsel, Mr Sabharwal, further submitted that the offender provided some assistance to police in that he voluntarily handed over his phone and gave them the password. The submission invited the court to impose a lesser penalty having regard to that assistance, as allowed under s 36 of the Sentencing Act. I am not persuaded that there should be any additional reduction on that account.
4․Mr Sabharwal submitted that, if the offender is sentenced to a term of imprisonment, the sentence should be reduced by approximately 15%. The prosecution did not contend otherwise. I accept that is an appropriate reduction in the circumstances of this case.
Circumstances of the offending
5․The circumstances of the offences are set out in an agreed statement of facts which may be summarised as follows.
6․On 11 December 2021, the victim went to the Hopscotch Bar in Canberra with some friends. She met the offender there. He introduced himself as “Kees”. He asked for her Snapchat handle and she gave it to him. At around 1:30am in the morning, the victim received a Snapchat message from the offender asking her to meet him at the bar. She found him in one of the areas near the bar. When she approached him, he said, “hey sexy” or “hey beautiful” and invited her to go across the road with him. They left the bar together and made their way towards an alleyway and carpark. They had the following conversation:
Offender: Do you want to have sex?
Victim: Do you have a condom?
Offender: Yes I do.
Victim: I don’t believe you.
Offender: Do you want me to show you?
Victim: No. It’s fine. Let’s – let’s just not.
7․They moved into an alcove where they talked briefly before kissing. While they were in the alcove, the offender did “lines” of what the victim presumed to be cocaine. They continued kissing and the offender digitally penetrated the victim’s vagina. That was consensual. However, unbeknownst to the victim, the offender filmed that act.
8․The victim is unsure of the sequence of events after that. At some point, the offender began writing on her breasts with a permanent marker. She was confused and said nothing. While the offender was writing on the victim’s breasts, he stopped to call his friends.
9․At some point, the offender told the victim to sit on a trolley he had pushed into the alcove. She complied. The offender started writing on her legs and then pulled the bottom of her jumpsuit to one side to expose her vulva and her lower abdomen. He asked the victim to hold her clothes to the side as he wrote “Kees” above her vulva, with an arrow pointing to her genitals. The victim asked the offender “what the fuck are you doing?” The offender replied, “oh no. Trust me, it’s not going anywhere”.
10․The offender continued to write on the victim’s body. The writing included: “Kees was here 12/12/21 1:39am” with two arrows pointing to the victim’s anus; “Kees is Daddy” and “Mack” on the victim’s buttocks and left thigh; the offender’s mobile phone number, Instagram and Snapchat account details on the victim’s stomach and right thigh, and “Kees is daddy” and “Mack” on the victim’s breasts.
Count 1: Threat to distribute intimate images
11․The offender then started to take photos and videos of the victim on his phone, including photos of her exposed buttocks and genitals. That material was later examined by police. The first video captured the offender writing his Instagram, Snapchat and phone number details on the victim’s thigh. The second video captured the offender and the victim kissing. The third video captured the offender writing over the victim’s body while she sat on the ground. The video also recorded the offender pulling down the victim’s clothing to expose her breasts and lifting the victim’s playsuit to expose her genitals. The fourth video captured the offender between the victim’s legs as he digitally penetrated her vagina. As already noted, the victim was not aware that the offender had filmed that act.
12․While the offender was filming, he said, “this is so funny. I’ve just got to send this to my workmate”. The victim replied, “what are you doing? Can you not?” and “can you stop?”. The offender responded, “chill. Like just chill. No one is going to know it is you”. This conduct constituted the offence of threatening to distribute intimate images.
Count 2: Sexual intercourse without consent
13․At some point while the victim was on the trolley, the offender briefly engaged in consensual cunnilingus. He then stood up and began calling his friends. The offender asked the victim if one of her friends would be interested in having sex with one of his friends. The victim called a friend, but her friend did not answer the call.
14․The offender then pulled his pants down and asked the victim, “do you want to give me head?” She replied, “not really”.
15․The offender then put his hands on the victim’s shoulders and motioned her down to the ground. He then held her by the head and pushed his penis into her mouth. The victim tried to push the offender away with her hands, but he pushed her hands away. The victim was unable to move as the offender continued holding her head as he pushed himself inside her. She felt she was gagging and choking. Eventually she moved her head and said, “can we stop? Like I have a really bad gag reflex.” The offender did not respond and continued to push his penis into the victim’s mouth. This conduct constituted the first count of sexual intercourse without consent.
Count 3: Sexual intercourse without consent
16․The offender then put on a condom and positioned the victim in front of the wall inside the alcove. He asked the victim if they could “do anal”, to which she replied, “absolutely not”. They engaged in consensual penile vaginal sexual intercourse for several minutes.
17․The offender stopped when an unknown person walked past the alcove. He then sat down on the trolley, removed the condom and appeared to do another line of cocaine. He then pointed at the discarded condom on the ground and said, “I’m going to have to reuse this”. He then asked the victim if she was on the pill. She said she was. He asked if he could finish inside her. She said no. He said, “I’ll just have to settle for on you then” and pushed the victim against the wall. The victim said, “I’m not having sex with you without a condom”. Despite this, the offender proceeded to have penile vaginal sexual intercourse with the victim for several minutes without a condom. While that was happening, the victim had her face and hands pressed against the wall. The offender told her to be quiet or people would hear. This constituted the second count of sexual intercourse without consent.
18․The offender stopped when another group of people arrived at the carpark. He pulled his pants up and suggested they return to Hopscotch.
19․Shortly after they returned to Hopscotch, the victim left to find her friends. She was visibly distressed. She used the bathroom at another nightclub, Mooseheads, to try to remove the writing on her, without success. At the suggestion of one of her friends, the victim then approached police outside Mooseheads and reported the offences.
Subsequent events
20․The offender was found later that morning and arrested for sexual assault. He told police the sexual intercourse was consensual. He voluntarily provided his phone and passcode for police to examine. They found no evidence that the intimate images had in fact been sent to any person.
Objective seriousness
21․It is necessary to make an assessment of the objective seriousness of each offence. Dealing first with the offence of threatening to distribute intimate images, the offender in effect treated the victim, whom he had met only that night, as a piece of live pornography. Without her knowledge, he filmed what should have been mutually pleasurable intimate acts. He then started labelling parts of her body as his possessions or conquests and filmed that too. He found this so hilarious he couldn’t wait to show his mates. He dismissed the victim’s protests with the doubtful assertion that no one would know it was her, as if that excused his use of her body as a sexual object that was his to tag and share. Although police found no evidence that the offender in fact sent the intimate images to any other person, the victim had every reason to fear he would. Furthermore, the victim has had to deal with the humiliation of having the photographs and videos examined by police.
22․At the same time, I must have regard to the offender’s youth and relative immaturity. His threat to share the images does not appear to have been calculated or made with malice. It was nonetheless extremely degrading for the victim. It betrayed a disturbing disregard for her autonomy, rating the pleasure and entertainment of the offender and his mates above all else. I would assess the offence to be one of considerable seriousness.
23․To assess the seriousness of the two offences of sexual intercourse without consent, it is necessary to make findings as to the offender’s state of mind concerning the issue of consent. That element of the offence is established by proof of either knowledge or recklessness: s 54(3) of the Crimes Act. As submitted by the prosecutor, the first offence involved “at least a high degree of recklessness” at the outset, when the victim said she did “not really” want to engage in fellatio and the offender proceeded anyway. The victim made both physical and verbal protests, first trying to push the offender away with her hands before asking him to stop. From that point, the offender must be taken to have known that the victim was not consenting. The offence must be considered one of some seriousness, albeit less than count 3.
24․As to count 3, I am satisfied beyond reasonable doubt that the offender knew the victim was not consenting. Having used and removed his only condom, he contemplated re-using it before asking the victim if she was on birth control. She said she was but that it was unreliable. She stated unequivocally that she would not have sex with him without a condom. The fact that he proceeded to have intercourse with her, knowing she was not consenting, increases the seriousness of this offence. Furthermore, the absence of a condom exposed the victim to the risk of disease and unwanted pregnancy.
25․The prosecutor submitted that the fact the offences occurred in the context of other sexual activity that was consensual does not lessen the objective gravity of the criminal acts. The offender did not cavil with that submission, and I accept it. Sexual intercourse without consent is always serious. Every person has a right to choose the manner of and terms on which they have sex.
26․Conversely, the fact that their sexual activity began consensually does indicate that the offending was not premeditated. It did not involve the use of gratuitous violence or a weapon. It did involve some measure of violence in that the offender pushed himself upon the victim and, for count three, held her in a position where her face and hands were pressed against the wall. I would assess this offence to be one of significant seriousness.
Circumstances of the offender
27․The offender has a strong subjective case. The most significant factor is his youth. He was born in 2002 and was 19 at the time he committed the offences. It is well recognised that, in sentencing a young offender, the promotion of rehabilitation should be given substantial weight.
28․The offender has a history of good behaviour and engagement with education and training. He completed year 12 and is in the 3rd year of a carpentry apprenticeship. He lives with his mother and has no prior convictions. He is said to have pro-social support in the community of his church.
29․However, the author of the pre-sentence report noted an issue with substance abuse in the following remarks:
“It was noted that while he maintains stable family support, accommodation, employment and financial resources, his lack of engagement in pro-social group activities, Alcohol and Other Drugs (AOD) use, and limited insight into his offending behaviours and their impact remain unaddressed. It was also noted that Mr Mack was not completely honest or forthcoming in related to his AOD use … claimed he had not consumed cocaine for over a month and half but then proceeded to declare cocaine and alcohol use prior to his urinalysis testing”.
Remorse and prospects of rehabilitation
30․I am required to consider whether the offender has demonstrated remorse. As noted by the prosecutor, the only available evidence on that issue comes from the offender’s pleas of guilty and the pre-sentence report. The author of that report stated that the offender did not show insight into the impact of his actions, saying only that the offences had a “negative” impact on the victim. Some weight must accordingly be given to the purpose of sentencing of making the offender accountable for his actions.
31․The offender is assessed as posing a low risk of reoffending. However, the prosecutor submitted that, in light of his failure to process the apparent seriousness of the offences and his unaddressed drug and alcohol issues, any assessment of his prospects of rehabilitation must be guarded. I agree.
The weight to be given to other sentencing purposes
32․The purposes of sentencing are stated in s 7 of the Sentencing Act. The serious nature of the offence of sexual intercourse without consent demands that the sentencing purposes of deterrence, denunciation and recognition of harm must be given prominence: Wyper v The Queen [2017] ACTCA 59 at [114].
Form of sentence
33․The power to impose a sentence of imprisonment is enlivened only if the court is satisfied, having considered possible alternatives, that no other penalty is appropriate: s 10 of the Crimes (Sentencing) Act. I am satisfied that threshold is met in the present case. Mr Sabharwal submitted that the offender should however be permitted to serve any sentence of imprisonment by intensive correction order.
34․The offender has been assessed as suitable for such an order. However, in the case of a sentence of imprisonment for more than 2 years but not more than 4 years, which is what I propose in the present case, the court’s jurisdiction to order that the sentence be served by intensive correction in the community is constrained by s 11(3) of the Sentencing Act. In accordance with that section, an intensive correction order may be made only if the court considers it is appropriate to do so having regard to, among other considerations, the level of harm to the victim and the community caused by the offence.
35․As I will return to explain, the victim in the present case has suffered substantial harm. I consider that there is also harm to the community. Every time a woman is treated as a sexual object or labelled as the possession of a man, society is impoverished. Accordingly, I do not consider it appropriate to order that the sentence be served by intensive correction in the community.
Comparative cases
36․In determining the appropriate sentence, I have had regard to current sentencing practices, as required by s 33(1)(za) of the Crimes (Sentencing) Act.
37․For the offence of threatening to distribute intimate images, the prosecution identified the decision of this Court in R v EP(No 3) [2019] ACTSC 242. The threat in that case was more sinister. In the context of the break-down of a relationship, the offender made numerous laminated posters of the victim naked from the waist up which he left in the garden outside their home. He told the victim there were more copies in their child’s schoolbag and implicitly suggested there would be broader distribution of the poster. He was sentenced for that offence to imprisonment for 8 months.
38․As to the offences of sexual intercourse without consent, the prosecutor identified three comparative sentencing decisions: R v Finau (No 2) [2020] ACTSC 193; R v SP [2015] ACTSC 121 and R v Stevens (No 3) [2017] ACTSC 297.
39․In Finau (No 2) at [35]-[41], Murrell CJ reviewed a series of decisions that had been put forward as comparable cases. In my assessment, those decisions suggest a sentencing practice that is unduly lenient having regard to the maximum penalty for the offence and the known impact such offences have on victims and the community. Her Honour reviewed those cases in the context of noting at [42] that “the ACT Sentencing Database statistics indicate that sentences for this offence are often in the range of three to five years’ imprisonment”. The Chief Justice sentenced the offender in that case to imprisonment for two and a half years suspended after 9 months. In doing so, she explicitly referred to the effect of the pandemic on the circumstances of imprisonment. That is no longer a relevant consideration.
40․The decisions in SP and Stevens (No 3) provide more useful comparators. I have also gone back to my decision in DPP v Jones (No 2) [2023] ACTSC 99. However, each case must ultimately be determined according to its own circumstances.
Impact on the victim
41․It is important in that context to consider the effect of the offences on the victim. The victim made a victim impact statement. I have considered that statement carefully and taken it into account in the manner required by ss 33(1)(f) and 53(1)(a) of the Crimes (Sentencing) Act 2005 (ACT).
42․The victim elected not to read her victim impact statement in open court or to have it read aloud. In deference to that approach, I do not propose to recite the contents of the statement in any detail. However, for the purpose of explaining my conclusion as to the appropriate sentences to be imposed, it is necessary to record that the offences have had a very significant physical and psychological effect on the victim. She describes experiencing physical pain during the offences, particularly when she was held against the wall. She also describes significant pain afterwards when she scrubbed her skin excessively in her attempts to erase the writing from the permanent marker. In the years since the offences, the victim has felt overwhelmed with feelings of insecurity and shame. This has affected her ability to socialise and has weakened her connections with family and friends. She experiences the symptoms of post-traumatic stress disorder and that also continues to have an impact on her relationships with others.
Sentence
43․In all the circumstances, having regard to the seriousness of the offences and their impact on the victim, I propose to impose sentences totalling 3 years of imprisonment with a non-parole period of two years.
44․For the offence of threatening to distribute intimate images, but for the plea of guilty, I would have imposed a sentence of imprisonment for 6 months. Taking account of the plea, the sentence for that offence will be a term of imprisonment for 5 months.
45․For the offence of sexual intercourse without consent being the act of fellatio, but for the plea, I would have imposed a sentence of imprisonment for 2 years. Taking account of the plea, the sentence for that offence will be a term of 1 year and 8 months.
46․For the offence of sexual intercourse without consent being the penile penetration without a condom, but for the plea, I would have imposed a sentence of imprisonment for 2 years and 6 months. Taking account of the plea, the sentence for that offence will be a term of 2 years and 1 months.
47․For the reasons I have explained, I do not consider it appropriate to suspend the sentence. Rather, as already indicated, I will fix a non‑parole period of two years, leaving it to the Sentence Administration Board to determine when the offender should be released.
48․Marquis Monte Mack, please stand:
(1)For the offence of sexual intercourse without consent in count 2, you are convicted. I sentence you to a term of imprisonment for 1 year and 8 months starting on 29 May 2024 and ending on 28 January 2026.
(2)For the offence of sexual intercourse with consent in count 3, you are convicted. I sentence you to a term of imprisonment for 2 years and 1 month starting on 29 December 2024 and ending on 28 January 2027.
(3)For the offence of threatening to distribute intimate images you are convicted. I sentence you to a term of imprisonment for five months starting on 29 December 2026 and ending on 28 May 2027.
(4)I fix a non-parole period of 2 years starting on 29 May 2024 and ending on 28 May 2026.
| I certify that the preceding forty-eight [48] numbered paragraphs are a true copy of the Reasons for Sentence Judgment of her Honour Chief Justice McCallum Associate: Date: |
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