Director of Public Prosecutions v Timosevski
[2024] ACTSC 205
•2 July 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Timosevski |
Citation: | [2024] ACTSC 205 |
Hearing Date: | 1 July 2024 |
Decision Date: | 2 July 2024 |
Before: | Elkaim AJ |
Decision: | See [24] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – act of indecency with a person under 16 years – sexual intercourse with a person under 16 years – offender’s remorse – where good prospects of offender rehabilitation – degree of concurrency applied – 20 percent discount for guilty plea – prison sentence imposed |
Legislation Cited: | Crimes Act 1900 (ACT) ss 61, 55 |
Cases Cited: | R v Hile [2018] ACTSC 266 |
Parties: | Director of Public Prosecutions ( Crown) Jaryn Timosevski (Offender) |
Representation: | Counsel M Howe ( DPP) J Maher ( Offender) |
| Solicitors ACT Director of Public Prosecutions Tu’ulakitau McGuire Lawyers ( Offender) | |
File Numbers: | SCC 238, 239 of 2023 |
ELKAIM AJ:
The offender was listed for sentence on 1 July 2024. Unfortunately, due to Covid amongst fellow inmates, he was not able to appear in person either during the sentence hearing or during the actual sentencing. He was present on AVL, and both personally and through his lawyer, indicated his consent to the matter being finalised.
On 17 April 2024, the offender pleaded guilty to the following four offences:
(a)An act of indecency with a person under 16 years, contrary to s 61(3) of the Crimes Act 1900 (ACT) (Crimes Act). The maximum penalty is imprisonment for 10 years.
(b)Three counts of sexual intercourse with a person under 16 years, contrary to s 55(3) of the Crimes Act. The maximum penalty is imprisonment for 14 years.
There is an Agreed Statement of Facts. In summary:
(a)The offences occurred between 5 and 10 December 2022. The offender was then 21. The victim was 13.
(b)The offender and the victim met on the Tinder dating site. Tinder has a minimum age of 18, but there was no verification process in place.
(c)The offender and the victim communicated through Tinder. Their exchanges raised a suspicion on the part of the offender that the victim was under the age of 16. This suspicion was to the extent that he texted a friend of his stating, “I think she might be underaged so I’m gonna have to ask for some ID or something”. Regrettably the offender did not act on his suspicions.
(d)The offender and the victim met late on 5 December 2022. She entered his motorcar, and he gave her a cannabis vape. She became dizzy. While driving, the offender touched the victim’s breasts beneath her dress. This is the indecency charge.
(e)The offender drove the victim to his residence. The offender undressed the victim and then kissed and touched her all over her naked body. The victim said that “it felt wrong”. The offender responded that she was “special”.
(f)Penile-vaginal intercourse then occurred. This is the first of the sexual intercourse charges (Count 2).
(g)On 7 December 2022, at about 11pm, the offender picked up the victim from a McDonald’s store. They drove to the offender’s home, and he again supplied her with a cannabis vape. After some initial supposed foreplay, penile-vaginal intercourse occurred. This is Count 3.
(h)Count 4 occurred late on 9 December 2022, or perhaps in the early morning of the following day. The offender picked up the victim and her friend and took them to his house. They used the cannabis vape and were given alcohol by the offender. They lay on his bed. The friend went to sleep.
(i)Penile-vaginal intercourse occurred. On this occasion the offender did not use a condom, but he did not ejaculate.
(j)The victim reported the matter to the police on 10 December 2022. The offender was arrested the following day.
There is no victim impact statement, but I have no doubt that the victim has been psychologically affected by the offender’s actions. Fortunately, there is no suggestion of any physical injury.
There is a pre-sentence report. It refers to convictions in New South Wales, but these were connected with his breach of bail, which arose from him being transported to Canberra Hospital from New South Wales in the aftermath of some mental health issues. The offender actually spent two months in a mental health unit before being remanded in custody.
The offender had a supportive upbringing, and he maintains close relationships with his family. The offender left school after Year 9 or Year 10, and initially worked at McDonald’s. He moved to the Snowy Mountains Scheme and then to employment with the government in Canberra. He was apparently doing quite well, and was undertaking courses in order to better his position. He has also been doing courses while on remand.
When working in Canberra, the offender consumed significant amounts of alcohol, in particular, through binge drinking on weekends. He used illicit drugs from time to time.
Following his arrest, the offender has been diagnosed with mild anxiety and depression. After being in the mental health unit his condition has stabilised. The pre-sentence report notes a diagnosis of borderline personality disorder and the prescription of medication in this regard.
The pre-sentence report gives this opinion:
Mr Timosevski is a 22-year-old male who possesses multiple protective factors including stable accommodation, a history of education/employment and supportive familial relationships. He, however, also possesses several risk factors including, the sexual nature of his offending, mental health concerns and history of substance misuse.
Mr Timosevski has been assessed as a medium risk of general reoffending. The tool used to reach this outcome, however, cannot be used to assess his risk of sexual recidivism.
A separate psychological assessment suggested that the offender was at an “above average risk of sexual reoffending”. Specific intervention is suggested to address this problem as well as his excessive consumption of alcohol.
The offender’s father gave evidence, highlighting his son’s overall decency and good nature, but accepting that he had acted “stupidly” in relation to the offences. He said that the offender was remorseful both in relation to his own circumstances and those pertaining to the victim. He was confident that the offender could return to a productive life. He thought work as a tradesman might suit him.
I have been provided with a number of references. His aunt, Ms Sulcs, reiterated the offender’s good nature and his remorse in relation to the crimes. These sentiments were also expressed by his cousin, Mr Gorshenin, and his uncle, Peter. The latter reference referred to the offender as being extremely shy.
I was also given some medical reports concerning the offender’s mental health issues. I think they are adequately summed up in the pre-sentence report.
Turning now to objective seriousness; the prosecution said the matter was closer to medium objective seriousness than suggested by the offender, who placed the offending well below medium. One of the considerations relied upon by the prosecution was that the offender had acted in a predatory manner. I do not think his manner was predatory in the initial stages when he connected with the victim on Tinder. However, once he had a suspicion, which he chose not to act upon in relation to her age, then his actions might be described as predatory.
Another factor relied upon by the prosecution was that there had not been any previous relationship (the word used in a general sense) before the offending. I do not think this is necessarily an aggravating factor. I think a previous relationship, of which advantage is taken, is probably more aggravating than otherwise.
I am not sure that the characterisation of medium, or below medium, or well below medium is of much use. Suffice to say that having sexual intercourse with a person who is 13 years old, and eight years junior to the offender, is a most serious activity. Obviously, there are very much more serious factual possibilities, but the basic facts themselves require condemnation and appropriate punishment.
In relation to subjective factors, I accept the evidence from the offender’s family that he has been remorseful, that he is an otherwise decent person, and that he will most likely strive to live a lawful life in the future. He obviously must deal with his alcohol abuse if he is to make any progress.
The offender, notwithstanding the New South Wales convictions, is to be treated as having no criminal record. This concession was fairly and appropriately made by the prosecution. In addition, the prosecution said that there should be “a healthy degree of concurrency”. The prosecution made no submissions to counter the request for a 20 per cent discount to reflect the pleas of guilty.
Another factor I was asked to consider by the offender was that he would be subject to sexual offender registration requirements for at least 15 years, but possibly for the remainder of his life. This should not be seen as a mitigating factor because it is a product of his crimes. However, it is relevant to the extent that his rehabilitation back into the workforce will be affected because of the notification requirements which will impact the range of jobs for which he will be eligible.
The parties referred me to a selection of cases including R v Hile [2018] ACTSC 266, R v Horton-Hegarty [2018] ACTCA 22, R v Bartell [2021] ACTSC 87, and R v Page [2022] ACTCA 65. The prosecution suggested that the case of DPP v Doughty [2023] ACTSC 397 (Doughty) might be the closest comparison, but conceded that the facts in that case were more serious than in the present matter. Notably in Doughty, the criminal was a serial offender. None of the cases are precisely the same but they do provide some guidance to the path that I should take.
It is always necessary to take into account the objects and principles of sentencing, as well as the stipulation that imprisonment is a last resort. The offender suggested that having served about seven months imprisonment already, a suspended sentence might be appropriate. I do not agree; I think the seriousness of the offences, together with their number, must dictate that he spends more time in custody. However, I do agree that a fairly generous non-parole period will be appropriate, in particular, bearing in mind the offender’s age and the very good prospects he has of rehabilitation.
The four offences took place over a few days and must be regarded as a short period of criminal behaviour. The act of indecency was really a precursor to the first charge of sexual intercourse, and I think it can be dealt entirely concurrently with that charge.
The offender has been in custody for 224 days, so I will make the starting date for the sentences 21 November 2023. Each of the sexual intercourse counts have slightly different factors, with the last perhaps being the most serious because a condom was not used. The latter fact is balanced by there not having been ejaculation. Another way of looking at the facts is that the second and third counts are the most serious because the offender, having met the victim, returned for further encounters. Overall, I think I should treat each of the three sexual intercourse counts in the same way.
Orders
I make the following orders:
(1)The offender is convicted of the offence of an act of indecency with a person under the age of 16 (CC2022/12159) and sentenced to a period of imprisonment of 6 months and 12 days, with an applied discount of 20 percent, commencing on 21 November 2023 and expiring on 1 June 2024.
(2)The offender is convicted of the offence of sexual intercourse with a person under the age of 16 (CC2022/12156) and sentenced to a period of imprisonment of 1 year, 8 months, and 24 days, with an applied discount of 20 percent, commencing on 21 November 2023 and expiring on 13 August 2025.
(3)The offender is convicted of the offence of sexual intercourse with a person under the age of 16 (CC2022/12157) and sentenced to a period of imprisonment of 1 year, 8 months, and 24 days, with an applied discount of 20 percent, commencing on 21 May 2024 and expiring on 13 February 2026.
(4)The offender is convicted of the offence of sexual intercourse with a person under the age of 16 (CC2022/12158) and sentenced to a period of imprisonment of 1 year, 8 months, and 24 days, with an applied discount of 20 percent, commencing on 21 November 2024 and expiring on 13 August 2026.
(5)I set an overall sentence of imprisonment of 2 years, 8 months, and 24 days, commencing on 21 November 2023 and expiring on 13 August 2026.
(6)I set a non-parole period of 19 months and 14 days, commencing on 21 November 2023 and expiring on 4 July 2025.
| I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Elkaim. Associate: Date: |
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