Director of Public Prosecutions v Mastalerz (No 2)

[2024] ACTSC 267

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Mastalerz (No 2)

Citation: 

[2024] ACTSC 267

Hearing Date: 

28 August 2024

Decision Date: 

28 August 2024

Before:

Mossop ACJ

Decision: 

See [88]

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – where offender committed acts of serious family violence – offending while subject to family violence order and bail conditions precluding him from contacting the victim – high range of objective seriousness for the sexual offences and varying levels for assault, property damage and family violence order contraventions – negative family upbringing – prior criminal history – plea of guilty three weeks before trial – general deterrence important and prospects of rehabilitation guarded – sentenced to 121 months’ imprisonment

Legislation Cited: 

Crimes Act 1900 (ACT), ss 26(2), 54(2), 116(3)

Crimes (Sentencing) Act 2005 (ACT), ss 34B, 35(4), 72

Family Violence Act 2016 (ACT), ss 43(2), 115

Cases Cited: 

Bugmy v The Queen [2013] HCA 37; 249 CLR 571

DPP v Mastalerz [2024] ACTSC 30

R v Rappel [2019] ACTCA 11

Parties: 

Director of Public Prosecutions

Jayden Michael Mastalerz ( Offender)

Representation: 

Counsel

J Melloy ( DPP)

J Sabharwal ( Offender)

Solicitors

Director of Public Prosecutions

Legal On London ( Offender)

File Numbers:

SCC 146 of 2023

SCC 147 of 2023

SCC 101 of 2024

MOSSOP ACJ:         

Introduction

1․Jayden Michael Mastalerz is to be sentenced in relation to serious family violence offending.

2․The offender and the victim had been in an on-again off-again relationship for six years. That relationship was marred by family violence perpetrated by the offender on the victim. On 6 February 2023, the offender was released from custody in New South Wales (NSW). He immediately travelled to Canberra and went to the victim’s home in breach of a family violence order. He went on to commit several violent and sexual offences against her that day and the next day. On that next day, 7 February 2023, police arrested him, and he was remanded in custody. However, he continued to contact the victim while in custody in breach of the same family violence order.

3․He has pleaded guilty to and is to be sentenced in relation to the following charges:

(a)two rolled up counts of aggravated sexual intercourse without consent, contrary to s 54(2) of the Crimes Act 1900 (ACT);

(b)seven counts of contravening a family violence order, contrary to s 43(2) of the Family Violence Act 2016 (ACT);

(c)one count of aggravated common assault, contrary to s 26(2) of the Crimes Act; and

(d)one count of aggravated minor property damage, contrary to s 116(3) of the Crimes Act.

4․The maximum penalty for the offence of aggravated sexual intercourse without consent is 15 years’ imprisonment.

5․The maximum penalty for the offence of contravening a family violence order is five years’ imprisonment or 500 penalty units or both.

6․The maximum penalty for the offence of aggravated common assault is three years’ imprisonment.

7․The maximum penalty for the offence of aggravated destroying or damaging property is three years’ imprisonment.

Agreed Facts

8․The facts are agreed. They are contained in two Statements of Facts which were tendered without objection, one dated 19 August 2024 and the other dated 22 August 2024. In summary, they provide as follows.

9․The victim first met the offender in April 2017, and they began a relationship a week or two after that. The relationship ended in December 2022, when the offender was arrested in NSW.

10․The offender and the victim have four children from their relationship, all presently below the age of five.

11․The relationship was marred by family violence perpetrated by the offender upon the victim. The victim was always scared of the offender as he had always maintained control over her during the relationship, including in the following ways:

(a)stating that the victim could only shower with his permission;

(b)when they were living in a tent, not allowing the victim to go to the toilet unless it was within his eyesight;

(c)if the victim was on the phone, he would have to be there listening;

(d)confiscating the keys and phone of the victim, so that she could not leave her location; and

(e)the offender knew the password to the victim’s phone, and constantly checked it.

12․The offender maintained control over the victim through the use of physical violence, sexual violence, and emotional abuse. He believed that the victim belonged to him and he made threats against her and her family.

13․Due to the history of violence, the victim learned to submit to the offender to keep herself and her children safe. She learned that if she stood up to the offender, it would lead to further violence. This extended to any sexual activity. If she declined to have sex with him when he wanted it, she would end up being hurt. She acquiesced to sexual acts because it was the “safer thing”.

Family Violence Orders

14․In or about October 2021, NSW Police applied for an Apprehended Domestic Violence Order on behalf of the victim and listed the offender as the respondent. The conditions of the order initially prevented the two living together. This order was amended later to prevent the offender from contacting the victim or her children due to the history of violence perpetrated by him.

15․On 16 May 2022, a final Apprehended Domestic Violence Order was made by the NSW Local Court for five years and prohibited the offender from:

(a)assaulting, threatening, stalking, harassing, or intimidating the victim;

(b)contacting the victim in any way, unless the contact was through a lawyer, to attend counselling or mediation, as ordered by the court, or as agreed in writing between the offender and the victim about contact with the children; and

(c)going within 50 m of any place where the victim lived.

16․The offender was present in court when the order was made, and the NSW Apprehended Domestic Violence Order is recognised as a family violence order in the Territory under s 115 of the Family Violence Act. The offender has a history of not abiding by conditions of family violence orders or bail conditions.

17․On 31 March 2023, a magistrate of the ACT Magistrates Court also granted a further interim family violence order on behalf of the victim’s four children, listing the offender as the respondent and preventing the offender from contacting any of the children unless agreed to by the Director-General of Community Services. It was served on the offender on 4 April 2023.

Release from custody

18․On 6 February 2023, the offender was released from custody in Long Bay Correctional Centre, New South Wales. At the time he was on bail from the ACT Magistrates Court in relation to separate charges of contravening a family violence order against the victim. Those bail conditions prevented him from contacting the victim and from entering the Territory unless attending the ACT Magistrates Court.

19․He immediately travelled to Canberra, ahead of an ACT Magistrates Court mention the following day, contacting the victim’s mobile phone number in breach of bail and in breach of the family violence order made against him. He said he had nowhere to go and had booked a bus to Canberra. He arrived from Sydney at the victim’s residence that night.

Events of 6 February 2023

20․The offender had caught a Murrays bus from Central Railway Station in Sydney and arrived at the Jolimont Centre in Canberra at about 9:30pm that day. At about 9:45pm, he had arrived at the victim’s residence in Throsby. Two of her children, J (eight months) and C (aged 4), were present. C was awake and J was asleep. Her two other children were with her parents.

21․After about 20 minutes at the victim’s residence, the offender told the victim to have a shower with him. Although she had had a shower only an hour beforehand and did not want to have a shower with the offender, she knew from experience that she should not say no. She ultimately agreed because she did not want him to get angry around C.

22․The events that occurred next are described in detail in the Statement of Facts. They involve the victim performing various sexual acts with the offender. Those acts are agreed to have not been the subject of free and voluntary consent of the victim because she participated in the acts because of the implicit threat of violence or force by the offender and out of fear of him due to previous abuse in the relationship. The sexual acts were:

(a)sucking the offender’s penis for three to four minutes;

(b)penile vaginal sexual intercourse while he was sitting on the floor of the shower and she was kneeling with her back to his face for between two seconds and a minute until it caused too much pain in her stomach and she got up; and

(c)penile vaginal sexual intercourse with the victim on top of the offender which caused the victim a lot of pain in her stomach and continued for about five minutes until he ejaculated.

23․These three acts of sexual intercourse give rise to the rolled up charge of aggravated sexual intercourse without consent (CAN 2291/2023). A child (C) was present on occasion during these events but not in a manner that clearly exposed her to her mother’s distress.

24․The next day, the offender engaged in controlling behaviour such as looking through the victim’s phone, becoming angry and asking her about other men. During the day, they went to Gungahlin Town Centre and bought a toy for C. There were further arguments based upon the examination by the offender of the contents of the victim’s phone, during which the offender made a threat to kill the victim and one of the men with whom the victim had been communicating, Mr O. The offender used the victim’s phone to try to call and text Mr O. There was a conversation between the offender and Mr O during which the offender threatened him. The offender subsequently abused the victim, calling her a “dirty slut”.

25․The pair went to collect C from school. Consistent with his earlier behaviour, the offender questioned the victim about perceived infidelity. The offender said that he would sleep with someone else and the victim replied that she would as well. The offender punched the victim in her right arm with a closed fist. This gives rise to the charge of aggravated common assault (CAN 1479/2023). The offender then picked up the bag with the new toy that the victim had purchased for C. He threw it on the ground causing the toy and the box to break. This gives rise to the charge of aggravated minor property damage (CAN 2294/2023).

26․The victim had partially captured the incident on a video on her phone. The offender saw this and she stopped recording. The offender grabbed the victim’s watch as if he was going to break it and took her phone. The victim was crying and begging him to stop. The victim used her smartwatch to text “help” to Mr O. However, the offender realised and quickly used the phone to text “don’t worry” to Mr O. Both the offender and the victim were highly emotional. The offender tried to hug the victim and gave her phone back to her.

27․They collected C and walked home. After they had arrived home, the victim’s Barnardos support worker visited the address. The victim came outside to meet her, which was unusual. The victim did not say anything to the support worker about the offender.

28․The Statement of Facts then describes a second rolled up count of aggravated sexual intercourse without consent involving three occasions of sexual intercourse (CAN 2295/2023). It occurred once they were at home. The victim told the offender that she did not feel like doing it because she was too sore and wanted to rest. The offender said “I’ve been stuck in jail because of you, so you owe me”. The victim knew that what was going to happen was inevitable, so she did not put up a fight. The incident involved penile and vaginal penetration which caused a tear to her genitalia and caused her to yell out. This caused C to come into the bedroom and ask if she was okay. The offender continued deep penetration of her vagina which caused pain in her stomach. She asked the offender to stop because the pain was too much, but he kept going. After about one to three minutes, the victim pulled away because the pain was unbearable.

29․The offender told her to turn around on her hands and knees. She thought that he was going to have penile vaginal intercourse, but he penetrated her anus, causing her to scream as the pain was unbearable. The anal penetration caused her to bleed due to a haemorrhoid. While he was doing this, he grabbed the nozzle of the vacuum cleaner and attempted to insert it into the victim’s vagina. She threw it across the room. She asked him to stop but he would not. He eventually took his penis out saying “oh, you’re bleeding quite a bit” and inserted his penis back in the victim’s vagina and continued intercourse for about three minutes until he ejaculated inside her.

30․The offender and the victim had previously engaged in anal intercourse once before but she explained to the offender many times that it was very painful and uncomfortable since having children.

31․Just before five o’clock, the Barnardos support worker called police and asked for a welfare check to be conducted at the victim’s residence. At about 5:30pm, several police officers went to the victim’s residence. The victim told police that the offender was not there but gave them permission to enter and search the property. Fifteen minutes after arrival at the residence, a police officer found the offender hiding in a wardrobe in the bedroom. He was arrested for breaching the NSW apprehended violence order.

32․The victim participated in a family violence evidence in chief interview, in which she reported the assault at the back of the school but did not report any of the sexual assaults. It was only the next day that she told her Barnardos support worker and then her mother about the sexual assaults. On 10 February 2023, she told a worker at the Domestic Violence Crisis Service about having been sexually assaulted. She said she was unsure about reporting the matter to police because she did not want the offender to get into more trouble. Over the weekend (11-12 February 2023), she made the decision to report the matter to police as she wanted to end the cycle of abuse.

33․Between 11 February and 14 February 2023, the offender had used the Alexander Maconochie Centre (AMC) telephone system to contact the victim in breach of the family violence order made on 16 May 2022 (CAN 2298/2023). He had recorded the victim’s telephone number as the number of his sister. The victim had agreed to her number being put on the call list because she wanted to tell the offender that their relationship was over. The nine telephone conversations lasted just over an hour in total. The content of those conversations is summarised in the Statement of Facts. They involved the victim telling the offender that their relationship was over and that she wished to stop contact and the offender begging her to take him back and promising to change. The victim’s telephone number was subsequently removed from the offender’s permitted contact list.

34․The victim made an initial report to police on 14 February 2023.

35․On 7 March 2023, the offender sent two letters to the victim which she received on 10 March 2023. Although the letter was not addressed to the victim’s name, the content of the envelopes made it clear that they were intended for the victim. This constituted a second contravention of the family violence order made on 16 May 2022 (CAN 3891/2023).

36․A third rolled up contravention of the family violence order occurred in May 2023, when the offender would call another person on the victim’s contact list and ask that person to “merge the call” with a call to the victim. On one occasion, the offender spoke with two of the children, M and C. On another occasion, the offender spoke with M. The contact with the children was a breach of the interim family violence order made on 13 March 2023 (CAN 5561/2023), which prevented contact between the offender and the children without the approval of the Director-General of Community Services.

37․The fourth and fifth contraventions of family violence orders arose from the offender contacting the victim a total of 19 times between 22 and 30 August 2023. The total time spent on those phone calls was just over three hours and five minutes. This gives rise to a breach of the family violence order relating to the victim (CAN 12052/2023). On seven of the calls, the offender spoke directly to one or more of three of his children, M, C and J. That involved a breach of the family violence order relating to the children (CAN 12051/2023). These calls were all achieved by the relatively simple ruse of having another prisoner call the victim and then allowing the offender to talk on the call. The content of the calls is described in detail in the Statement of Facts. They involve calls in that the victim generally participated in rather than terminating the call. My summary of the content is that they were emotionally manipulative and designed to maintain a degree of control over the victim, notwithstanding the incarceration of the offender. They included manifestly inappropriate conversations with the children designed to manipulate their emotions and thereby manipulate the conduct of the victim. These included telling one of his children that if she did not hear from him again it was because he had committed suicide and asking another whether she wanted “mum and dad to live together”. When approached by police, the victim declined to comment on the calls and declined to provide a statement about them to police.

38․There are two further charges of breaching family violence orders relating to similar contact that occurred between 18 December 2023 and 23 December 2023. Once again, by a relatively straightforward ruse, the offender was able to arrange contact with the victim via the AMC telephone system. He engaged in telephone contact with her on 32 occasions over a total of five hours and 12 minutes. This was a contravention of the family violence order relating to the victim (CAN 1214/2024). On six of the calls, the offender spoke to one or more of C, M or J, breaching the family violence order relating to the children (CAN 1215/2024). The content of those calls is described in more detail in the Statement of Facts. They involved further attempts to convince the victim that the offender had changed, and the application of pressure upon the victim not to have or continue with a new relationship with another person. When approached by police, the victim declined to comment and declined to provide police with a statement relating to the calls.

Objective seriousness

39․The rolled up counts of sexual intercourse are both serious examples of the offending.

40․They are statutorily aggravated because they occurred in a family violence context.

41․They are more serious because they occurred at a time when the offender was subject to an apprehended violence order and on bail conditions which precluded contact with the victim. He was also on conditional liberty in that he was subject to an intensive correction order arising out of his earlier family violence convictions in NSW.

42․The victim did not resist the offending because of the long history of violence and control within their relationship.

43․In relation to the first rolled up count, the offender accepts by his plea that he was at least reckless as to the absence of consent. In relation to the second, the lack of consent was express and obvious.

44․So far as the first count is concerned, it involved both oral and penile penetration, the penile penetration caused pain to the victim both in the shower and subsequently in the bed.

45․So far as the second count is concerned, the penile-vaginal penetration caused a tear to the victim’s genitalia sufficient to cause her to yell out, one of the children was exposed to the offending sufficiently to be concerned about the welfare of her mother, and the offender continued with penile-vaginal intercourse despite it being clear that the victim was in pain. That was then followed by anal penetration, causing the victim to scream in pain, an attempt to violate the victim by inserting an object into her vagina and then proceeding to penile-vaginal intercourse, notwithstanding having made the observation that she was bleeding “quite a bit” as a result of the anal penetration.

46․Each of the rolled up sexual intercourse counts is in the high range of objective seriousness for this offence with the second count being the more serious.

47․The aggravated common assault is, notwithstanding its family violence context, in the low to mid-range of objective seriousness for this offence. The minor property damage charge is minor in terms of the property damaged but made more serious by the family violence context; its emotional impact was necessarily higher because it targeted an object intended as a gift for the child.

48․The first rolled up count relating to telephone calls in February 2023 in breach of the family violence order is serious because:

(a)it is a rolled up charge; and

(b)it involved flagrant breaches of the family violence order.

49․While the victim must have acquiesced in the contact and did not hang up or contact authorities, that must be seen in the context of the previous history of violence and manipulation and the emotionally manipulative content of the calls themselves. The offending is above the mid-range of objective seriousness for this offence.

50․The second contravention relating to the sending of letters in March 2023 reflects a continuation of the attempts at manipulation of the victim but is in the low to mid-range of objective seriousness for this offence. It is not in the low range because of the ongoing pattern of manipulation and continued knowing defiance of a court order.

51․The third contravention relating to contact with the children on two occasions in May 2023 is in the low to mid-range of objective seriousness for this offence for the same reasons as the second contravention.

52․The fourth and fifth contraventions occurred in August 2023. The fourth contravention related to substantial contact with the victim. It was only achieved by manipulating the arrangements for telephone contact at the AMC. The content of the conversations involved further attempts by the offender to maintain control over the victim, consistent with the pattern of control he had exercised in the past. Given the content of the contact and the rolled up nature of the charge, it is above the mid-range of objective seriousness for this offence.

53․The fifth contravention relates to contact with the children. This included appalling attempts at manipulating the children which, it can be inferred, were undertaken in the hope of influencing the victim. It is above the mid-range of objective seriousness for this offence.

54․The sixth and seventh contraventions relate to contact in December 2023. The sixth contravention related to conversations with the victim. These were of a similar nature to the earlier conversations, seeking to apply pressure to continue the relationship and control who she saw. It is above the mid-range of objective seriousness for this offence. The seventh contravention relates to six calls with one or other of C, M or J. The content is not described in the Statement of Facts. Because of its rolled up nature and the context in which it occurred, it is in the mid-range of objective seriousness.

55․Overall, the content of the communications made in breach of the family violence order included emotionally manipulative conduct on the part of the offender. They involved persistent attempts to control the behaviour of the victim and to have her believe that she was responsible for him being in custody.

Subjective circumstances

56․The subjective circumstances of the offender are described in a pre-sentence report dated 21 August 2024 and a bundle of documents tendered by the offender. The information in the pre-sentence report was more limited than it might otherwise have been because the offender declined to answer a number of categories of questions.

57․The offender is aged 28 years. He is an Indigenous man, although he has had limited connection to Aboriginal culture due to having no contact with his father.

58․He had a negative family upbringing, although details were not provided. He spent time in foster care in NSW following emergency action. His family moved frequently, although they lived primarily on the south coast of NSW.

59․He has four children with the victim of the current offending. He has experienced long periods of rough sleeping interspersed by brief periods in respite accommodation in NSW. He does not have any concrete plans for accommodation upon his release from custody. That creates a real risk of attempting to maintain contact with the victim and is something that would need to be given careful consideration at the time of any grant of parole.

60․His educational experience was disrupted due to being placed in foster care and as a result of numerous expulsions for behavioural issues. He left school prior to completion of his Year 10 certificate. He has a Certificate 2 in Retail and another in Cooking. He has been employed as a welder and tyre fitter. He aspires to work as a youth mentor. He was last employed in 2022. When in the community, he has used alcohol and cannabis, the latter at substantial levels, but not other illicit drugs.

61․While in custody he has received medical care from the Winnunga Nimmityjah health provider. He has been diagnosed as having ADHD, Autism Spectrum Disorder Level I and anxiety and depression. His treatment has included 13 sessions of counselling with a psychologist.

62․In relation to his attitude to offences, the pre-sentence report author says:

Mr Mastalerz acknowledged that he was aware that there was a Protection Order in place, he justified contacting the victim survivor as he wishes to have contact with his children.

Mr Mastalerz displayed no victim empathy beyond conceding that his offending would have impacted the victim and his children who witnessed aspects of the offending.

Mr Mastalerz refused to answer further questions with regards to the specifics of his offending.

63․Assessment of the offender using the STATIC-99R risk assessment tool indicated that the offender has an above average risk of sexual reoffending.

64․The author of the pre-sentence report concludes:

Currently Mr Mastalerz is a sexual offender who has not participated in treatment, ongoing breaches of Family Violence Orders, limited victim empathy and reluctance to discuss the particulars of his offending signify limited responsibility, willingness to change and thus ongoing risks to the victim survivor or future partners.

Mr Mastalerz’s risk of re-offending may be lowered by meaningful participation in courses regarding his specific criminogenic risks of substance misuse, aggression, and sexual offending.

65․The material in the defence tender bundle indicates that the offender is making use of the opportunities available for further training within the AMC. That includes work-related courses as well as courses relating to parenting. It also includes participating in the peer mentor program, Aboriginal art groups and supporting new detainees. Importantly, it also indicates that he is participating in, and very responsive to, literacy training, which is available through a volunteer program at the AMC. Literacy and numeracy training for inmates within the AMC is of fundamental importance for their future employment prospects and for their children’s prospects upon them being released from custody.

66․The letter from the offender indicates that he has been engaging with a psychologist weekly to work on anger management and impulsiveness. He expresses remorse and provides an explanation for some of his responses to the author of the pre-sentence report. It is not possible to place significant weight upon the statement of remorse in circumstances where the admitted conduct involves such a history of violence and manipulation, and the expression of remorse is a bare one and unsupported by additional evidence.

Victim impact

67․No victim impact statement was provided. The court was informed that the victim has concerns for her welfare if the offender were to be released from custody.

Criminal history

68․In the Territory, the offender has a single conviction for contravening a family violence order for which he was sentenced to 42 days’ imprisonment. That offence occurred in November 2022.

69․In NSW, he has a more substantial criminal history which includes contravening an apprehended violence order in 2021, taking or driving a conveyance without the consent of the owner in 2021 and multiple contraventions of an apprehended violence order in 2022. The contraventions of the apprehended violence order related to the order protecting the victim of the current offending. For the contraventions of an apprehended violence order in 2022, as well as using a carriage service to menace or harass and stalking, he was given an aggregate sentence of 18 months to be served by an intensive correction order. That order was in place at the time of the present offending. The apprehended violence order in question was one which was intended to protect the victim of the present offending.

Plea of guilty

70․The offender entered a guilty plea to all of the charges relating to conduct up to and including May 2023, three weeks after a Criminal Case Conference, and three weeks prior to the scheduled trial date. It occurred after significant resources had been devoted to the conduct and determination of an application relating to relationship and tendency evidence: DPP v Mastalerz [2024] ACTSC 30. In the circumstances, the offender is entitled to a sentence reduction on account of the utilitarian value of the plea of 15 percent. In adopting this approach, I have accepted the concession of the prosecution that a “Criminal Case Conference discount” is attracted. But for that concession, I would have made the reduction somewhat smaller for two reasons. First, the agreed Statement of Facts does not indicate any particular relationship other than a temporal one with the conduct of the Criminal Case Conference. Second, when considering utilitarian value, it must be taken into account that the court was required to address a substantial contested hearing about relationship and tendency evidence.

71․The further complicating factor is that I accept the submission made by the prosecution that the contraventions of the family violence order involving calls made from the AMC, which include some of the sentences to which a 15 percent discount would otherwise have applied, were an overwhelming case and, as a consequence, s 35(4) of the Crimes (Sentencing) Act 2005 (ACT) operated to limit the reduction in sentence available. In relation to those counts, a reduction of between five and 10 percent will be allowed. Having regard to the authorities referred to in the prosecution’s written submissions, that must be at the outer limit of the discount permissible under that provision. But for that requirement, the final four charges of contravening a family violence order which occurred in August and December 2023, which were the subject of guilty pleas entered in the Magistrates Court on the fifth mention without any plea of not guilty having been entered, would have been subject to a 25 percent discount.

Time in custody

72․The offender has been in custody since his arrest on 7 February 2023. That is a period of 568 days in custody prior to today. Of that period, 42 days were served as a sentence in relation to the charge of contravening a family violence order. That means that 526 days of his custody are solely attributable to his current offending. This gives a backdate date of 21 March 2023.

Consideration

73․This is a very bad case of family violence offending. Courts have consistently recognised the seriousness of family violence offending. The legislature has increased the maximum penalty where offences involve family violence and required courts to have specific consideration of the matters in s 34B of the Crimes (Sentencing) Act. The effectiveness of the system of family violence orders is dependent upon courts demonstrating a willingness to impose significant sentences on offenders for breach of such orders.

74․Court orders in the form of apprehended violence orders in NSW and family violence orders in the Territory have been completely ineffective to restrain the conduct of the offender. The pattern of abuse, manipulation and control of the victim appears to be deeply ingrained. The victim has a real need for protection.

75․The offending itself involves very serious acts of sexual abuse occurring in a context of a relationship involving violence and abuse.

76․When the offender was disabled from sexual and physical violence directed to the victim of the offending, he sought to manipulate and control her through contacting her in breach of the family violence order. Those attempts at manipulation and control extended to manipulating the children.

77․The offender’s offending appears to be directed only at the victim. It therefore appears to be something associated with insecurity or a need for control within that intimate relationship. It is not clear whether, or to what extent, it would extend to other relationships that the offender may have in the future. However, having regard to the pattern of offending demonstrated with the victim, there must be a significant risk of such offending directed to others in the future.

78․There is limited information before the court about the disrupted nature of the offender’s childhood. That is because he provided only limited information to the author of the pre‑sentence report. It appears that his family life involved having no contact with his father, sufficient disruption or dysfunction to have him put into foster care, that his conduct at school was sufficient to have him expelled for his behavioural issues and that his family moved about when he was young. It is likely that some aspects of his upbringing have predisposed him to psychological attributes manifested in his pattern of violence and control in relation to the victim of the offending. To the extent that the principle in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 would apply to recognise the lifelong consequences of his upbringing, that same principle would tend to indicate the need for protection of the victim from such offending in the future and the protection of others with whom he might have an intimate relationship in the future.

79․Specific deterrence, denunciation, recognition of harm done to the victim, and protection of the victim and of the community are all important sentencing considerations. General deterrence is always significant in relation to family violence offending.

80․Rehabilitation must also be a consideration, but the prospect of that occurring must be considered to be guarded at best. There is some evidence of engagement in psychological treatment and a general motivation to participate in courses and programs while in custody; however, nothing that would indicate a clear path away from entrenched violent and abusive behaviour.

81․For the offences committed in custody, s 72 of the Crimes (Sentencing) Act provides that the default rule is that offences committed in custody will be the subject of cumulation rather than concurrency. If that is to be departed from, then, consistently with R v Rappel [2019] ACTCA 11 at [23]-[24], that must be explained.

82․I have had regard to the comparable cases in the table prepared by counsel for the prosecution. Those did not relate to statutorily aggravated offences. The sexual offending in the present case was more serious than in those comparable cases.

83․The sentences that I will impose are summarised in the following table.

Charge	Maximum	Starting point	Sentence	Cumulation
Aggravated sexual intercourse without consent	15 years	5 years	51 months	51 months
Aggravated sexual intercourse without consent	15 years	6 years	61 months	28 months
Contravene FVO (February 2023)	5 years	26 months	24 months	12 months
Contravene FVO (March 2023)	5 years	2 months	52 days	1 month
Contravene FVO (May 2023)	5 years	2 months	55 days	1 month
Contravene FVO (August 2023)	5 years	28 months	26 months	12 months
Contravene FVO (August 2023)	5 years	14 months	13 months	2 months
Contravene FVO (December 2023)	5 years	28 months	26 months	12 months
Contravene FVO (December 2023)	5 years	14 months	13 months	2 months
121 months

84․The aggregate sentence is 121 months, which is 10 years and one month.

85․So far as the default rules as to cumulation and concurrency are concerned, I have made the sentences cumulative or concurrent so as to achieve what I regard as an appropriate total sentence. Specifically, in relation to departure from the default rule that offences committed in custody are to be subject of cumulative sentences, I consider that the departure is warranted in order to achieve a sentence which is not a crushing one upon the offender in circumstances where he is still going to be required to serve 42 months in custody solely attributable to the contraventions of the family violence orders.

86․I consider that the two lesser offences of aggravated common assault and aggravated property damage may, in light of the overall sentence to be imposed upon the offender, be disposed of by way of fines of $1000 on each count and the offender allowed no time to pay.

87․I consider the minimum term required to be served in custody is a period of six years and six months which is approximately 64 percent of the head sentence. Such a sentence incorporates a substantial period during which the offender will be subject to supervision in the community.

Orders

88․The orders of the Court are as follows:

1.On the charge of aggravated sexual intercourse without consent (CAN2291/2023) the offender is convicted and sentenced to imprisonment for four years and three months starting on 21 March 2023 and ending on 20 June 2027.

2.On the charge of aggravated common assault (CAN 1479/2023) the offender is convicted and fined $1000 and allowed no time to pay.

3.On the charge of aggravated minor property damage (CAN 2294/2023) the offender is convicted and fined $1000 and allowed no time to pay.

4.On the charge of aggravated sexual intercourse without consent (CAN 2295/2023) the offender is convicted and sentenced to imprisonment for five years and one month starting on 21 September 2024 and ending on 20 October 2029.

5.On the charge of contravening a family violence order (CAN 2298/2023) the offender is convicted and sentenced to imprisonment for two years starting on 21 October 2028 and ending on 20 October 2030.

6.On the charge of contravening a family violence order (CAN 3891/2023) the offender is convicted and sentenced to imprisonment for 52 days starting on 30 September 2030 and ending on 20 November 2030.

7.On the charge of contravening a family violence order (CAN 5561/2023) the offender is convicted and sentenced to imprisonment for 55 days starting on 27 October 2030 and ending on 20 December 2030.

8.On the charge of contravening a family violence order (CAN 12052/2023) the offender is convicted and sentenced to imprisonment for two years and two months starting on 21 October 2029 and ending on 20 December 2031.

9.On the charge of contravening a family violence order (CAN 12051/2023) the offender is convicted and sentenced to imprisonment for one year and one month starting on 21 January 2031 and ending on 20 February 2032.

10.On the charge of contravening a family violence order (CAN 1214/2024) the offender is convicted and sentenced to imprisonment two years and two months starting on 21 December 2030 and ending on 20 February 2033.

11.On the charge of contravening a family violence order (CAN 1215/2024) the offender is convicted and sentenced to imprisonment for 13 months starting on 21 March 2032 and ending on 20 April 2033.

12.The non-parole period is six years and six months and commences on 21 March 2023 and ends on 20 September 2029.

I certify that the preceding eighty-eight [88] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Chief Justice Mossop.

Associate:

Date: 1 November 2024