Director of Public Prosecutions v RR
[2024] ACTSC 279
•9 September 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v RR |
Citation: | [2024] ACTSC 279 |
Hearing Date: | 9 September 2024 |
Decision Date: | 9 September 2024 |
Before: | Taylor J |
Decision: | (1) On the charge of an act of indecency without consent the offender is convicted and sentenced to 2 years, 4 months and 27 days of imprisonment. (2) The sentence of imprisonment is to be suspended today after the offender has served 24 days of imprisonment, on condition that he enter an undertaking to be of good behaviour until 11 January 2027. (3) In addition to the core conditions the offender is to accept supervision and comply with all reasonable directions of the Director General of ACT Corrective Services or their delegate until such time as it is deemed no longer necessary by the Director-General or their delegate. (4) The offender is to participate in any assessments as directed and complete any educational programs, counselling sessions or other supports and assistance as directed including the Sexual Offending Program and/or other programs targeting sexual offending and respectful relationships. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated act of indecency without consent – offending involved family violence – serious offending – involved a breach of trust – offender knew victim was not consenting – low risk of re-offending – had engaged in rehabilitation after being remanded in custody – significant protective factors – limited criminal history – guilty plea – partly suspended sentence imposed – good behaviour order – offender to engage in sexual offending programs as directed |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7, 34B, 77(1)(b), pt 3.2 Crimes Act 1900 (ACT) s 60(1) Family Violence Act 2016 (ACT) |
Cases Cited: | Alseedi v R [2009] NSWCCA 185 Blundell v The Queen [2019] ACTCA 34 Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 DPP vEarle [2023] ACTSC 93 DPP v Rue [2023] ACTSC 270 Hili v The Queen [2010] HCA 45; 242 CLR 520 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Markarian v R [2005] HCA 25; 228 CLR 357 Miller v the Queen [2018] ACTCA 21 R v Ali (No 4) [2020] ACTSC 350 R v Aroub [2017] ACTSC 187 R v Ballantyne (unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 1 April 2014) R v Buda-Kaa (unreported, Supreme Court of the Australian Capital Territory, Burns J, 30 November 2012) R v Buda-Kaa [2013] ACTCA 46 R v Finau (No 2) [2020] ACTSC 193 R v Hartikainen (unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Meagher JA and Newman J, 8 June 1993) R v Hope [2021] ACTSC 101 R v Kelly [2020] ACTSC 292 R v Kindl [2015] ACTSC 128 R v MAK [2006] NSWCCA 381; 167 A Crim R 159 R v MT [2014] ACTSC 162 R v Palmer [2017] ACTSC 357 R v Ridley [2014] ACTSC 382 R v Taylor [2015] ACTSC 43 R v Teel (a pseudonym) [2021] ACTSC 183 R v Toumo’ua [2017] ACTCA 9 R v UG [2018] ACTCA 64; 14 ACTLR 70 R v UG [2020] ACTCA 8; 281 A Crim R 273 R v Wyper [2017] ACTCA 59 The Queen v Miller [2019] ACTCA 25 Wyper v The Queen; R v Wyper [2017] ACTCA 59 |
Parties: | Director of Public Prosecutions ( Crown) RR ( Offender) |
Representation: | Counsel S Robinson ( DPP) J Sabharwal ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ( Offender) | |
File Number: | SCC 132 of 2023 |
EX TEMPORE
TAYLOR J:
Introduction
1․The offender, RR, has pleaded guilty and is to be sentenced for the following offence:
(a)SCCAN 2023/127: an aggravated act of indecency without consent (family violence) contrary to s 60(1) the Crimes Act 1900 (ACT) (the Crimes Act), carrying a maximum penalty of 9 years of imprisonment.
Agreed facts
2․The offender and the victim met in 2004 and soon after got married. They have three children together. They divorced on 30 September 2022. The victim is the primary carer of their children; however the offender is still involved in parenting the children. On the weekend of 29 to 30 October 2022 the victim asked the offender to come over to her residence and assist her with the children as she was unwell. He agreed and came over and stayed at the house until 3 November 2022.
3․On the evening of 31 October 2022 the victim undertook her usual nighttime routine, which included preparing dinner for the children and ensuring her youngest children had brushed their teeth, and she put them to bed by 7:30pm. After the two youngest children went to bed, the offender remained at the address. The victim changed into her pyjamas, which was a long nightshirt and no underwear. She went to her bedroom and watched television before falling asleep in her bed. The bed had a black fitted sheet, a doona and pillows.
4․A few hours later the victim awoke to the offender rubbing his penis between her legs. He had a hand on her breast underneath her night shirt. She was lying on her right hand side and her nightshirt was up around her hips.
5․She could feel the offender’s penis, which was erect, moving back and forth on her genital area, her buttocks and between her legs near to her vagina. The offender was quietly groaning. The victim decided to pretend to be asleep “as it was just easier” and lay in the bed until it was “over”
6․After several minutes, once he began to ejaculate, the offender grabbed his penis and rolled away, and cleaned himself up with baby wipes from the bedside table. He remained on the bed. The victim checked her phone and it was around 10:30pm. The victim got out of bed and went to sleep on the lounge. Between 11:13 and 11:21pm there was an exchange of text messages and I extract them below:
Victim: I told you when I wanted my new beginnings bracelet. You didn’t listen. My body is my body. Not yours to help yourself to and remind me how it feels to have someone help yourself without consent. That’s rape. And it’s not the first time you have done this. You have shit to take care of before my body is yours. We’re not even dating. U (sic) haven’t asked me to be your girlfriend. You’re not listening to my wants.
Offender: Ok no worries sorry.
Offender: U can return to your bed, I’ll keep my hands and body to myself and won ‘t touch you again. Or i can set myself up on the couch (sic).
7․At the time of the incident, the victim had made it clear to the offender that the only reason he was at the house was to assist to look after his children, he was not at the residence to spend time with the victim.
8․On 3 November 2022 the victim and the offender had an argument which led to them calling the police about each other. During a phone call made by the victim on that day she made a complaint about the incident from 31 October 2022. At around 5:30pm police were dispatched to the victim’s home following a complaint about a separate incident involving the offender. After police arrived she told the attending officers that the offender had sexually assaulted her on Monday night. She gave a statement and police seized the black fitted sheet from her bed. She underwent a forensic medical examination the next morning. Not injuries were observed.
9․When the was offender arrested on 4 November 2022 he said “what for? I didn’t penetrate her”. The offender participated in a record of interview with police that day and made extensive admissions to the conduct making up the offence. He explained that from his perspective the victim had invited him back to the house to “be a couple”. The offender told police that they shared a bed in the nights leading up to the incident and that on those occasions the victim had worn underwear. He told police that when she does not wear any underwear that it is “basically her sign that she is okay for sex”. The offender admitted touching the victim on the breasts with his hands and on her bottom with his penis. He said that he was waiting for the “next sign” and then realised the victim may not “have been into it” because she did not move her leg to allow him to penetrate her. He admitted that he ejaculated. He described the victim “storming out” of the bedroom and sending him the text messages extracted above. The offender told police he thought the incident lasted for “minutes”.
Sentencing considerations
Nature and circumstances of the offending
10․A consideration of the nature and circumstances of the offending necessarily requires an assessment of the objective seriousness of the conduct. The maximum penalty provided for by the legislature provides a “yardstick” against which to assess the objective seriousness of the offending: Markarian v R [2005] HCA 25; 228 CLR 357 at [31]. While perhaps not necessary to plot the offending conduct on a scale measured in low, mid or high range it is necessary to identify the features of the offending that inform the objective seriousness of the offence.
11․Justice Mossop, in R v Palmer [2017] ACTSC 357 at [22], identified the following factors relevant to assessing the objective seriousness of sexual offences:
(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.
12․In R v Teel (a pseudonym) [2021] ACTSC 183 (Teel) at [46], Burns J, when sentencing an offender for an act of indecency committed against his sleeping partner considered the following factors were relevant to the objective seriousness of the offending:
“(a) the events occurred in the victim’s own home;
(b) the victim was unconscious and therefore vulnerable;
(c) the conduct that you engaged in was degrading towards the victim;
(d) your conduct involved an egregious breach of trust;
(e) your conduct was clearly premeditated;
[…]”
13․Some of the factors outlined in the above matters are also present in this example of the offence while others are not.
14․I note from the outset that this offending was committed in a family violence context, and accordingly is an aggravated version of the offence. As I will later acknowledge family violence offences warrant weight to be given to punishment, denunciation and general deterrence but as the prosecutor properly cautioned I must be careful not to “double count” the family violence context when considering the objective seriousness of the offence.
15․There is a broad spectrum of acts that may constitute the offence of an act of indecency: R v Ridley [2014] ACTSC 382 at [36]. The conduct in this instance involved the offender rubbing his penis on the victim’s buttocks, vagina and between her legs when she was not wearing any underwear. The offender repeatedly thrust his penis between the victim’s legs, touching her genitals. The conducted involved the offender’s naked genitals touching the victim’s naked genitals and the offender continued until he ejaculated. The victim was in her home, a place she was entitled to feel safe and secure.
16․Many of the features identified in Palmer are missing from the offending, there being no overt or additional violence other than that inherent to sexual assault (R v Hartikainen (unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Meagher JA and Newman J, 8 June 1993)), no weapons used, an apparent lack of planning and no injuries occasioned to the victim. Indeed, it seemed to me that the offending was opportunistic. That said, the victim was acutely vulnerable for much of the offending, being asleep and unwell. The offender had access to the victim by virtue of the trust she had placed in him to remain in her home while she was unwell and assist her with the care of their children.
17․The offending lasted for several minutes. As noted in relation to sexual offences by McCallum CJ in DPP vEarle [2023] ACTSC 93 (Earle) at [22], “While the offence itself may involve conduct of short duration…the resulting trauma suffered by victims is often intense and enduring.”
18․The offender was clearly motivated only by his own sexual gratification, making no real attempt to gauge the victim’s willingness to participate. It was conduct borne of an entitlement to pursue his own gratification with little regard for the victim’s autonomy. This mindset is revealed in the offender’s admissions.
19․It is relevant to the objective seriousness to assess the offender’s culpability for the offending and his state of mind at the time. The prosecution submitted that this was not an offender who was reckless; the victim being asleep when the conduct commenced, the offender must have had knowledge the victim was not consenting. The offender’s knowledge of the victim’s lack of consent is further informed by the admissions he made to police in his record of interview which reveal, in my view, that he acted on an assumption based on the victim’s state of undress and previous sexual interactions with her. Consent as to sexual activity cannot ever be assumed. The victim awoke partway through and did not move, as she considered it would be “easier” to wait until it was “over”. As McCallum CJ observed, when considering the prevalence of the “freeze” response by victims of sexual offending, in Earle at [28]:
That is why parliaments across the country are clarifying the law to make plain that consent must be positively communicated and not assumed.
20․I am satisfied beyond reasonable doubt that when the offending commenced the offender knew the victim was asleep and that she was not consenting. While the offender said he “knew she wasn’t really asleep” there is simply no support for that proposition. The offender assumed his contact would be welcome. It clearly was not. The offender made no genuine attempt to ascertain that the contact he was making with her body was with the victim’s consent. The victim did not say or do anything that communicated her free and voluntary consent.
Subjective circumstances
21․The material before the Court includes a Pre-Sentence Report and an Intensive Corrections Order Assessment Report and multiple character references tendered on behalf of the offender.
22․In summary, the offender is 45 years old. He was raised in the Blue Mountains and described his upbringing as positive. He has positive relationships with his parents and with his older sister, who he currently resides with, in the garage of her ACT Housing property. He reported being on the public housing list for five years. He has a few friends and denied associating with people involved in criminal activities. He has five children; two from a previous relationship and three with the victim. He said he has positive relationships with his two daughters from his previous relationship and that he will soon be a grandfather.
23․[Redacted]. The offender reported that he currently tries to see his children every day or on the weekend during school time. He spends time with his oldest son multiple times a week, at the gym.
24․He described his prior relationship with the victim as “up and down” and that he had been unfaithful during the relationship. He indicated the relationship had broken down due to the current offence. He stated that the police had been involved in their relationship, that the victim had mental health issues and that their children had witnessed the victim use violence against him during the relationship but he had not pursued charges.
25․The offender left school partway through year 11. He worked as truck driver from 2007 to 2012. He has been on the Disability Support Pension (DSP) for over five years, in relation to his mental health and a shoulder injury. He worked as a security guard before being charged with the current offence. He resumed the DSP after this.
26․He has had two unsuccessful shoulder reconstructive surgeries and has a history of mental health issues which he has recently been seeking treatment for via various mental health programs. This was supported by the tender of a letter from the ‘Next Step Service’ confirming the offender’s ongoing engagement in mental health treatment.
27․The offender denied the offending and advised he had plead guilty to the lesser offence on advice of his barrister.
28․The author of both reports concluded that the offender did not have victim awareness, demonstrated no insight into the offending and minimised the impacts of his behaviour on the victim. He further made claims regarding the victim’s motivation to report the charges to police. I will return to the offender’s remorse later in these remarks.
29․He was assessed as having a low risk of general reoffending and a below average risk of further sexual offending. The author considered the offender’s primary risk factors to be his mental health, financial concerns, and his attitude regarding his offending behaviour. The offender has significant protective factors such as family support, stable accommodation, prosocial associates, and an absence of substance abuse. The offender did not consider he needed to complete a Sexual Offending Program as he felt his behaviour did not constitute an offence, but that he would complete it if it were a condition of an order.
30․He was found suitable for an Intensive Correction Order (ICO) and it was recommended that if one were imposed, that it include a condition that the offender attend such programs or counselling as directed, particularly in relation to sexual offending.
Character references
31․A number of character references were tendered on the offender’s behalf. They included letters from his sister, his niece, his eldest son and two family friends. They globally reflected very well on the offender. There was reference to the effect on the offender of the time he spent on remand including it bringing about an awareness of the seriousness of his conduct. The references commonly described the offender as a committed father who is motivated to be a good role model and build healthy relationships with his children. Consistent with the offender’s criminal history the references consider the offending to be out of character for the offender.
Responsibility, remorse and rehabilitation
32․The author of the pre-sentence report and the intensive correction order assessment report outlined in detail comments made by the offender in course of these reports being prepared. I extract the relevant portions of those reports below:
[The offender] disagreed with the Statement of Facts. He claimed he and the victim had been in a relationship at the time of the offence and he had been living at her address. He stated the victim had been in bed all day due to her illness, and he had cooked dinner and completed the children’s bedtime routine before joining her in bed and watching television. He stated he believed the victim had been awake at the time of the offence.
Throughout discussions regarding the offence, [the offender] stated he did not believe what he had done constituted an offence. He admitted he had attempted to have sex with his partner at the time, however stated he felt he was not guilty of any offence. [The offender] advised consent had not been discussed prior to sexual intercourse in their relationship. He claimed they had an agreement that if his ex-partner was not wearing underwear, then this indicated she was consenting to sexual intercourse. [The offender] claimed he had a video on an old phone in which his ex-partner stated they did not need to discuss consent, and that if she were wearing something specific it meant she was consenting.
[The offender] questioned the period between the offence occurring and the victim reporting it to the police. He stated they had discussed the incident in the days after it occurred, and he believed they “were in a good place”. He stated he had called the police on 3 November 2022 as the victim had not been letting him collect belongings for their children although she had wanted him to look after them. He claimed he had called the police for assistance to collect his children’s belongings so they would be able to attend school. He stated that when the police arrived the victim told the police he had raped her. He claimed the victim had been motivated to report the offence to the police as she felt he had broken a promise they had both made not to involve police in their relationship. He stated she had reported the offence to the police “to make his life hell”.
[…] He stated he felt his actions had not negatively impacted the victim, and he claimed she had only reported the offence to the police as she felt he had broken their promise not to involve police in the relationship. He claimed she had later tried to have the charges dropped.
33․While the offender made extensive admissions in his record of interview, he nonetheless perpetuated a self-serving narrative that sought to justify and minimise his conduct. The offender’s insistence that he never “needed” to discuss consent in his relationship with the victim reflects a concerning approach. The conduct of the victim unequivocally demonstrated that she did not share this perspective. The offender’s justification is entirely consistent with his conduct to the extent that he considered there to be no demand upon him at any time to ensure that the victim was in fact consenting.
34․In any event, the victim did not consider them to be in a relationship at the time and was of the view that the only purpose of the offender being in her home was to assist her with caring for their three children.
35․The offender lacks genuine remorse and is unable to comprehend or articulate the harm that his actions have occasioned to the victim. Further he lacks insight into the criminality of his conduct. That said, as counsel for the offender pointed out, there can be no doubt in the offender’s mind now, as to the gravity of the offending in light of being charged and remanded in custody for a period of 24 days. In circumstances where the offender has not ever spent time in full time custody, I accept that this experience has demonstrated to him the inherent risk involved in assuming consent to sexual activity in any context. I also accept that he has demonstrated that he is motivated not to ever return to the custodial environment again.
36․By his plea of guilty the offender has accepted responsibility for his conduct. He has not demonstrated remorse. Remorse is a factor that influences an assessment of the potential for rehabilitation: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at [41]. Rehabilitation, in turn, is the best guarantor of community safety if it can be achieved and is in both the offender’s and the community’s best interests: Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32]. The prosecution submitted in this matter that the offender’s attitude to the criminality of his conduct would inform my assessment of his rehabilitation prospects and the need for specific deterrence. So much may be accepted. Recognition by an offender of the harm they have caused can be critical to an offender not engaging in similar conduct in the future. That said, there can be “rehabilitation without confession” (see Alseedi v R [2009] NSWCCA 185 at [65]), and this might be especially so in circumstances where an offender has made progress toward rehabilitation despite an absence of remorse.
37․The offender has no history of sexual offending. The criminal history he does have is limited though does include a relevant matter from 2018 for which he was sentenced to a good behaviour order, for damaging the property of the victim in this matter. He complied entirely with that good behaviour order. The offender has complied with bail conditions strictly. He has engaged with treatment for his mental health which is ongoing. He has prospects for employment. He has no significant criminogenic risk factors that elevate his risk of reoffending. By his conduct, if not his level of insight, he has demonstrated an awareness of the seriousness of his offending and an appreciation that his conduct is criminal. I am satisfied he does not present as a risk to the community generally. On balance, I consider that he does have good prospects for rehabilitation. Those prospects would be significantly enhanced through participating in education specifically targeting modern, enlightened concepts of consent and respectful relationships.
Criminal history
38․The offender has a very limited criminal history in the ACT and NSW consisting of a charge of property damage and some driving offences. As I have already identified the 2018 property damage offence involved property of the victim of the offence now before the Court. The prosecution included the facts of this matter in the material before the Court and in summary, the facts of that matter saw the offender cause damage to a door by slamming it in the aftermath of a heated verbal argument with the victim.
Time in custody
39․The offender spent 24 days in custody in relation to this offence.
Guilty pleas
40․The offender entered a plea of guilty to the offence on 13 March 2024. The matter was listed for trial to commence on 17 June 2024. The matter had previously been to criminal case conferencing on 23 October 2023 where it did not resolve.
41․The usual practise or approach of this Court in relation to discount for guilty pleas, as outlined in Blundell v The Queen [2019] ACTCA 34 at [12], results in a discount in the range of 15 to 20 per cent being applied in recognition of pleas that come at or in the immediate aftermath of criminal case conferencing. The plea in this instance did not come immediately after a criminal case conference but was nonetheless a period well in advance of the trial date. There is utilitarian benefit to the plea, particularly in that it spares the victim from having to give evidence.
42․The prosecution submitted, by reference to the timing of the plea and the principles in Miller v the Queen [2018] ACTCA 21 at [12] and R v Toumo’ua [2017] ACTCA 9 at [81] that a discount of around 15 per cent would be appropriate.
43․I agree and will reduce the penalty I impose by 15 per cent.
Sentencing practice
44․The use of sentencing statistics and comparable sentences must be put in its proper place. They illustrate, not define, the possible range of sentences available: R v Pham (2015) 256 CLR 550 at 560 [29]. Sentencing practice does not cap the upper nor lower ranges of a possible sentence: Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [51]-[53]. The provision of comparative cases is not to pursue strict mathematical equivalence as between sentencing outcomes for the same offence, but rather to ensure consistency in the application of relevant principles: Hili v The Queen [2010] HCA 45; 242 CLR 520.
45․In Earle at [47]-[54] McCallum CJ comprehensively reviewed comparable cases from this jurisdiction involving sexual offending committed on a sleeping victim: R v Buda-Kaa (unreported, Supreme Court of the Australian Capital Territory, Burns J, 30 November 2012) and the appeal, R v Buda-Kaa [2013] ACTCA 46, R v Ballantyne (unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 1 April 2014), R v MT [2014] ACTSC 162, R v Taylor [2015] ACTSC 43, R v Wyper [2017] ACTCA 59, R v Aroub [2017] ACTSC 187, R v Finau (No 2) [2020] ACTSC 193, and R v Ali (No 4) [2020] ACTSC 350.
46․In DPP v Rue [2023] ACTSC 270 at [114]-[116] I referred to three sentencing outcomes in R v UG [2018] ACTCA 64; 14 ACTLR 70 (UG [2018]), Teel and R v Kelly [2020] ACTSC 292 (Kelly) in reference to an act of indecency without consent. In UG [2018] the offender was the prospective brother-in-law of the victim. After a family dinner, in the early hours of the morning the offender drove to the victim’s home with the intent of having sexual intercourse with her. The victim was asleep and woke up partway through the offending. The offender was re-sentenced to 6 months of imprisonment (reduced from 8 months of imprisonment for the plea of guilty) for the act of indecency, involving the offender “dry humping” the victim, feeling her body, and touching her nipples and vagina. He was also re-sentenced to 22 months (reduced from 30 months of imprisonment for the plea of guilty) for an act of sexual intercourse without consent. The sentence was suspended after 9 months of imprisonment with a 13 month good behaviour order.
47․Kelly involved a single count of an act of indecency committed by the offender when he broke into the victim’s room and attempted to steal her laptop. The victim was a stranger to the offender. The act involved the offender rubbing the victim’s breasts and threatening to “rape” her. The offender was remorseful but had guarded prospects for rehabilitation. The offender’s criminal history included sexual offending. The offender was sentenced to a period of 2 years imprisonment for the act of indecency after a 20 per cent reduction for his plea of guilty was applied.
48․The prosecutor also identified R v Kindl [2015] ACTSC 128 and R v Hope [2021] ACTSC 101 as comparable sentences. I have had regard to those outcomes. It must be observed that many of the cases to which I have referred involved more serious sexual offences committed alongside acts of indecency. I also note that none of the act of indecency offences were the aggravated version of the offence, though some did have a family violence context.
Determination
49․The instinctive synthesis that attends to the sentencing task requires the Court to balance all of the relevant factors and principles to arrive at a just and appropriate outcome. The purposes of sentencing are clearly set out at s 7 of the Crimes (Sentencing) Act 2005 (ACT) (the Crimes (Sentencing) Act).
50․There was no victim impact statement before me, though the text messages sent by the victim shortly after the incident in my view reveal a sense of betrayal and indignation, unsurprisingly, in circumstances where her vulnerability was exploited and her right to bodily autonomy ignored. With one simple phrase the victim captured what should be a universal truth “my body is my body”. A simple notion that sentencing courts must too often reiterate, usually to men who have either failed to grasp it, or wilfully ignored it.
51․The Court of Appeal in Wyper v The Queen; R v Wyper [2017] ACTCA 59 at [114] adopted the following “unifying principles” in relation to sentencing of sexual offences in this jurisdiction:
(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.
52․In The Queen v Miller [2019] ACTCA 25 the Court of Appeal observed at [44]:
The primary sentencing considerations for sexual offending are punishment, deterrence, denunciation and recognition of the harm done to the victim. In the proceeding before the primary judge there was little by way of remorse demonstrated by the respondent beyond his plea of guilty to the offence. Personal deterrence should have been a relevant consideration at that time. General deterrence, or deterrence of others from committing like crimes, is always an important consideration in imposing a sentence for sexual offending. The above does not deny the relevance of rehabilitation in sentencing offenders such as the respondent, but in sentencing for sexual offences rehabilitation will ordinarily be given lesser weight than the other considerations to which we have referred due to the gravity of the offending.
53․Of course, notwithstanding the observations in those matters, the need to give effect to individualised justice remains. The absence of remorse elevates the need for specific deterrence. The rehabilitation picture for the offender is not straightforward. His very limited insight into his conduct does not augur well for his prospects of rehabilitation with respect to this kind of conduct. That said, the offender has no prior history of sexual offending, and he would benefit from engagement with counselling and programs designed to assist him to understand the gravity of his conduct. This would necessarily require the offender to reflect on his views and ideas about consent generally but more specifically in the context of relationships he may enter into in the future. There are no other criminogenic risk factors consistent with the conclusion that he is generally at low risk of reoffending. I do consider rehabilitation to be a relevant consideration notwithstanding the offender’s lack of remorse.
54․There is a need to recognise the harm to the victim, to denounce the conduct, to deter and punish the offender and to hold him accountable. The offending warrants significant weight accorded to general deterrence.
55․As is required, in determining how the offender should be sentenced I have also had regard to those matters contained in s 34B of the Crimes (Sentencing) Act, including the preamble of the Family Violence Act 2016 (ACT) (the Family Violence Act). The preamble to the Family Violence Act encapsulates the approach the community expects should be taken to family violence, including the need to condemn family violence, the need to promote offender accountability, the exploitation of power imbalances that these offences can involve and recognition that family violence is predominantly committed by men against women and children.
56․Having regard to possible alternatives, a sentence of imprisonment is the only outcome that properly marks the seriousness of the offending. Any lesser penalty would be unduly lenient. Counsel for the offender accepted a period of imprisonment was the only just and appropriate outcome. I turn then to how that period of imprisonment ought to be served.
57․In this matter the prosecution did not advance any submission as to how that sentence ought to be served, merely noting the offender had already spent 24 days in custody. The offender has been found suitable for an ICO. The assessment report only identified one significant area requiring real attention for the offender and that is in relation to his attitude toward the offending. It is consistent with absence of any significant criminogenic risk factors and with the treatment the offender has already put in place in relation to his mental health. The prosecutor did not cavil with the observation that the offender is not a person who would greatly benefit from “intensive” supervision. In my view an ICO would not be appropriate in all the circumstances: s 77(1)(b) of the Crimes (Sentencing) Act.
58․While a period of imprisonment is necessary, I am satisfied that this is a matter where there is no utility in returning the offender to full time custody. The prosecution did not oppose an outcome giving effect to that view. A suspended sentence is a sentencing option “that may enable a sentencing court to address a variety of the sentencing purposes in s 7 of the Crimes (Sentencing) Act while reflecting the spirit of pt 3.2 of the that Act, which indicates that a sentence of fulltime imprisonment should be a sentence of last resort”: R v UG [2020] ACTCA 8; 281 A Crim R 273 (UG [2020]) at [81]. A partly suspended sentence “may be the sentencing option that is most constructively adapted to a particular offender and their circumstances”: UG [2020] at [82].
59․A partly suspended sentence would recognise the offender’s prospects for rehabilitation while marking the seriousness of the offending. Additionally, it can accommodate what I consider to be the most pressing rehabilitative need of the offender and that is with respect to education. It the offender does not engage with the opportunity to remain in the community and complete the educative programs he is directed to complete; he will inevitably be subject to breach action. This will necessarily require the Court to consider whether the opportunity to remain in the community should continue to be offered to him in circumstances where he is not addressing the area of risk directly connected to his offending.
60․This is the “carrot and stick” approach the Court of Appeal in UG [2020] described as achieved by partly suspended sentence that may be appropriate for “an offender who has not previously served a significant period in fulltime custody and who seems capable of rehabilitation” at [82]. A partly suspended sentence addresses the demands of the purposes of sentencing of significance in this matter that I have identified and is a just and appropriate outcome.
61․The starting point for the charge of the act of indecency without consent is 34 months reduced to 2 years 4 months and 27 days for the plea of guilty. The relationship between the unsuspended and the suspended period of the sentence need not bear the same relationship as that between a parole and non-parole period: UG [2020] at [77]. The sentence will be suspended today and will recognise that the offender has already spent 24 days in custody. I consider it appropriate that the offender be required to comply with an obligation to be of good behaviour for the balance of the sentence.
Orders
62․For those reasons I make the following orders:
(1)On the charge of an act of indecency without consent the offender is convicted and sentenced to 2 years, 4 months and 27 days of imprisonment.
(2)The sentence of imprisonment is to be suspended today, 9 September 2024 after the offender has served 24 days of imprisonment, on condition that he enter an undertaking to be of good behaviour until 11 January 2027.
(3)In addition to the core conditions the offender is to accept supervision and comply with all reasonable directions of the Director General of ACT Corrective Services or their delegate until such time as it is deemed no longer necessary by the Director-General or their delegate.
(4)The offender is to participate in any assessments as directed and complete any educational programs, counselling sessions or other supports and assistance as directed including the Sexual Offending Program and/or other programs targeting sexual offending and respectful relationships.
| I certify that the preceding sixty-two [62] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Taylor. Associate: Date: 19 September 2024 |
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