Director of Public Prosecutions v Matas
[2024] ACTSC 234
•19 July 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Matas |
Citation: | [2024] ACTSC 234 |
Hearing Date: | 28 February 2024 and 17 July 2024 |
Further submissions received: | 12 March 2024, 19 March 2024 |
Decision Date: | 19 July 2024 |
Before: | Loukas-Karlsson J |
Decision: | See [349] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated sexual intercourse without consent - attempted aggravated sexual intercourse without consent - aggravated sexual assault in second degree - aggravated sexual assault in third degree - aggravated act endangering health - aggravated common assault - aggravated assault occasioning actual bodily harm - aggravated capture intimate data - using a carriage service to menace, harass, or cause offence - aggravated non-consensual distribution of intimate images – escape arrest – possess prohibited weapon – Bugmy and Verdins principles engaged – countervailing factor |
Legislation Cited: | Crimes Act 1900 (ACT) ss 24(2), 26, 26(2), 28(2)(a), 52(2), 53(2), 54(2), 61B(1)(a), 72C, 160 Crimes Act 1914 (Cth) ss 16A, 16A(1), 16A(2), 16A(2)(g)(iii), 19(1), 19(3), 19AC(1)(b), 19AC(3), 19AC(4)(b), 19AJ, pt 1B, Criminal Code 1995 (Cth) s 474.17(1) Criminal Code 2002 (ACT) s 44 Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) sch 8 item 1 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 33, 33(1)(a), 33(1)(i), 33(1)(j), 34B, 35, 35(2), 35(4), 65, 66 Family Violence Act 2016 (ACT) Prohibited Weapons Act 1996 (ACT) s 5 |
Cases Cited: | Aslan v The Queen [2014] NSWCCA 114 Baumer v The Queen [1988] HCA 67; 166 CLR 51 Brown v The Queen [2020] VSCA 212; 62 VR 491 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41 Calatzis v Jones [2024] ACTSC 42; 21 ACTLR 59 Caristo v The Queen [2011] NSWCCA 7 Cooke (a pseudonym) v The Queen [2022] ACTCA 44; 18 ACTLR 204 Deakin v The Queen [1984] HCA 31 DPP (Cth) v Garside [2016] VSCA 74; 50 VR 800 DPP (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 DPP (Vic) v Mokhatri [2020] VSCA 161 DPP v Ayoub (No 5) [2023] ACTSC 140 DPP v Deighan(No 2) [2023] ACTSC 295 DPP v Doughty [2023] ACTSC 397 DPP v Druett [2024] ACTSC 56 DPP v Gleeson (No 2) [2022] ACTSC 311 DPP v Hudson [2023] ACTSC 333 DPP v Moala (No 3) [2023] ACTSC 306 DPP v Muell [2024] ACTSC 184 DPP v O’Connell (No 5) [2024] ACTSC 17 DPP v Rue [2023] ACTSC 270 DPP v Stewart [2023] ACTSC 252 Davidson v Director-General, Justice and Community Safety Directorate [2022] ACTSC 83; 18 ACTLR 1 Edwin v The Queen [2014] ACTCA 47 Field v The Queen [2020] NSWCCA 105 Fleury v DPP [2023] ACTCA 46 Forster-Jones v The Queen [2020] ACTCA 31 Hili v the Queen [2010] HCA 45; 242 CLR 520 Hudson v The Queen [2020] ACTCA 46 Ibbs v The Queen [1987] HCA 46; 163 CLR 447 Jackson v The King [2023] NSWCCA 121 Jurj v The Queen [2016] VSCA 57 Mammoliti v Callaghan [2022] ACTSC 259 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mill v The Queen [1988] HCA 70; 166 CLR 59 Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99 Morrison v Maher [2021] ACTSC 312 Morrison v Maher (No 2) [2022] ACTSC 63 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Munda v Western Australia [2013] HCA 38; 249 CLR 600 Mush v The Queen [2019] VSCA 307 O'Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244 Pearce v The Queen [1998] HCA 57; 194 CLR 610 Postiglione v the Queen [1997] HCA 26; 189 CLR 295 Power v The Queen (1974) 131 CLR 623 R v AJP [2004] NSWCCA 434; 150 A Crim R 575 R v Ashton (a pseudonym) [2022] ACTCA 45 R v AJP [2004] NSWCCA 434; 150 A Crim R 575 R v Bandy [2018] ACTSC 261 R v BC (No 4) [2021] ACTSC 119 R v BI (No 4) [2017] ACTSC 71 R v BNS (No 2) [2016] ACTSC 145 R v Bonfield [2021] ACTSC 362 R v Campbell [2017] ACTSC 74 R v Cole [2019] ACTSC 228 R v Cramp [2004] NSWCCA 264 R v Daley [2010] NSWCCA 223 R v Edigarov [2001] NSWCCA 436; 125 A Crim R 551 R v Engert (1995) 84 A Crim R 67 R v Finau (No 2) [2020] ACTSC 193 R v Fleury [2022] ACTSC 103 R v Fleury (No 2) [2022] ACTSC 293 R v GG [2017] ACTSC 137 R v Hancock [2021] ACTSC 52 R v Harrington [2016] ACTCA 10; 11 ACTLR 215 R v Hudson [2019] ACTSC 110 R v Hutchinson [2018] NSWCCA 152 R v Irwin [2019] NSWCCA 133 R v Johnson [2005] NSWCCA 186 R v Kilic [2016] HCA 48; 259 CLR 256 R v Kirkwood [2022] ACTSC 148 R v Knight [2005] NSWCCA 253; 155 A Crim R 252 R v Lindsay [2020] ACTCA 25 R v MA [2004] NSWCCA 92 R v MacDonald [2017] ACTSC 59 R v MAK [2006] NSWCCA 381; 167 A Crim R ·159 R v March [2023] ACTSC 28 Rv Miller [2019] ACTCA 25; 279 A Crim R 232 R v Miller [2015] VSC 180 R v NO (No 2) [2018] ACTSC 37 R v NX [2019] ACTSC 131 R v Ogochukwu [2004] NSWCCA 473 R v Okwechime [2022] ACTSC 233 R v Olbrich [1999] HCA 54; 199 CLR 270 R v Palmer [2017] ACTSC 357 R v Park [2017] ACTSC 26 R v Pham [2015] HCA 39; 256 CLR 550 R v Pickering-Wilson [2022] ACTSC 353 R v Porte [2015] NSWCCA 174; 252 A Crim R 294 R v Redmond (No 2) [2022] ACTSC 295 R v Simpson (2001) 53 NSWLR 704 R v Smith [2021] ACTSC 114 R v Smith (No 2) [2022] ACTSC 246 R v Snowden [2022] ACTSC 186 R v Stanley [2015] ACTSC 322 R v Tonari [2014] NSWCCA 232 R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 R v Tran [1999] NSWCCA 109 R v Um (No 2) [2021] ACTSC 115 R v Van Ryn [2016] NSWCCA 1 R v Verdins [2007] VSCA 102; 16 VR 240 R v Wheeler [2000] NSWCCA 34 R v XX [2009] NSWCCA 115; 195 A Crim R 38 Roberts v Smorhun [2013] ACTSC 218 Smith v The Queen [2011] NSWCCA 163 Veen v The Queen(No 2) [1988] HCA 14; 164 CLR 465 Wyper v The Queen; R v Wyper [2017] ACTCA 59; 19 ACTLR 288 Zdravkovic v The Queen [2016] ACTCA 53; 19 ACTLR 223 |
Parties: | Director of Public Prosecutions A Matas (offender) |
Representation: | Counsel J Melloy (DPP) J Purnell SC ( Offender) |
| Solicitors ACT Director of Public Prosecutions Aulich ( Offender) | |
File Numbers: | SCC 271 of 2023 SCC 313 of 2023 |
Index
Introduction
Agreed facts
Video 1 – 1 minute and 5 seconds - three charges of sexual intercourse without consent
Video 2 – 1 minute and 43 seconds - two charges of sexual intercourse without consent and one charge of attempted sexual intercourse without consent
Video 3 – 36 seconds - one charge of sexual assault in the third degree
Video 4 – four minutes and five seconds - one charge of sexual assault in the second degree and one charge of sexual intercourse without consent
Video 5 – 17 minutes and 5 seconds - five charges of sexual intercourse without consent, two charges of sexual assault in the third degree, one charge of act endangering health (choking) and one charge of common assault
Video 6 - two minutes and 16 seconds – no charges
Common assault – 6 May 2023 – not on video
Assault occasioning actual bodily harm – 6 May 2023 – not on video
Capture intimate data – 6 May 2023
Menace, harass or cause offence – 13 May 2023
Distribution of intimate images – 14 May 2023
Arrest of offender – 16 May 2023
Victim attends police station – 12 May 2023
Search of offender’s residence – 19 May 2023
Interviews
Escape arrest – 7 May 2023
Possess prohibited weapon – 16 May 2023
Victim Impact Statement
Objective seriousness
Objective seriousness submissions
Conclusions as to objective seriousness
Subjective matters
Oral evidence of the offender
Remorse
Conditional liberty
Reference from the offender’s sister
Criminal History
Pleas of guilty
Time in custody
Hardship in custody
Comparable cases
Application of Bugmy principles
Mental condition / Application of the Verdins principle
Conclusion in relation to the application of Bugmy and Verdins principles
Statutory and other relevant considerations
Cth and ACT Offences: Recognizance Release Order/Non-Parole Period
Totality
Sentence
Orders
LOUKAS-KARLSSON J:
Introduction
1․On 13 October 2023, Mr Matas (the offender) pleaded guilty to 23 offences in the ACT Magistrates Court. Overall, the offender stands to be sentenced for 25 offences. In light of the number of charges, and the extensive written and oral submissions to be considered, the judgment perforce will be relatively lengthy. Relevantly, as can be seen below, most but not all of the offences were committed on 6 May 2023:
(a)11 charges of aggravated sexual intercourse without consent, contrary to s 54(2) of the Crimes Act 1900 (ACT) (Crimes Act). The maximum penalty for this offence is 15 years’ imprisonment. The date of these offences was 6 May 2023 (CC2023/4896; CC2023/4897; CC2023/5848; CC2023/5849; CC2023/5850; CC2023/4898; CC2023/5860; CC2023/5861; CC2023/5869; CC2023/5870; CC2023/5872).
(b)An offence of attempted aggravated sexual intercourse without consent contrary to s 54(2) of the Crimes Act by virtue of s 44 of the Criminal Code 2002 (ACT). The maximum penalty for this offence is 15 years’ imprisonment. The date of this offence was 6 May 2023 (CC2023/5851).
(c)An offence of aggravated sexual assault in second degree contrary to s 52(2) of the Crimes Act. The maximum penalty for this offence is 18 years’ imprisonment. The date of this offence was 6 May 2023 (CC2023/4900).
(d)3 charges of aggravated sexual assault in third degree contrary to s 53(2) of the Crimes Act. The maximum penalty for this offence is 15 years’ imprisonment. The date of these offences was 6 May 2023 (CC2023/5852; CC2023/5863; CC2023/5868).
(e)An offence of aggravated act endangering health, being choking, contrary to s 28(2)(a) of the Crimes Act. The maximum penalty for this offence is 7 years’ imprisonment. The date of this offence was 6 May 2023 (CC2023/5876).
(f)2 charges of aggravated common assault contrary to s 26(2) of the Crimes Act. The maximum penalty for this offence is 3 years’ imprisonment. The date of these offences was 6 May 2023 (CC2023/5873; CC2023/5877).
(g)An offence of aggravated assault occasioning actual bodily harm contrary to s 24(2) of the Crimes Act. The maximum penalty for this offence is 7 years’ imprisonment. The date of this offence was 6 May 2023 (CC2023/5879).
(h)An offence of aggravated capture intimate data contrary to s 61B(1)(a) of the Crimes Act. The maximum penalty for this offence is 250 penalty units, 3 years’ imprisonment or both. The date of this offence was 6 May 2023 (CC2023/5880).
(i)An offence of using a carriage service to menace, harass, or cause offence contrary to s 474.17(1) of the Criminal Code 1995 (Cth) (Cth Criminal Code). The maximum penalty for this offence is 5 years’ imprisonment. This offence took place on 13 May 2023 (CC2023/5881).
(j)An offence of aggravated non-consensual distribution of intimate images contrary to s 72C of the Crimes Act. The maximum penalty for this offence is 400 penalty units, 4 years’ imprisonment or both. The date of this offence was 14 May 2023 (CC2023/5885).
2․On 23 November 2023, the offender also pleaded guilty to the following two offences in the ACT Magistrates Court:
(a)An offence of escaping arrest, contrary to s 160 of the Crimes Act. The maximum penalty for this offence is 100 penalty units, 5 years’ imprisonment or both. The date of this offence was 7 May 2023 (CC2023/8575).
(b)An offence of possessing a prohibited weapon contrary to s 5 of the Prohibited Weapons Act 1996 (ACT) (PWA). The maximum penalty for this offence is 500 penalty units, 5 years’ imprisonment or both. The date of this offence was 16 May 2023 (CC2023/4959).
Agreed facts
3․The agreed facts are set out in the Statement of Facts, which forms part of the Prosecution Tender Bundle. The agreed facts may be summarised as follows.
4․Since 2015, the victim had been in an intimate relationship intermittently with the offender and, for the purposes of the Family Violence Act 2016 (ACT), are family members.
5․On 11 May 2023, a friend of the victim attended Tuggeranong Police Station to report a sexual assault against the victim. The friend provided police with six videos which recorded the offender sexually assaulting the victim while under the influence of the drug, GHB (gamma hydroxybutyrate). The assault was recorded by the offender on the victim’s mobile phone, in a bedroom at his residence on 6 May 2023. The first video was recorded at 1:11am and the last video was recorded at 1:44am on the same day. All videos were recorded from a drawer facing the bed.
Video 1 – 1 minute and 5 seconds - three charges of sexual intercourse without consent
6․The first video (Video 1) has a duration of one minute and five seconds. The conduct in the video is the subject of three charges of sexual intercourse without consent, contrary to s 54(2) of the Crimes Act (CC2023/4896, CC2023/4897 and CC2023/5848). The Statement of Facts describes the content of the video as follows:
(a)The victim is lying on her left-hand side on a bed sleeping when the offender removes her pants leaving her naked from waist down. The offender digitally penetrates the victim’s vagina whilst the victim is unresponsive and not moving (CC2023/4896 - sexual intercourse without consent contrary to s54(2) Crimes Act).
(b)The offender then performs cunnilingus on the victim whilst she continues to lay unresponsive and not moving (CC2023/4897 - sexual intercourse without consent contrary to s54(2) Crimes Act).
(c)The offender then digitally penetrates the victim’s vagina with two fingers whilst she is unresponsive and not moving (CC2023/5848 - sexual intercourse without consent contrary to s54(2) Crimes Act).
(d)The offender then stops recording the video.
Video 2 – 1 minute and 43 seconds - two charges of sexual intercourse without consent and one charge of attempted sexual intercourse without consent
7․The second video (Video 2) has a duration of one minute and 43 seconds. The conduct depicted in the video is the subject of two charges of sexual intercourse without consent contrary to s54(2) Crimes Act (CC2023/5849 and CC2023/5850) and one charge of attempted sexual intercourse without consent contrary to s54(2) Crimes Act (CC2023/5851). The Statement of Facts describes the content of the video as follows:
(a)The offender performs cunnilingus on the victim whilst she is unresponsive and not moving (CC2023/5849 - sexual intercourse without consent contrary to s54(2) Crimes Act).
(b)The offender then again digitally penetrates the victim’s vagina, and the victim jerks her body away (CC2023/5850 - sexual intercourse without consent contrary to s54(2) Crimes Act). The offender then removes his erect penis from his underwear and attempts to insert his penis into the victim’s mouth.
(c)The victim groans and tries to move away from the offender. The offender states, “Open your mouth” and the victim pushes against the offender and says, somewhat dazed, “Ow. What are you doing?” The offender responds, “Fuck Off” and then stops the recording (CC2023/5851 - attempted sexual intercourse without consent contrary to s54(2) Crimes Act).
Video 3 – 36 seconds - one charge of sexual assault in the third degree
8․The third video (Video 3) has a duration of 36 seconds. The conduct depicted in the video is the subject of one charge of sexual assault in the third degree contrary to s53(2) Crimes Act (CC2023/5852). The Statement of Facts describes the content of the video as follows:
(a)The victim groans as the offender lifts her off the side of the bed by the jumper. He then grabs the victim by the back of the head whilst telling her to open her mouth. The victim groans and tries to move away from the offender.
(b)The offender says, “What the fuck are you doing” and the victim replies, “What are you doing?”
(c)The offender states, “Open your mouth” and the victim replies, “You’re hurting me.”
(d)The offender then grabs the back of the victim’s neck and slaps her on the left side of her face with his right hand three times.
(e)The offender then stops the recording (CC2023/5852 - sexual assault in third degree contrary to s53(2) Crimes Act).
Video 4 – four minutes and five seconds - one charge of sexual assault in the second degree and one charge of sexual intercourse without consent
9․The fourth video (Video 4) has a duration of four minutes and five seconds. The conduct depicted in the video is the subject of one charge of sexual assault in the second degree contrary to s52(2) Crimes Act (CC2023/4900) and one charge of sexual intercourse without consent contrary to s54(2) Crimes Act (CC2023/4898). The Statement of Facts describes the content of the video as follows:
(a)The offender tells the victim “Open your mouth” and tries to force his penis into her mouth. The victim groans in response and said, “I don’t have it in me.”
(b)The offender holds the victim down by holding her shoulder and slaps away her hand whilst continuing to tell her to open her mouth.
(c)The offender slaps the victim’s face six times and then grabs her by her hair and slaps her face whilst telling her to move her hands.
(d)The offender slaps the victim with audible force with one of his hands on the left side of her buttocks. This resulted in an immediate red handprint. He repeatedly demands that she open her mouth. The victim cried in distress and kicks her legs (CC2023/4900 - sexual assault in second degree contrary to s52(2) Crimes Act).
(e)The offender slaps the victim’s face and she said, “you’re hurting me.” He then continues to demand that she open her mouth. She kicks her legs to get away from the offender. He then laid over the top of the victim who is on the bed. The offender forces his penis into mouth saying, “That’s better… Open it. Open your mouth cunt”. The victim makes a choking noise (CC2023/4898 - sexual intercourse without consent contrary to s54(2) Crimes Act).
(f)The offender then slaps the victim’s left buttocks causing her to jump and scream, “Ow”. She lies on the bed groaning and the offender stops the recording.
Video 5 – 17 minutes and 5 seconds - five charges of sexual intercourse without consent, two charges of sexual assault in the third degree, one charge of act endangering health (choking) and one charge of common assault
10․The fifth video (Video 5) has a duration of 17 minutes and five seconds. The conduct depicted in the video is the subject of five charges of sexual intercourse without consent contrary to s54(2) Crimes Act (CC2023/5860, CC2023/5861, CC2023/5869 and CC2023/5870, CC2023/5872), two charges of sexual assault in the third degree contrary to s53(2) Crimes Act (CC2023/5863 and CC2023/5868), one charge of act endangering health (choking) contrary to s 28(2)(a) Crimes Act (CC2023/5876) and one charge of common assault contrary to s26 Crimes Act (CC2023/5873). The Statement of Facts describes the video as follows:
(a)The offender grabs the victim’s right arm, puts it behind her back and puts handcuffs on her. The Statement of Facts states this was painful for the victim, and it felt like they were cutting into the victim’s wrists. The offender then forces his penis into her mouth whilst holding the victim’s hair (CC2023/5860 - sexual intercourse without consent contrary to s54(2) Crimes Act).
(b)The offender uses his right hand to grab the offender’s face and cover her mouth whilst telling her to “shut up”. The offender then forces his penis into her mouth whilst holding her hair and telling her to “put it in your mouth”. The victim remained handcuffed and groans in discomfort.
(c)The offender then slaps the victim’s face while still having his penis in the victim’s mouth and telling the victim to “fucking open it”.
(d)The victim attempts to move by wriggling her body as she is lying on the bed on her stomach with her hands handcuffed behind her back and her head over the side of the bed (CC2023/5861 - sexual intercourse without consent contrary to s54(2) Crimes Act).
(e)The offender says, “Don’t use your teeth” and slaps the victim’s face twice, telling her again, “open your mouth wider. Breathe through your nose cunt”.
(f)The victim says, “My arms are breaking”. The offender then slaps the victim six times to her face, and again says to the victim, “Why you using your teeth,” “Breathe through your mouth,” “Put it all the way down,” “Put it in your mouth cunt,” and “Open your fucking mouth.”
(g)The victim is gasping for air, and physically resists the offender by thrashing her body, resulting in the victim falling off the bed (CC2023/5863 - sexual assault in the third degree contrary to s53(2) Crimes Act).
(h)The offender slaps the victim to her face and throws her body back onto the bed, causing the victim to scream and say, “It’s hurting”. The offender then removes one of the handcuffs.
(i)The offender slaps the victim on her left buttocks with one of his hands and tells her to “shut up” while the victim is crying.
(j)The offender slaps the victim twice to her face and tells her to “Open your fuckin mouth or I’ll put them back on”, referring to the handcuffs. The victim continues to cry and tries to get away from the offender (CC2023/5868 - sexual assault in the third degree contrary to s53(2) Crimes Act).
(k)The offender forces his penis into the victim’s mouth whilst holding her down on the bed by the shoulders, and again tells her to not use her teeth, and to open her mouth (CC2023/5869 - sexual intercourse without consent contrary to s54(2) Crimes Act).
(l)The offender digitally penetrates the victim’s vagina with his fingers whilst still inserting his penis into the victim’s mouth, causing the victim to breathe rapidly (CC2023/5870 - sexual intercourse without consent contrary to s54(2) Crimes Act).
(m)The offender continues to say to the victim “Open your mouth,” “Fuck me cunt, just open your mouth,” “Don’t bite my fuckin dick cunt,” “I’m going to tie your fucking hands up again”.
(n)The offender proceeds to reapply the second handcuff to the victim’s wrist, but she actively resists by kicking and saying “No, please, I’m sorry”. The offender tells the victim to “Put it in your fuckin mouth” and the victim makes a choking and coughing noise.
(o)The offender tells the victim, “In two seconds I’m going to tie you back, open your fuckin mouth”.
(p)The offender forces his penis into the victim’s mouth whilst saying “Use your teeth again cunt,” “Open your mouth,” and “Breathe through your nose cunt.”
(q)The offender tells the victim, “You don’t need your nose,” “Why do you care if I block your nose.” The victim makes a gasping noise and attempts to wriggle away from the offender. The offender’s penis was so far down her throat that it blocked the victim’s airway, and she was unable to breathe.
(r)The offender says “Oh god cunt,” “Use your teeth again,” and “Stop biting my fucking dick cunt”. The victim tries to get away from the offender and falls off the bed (CC2023/5872 - sexual intercourse without consent contrary to s54(2) Crimes Act; CC2023/5876 – act endangering health (choking) contrary to s 28(2)(a) Crimes Act).
(s)The offender throws the victim back onto the bed.
(t)The victim cries in distress while the offender tells her to “hurry the fuck up cunt,” “don’t bite my fucking dick”. The victim tries to kick her legs to get away from the offender, but he says, “Don’t move or I’ll tie your hands up”. The victim kicks her legs while the offender holds her down by her head. The victim is gasping for air as she tries to cover her face with her arms.
(u)The offender slaps the victim with force to her left buttock, causing her to scream out and cry (CC2023/5873 - common assault contrary to s26 Crimes Act).
(v)The offender then stops the recording.
Video 6 - two minutes and 16 seconds – no charges
11․The sixth video (Video 6) has a duration of two minutes and 16 seconds. This video is not the subject of any charges. The Statement of Facts describes the video as follows:
(a)The victim is in the foetal position on the bed with her hands covering her face and one handcuff still applied to her left wrist.
(b)The offender pulls down his pants while the victim continues to cry.
(c)The offender says “Do you want some more G, will that make you better,” “What the fuck is wrong with you,” “Why are you crying,” and “What the fuck are you doing”.
(d)The offender then stops the recording.
12․The reference to “G” is a reference to the illicit drug, GHB. The Statements of Facts states that the victim does not remember how she came to be on the bed. The Statement of Facts further states the victim had taken some “G” earlier with the offender, which often caused her to pass out. The first thing the victim remembers was waking up to find that she had no pants on, and that the offender was slapping the victim in the face and putting his penis in the victim’s face, and that the offender was angry. The Statement of Facts states the victim was confused and didn’t know where she was or what was going on.
13․At some point following the incidents captured in the videos, the victim left the bedroom and went out to the garage to have a cigarette. The offender was also in the garage and kept asking “What’s wrong with you.” The offender asked the victim for the passcode to her phone, but she refused.
14․The offender told the victim he was going out with his friend and offered her some more “G.” She accepted, and then went back to bed.
Common assault – 6 May 2023 – not on video
15․As the victim was starting to fall asleep, the offender entered the bedroom and grabbed her and lifted her up by her hair and started hitting her. The victim was unable to move due to the effects of the “G” and was unable to sit up properly, which made the offender angrier. The victim fell off the bed and was unable to get up, so the offender grabbed a bottle of lemon juice and sprayed it in her face and said, “Get the fuck up.” The victim began to cry and pleaded with the offender to “please stop”. The offender told her to be quiet so that his mother would not hear and said, “If you’re gonna do this to me I might as well go out and fuck all these bitches.” This conduct is the subject of one charge of common assault contrary to s26 Crimes Act (CC2023/5877).
Assault occasioning actual bodily harm – 6 May 2023 – not on video
16․The offender then put the victim back onto the bed and continued to yell at her. He then punched her in the ribs, which caused a sharp pain and took the breath out of the victim’s lungs. The victim had pain in her ribs for several days after this incident. This conduct is the subject of one charge of assault occasioning actual bodily harm, contrary to s24 Crimes Act (CC2023/5879).
17․The offender then said, “Fuck this, I’ll just go out and get some bitch to suck my dick” and left the bedroom.
18․At around 7:00am, the victim woke up and contacted the offender, and the offender returned home shortly after. At this time, they had consensual sexual intercourse, which the victim described as wanting to take away the bad things that happened before it.
19․Shortly after this, the victim left the house. She did not hear from the offender for a few days.
Capture intimate data – 6 May 2023
20․Over the following days the victim was unable to move without pain. At some point during this period, the victim located the abovementioned videos in her ‘recently deleted’ folder on her phone. She sent the videos to her friend so that a copy of the videos would exist. The victim did not consent to the offender taking the six videos of this incident. This conduct was charged as one charge of capture intimate data contrary to s61B(1)(a)(a) Crimes Act (CC2023/5880).
Menace, harass or cause offence – 13 May 2023
21․A few days after the incident the offender began to message the victim over Facebook Messenger and repeatedly threatened her that if she didn’t answer his calls, he would do something to her house or contact her child’s father, and that if she went anywhere, he was waiting out the front and would run her off the road. At one point the offender sent the victim his location which was a street away from her house and told her to share her location to prove she was at home, or he would do something else. He demanded that she leave her phone location on. The victim felt like she was unable to leave her house. Other messages sent by the offender included:
(a)“I’m sending these videos of you on the gee right now to [child’s] dad good luck.”
(b)A screenshot of his location which was a street away from her house, followed by messages saying “wru”, “hurry up”, “hurry up and come see me.”
(c)“If you go see them or tell them your coming to see me I promise on my life you will regret it for the rest of your life.”
(d)“Watch, I’ll be waiting and I got another meeting of the car and when someone pulls up for leaves your house.... the cars at the front you lose [child] for making it unsafe do you understand what your doing I told you no listen to me cont [sic].”
22․The victim also had around 112 missed calls from the offender over this period. This is the subject of one count of use carriage service to menace, harass or cause offence contrary to s 474.17(1) Criminal Code 1995 (Cth) (CC2023/5881).
Distribution of intimate images – 14 May 2023
23․On 14 May 2023, the victim became aware that the offender had distributed a video of the offender and the victim engaging in consensual sexual intercourse, to two of the victim’s friends. The victim confronted the offender about it over text message and said, “ALAN WTF” and “WHO DID YOU SEND THIS TO”. The offender replied, “Should I keep sending”, “How do you like it”, and “Its to your friends”. The victim replied, “You sent a video of you fucking [me] to a bunch of people I don’t even know just for a laugh”. This conduct is the subject of one count of non-consensual distribution of intimate images contrary to s72C Crimes Act (CC2023/5885).
Arrest of offender – 16 May 2023
24․On 17 May 2023, the day after the offender was arrested, the offender called a family friend from the AMC, and asked that person to speak with the victim. The offender provided her with the victim’s mobile number.
25․The following day the victim received a text message from an unknown number saying, “Hey babe, I know Alan loves you… if you love him you need to make it right”. That same number later called the victim. The caller stated she was a family friend of the offender, and that the offender had not been in a good place. The victim provided police with a copy of this text message and her phone call log.
26․The next day the victim received a call from the offender. During this phone call the offender said to the victim “can you fucking go and do something about all this shit please”, “go and tell the truth please”, and “with your ex…if it goes to court, either if its true or not true…. This gives him power, just fucking stop it, stop it.”
Victim attends police station – 12 May 2023
27․On 12 May 2023, the victim attended the Tuggeranong Police Station with her friend and disclosed the sexual assault to police. She did not wish to provide a formal statement at that time.
Search of offender’s residence – 19 May 2023
28․On 19 May 2023, police executed a warrant at the offender’s residence. During the search, police located a blue fitted sheet, a blue flat sheet, and a grey and white blanket consistent with the bedding observed in the videos of the incident. Police also located a black Tommy Hilfiger jumper consistent with the jumper the offender was wearing in the videos of the incident.
Interviews
29․On 20 May 2023, the victim participated in an Evidence-in-Chief Interview with police and disclosed the abovementioned events.
30․On 7 June 2023 the offender participated in a record of interview with police. During the interview the accused stated the following:
(a)The incident was consensual.
(b)The victim’s friend obtained the videos without the permission of the victim.
(c)He was on GHB at the time.
(d)He “sort of” remembers recording the incident, but then also doesn’t remember.
(e)The victim reporting the incident will “fuck my life” because “she’s being angry and spiteful.”
Escape arrest – 7 May 2023
31․The Statement of Facts also states that on 3 May 2023, the offender entered into bail with conditions in the ACT Magistrates Court, including a condition to be present at his place of residence from 10:00pm to 7:00am each day.
32․At around 3:26am on Sunday 7 May 2023, police were on a routine patrol and observed a vehicle.
33․Detective Sergeant (D/Sgt) Lester approached the vehicle and observed the offender standing at the open driver’s side door, and two other males seated in the front passenger seat and rear back seat of the vehicle respectively.
34․D/Sgt Lester requested the offender identify himself. The offender gave the name ‘Mitchell Daley’ and stated that he was not the driver of the vehicle, and that he was waiting for a friend.
35․D/Sgt Lester used police indices to confirm the identity of the offender. Having done so, D/Sgt Lester approached the offender, placed his hand on his left arm, and advised him that he was under arrest for breaching his bail conditions.
36․D/Sgt Lester requested the offender place his hands behind his back, however the offender did not comply. D/Sgt Lester had to repeat this demand several times.
37․The offender did not comply with any of these requests and reached for a “manbag” underneath his jacket on the right-hand side. At this time, D/Sgt Lester discharged his taser, however the first shot was ineffective. The offender turned away. D/Sgt Lester discharged his taser again, however the second shot was also ineffective. The offender then fled the area. D/Sgt Lester did not pursue the offender (CC2023/8575 – escape arrest contrary to s160 Crimes Act).
Possess prohibited weapon – 16 May 2023
38․On 16 May 2023, police attended the offender’s residence to execute an arrest warrant. Police located the offender standing inside his garage and observed the offender to be holding a 60ml canister of oleoresin (capsicum) spray in his hand. The offender was directed to place this item on the ground, to which he complied. He was placed under arrest and taken into custody.
39․Oleoresin (capsicum) spray is a prohibited weapon under Schedule 1, Part 1.4, Item 6 of the PWA: PWA sch 1, pt 1.4, item 6. The offender is not authorised to possess this weapon (CC2023/4959 – possess prohibited weapon contrary to s5 Prohibited Weapons Act 1996).
Victim Impact Statement
40․A Victim Impact Statement was tendered by the prosecution. This dignified and eloquent statement from the victim includes the following:
Since this has happened to me I feel completely broken.
My anxiety is worse than ever, I suffer from depressive moods, and it has caused a rift within my family.
I can’t and I don’t want to talk about what’s happened with anyone, I’m embarrassed and ashamed for letting this happen, I regret giving you so many chances to keep hurting me when I knew I should have walked away.
I get so depressed that some days I just start crying because of the thoughts in my head, every day I am stuck in my own head and am overcome with complete and heartache over the memories I have of you. I try to distract myself to stop thinking at all, because you are always on my mind and it is the most painful thing in the world to feel the way it makes me feel.
You destroyed my self-worth and any self-love I had left. I feel like I am not good enough for anyone. You constantly told me I was dumb and pointed out everything that was wrong with me and these things have stuck with me.
I have extreme trust issues. I do not even trust my own judgement and I second-guess every decision I make, big or small. You made me feel guilty for being mad at you because I wanted you to do better. You made me feel guilty for being upset, because you were lying to me and hurting me. I feel like you broke my heart intentionally because I somehow deserved it. I feel guilty for being here, and saying these things today because I know you think this is all my fault.
You knew the consequences but you still did what you did without any hesitation or guilt.
I am so confused about so many things. I do not understand how someone who was supposed to love you can do such evil things to you. I do not understand why I loved someone so much who did not actually make me feel like I was loved.
I feel like I will never move past this, no matter how hard I try. I do not know how I will ever feel better or forget what has happened.
I do not even want an apology from you, because it will not mean a thing anymore and it will not change what you have done. It will not fix the damage you have caused or take away the pain I am feeling.
I do not want anything from you, I just hope one day you actually understand what you have done and exactly how much you have hurt me. This pain and heartbreak is not something I would wish upon anyone. Not even you.
(emphasis added)
41․The Court recognises the serious impacts of these crimes on the victim. It is clear from the Victim Impact Statement that these appalling crimes had an understandably significant impact on the victim. The Court further acknowledges the importance of what the victim has expressed in her Victim Impact Statement. No one deserves to be treated this way. No woman deserves to be the subject of such appalling, criminal treatment. The serious victim impact may be expected from the serious nature of the sexual offending.
42․The prosecution properly submitted it is clear that this offending has had a profound effect on the victim. In her words, the offending has left her “completely broken,” and the victim speaks of the embarrassment and shame that the offending has caused her. The Court makes it clear in this context that the shame belongs to the offender. The shame does not and cannot belong to the victim.
The question of the viewing of video footage
43․I note that having considered the submissions of both prosecution and counsel for the offender, I have come to the conclusion that this Court is duty bound to view the video footage (exhibit 3) as it is the direct evidence of the actual offending. I have considered the submissions of the prosecution and counsel for the offender below in coming to my conclusion.
44․The prosecution referred to Calatzis v Jones [2024] ACTSC 42; 21 ACTLR 59 (Calatzis), at [24], R v Porte [2015] NSWCCA 174 at [76] and DPP (Cth) v Garside [2016] VSCA 74 at [70].
45․The prosecution properly relied on R v Ashton (a pseudonym) [2022] ACTCA 45 (Ashton) where McCallum CJ relevantly stated at [2]:
As necessarily occurs in the event of a plea of guilty, the offender was sentenced on the strength of a statement of agreed facts (summarised in detail in the judgment at first instance: R v Ashton [2022] ACTSC 27 at [6]–[25]). Statements of agreed facts serve an important function and are of considerable assistance to sentencing courts. However, being generally (appropriately) couched in neutral terms, they can serve to sanitise the offence in question and mask the true degree of an offender’s moral turpitude.
(emphasis added)
46․I agree, as submitted by the prosecution, that the footage is the best evidence of the offending, and is directly relevant to at least two relevant factors under the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act):
(a)s 33(1)(a) – nature and circumstances of the offending.
(b)s 33(1)(i) – degree of responsibility of the offender for the commission of the offence.
47․I note for completeness, that the prosecution sought the views of the victim. The victim has advised that there is no objection on her part to the court viewing the videos.
48․Relevantly, counsel for the offender submitted the following evidence is not contentious:
(a)The victim had a 7-year sexual relationship with the offender.
(b)The 7-year sexual relationship was in the context of sharing drugs before sex.
(c)It was not uncommon for the physical sexual interaction to be audio/visually recorded.
(d)In the months of March and April and up to 6 May 2023 the offender was living in the home of his mother.
(e)The victim was living in a nearby suburb.
(f)Normally the victim would contact the offender and come over to his mother’s house for drugs and sex.
(g)On 6 May 2023, the victim came over to the offender’s residence for drugs and sex. There was an agreement that the victim would take GBH and after that have sex with offender.
(h)The victim took GBH on 6 May 2023 and then went “out to it”.
(i)The offender took GBH, Ice, Heroin and drank a substantial amount of alcohol.
(j)The offender “decided” he would commence sexual activity when the victim was still out to it.
(k)This meant that the victim could not consent, and the offender accepts the victim could not, and did not, consent. I note that this, in my view, is an important concession and is clear from the court’s subsequent viewing of the footage.
(l)What followed was the offender engaging in sexual activity with the victim in a selfish, uncaring and physically ruthless fashion. The victim was treated badly by the offender who, in this behaviour, was clearly trying to only satisfy his own sexual desires.
(m)The offender recorded the sexual offending against the victim using her phone.
(n)After the sixth recording, the offender left his residence for some hours and then returned. The victim was still at his residence.
(o)On his return the offender and victim had consensual sex.
(p)When the offender was arrested by police on 16 May 2023 he showed surprise at being arrested.
(q)On or around 20 May 2023, the offender called the victim from the AMC and says: “can you fucking go and do something about all this shit please” and “go and tell the truth please.” Counsel for the offender submitted this clearly shows that the offender had not seen the videos on the victim’s phone and erroneously thought, at this stage, that what had occurred was consensual and wanted the victim to ‘right’ the ‘wrong’ about his arrest and charges.
(r)The offender has still not seen the videos. He has, however, now read the Statement of Facts and has been advised that the Statement of Facts is accurate, which led his solicitor to give the inevitable advice to the offender to plead guilty. The offender has accepted that advice. Again, the Court having subsequently viewed the footage, it can be stated that this advice was not without foundation.
(s)The offender has given evidence that he accepts his actions as shown in the recordings cause him great shame and embarrassment. He describes his actions as being that of a “pig”. He has apologised to the victim and counsel for the offender submitted the offender has clearly shown remorse, which the offender spoke of in his 90-minute interview with Dr Lennings.
49․Counsel for the offender submitted it is a matter for the Court as to whether the recordings are to be viewed and further submitted that the agreed Statement of Facts provides an accurate description of the offending.
Conclusion as to consideration of submissions relating to video footage
50․By way of brief summary, the prosecution submits this court should view the actual footage as it is the best evidence of the actual offending. As such, the court will therefore be in the best position to assess the nature and circumstances of the offending. As I indicated earlier, there is force to this submission and I have concluded that the Court is duty bound to view the video footage.
51․Counsel for the offender does not in terms oppose the viewing of the footage. Nevertheless, emphasised that the Statement of Facts was accurate.
52․In my view, the comments made in Hutchinson [2018] NSWCCA 152 (Hutchinson) at [48] – [50] by the NSWCCA are germane. That is, in particular that viewing of footage is not essential in every case. Courts are reluctant to view such material in every case for the reasons elucidated in Hutchinson at [48] – [50] and summarised below:
(a)First, there is no binding authority that viewing is essential in every case.
(b)Second, it is the duty of the prosecution authorities to provide an adequate written description of the material in question.
(c)Third, in the majority of cases, a written description will be sufficient for a court to appreciate the level of depravity.
(d)Fourth, it is not necessarily ideal for victims to know that lawyers and judges will be viewing the material.
53․Nevertheless, in this case, on the particular facts before the court, I have concluded that it is important, as a matter of law, to view the offending material. Regrettably, it is the best and most direct evidence of the offending. Self-evidently this is because the video footage records the actual offending. In these circumstances, the court is therefore placed in the forensically relevant position of viewing the actual offending. This is important in assessing the respective submissions regarding the offending from both prosecution and counsel for the offender: see s 33(1)(a) and 33(1)(i) Sentencing Act.
54․This conclusion does not perforce entail that in every case of this nature any material must be viewed. Nevertheless, it is clear it must be done in this case. The legal duty to view such degrading material is one of the more unsatisfactory aspects of a judge’s duties.
Objective seriousness
55․As I stated in DPP v Druett [2024] ACTSC 56 at [19], an assessment of the objective gravity of the offending is a fundamental part of determining the appropriate sentence for the offences: see Forster-Jones v The Queen [2020] ACTCA 31 at [29]-[30]; see also R v Van Ryn [2016] NSWCCA 1 at [135].
56․It may be stated that references to low, mid-range and high-range are unlikely to be helpful in this jurisdiction in and of themselves. As has previously been expressed, “it is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of that case”: R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [24].
57․Nevertheless, an assessment of the objective gravity of an offence has always been an essential part of the sentencing process. Categories as to range may be opaque and lack clarity. What is required is for a court to “identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed”: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [29] (Muldrock); see also R v Kilic [2016] HCA 48; 259 CLR 256 at [19]. I will both identify relevant features in relation to the objective seriousness and identify the range: see summary of findings at the table set out at paragraph [139].
“Rolled up” charges
58․A number of the offences are “rolled-up” counts. The approach to be adopted is well established and was usefully, in relation to rolled up counts, summarised by Refshauge AJ in R v Hancock [2021] ACTSC 52 at [28]:
· for sentencing purposes, the rolled up count is one charge and the sentence may not exceed the maximum penalty for the offence charged;
· nevertheless, the criminality encompassed within the count is greater than were the count to be constituted by only one offence;
· the sentence is not necessarily, and perhaps not usually, the sum of the sentences that would be imposed for the offences comprising the count, though in an appropriate case it may be; and
· the fact that the count is a rolled up count may have a bearing on the application of the relevant principles as to accumulation or concurrency.
Sexual intercourse without consent – Videos one, two four and five
59․As stated above and in the Statement of Facts, the conduct contained in Videos 1, 2, 4 and 5 is the subject of 11 offences of sexual intercourse without consent contrary to s 54(2) of the Crimes Act.
60․In R v Palmer [2017] ACTSC 357, Mossop J (citing Jurj v The Queen [2016] VSCA 57) identified the following factors that inform the objective seriousness of an offence of sexual intercourse without consent 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
61․Uncontroversially, the following unifying principles concerning sentencing for sexual offences were stated in Wyper v The Queen; R v Wyper [2017] ACTCA 59; 19 ACTLR 288 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.
62․The prosecution correctly submitted that as sexual offending can vary widely in its nature and the circumstances in which it is committed, it is particularly importantly to identify the objective features of the offending that impacts upon its seriousness. In Ibbs v The Queen (1987) 163 CLR 447 at [452], the High Court stated the following:
The inclusion of several categories of sexual penetration within the offence described as sexual assault carries no implication that each category of sexual penetration is as heinous as another if done without consent. When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case. In a case of sexual assault, a sentencing judge has to consider where the facts of the particular case lie in a spectrum at one end of which lies the worst type of sexual assault perpetrated by any act which constitutes sexual penetration as defined.
(emphasis added)
63․The question of objective seriousness is to be determined by an examination of the facts of each case. In R v Miller [2019] ACTCA 25 at [29] (Miller CA), the Court held that digital penetration is not to be generally regarded as less serious than penile sexual intercourse:
Sexual penetration for the purposes of the offence of sexual intercourse without consent may take different forms, but there is no presumption that any one form is more or less serious than another: Ibbs v The Queen (1987) 163 CLR 447 at 452. In particular, digital penetration is not to be generally regarded as less serious than penile sexual intercourse: R v Hibberd [2009] NSWCCA 20; A Crim R 1 at [21].
64․Relevantly concerning duration, in R v Daley (2010) NSWCCA 223 at [48], Price J stated the following:
…the short duration of a sexual assault would not ordinarily be considered as a factor which reduces the objective seriousness of the offence. Most sexual assaults will not be prolonged as the offender will seek to avoid apprehension. On the other hand, a sexual assault of an extended duration will necessarily add to the seriousness of the offending as the suffering and the humiliation of the victim will be increased.
(emphasis added)
65․In relation to the significance of multiple rapes comprising a single incident or episode, the prosecution referred to Mush v The Queen [2019] VSCA 307 (Mush), the Victorian Supreme Court of Appeal considered the effect of multiple discrete rapes within the one incident or episode of offending. The Court observed at [72] – [73] that:
Although all of the offences occurred in one episode, nevertheless each successive act that was the subject of a charge was a separate crime committed by the applicant against [a victim]. The fact that they occurred in the course of one continuous incident must not obscure the gravity of the applicant's offending, and of each individual offence that he committed. On each occasion upon which the applicant, in that event, committed an offence, he did so by way of a conscious, deliberate choice to violate the person of his victim…
In addition, each successive offence committed by the applicant took place in the context in which, in the same incident, he had committed the acts and offending that preceded that offence. In particular, the offences that were the subject of charges 5, 6 and 7 were committed after, and in the context of, the assaults and offending that immediately preceded those offences. As the Court pointed out in Director of Public Prosecutions v DDJ [2019] VSCA; 22 VR 444], repetition of sexual abuse is likely to make the victim more fearful each time that it will happen again. It also makes the offender progressively more aware of the victim's suffering. In both respects, the offender's culpability is heightened.
(emphasis added)
66․In DPP (Vic) v Mokhatri [2020] VSCA 161 (Mokhatri), the Victorian Supreme Court of Appeal observed at [43] that:
... the prolongation and repetition make the offending especially serious. For the reasons given in DDJ, AM's culpability in relation to the later rapes should be seen as greater than in relation to the earlier rapes, given his clear awareness of [the victim]’s ongoing desperation and her horror at the prospect of further sexual abuse.
(emphasis added)
67․I will take the principles that can be distilled from the foregoing cases into account in assessing objective seriousness.
Objective seriousness submissions
Sexual intercourse without consent
68․I note at the outset that the prosecution made the following submissions concerning the sexual intercourse offences captured in each of the Videos 1, 2, 4 and 5.
69․Before proceeding to the prosecution submissions, I note in this regard that counsel for the offender addressed each video separately. I will outline counsel for the offender’s submissions after the prosecution submissions.
70․The prosecution made the following submissions with respect to the assessment of the objective seriousness of the offences of engaging in sexual intercourse without consent. I note for completeness that the prosecution made these submissions for all of the offences of sexual intercourse without consent, whereas counsel for the offender split his submissions on the offences of sexual intercourse without consent by video. Videos 1, 2, 4 and 5 include counts of sexual intercourse without consent.
(a)The offending commenced when the victim was unconscious. In these circumstances the victim was self-evidently vulnerable.
(b)Each individual act of intercourse was relatively brief but was part of a larger episode of offending that spanned approximately 25 minutes.
(c)The offender continued in the face of repeated pleas from the victim to stop, and in the face of physical resistance from the victim. On a number of occasions, the victim attempted to get away, however the offender prevented her from doing so, including by applying handcuffs to her wrists.
(d)The offending involved physical violence and threats. At various points the offender used force or threats to facilitate the offending. As a matter of law, the court must be careful not to double punish the offender for acts the subject of separate charges.
(e)The offences were committed in circumstances of degradation. The offender treated the victim as if she were an object rather than a human being. It involved the destruction of her dignity.
(f)The videos of the incident make plain the significant suffering and humiliation of the victim at the hands of the offender.
71․Having regard to the above matters, the prosecution submitted that these counts commence at the mid-point on the spectrum of objective seriousness for such offending. Consistent with the observations made in Mush and Mokhatri extracted above, it was submitted that the offender’s culpability increases as the offending progresses. I agree in accordance with the authorities.
72․Counsel for the offender submitted that it is not possible to establish a hierarchy of the seriousness of the various types of sexual intercourse and that the courts should consider the types of intercourse “in all the circumstances surrounding the offending” noting that “the type of penetration is simply one factor and by itself does not indicate how serious the particular offence is” (R v AJP [2004] NSWCCA 434; 150 A Crim R 575; R v BNS (No 2) [2016] ACTSC 145). I take that principle into account.
73․Counsel for the offender further submitted that the proper approach in this matter would be for this court to assess the offending in all the circumstances, including factors such as the degree of violence, the duration of the offence, the physical hurt inflicted, the form of forced intercourse and the circumstances of humiliation and otherwise. That is correct in accordance with the authorities.
74․Counsel for the offender conceded that, when assessed as a course of conduct, the offending is objectively serious, despite there being no penile-vaginal intercourse. This submission accords with my view of the facts.
75․In relation to Video 1 (three offences of sexual intercourse without consent (CC2023/4896, CC2023/4897 and CC2023/5848)), counsel for the offender submitted that each offence was fleeting in duration, which limits the seriousness of these offences. As stated above, the video has a duration of 1 minute and 5 seconds. Two of these offences took the form of digital penetration, while the third was cunnilingus. Counsel for the offender conceded these forms of forced intercourse do not mitigate the seriousness of the offences. Counsel for the offender further submitted there is no evidence that violence or physical hurt was inflicted on the victim throughout Video 1, however conceded the victim’s unconsciousness aggravates the offending. It was submitted by counsel for the offender that the offending captured by Video 1 is below the mid-range of objective seriousness.
76․In relation to Video 2 (two offences of sexual intercourse without consent (CC2023/5849 and CC2023/5850)), counsel for the offender submitted that, as with Video 1, each of these offences were limited in duration and there was no evidence that violence or physical hurt was inflicted on the victim. Counsel for the offender submitted the offending captured by Video 2 falls at or below the mid-range of objective seriousness.
77․In relation to Video 4 (one offence of sexual intercourse without consent (CC2023/4898)), counsel for the offender submitted that the offender exercised significant levels of violence and the victim was clearly in pain. Counsel for the offender conceded the offending captured by Video 4, which includes this offence of sexual intercourse without consent, was above the mid-range of objective seriousness.
78․In relation to Video 5 (five offences of sexual intercourse without consent (CC2023/5860, CC2023/5861, CC2023/5869, CC2023/5870 and CC2023/5872)), counsel for the offender conceded that this conduct, which includes the five offences of sexual intercourse without consent, is objectively the most serious of each of the videos. As stated above, the video is 17 minutes and 5 seconds. It captures increased levels of violence by the offender.
79․I summarise my findings concerning these matters in a table at paragraph 139․
Attempted sexual intercourse without consent – Video 2
80․As stated above and in the Statement of Facts, the conduct in Video 2 is the subject of one offence of attempted aggravated sexual intercourse without consent contrary to s54(2) Crimes Act (CC2023/5851). In Video 2, as stated in the Statement of Facts, the offender “removes his erect penis from his underwear” and “attempted to insert his penis into the victim’s mouth.”
81․In R v BI (No 4) [2017] ACTSC 71 (BI), Refshauge J usefully summarised at [40] a number of principles concerning the assessment of objective seriousness of an offence involving an ‘attempt,’ and I apply those principles in this case.
82․The prosecution submitted that the same considerations that inform the objective seriousness of the three counts of sexual intercourse without consent will inform the assessment of the objective seriousness of this offence.
83․The prosecution submitted that this charge relates to the offender attempting to insert his erect penis into the victim’s mouth, and submitted it is this act that pulled the victim from unconsciousness, and it was only by virtue of her pushing away from the offender that the substantive offence was not completed. The prosecution correctly submitted it occurred in the context of the offender having just repeatedly violated her whilst she was unconscious. The prosecution submitted the offending represents a complete disregard for the victim’s body and her autonomy. I agree. This is clear from the evidence.
84․The prosecution submitted that, given the circumstances in which the attempt occurred and how close it came to completion, there is little, if any, difference in the moral culpability of the attempted offence and the substantive offence had it been completed. Having regard to these matters, it was submitted the offending falls at or above the mid-range on the spectrum of objective seriousness.
85․Counsel for the offender submitted that this offence was limited in duration and there was no evidence that violence or physical hurt was inflicted on the victim. Counsel for the offender further submitted that the offending captured by Video 2 falls at or below the mid-range of objective seriousness.
86․I summarise my findings concerning this matter in the table at paragraph 139․
Sexual assault third degree – Videos 3 and 5
87․As stated above and in the Statement of Facts, the conduct in Videos Three and Five is the subject of three offences of aggravated sexual assault in the third-degree contrary to s 53(2) Crimes Act (CC2023/5852, CC2023/5863 and CC2023/5868).
88․Relevantly, in R v GG [2017] ACTSC 137 (GG) Mossop J observed at [26]:
It is important to note the relationship between s 53 and ss 51 and 52 of the Crimes Act. Those latter sections provide for increased penalties where the assault occasions actual or grievous bodily harm. It is also notable that the principal feature of the offence which distinguishes it from a common assault is the association between the assault and the intention to engage in sexual intercourse. It is the intention which the legislature has fixed upon to dramatically increase the penalty. That reflects the gravity with which violence in aid of sexual coercion is treated.
89․His Honour considered at [27] that the offence in that matter, which involved the offender striking the victim twice then making some kind of attempt to engage in sexual intercourse while the victim was naked on the bed which was interrupted (see [15]-[17), fell within the upper range of objective seriousness notwithstanding the fact that the intention was not carried through.
90․The prosecution submitted there is scant judicial guidance on the considerations that inform the assessment of the objective seriousness of this offence. The prosecution submitted the following (non- exhaustive) considerations would, as a matter of common sense, inform such an assessment:
(a)Whether the offending involved a threat to cause injury, or an actual assault;
(b)The nature of the threat made; and
(c)The nature of the intercourse the offender intended to engage in.
91․The prosecution further submitted that in the present matter, the offending involved actual assaults rather than a threat to cause injury. The prosecution submitted that each offence was accompanied by an intent to engage in penile-oral intercourse.
92․In relation to CC2023/5852, the offender grabbed the victim by the back of the head, demanded she open her mouth, and when she did not comply, slapped her to the side of the face three times.
93․In relation to CC2023/5863, the offender slapped the victim on eight occasions to the face whilst making derogatory comments. The offending occurred in the context of the victim being restrained by handcuffs and unable to move. The offender continued despite the victim pleading that her “arms are breaking,” and audibly gasping for air. The offending only ceased as the victim thrashed her body to such an extent that she fell off the bed.
94․In relation to CC2023/5868, the offender threw the victim back onto the bed and slapped her on three occasions to the face, once to her left buttocks, and threatened her that he would reapply the handcuffs unless she complied with his demands. The offending occurred whilst the complainant was crying and trying to get away from the offender.
95․The prosecution submitted that each offence falls towards the upper end of objective seriousness for this type of offence.
96․Counsel for the offender conceded that the conduct captured by Video 3, which includes one charge of sexual assault in the third degree (CC2023/5852), captured an increased level of violence by the offender. Counsel for the offender submitted the offending captured by video 3 is within the mid-range of objective seriousness.
97․Counsel for the offender conceded that the conduct captured by Video 5, which includes two charges of sexual assault in the third degree (CC2023/5863 and CC2023/5868), is objectively the most serious of each of the videos and captures increased levels of violence by the offender.
98․Again, I summarise my findings concerning these matters in the table at paragraph 139 below.
Sexual assault second degree – Video 4
99․As stated above and in the Statement of Facts, the conduct in Video 4 is the subject of one offence of aggravated sexual assault in the second degree, contrary to s52(2) Crimes Act (CC2023/4900).
100․In DPP v Ayoub (No 5) [2023] ACTSC 140 (Ayoub), Mossop J at [8] considered the following matters as relevant to an assessment of the objective seriousness of this type of offence: the nature of the assault itself, the injuries sustained, the vulnerability of the victim, whether any weapon was used and whether there was any premeditation.
101․The prosecution made the following submissions with respect to this offence:
(a)The charge is a rolled-up count, comprising multiple assaults.
(b)The nature of the assault involved the offender holding the victim down and slapping her in the face six times, grabbing her hair, slapping her in the face again, and then slapping her left buttocks. The conduct was humiliating and degrading.
(c)The offending represented an escalation of the offender’s physical assaults, whereby he had been unable to achieve his intention through the earlier assault the subject of the charge of sexual assault in the third degree (CC23023/5852).
(d)The injury sustained was a red handprint to the victim’s left buttocks.
(e)The victim was vulnerable. She had only just regained consciousness.
(f)The offending occurs after the victim has made clear she does not consent.
(g)The offender’s intention was ultimately completed, although it is noted this is the subject of another count.
102․The prosecution submitted that in Ayoub, the assault involved choking causing the victim to gasp for air and resulting in bruising to her neck. The victim was a sex worker and was thus in a vulnerable position. No weapon was used and there was no premeditation. It was assessed as falling at the low end of the mid-range of objective seriousness: see Ayoub at [8].
103․The prosecution submitted that the present offending is more serious than that in Ayoub, noting it involved multiple assaults and occurred in the face of clear non-consent.
104․In relation to Video 4, counsel for the offender submitted that the offender exercised significant levels of violence in the video and the victim was clearly in pain. Counsel for the offender conceded the offending captured by Video 4, which includes the offence of aggravated sexual assault in the second degree, is above the mid-range of objective seriousness.
105․My findings concerning this matter are summarised in the table at paragraph 139 below.
Act endangering health (suffocate) – Video 5
106․As stated above and in the Statement of Facts, the conduct in Video 5 is the subject of one charge of aggravated act endangering health – choking, contrary to s 28(2)(a) Crimes Act (CC2023/5876).
107․The considerations informing the objective seriousness of the offence of choking, suffocating or strangling a person were relevantly discussed by Refshauge AJ in R v Bonfield [2021] ACTSC 362 at [68] - [69] as follows:
(a)The length of time during which the "choking" persisted;
(b)The amount of force used;
(c)Whether the offending resulted in the victim's breath being restricted;
(d)Whether verbal threats were made at the time of the choking;
(e)Whether the victim sustained any injuries as a result of the choking;
(f)Whether any aids like rope or cable were used;
(g)The circumstances in which the offender released the victim from the choke;
(h)The vulnerabilities of the victim;
(i)Whether the offence was deliberate and a sustained course of conduct designed to threaten and inflict harm; and
(j)Whether the conduct occurred in the context of family violence.
108․In relation to the circumstances of this matter, the prosecution correctly noted the following:
(a)The length of time for which the act continued was relatively short.
(b)The force used was such that the offender’s penis was so far down the victim’s throat that it blocked her airway. It goes without saying this would have been extremely traumatising.
(c)The victim was unable to breathe during the incident.
(d)The offender made derogatory comments during the offending, including “Breathe through your nose cunt”, “You don’t need your nose”, and
Stop biting my dick cunt.”(e)The offending occurred under the threat of the offender re-applying the handcuffs to the victim if she did not comply.
(f)The offending only ceases by virtue of the victim managing to get away from the offender and falling off the bed.
(g)The victim was particularly vulnerable.
(h)The offending was part of a deliberate and sustained course of conduct.
(i)The offending occurred in the context of family violence.
109․The prosecution correctly submitted that the offending falls at or above the mid-range on the spectrum of objective seriousness. It was noted by the prosecution that the offender is separately charged with engaging in sexual intercourse without consent for this conduct (CC2023/5872), relevant to matters of totality.
110․Counsel for the offender conceded that the conduct captured by Video 5, which includes this offence of aggravated act endangering health (choking), is objectively the most serious of each of the videos and captures increased levels of violence by the offender. I agree. My findings concerning this matter are summarised in the table at paragraph 139 below.
Assault occasioning actual bodily harm – same day as the videos
111․As stated above and in the Statement of Facts, there is one charge of aggravated assault occasioning actual bodily harm contrary to s24(2) Crimes Act (CC2023/5879).
112․As submitted by the prosecution, the objective seriousness of assault occasioning actual bodily harm is informed by the conduct of the offender, including the degree of violence used, the circumstances surrounding the offending and the nature of the injury caused by the offender: see R v Redmond (No 2) [2022] ACTSC 295 at [12].
113․In the present matter, the prosecution submitted that the assault involved a single punch to the ribs. It occurred against the background of the significant sexual violence that had just been perpetrated by the offender. The assault caused pain to the victim’s ribs for several days after the incident.
114․Counsel for the offender submitted this offence sits towards the low range of objective seriousness. Counsel for the offender submitted there is no evidence the injury was anything more significant than pain. My findings concerning this matter are summarised in the table at paragraph 139 below.
Common assault – same day as the videos - CC2023/5873 (Video 5)
CC2023/5877 (not in video)
115․As stated above and in the Statement of Facts, there are two charges of aggravated common assault contrary to s 26(2) of the Crimes Act (CC2023/5873 and CC2023/5877).
116․As submitted by the prosecution, CC2023/5873 is a rolled-up count, involving multiple assaults and threats. The offender continued the assault despite the victim crying in distress and attempting to physically protect herself.
117․The prosecution further submitted that CC2023/5877 is a rolled-up count, involving the offender grabbing the victim by the hair, hitting her, and spraying a bottle of lemon juice in her face. The prosecution submitted that it occurred in circumstances where the victim was particularly vulnerable due to her intoxication, a fact that was apparent to the offender, yet he continued his assault regardless. Counsel for the offender submitted that this offence sits slightly below the mid-range of objective seriousness. Counsel for the offender submitted there were three applications of force involved, each was quite unpleasant and degrading to the victim. My findings concerning this matter are summarised in the table at paragraph 139 below.
Use carriage service to harass/menace – from 6 May 2023 to 14 May 2023
118․As stated above and in the Statement of Facts, there is one charge of using a carriage service to menace, harass, intimidate contrary to s 474.17(1) Criminal Code 1995 (Cth) (CC2023/5881).
119․Relevantly, in R v Hudson [2019] ACTSC 110 (Hudson), Murrell CJ considered at [44] that matters to be considered in an assessment of the objective seriousness of this offence include the period of time for which the harassment extended, the nature of the communications, and the fear felt by the victims. I note that while an appeal against the sentence imposed by Murrell CJ in Hudson was successful, the Court of Appeal accepted Murrell CJ’s assessment of the seriousness of the offending in question: Hudson v The Queen [2020] ACTCA 46 at [45]-[49].
120․The prosecution correctly made the following submissions with respect to this charge. I note that the prosecution submissions set out below accord with my view of the facts.
(a)It is a rolled-up count.
(b)The offending commenced a few days after the sexual assault (being 6 May 2023) and continued up to around 14 May 2023.
(c)The nature of the communications involved threats to harm the victim. These were not idle threats when considered against the background of the recent violent and prolonged sexual assault. The victim plainly was terrified, and felt she was unable to leave her house.
(d)The message showing his location to be around the corner from the victim’s house is particularly insidious.
(e)The offending involved the offender making 112 calls to the victim.
121․Counsel for the offender submitted that this offence was around the mid-range of objective seriousness, noting the offending occurred over an 8-day period and involved threats of violence to the victim.
122․My findings concerning this matter are summarised in the table at paragraph 139 below.
Non-consensual distribution of intimate images (s 72C) – 14 May 2023
123․As stated above and in the Statement of Facts, there is one charge of aggravated non-consensual distribution of intimate images contrary to s 72C Crimes Act (CC2023/5885).
124․The prosecution submitted that in Morrison v Maher(No 2) [2022] ACTSC 63 (Maher No 2) at [117] Mossop J considered the below factors as relevant to an assessment of the objective seriousness of this type of offending:
(a)the number of images distributed.
(b)The nature of the content.
(c)The mechanism by which they were distributed.
(d)The extent of the distribution.
(e)The knowledge of the offender as to the impact of the distribution on the victim.
(f)The motivation of the offender.
(g)Whether the offending occurred in the family violence context.
125․In the present matter, the prosecution correctly submitted that the offending involved the distribution of one video. It was further submitted that the nature of the content was of the highest level of intimacy and was a severe infraction of the victim’s rights. It was distributed to a least two persons, and when confronted by the victim the offender threatened to distribute the video further. The prosecution submitted that the offender’s motivation was unclear, although he told the author of the forensic psychological report that he would use these recordings to masturbate.
126․Counsel for the offender submitted the offending falls below the mid-range of objective seriousness noting the extent of the distribution was limited, being two people, and involved one video. Counsel for the offender conceded however, that the video was distributed in the context of family violence, however, the motivation of the offender is unknown. My findings concerning this matter are summarised in the table at paragraph 139 below.
Capture intimate data (s61B) – filming the offences
127․As stated above and in the Statement of Facts, there is one charge of aggravated capture intimate data contrary to s 61B(1)(a) Crimes Act (CC2023/5880).
128․The prosecution submitted that in R v NX [2019] ACTSC 131 Mossop J observed at [15](f) that “the objective seriousness [of this offence] is significantly influenced by the nature of the activity which is being filmed.” The purpose for which it was captured will also be relevant.
129․The prosecution correctly submitted that in the present matter the activity being filmed was a violent and prolonged sexual assault perpetrated by the offender. It involved the capturing of six separate videos. The prosecution submitted that this offending falls at the upper end of objective seriousness for offences of this type.
130․Counsel for the offender accepted that the objective seriousness of such an offence is informed by the nature of that activity being filmed, as noted in the prosecution submissions. Counsel for the offender conceded the objective seriousness for this offence must then be above the mid-range. My findings concerning this matter are summarised in the table at paragraph 139 below.
Berman AJ found that the “degrading series of assaults” took place over 15 minutes: Hudson at [48]. The offender wearing a condom during oral intercourse: Hudson at [49]. The digital penetration also caused injury to the victim: Hudson at [50].
Berman AJ took into account that the offender was exposed to domestic violence and alcohol abuse as a child: Hudson at [28]-[29], [44]. Further, the offender had a diagnosis of PTSD and a diagnosis of Major Depressive Disorder, although his Honour held it was “difficult to draw a conclusion that the offender’s moral culpability is diminished by the mental conditions from which he suffers”: Hudson at [42], [56].
As stated above, the offender received a total sentence of 4 years 9 months and a non-parole period of 2 years 6 months. For each sexual intercourse without consent count, the offender received a sentence of 18 months’ imprisonment: Hudson at [70](6), [70](8), [70](10). For the sexual assault in the third-degree count, the offender received a sentence of 18 months imprisonment: Hudson at [70](5). For the attempted sexual intercourse without consent count, the offender received a sentence of 15 months imprisonment: Hudson at [70](9). The offender received a sentence of 9 months’ imprisonment for two of the counts of act of indecency, and 12 months’ for one count: Hudson at [70](2)-(4). Berman AJ also sentenced the offender to 18 months’ imprisonment for the choking charge, and 2 months’ imprisonment for the damage property and the transferred common assault charge: Hudson at [70](7), [70](11)-(12).
R v NX (No 2) [2019] ACTSC 131 (NX (No 2))
In NX (No 2), the offender was sentenced to 4 years 8 months, with a non-parole period of 3 years: NX (No 2) at [37]. The offender was 35 years of age at the time of sentencing.
The offender pleaded guilty to the following charges:
(a)Sexual assault in the third degree.
(b)Sexual intercourse without consent.
(c)Three counts of assault occasioning actual bodily harm
(d)Capturing visual data in circumstances where the capture is an invasion of privacy and indecent
(e)Two counts of common assault
(f)Three counts of causing damage to property
The offender and victim had been in a relationship since 2017. The offender committed offences of property damage and assault during a trip with the victim, his girlfriend: NX (No 2) at [5]. The victim left the house on foot with the couple’s son after being told to “get the fuck out” of the house: NX (No 2) at [5]. Later in the day after the victim returned, the offender picked up a Stanley knife near her face, directing the victim to “suck his dick”: NX (No 2) at [8]. The offender filmed the act with his phone: NX (No 2) at [9].
Further, on 13 April 2018, the offender punched the victim in the back of the had multiple times after she refused to cuddle: NX (No 2) at [10]. The offender then pushed the victim into the mattress and held her head down on the pillow and struck her with a torch a number of times on the arm, back and shoulder. This caused red marks and abrasions (assault occasioning actual bodily harm): NX (No 2) at [10]. The offender also bit the victim on the thigh, causing bruising: NX (No 2) at [10].
Mossop J assessed the holding of the knife is best characterized as an implied threat to inflict actual or grievous bodily harm and is in the mid-range for objective seriousness: NX (No 2) at [14](d). The act of forced oral sex was assessed as mid-range in terms of objective seriousness, as is the capture of intimate data: NX (No 2) at [14](e)-(f). The acts of assault occasioning actual bodily harm were assessed in the low-range: NX (No 2) at [14](g), (h), (k).
Given the different timing of the guilty pleas, Mossop J variously discounted the offender’s sentence ranging from 5%, 10%, and 25%: NX (No 2) at [29].
Mossop J further noted the offender had a substantial criminal history, evidence that he is suffering from “Cluster B personality disorders”, a history of illicit substance use, and had been a witness to domestic violence as a child: NX (No 2) at [23]-[24], [27].
As stated above, the offender was sentenced to a total sentence of 4 years 8 months imprisonment, with a non-parole period of 3 years. For the offence of sexual assault in the third degree, the offender received a sentence of 23 months’ imprisonment (reduced from 24 months): NX (No 2) at [36](b). For the offence of sexual intercourse without consent, the offender received a sentence of 37 months (reduced from 39 months): NX (No 2) at [36](a) . For the offence of capturing visual / intimate data, the offender received a sentence of 3 months 24 days’ imprisonment (reduced from 4 months): NX (No 2) at [36](c).
DPP v Moala (No 3) [2023] ACTSC 306 (Moala (No 3))
In Moala (No 3), the offender was sentenced by McCallum CJ to 2 years imprisonment, with a non-parole period of 12 months: Moala (No 3) at [68](1)-(2). The offender was found guilty at trial. The offender was 27 at the time of the offending.
The offender was found guilty of choking: Moala (No 3) at [1].
The prosecution case was that the choking occurred after the victim went back to an co-accused’s motel after meeting at a nightclub in the city: Moala (No 3) at [3]. Once back at the motel the victim had consensual sex with the co-occused and then fell asleep: Moala (No 3) at [3]. When the victim woke up, she found the offender on top of her with his hand pushing down on her neck, taking off her clothes while she resisted and struck him: Moala (No 3) at [4]-[6]. McCallum CJ noted that by virtue of the acquittals concerning sexual intercourse without consent the jury must have had reasonable doubt as to whether sexual intercourse occurred during this event: Moala (No 3) at [9].
There was an important volte-face at the sentencing hearing as the offender admitted to having sex with the victim at the time he was holding her down: Moala at [9], [13], [15]. McCallum CJ was bound to disregard this admission and to sentence the offender on the basis of “the fiction” that an intention to engage in sexual intercourse formed no part of the choking offending, and to not sentence the offender on the basis that he choked the victim with intent to commit a sexual offence: Moala (No 3) [16]-[17].
As stated above, the offender received 2 years’ imprisonment, with a non-parole period of 12 months: Moala (No 3) at [68].
R v NO (No 2) [2018] ACTSC 37 (NO (No 2))
In NO (No 2), the offender was sentenced to a total sentence of 5 years 3 months’ imprisonment, with a non-parole period of 3 years. This sentence included a backdated suspended term of 21 months’ imprisonment for recklessly inflicting grievously bodily harm, as the fresh offending meant that the offender breached the relevant good behaviour order: NO (No 2) at [19], [76] . The offender was found guilty after a jury trial: NO (No 2) at [19]. The offender was 31 at the time of sentencing.
The charges in this case were (NO (No 2) at [1]-[2])
(a)Sexual assault in the second degree.
(b)Sexual Intercourse without consent.
1․ Act of Indecency without consent.
2․ Two transfer charges:
1.Stalking.
2.Common assault.
The facts of the offending, excluding the stalking charge, are as follows. The offender and the victim met in 2010 and started an intimate relationship, although Penfold J observed that theirs “did not initially have any of the common incidents of a romantic relationship” beyond sexual activity: NO (No 2) at [5].
In February 2011, the offender invited the victim to his house. After opening the door, the offender began kissing her while holding her against the wall with his around her throat: NO (No 2) at [7]. The victim says that the next thing she remembers, she was on his bed, where the victim told him she wanted to leave and that she did not want to have sex: NO (No 2) at [7]. The offender responded, while penetrating her, by saying "You're not going anywhere". The offender continued to kiss the victim, sucked on her breasts, and held her down by her arms: NO (No 2) at [8]. The offender also continued to ignore the victim’s refusal and had penile-vaginal intercourse with the victim: NO (No 2) at [8].
This incident resulted in bruising to the victim’s neck, breast, and thighs: NO (No 2) at [9].
The victim resumed the relationship after a number of weeks since the incident, and eventually moved in with the offender and had two children: NO (No 2) at [10]-[12]. The relationship was tumultuous, with the offender being controlling and the victim being fearful of the offender: NO (No 2) at [11](a)-(c).
Penfold J found the offending “approached mid-range seriousness.”: NO (No 2) at [40].
An appeal against conviction was dismissed: NO v The Queen [2019] ACTCA 23.
As stated above, the offender received an aggregate sentence of 5 years 3 months’ imprisonment with a non-parole period of 3 years. For the offence of sexual assault in the second degree, the offender was sentenced to 4 years’ imprisonment: NO (No 2) at [78](b). For the offence of sexual intercourse without consent, the offender was sentenced to 3 years 9 months’ imprisonment: NO (No 2) at [78](c). For the offence of act of indecency without consent the offender was sentenced to two years’ imprisonment. All of the sentences, including the one for stalking and the reimposed suspended sentence, had at least some degree of concurrency with each other: NO (No 2) at [78].
R v Stanley [2015] ACTSC 322 (Stanley)
In Stanley, the offender received a total sentence of 6 years imprisonment, with a non-parole period of 3 years 3 months: Stanley at [84](11)-(12). The offender was 39 at the time of sentencing.
The offender pleaded guilty to the following charges on 24 June 2015 (Stanley at [15]):
(a)Two charges of Assault Occasioning Bodily Harm
(b)Damaging Property
(c)Two charges of Sexual Intercourse Without Consent
The facts of the relevant offending are as follows. The offender and victim were living together. The offender was intoxicated and became angry with the victim after the victim sought to take the offender’s keys to the apartment: Stanley at [12]-[13]. The offender assaulted the victim by stomping her face and chest and punching her face a number of times. The offender then proceeded to put his hand around the victim’s neck and starting to strangle her while shouting that he was going to kill her. This incident constituted the first assault occasioning bodily harm offending count: Stanley at [13]-[14].
Later, the offender grabbed the back of the victim’s neck and smashed a ceramic mug over her head: Stanley at [16]. The offender then continued to hit her with the mug two or three times before it broke, nearly rendering her unconscious: Stanley at [16]. The offender then went back to the kitchen and got another mug and again hit the victim on the head. This mug also broke, causing a large laceration to the victim’s head. The victim felt pain and blood run down her face. The about 15-minutes incident constituted the second offence of assault occasioning actual bodily harm: Stanley at [16].
After this, the victim went to have a shower. The offender stood at the doorway of the bathroom while she showered, and then told the victim to lie down in the bedroom: Stanley at [18]. The offender then put his penis in the victim’s mouth , followed by the offender forcing the victim’s leg apart and performing penile-vaginal intercourse until he ejaculated (two counts of sexual intercourse without consent): Stanley at [20].
In considering the objective seriousness of the offence, Refshauge ACJ noted that the whole of the offences constituted a “brutal and sustained attack”: Stanley at [70].
In considering the subjective circumstances, Refshauge ACJ noted the offender’s acknowledgment of the link between alcohol abuse and the offending behaviour: Stanley at [49]. Further, Refshauge ACJ noted that the offender had “relatively short, but rather worrying” criminal history in New Zealand, with a previous family violence assault conviction: Stanley at [42], [52]. The offender has also availed himself of the education, support, and rehabilitative options offered to him in custody: Stanley at [56], [60].
As stated above, the offender received a total sentence of 6 years imprisonment, with a non-parole period of 3 years, 3 months. For the offences of sexual intercourse without consent, the offender was sentence to 3 years and 3 years, 6 month’ imprisonment respectively, partly concurrent with each other: Stanley at [84](8), [84](10). If the offender did not plead guilty, Refshauge ACJ would have sentenced the offender to 4 years and 4 years and 8 months’ respectively: Stanley at [84](8), [84](10). For the assault occasioning bodily harm offence, the offender was sentenced to 1 year and 8 months’ imprisonment and one year imprisonment respectively, discount from 2 years and 6 months’ and 1 year 6 months for the plea of guilty, partly concurrently with each other: Stanley at [84](2), (4).
R v Finau (No 2) [2020] ACTSC 193 (Finau (No 2))
In Finau (No 2)), the offender was sentenced to 2 years 6 months’ imprisonment, to be suspended after 9 months on entering a good behaviour order: Finau (No 2) at [50]-[51]. The offender was 26 at the time of sentencing.
The offender was convicted of one count of sexual intercourse without consent after a trial by judge alone: R v Finau [2020] ACTSC 155 at [133]-[134] (Finau).
The facts of the relevant offending were briefly stated by Murrell CJ in Finau (No 2). In November 2019, the offender and the complainant met in Civic: Finau (No 2) at [23]. They were work colleagues but only had a passing work acquaintance. Together, they attended several nightclub venues in Civic. They afterwards shared a taxi from Civic to the victim’s residence. The victim had proposed that the driver would then drive the offender to his residence, but the offender paid the driver and said he would order another, indicating he was sick and needing to use the toilet, the offender was let in the unit: Finau (No 2) at [6].
The offending took place in the residence. The offender attempted to kiss the victim despite her wishes: Finau (No 2) at [7]. The offender grabbed her, pushed her over and pinned her down to a sofa. The offender kicked her pants down to her feet and attempted to prise her legs open despite his resistance: Finau (No 2) at [8]. The victim said “no” and “stop” and physically resisted. The offender became angry and said “I want this, I’m here.”: Finau (No 2) at [9]. The offender covered the victim’s mouth with his hand when she objected, and she had difficulty breathing. The offender positioned himself to insert his penis into her vagina. The complainant hit him in the face, and the offender struck the victim’s cheekbone: Finau (No 2) at [9]. The offender engaged in penile-vaginal penetration for “less than a minute”. The victim was in pain and the offender did not use a condom: Finau (No 2) at [9]. The offending was interrupted when the victim's cat jumped onto the sofa bed: Finau (No 2) at [10]. The victim estimated that the event took less than 10 minutes: Finau (No 2) at [11].
Murrell CJ found the following factors rendered the offence objectively serious (at [16]):
a. It was committed in the [victim]'s own home where she was entitled to feel safe;
b. It was associated with physical violence; the offender pushed the [victim] onto the sofa and pinned her down, covered her mouth and struck her face once, causing visible injury;
c. The offender actually knew that the [victim] did not consent. She told him that she did not want to engage in sexual intercourse, and then once it started, she repeatedly told him to stop;
d. The intercourse was penile-vaginal intercourse, although the type of intercourse is not definitive of objective seriousness; and
e. The offender did not use a condom.
Murrell CJ noted the offender had no criminal history and a person “of otherwise impeccable character”: Finau (No 2) at [21], [30]. The offender also assessed the offender as being of low-risk of general reoffending and an average risk of sexual reoffending: Finau (No 2) at [32]. Murrell CJ also took into account the context of COVID-19, and noted that this would make imprisonment more onerous than usual: Finau (No 2) at [33].
R v Smith [2021] ACTSC 114 (Smith)
In this case, the offender was sentenced to an aggregate sentence of 3 years, 4 months, 12 days, with a non-parole period of 28 months: Smith at [51].
The offender pleaded guilty to sexual intercourse without consent and to contravening a family violence order. The pleas were accepted on the grounds that the facts relating to the charge of choking, suffocating and strangling and three charges of common assault would be taken into account in the latter charge: Smith at [1]-[2].
The relationship was one involving domestic violence and was marked by controlling and abusive behaviour by the offender towards the victim: Smith at [4]. In February 2019, the offender assaulted the victim. This led to criminal charges and an FVO. The offender was sentenced to 8 months’ for assault in February 2019: Smith at [4].
The relationship resumed.
An argument broke out and the offender slapped the victim: Smith at [9]. A short time later, the offender grabbed the victim by the collar and thumped the victim up and down on the bed: Smith at [10]. Each time the victim was pressed down force was applied to her throat with a clenched fist, affecting her ability to breather: Smith at [10]. This went on for approximately 10 minutes as the offender questioned the victim: Smith at [10].
The offender then pulled victim’s pants and underpants down and inserted two fingers inside her vagina without consent.
Mossop J found the sexual intercourse offending (digital penetration) and the breach of FVO offending to be both within the upper-end of mid-range of objective seriousness: Smith at [25]-[27]. Mossop J noted that that the sexual intercourse offending formed part of a pattern of demeaning and controlling behaviour on the part of the offender.
As the offender’s subjective circumstances, Mossop J noted among other things that the offender had an extensive criminal history both in NSW and ACT: Smith at [40]. The offender was 40 years old at the time of sentencing (38 during the offending). Further, the offender was assessed as presenting a medium to high risk of general reoffending and an average risk of sexual offending: Smith at [38]. The pre-sentence report detailed a history of drug and alcohol abuse: Smith at [33], Further, the offender also claimed remorse for his offending: Smith at [36]-[37].
On account to the utilitarian value of his plea, Mossop J discounted the offender’s sentence by 10%: Smith at [42]. The offender received an aggregate sentence of 3 years, 4 months, 12 days imprisonment with a non-parole period of 2 years, 4 months. For the specific charge of sexual intercourse without consent, the offender received a sentence of 32 months and 12 days’ imprisonment: Smith at [52].
R v UM (No 2) [2021] ACTSC 115 (UM (No 2))
In UM (No 2), the offender was sentenced to an aggregate sentence of 4 years, 1 month, 26 days’ imprisonment. The non-parole period was set at 2 years, 9 months: UM (No 2) at [37].
The offender pleaded guilty to one count of causing grievous bodily harm and assault occasioning bodily harm. Later, the offender also pleaded guilty to a “rolled-up charge” of sexual intercourse without consent: UM (No 2) at [3].
Given the lateness of the plea, Elkaim J only applied a discount of approximately 5%: UM (No 2) at [4]. For the charge of sexual intercourse without consent, the offender received a sentence of 2 years, 10 months (reduced from 3 years): UM (No 2) at [37](c). For the charge of assault occasioning actual bodily harm, the offender received a sentence of 9 months, starting on the same date at the sentence for the sexual intercourse without consent: UM (No 2) at [37](c)
Maher (No 2) [2022] ACTSC 63
This case was referred to in particular concerning non-consensual distribution of intimate images and other charges.
For the non-consensual distribution, the offender received a sentence of 15 months imprisonment’ (reduced by approximately 15% from 18 months): Maher (No 2) at [165], [182]. For the count of use carriage service to harass/menace, the offender received 4 months 15 days (reduced by approximately 25% from 6 months): Maher (No 2) at [166], [182].
R v MacDonald [2017] ACTSC 59 (MacDonald) – escape custody
This case was referred to in relation to the charge of escape custody.
Burns J noted that the plea of guilty was made at the earliest opportunity, and Burns J applied a 25% discount on account of the plea: MacDonald at [23]. Burns J sentenced the offender to 15 months’ imprisonment for this offending: MacDonald at [33].
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