Director of Public Prosecutions v Ware
[2024] ACTSC 52
•28 February 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Ware |
Citation: | [2024] ACTSC 52 |
Hearing Date: | 28 February 2024 |
Decision Date: | 28 February 2024 |
Before: | Berman AJ |
Decision: | See [39] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – sexual intercourse without consent – breaches of good behaviour orders – lengthy criminal history – where offender supplied victim with drugs – where offender actually knew victim was not consenting – sentences of imprisonment imposed – sentences to be served concurrently |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) s 33 |
Parties: | Director of Public Prosecutions Joshua Ryan Ware (Offender) |
Representation: | Counsel S Saikal-Skea (DPP) R Thomas (Offender) |
| Solicitors ACT Director of Public Prosecutions Kim Bolas Criminal Law (Offender) | |
File Numbers: | SCC 60 of 2013 SCC 130 of 2014 SCC 131 of 2014 SCC 218 of 2014 SCC 284 of 2014 SCC 129 of 2023 |
BERMAN AJ:
Introduction
1․In 2022, the victim in this matter, a woman who I will give the pseudonym “Sarah Bright”, was a single mother caring for her two children. She had had some problems with drugs in the past, but as at 28 December 2022, she had been clean for a while. I give her a pseudonym not to depersonalise her, but to protect her privacy.
2․That evening, her children were staying with her mother, so she contacted a neighbour of hers, the offender in this matter, Joshua Ware, to see what he was doing. He was going fishing with his cousin's partner and invited Ms Bright to join them. As well as trying to catch fish, the three of them consumed methylamphetamine. It was not long before Ms Bright redeveloped a dependency to that drug.
3․Thereafter, she and the offender spent time together consuming drugs which were usually supplied by the offender. He developed feelings towards Ms Bright. He made that obvious, but she did not reciprocate.
Offences
4․On 6 January 2023, the two of them were in Mr Bright's home. They consumed methylamphetamine together and fell asleep on a couch in her loungeroom. Around dawn that day, she woke up but felt unable to move. The offender was behind her. He pulled her pants and underwear down and engaged in penile/vaginal intercourse with her. Ms Bright neither said nor did anything to indicate that she was consenting to this happening. The offender ejaculated inside her whilst not wearing a condom.
5․A few days later, Ms Bright made a note on her mobile phone in which she described the circumstances in which that sexual intercourse occurred. Thereafter, she continued to associate with the offender. He would buy her gifts and express his feelings for her but from her point of view, their relationship revolved around the use of drugs. Further acts of sexual intercourse occurred, Ms Bright saying that each of those were without consent.
6․The final occasion on which they had sex was 28 January 2023. The offender invited Ms Bright to his home where they consumed methylamphetamine together. They were seated on a couch. The offender began moving towards Ms Bright, who moved away from him. He picked her up, carried her to his bed, removed her pants and commenced penile/vaginal intercourse with her. At one stage, he told her to get on top of him. She did what he asked because she was afraid of him. Eventually he, as before, ejaculated inside her whilst not wearing a condom. Once again, she neither said nor did anything to indicate that she was consenting to what was happening.
7․A few days later, Ms Bright spoke to officers from Housing ACT. She had previously made an application to be moved because her ex-boyfriend knew where she lived, and she was afraid of him. When she checked up on how her application was going on this occasion, she told them that she had been raped by the offender, one of her neighbours.
8․Police were called. Ms Bright participated in two interviews with them and ultimately, the offender was charged with two offences of having sexual intercourse with Ms Bright without her consent. One relating to the first occasion on which they had intercourse, and the other relating to the final occasion.
9․The offender pleaded not guilty to those charges, but after a short jury trial, he was found guilty on both of them. It is now my task to sentence him.
Objective seriousness
10․The maximum penalty for both of these offences is 12 years imprisonment. It is fundamental in determining the sentence to impose upon him to assess the seriousness of them.
11․The offences occurred in the context of the offender supplying Ms Bright with drugs. For count 1, I am satisfied beyond reasonable doubt that the offender actually knew that she was not consenting. It was not a case where he thought she may not be. He, I am satisfied, actually knew that she was not consenting. Both offences involved penile/vaginal intercourse. There was no condom used and the offender ejaculated inside Ms Bright's vagina on both occasions.
12․They were, to this extent, premeditated. The offender had persisted in having a relationship with the victim without any encouragement from her.
13․No violence was used but given that he had taken advantage of her need for drugs, violence wasn't necessary.
14․The offences were committed whilst the offender was subject to a number of good behaviour orders. This of course, does not increase the objective gravity of the offences but is a matter I must take into account in determining the appropriate sentence to impose upon him.
15․I note that there was no weapon used, the offender was not in company, and although Ms Bright had her troubles in life, she was certainly not a vulnerable person within
s 33 of the Crimes (Sentencing) Act2005 (ACT).
Subjective circumstances
16․The offender has suffered many tragedies in his life and has a troubled background. He has lost his brother to suicide. His son died of cot death, and it was this offender who discovered that awful occurrence. As a child, his parents fought and drank a lot, separating when he was 17 years of age.
17․The major difficulty that Mr Ware has had in his life is with drugs. He has had troubles with drugs for many, many years. That has led to two important aspects of his life.
18․Firstly, he has breached the law and committed criminal offences, up until now of a more minor nature, on many occasions. And secondly, as far as his mental health is concerned, he has suffered from drug‑induced psychosis, fortunately now in remission. As well as drug‑induced psychosis, he has suffered for a long time with a persistent depressive disorder, and disorders relating to his use of stimulants and cannabis.
19․A psychiatric report was prepared for the benefit of the Court. It was a very balanced psychiatric report of considerable assistance to me. The author of the report notes the troubles that Mr Ware has had with his mental health but says that these did not affect his capacity to form judgements, they do not suggest that less weight should be given to general deterrence or that the sentence should be modified to take account of Mr Ware's mental health, and that there is no evidence that his mental health issues contributed or explained his offending behaviour.
20․On the other hand, the psychiatrist says, and I accept given the psychiatrist's expertise in this area, Mr Ware's rehabilitation will be harder to achieve if he is in custody rather than an alternative such as residential rehabilitation. Mr Ware will be subject to an increased level of risk of self‑harm, noting such behaviours have occurred in the past, and a lack of suitable long‑term intervention in custody will weigh more heavily upon him than someone without his mental health issues.
21․The result is that Mr Ware's time in custody will be harder than it would have otherwise been because of his mental health issues and his rehabilitation will be harder to achieve.
22․Those factors, of course, cannot lead to a situation where the sentences I impose upon him fail to reflect the objective gravity of his serious criminal behaviour.
23․There are prospects for Mr Ware's rehabilitation. During the trial, a video was played showing an interview between Mr Ware and the police. He looked very different to the man he was during the trial and as he is today. Mr Ware was a drug user when he was interviewed by police but does not appear to be using drugs today. This is a positive aspect of how he is at the moment and points to the possibility that, once released from custody, he will be able to deal with his long‑term problem with drugs. To put matters bluntly, if he gives up drugs, it is much more likely, indeed, probable, that he will be able to give up his criminal behaviour.
24․He retains the support of his family. Many of them are here today. And he is doing well in prison. He has been working there and doing courses. Certificates attesting to his success in that regard were tendered today, and he has now been appointed as a peer mentor to other prisoners. These suggest that he has a genuine desire to rehabilitate.
25․On the other hand, he has a lengthy criminal history and has failed to take advantage of leniency offered to him in the past. It may be that in the future, Mr Ware will, at long last, recognise that his life is going to be much better for him if he does not use drugs. If that can be achieved, then not only will he benefit, but the community will as well.
Consideration
26․I have taken into account the need for Mr Ware to be assisted with his rehabilitation in determining the appropriate sentences to impose upon him, but the non‑parole period I will eventually announce is the least which I consider properly reflects the criminality of his behaviour. One issue, of course, that is related to Mr Ware's prospects for rehabilitation, is the question of whether he is remorseful for what he has done. It could not be said that that is the case. As the author of the pre-sentence report notes, he has demonstrated a lack of insight into the inappropriateness, and indeed, the criminality of his actions.
27․I have mentioned that Mr Ware has a lengthy criminal history. A perusal of his criminal record reveals many, many offences involving him breaking into cars and stealing property. There are other offences as well, but they are generally offences of a similar type. In the past, these have been dealt with leniently, some might think excessively so, given their number and frequency. His repeated breaches of good behaviour orders have not been dealt with in a way which perhaps may have brought home to him in more concrete terms the need for him to change his behavior.
28․His criminal history is consistent with his problems with drugs over many years.
29․One thing it is very important to note is that there is no suggestion that he has committed any sexual offence in the past.
30․It is important to recognise the harm that his offences have caused. A victim impact statement was tendered today. In that, Ms Bright describes the effects of these offences on her in eloquent terms. The effects have been emotional, financial, and social. She has been deeply affected by what the offender did, and it is likely that such impacts will continue for some time, if not permanently.
31․Mr Ware has been in custody awaiting sentence today for about a year, but not all that presentence custody is referable to these two offences. He has been dealt with and sentenced to imprisonment for other matters which accounts for some of the almost full year that he has been in custody until today.
32․I have to apply the principle of totality. It would therefore be wrong for me to simply subtract from the time he has been in custody the number of days referrable to his sentences imposed for other matters.
33․Instead, what I will do is start the sentences I will shortly announce from six months before today. When I floated that proposal in the course of argument, neither the prosecutor nor Mr Thomas, who appears for Mr Ware, spoke in opposition to that suggestion.
34․On a related topic, I will impose sentences for these sexual assault matters which are partially accumulative. That is done to reflect the extra criminality of the second offence.
35․I turn now to something I hinted at earlier. The offender was on a number of good behaviour orders at the time he committed these two offences.
36․That is a matter of aggravation in the sense that it should increase the sentences I impose upon him. It is also the case that at long last he is being dealt with to finality for a large number of offences, those offences being of the types I described earlier.
37․It is notable that the offender is only now being finally sentenced for offences committed as long ago as 2013 and when he first appeared in this Court 10 years ago. He was an enthusiastic offender in the past and has breached good behaviour orders or similar orders repeatedly.
38․The prosecutor submitted, unsurprisingly without opposition from Mr Thomas, that it would be appropriate to impose the sentences which were suspended upon the offender in such a way that they were entirely concurrent with each other and concurrent with the sentences for the more serious offences on which he was found guilty at trial. Having read the material regarding the facts which led to the suspended sentences, I will accept the prosecutor's suggestion and do what she suggests.
Orders
39․For those reasons, the following orders are made:
(1)Pursuant to s 111(2)(c) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), the victim in proceedings SCC 129/2023 be referred to only by the pseudonym “Sarah Bright”.
(2)The offender is convicted of the offence of damage to property not exceeding $5000 (CC2013/7561) and sentenced to a period of imprisonment of 2 months, commencing on 28 August 2023.
(3)The offender is convicted of the offence of theft (CC2013/7562) and sentenced to a period of imprisonment of 1 month, commencing on 28 August 2023.
(4)The offender is convicted of the offence of damage to property not exceeding $5000 (CC2013/7563) and sentenced to a period of imprisonment of 4 months, commencing on 28 August 2023 and concluding on 27 December 2023.
(5)The offender is convicted of the offence of theft (CC2013/7564) and sentenced to a period of imprisonment of 4 months, commencing on 28 August 2023.
(6)The offender is convicted of the offence of damage to property not exceeding $5000 (CC2013/7565) and sentenced to a period of imprisonment of 4 months, commencing on 28 August 2023 and concluding on 27 December 2023.
(7)The offender is convicted of the offence of theft (CC2013/7566) and sentenced to a period of imprisonment of 4 months, commencing on 28 August 2023 and concluding on 27 December 2023.
(8)The offender is convicted of the offence of damage to property not exceeding $5000 (CC2013/7567) and sentenced to a period of imprisonment of 4 months, commencing on 28 August 2023 and concluding on 27 December 2023.
(9)The offender is convicted of the offence of theft (CC2013/7568) and sentenced to a period of imprisonment of 6 months, commencing on 28 August 2023 and concluding 27 February 2024.
(10)The offender is convicted of the offence of theft (CC2013/7570) and sentenced to a period of imprisonment of 4 months, commencing on 28 August 2023 and concluding on 27 December 2023.
(11)The offender is convicted of the offence of possess prohibited substance (CC2013/7576) and sentenced to a period of imprisonment of 1 month, commencing on 28 August 2023 and concluding on 27 September 2023.
(12)The offender is convicted of the offence of unlawful possession of stolen property (CC2013/7577) and sentenced to a period of imprisonment of 2 months, commencing on 28 August 2023 and concluding on 27 October 2023.
(13)The offender is convicted of the offence of damage to property (CC2013/7963) and sentenced to a period of imprisonment of 2 months, commencing on 28 August 2023 and concluding on 27 October 2023.
(14)The offender is convicted of the offence of damage to property (CC2013/7971) and sentenced to a period of imprisonment of 4 months, commencing on 28 August 2023 and concluding on 27 December 2023.
(15)The offender is convicted of the offence of burglary (CC2014/8889) and sentenced to a period of imprisonment of 12 months, commencing on 28 August 2023 and concluding 27 August 2024.
(16)The offender is convicted of the offence of theft (CC2014/8890) and sentenced to a period of imprisonment of 9 months, commencing on 28 August 2023 and concluding on 27 May 2024.
(17)The offender is convicted of the offence of ride/drive stolen motor vehicle (CC2014/8891) and sentenced to a period of imprisonment of 9 months, commencing on 28 August 2023 and concluding on 27 May 2024.
(18)The offender is convicted of the offence of theft (CC2014/10430) and sentenced to a period of imprisonment of 9 months, commencing on 28 August 2023 and concluding on 27 May 2024.
(19)The offender is convicted of the offence of burglary (CC2014/10431) and sentenced to a period of imprisonment of 12 months, commencing on 28 August 2023 and concluding on 27 August 2024.
(20)The offender is convicted of the offence of ride/drive stolen motor vehicle (CC2014/10432) and sentenced to a period of imprisonment of 9 months, commencing on 28 August 2023 and concluding on 27 May 2024.
(21)The offender is convicted of the offence of attempted theft (CC2014/10433) and sentenced to a period of imprisonment of 12 months, commencing on 28 August 2023 and concluding on 27 August 2024.
(22)The offender is convicted of the offence of burglary (CC2014/10434) and sentenced to a period of imprisonment of 9 months, commencing on 28 August 2023 and concluding on 27 May 2024.
(23)The offender is convicted of the offence of theft (CC2014/10435) and sentenced to a period of imprisonment of 9 months, commencing on 28 August 2023 and concluding on 27 May 2024.
(24)The offender is convicted of the offence of burglary (CC2014/10436) and sentenced to a period of imprisonment of 9 months, commencing on 28 August 2023 and concluding on 27 May 2024.
(25)The offender is convicted of the offence of sexual intercourse without consent (CAN2023/2670) and sentenced to a period of imprisonment of 3 years, commencing on 28 August 2023 and concluding on 27 August 2026.
(26)The offender is convicted of the offence of sexual intercourse without consent (SCCAN2023/119) and sentenced to a period of imprisonment of 3 years, commencing on 28 August 2024 and concluding on 27 August 2027.
(27)The offender is sentenced to a total period of imprisonment of 4 years commencing on 28 August 2023 and concluding on 27 August 2027, with a non-parole period of 3 years, commencing on 28 August 2023 and concluding on 27 August 2026.
(28)The offender is referred to custodial mental health services for acute intervention.
| I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Berman Associate: Date: |
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