Director of Public Prosecutions v Williams
[2024] ACTSC 283
•13 September 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Williams |
Citation: | [2024] ACTSC 283 |
Hearing Date: | 31 July 2024 |
Date of last submission: | 29 August 2024 |
Decision Date: | 13 September 2024 |
Before: | Taylor J |
Decision: | (1) On the charge of sexual intercourse without consent the offender is convicted and sentenced to 2 years of imprisonment commencing on 13 September 2024 and expiring on 12 September 2026. (2) The sentence is to be suspended on 12 March 2025 after the offender has spent 6 months in custody, upon him entering an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) until 12 September 2026. (3) In addition to the core conditions the offender is to accept the supervision of the Director-General of ACT Corrective Services and comply with all reasonable directions for the period deemed necessary by the Director-General or their delegate. (4) The offender is to be assessed for, engage in and complete education programs in relation to sexual offending as directed by the Director-General or their delegate. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse without consent – single act of penile-vaginal penetration – limited remorse – guarded prospects of rehabilitation – some protective factors – minimal criminal history – period of full time imprisonment necessary to achieve sentencing purposes – partly suspended sentence imposed. |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT) ss 7, 33(1)(f), 53(1)(a), 77(1)(b) Crimes Act 1900 (ACT) s 54(1) |
Cases Cited: | Blundell v the Queen [2019] ACTCA 34 Director of Public Prosecutions v Jones (No 2) [2023] ACTSC 99 DPP v Jones (No 2) [2023] ACTSC 99 DPP v Moala(No 3) [2023] ACTSC 306 DPP v Rue [2023] ACTSC 270 DPP v Sarmiento [2023] ACTSC 92 DPP v Ware [2024] ACTSC 52 Laipato v The Queen [2020] ACTCA 35 R v Ali (No 4) [2020] ACTSC 350 R v Aroub [2017] ACTSC 187 R v Brown(No 2) [2020] ACTSC 255 R v Collins [2018] ACTSC 127 R v Palmer [2017] ACTSC 357 R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 R v UG [2020] ACTCA 8; 281 A Crim R 273 The Queen v Miller [2019] ACTCA 25 |
Parties: | Director of Public Prosecutions ( Crown) Teariki Williams ( Offender) |
Representation: | Counsel M Howe ( DPP) E Chen ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Offender) | |
File Number: | SCC 158 of 2023 |
TAYLOR J:
Introduction
1․The offender, Teariki Williams, has pleaded guilty to and is now to be sentenced for the following offence:
(a)Count 1 (CC2022/8558): sexual intercourse without consent contrary to s 54(1) of the Crimes Act 1900 (ACT) (the Crimes Act), carrying a maximum penalty of 12 years of imprisonment.
2․At the sentence hearing on 31 July 2024, the offender sought an additional six weeks so that he could provide evidence of a prescription for his use of medicinal cannabis. The prosecution did not oppose the granting of additional time for that purpose. On 29 August 2024 the offender provided evidence that he has now been prescribed medicinal cannabis.
Facts
3․The offender and the victim met online in April 2020. The offender moved in with the victim at her residence in Harrison in August 2020. On or around 3 November 2020, the offender and the victim broke up.
4․On 13 January 2021, the offender and the victim were attempting to “work things out” and the victim agreed that the offender could stay the night at her residence. At about midnight, the offender and the victim went to bed together. The victim was wearing a t-shirt, tracksuit pants and underwear. The offender was wearing a t-shirt and tracksuit pants.
5․In the early hours of 14 January 2021, the victim woke up as the offender pushed her onto her left side. The offender lifted the victim’s right leg and inserted his penis into her vagina. The victim asked, “what are you doing?”, and the offender responded, “just relax”. The offender continued to engage in penile-vaginal sexual intercourse with the victim for about 10 to 15 minutes until he ejaculated.
6․After the offender stopped, the victim told him not to do it again and the offender said, “I’m sorry”. The offender then went to sleep. The victim remained awake for several hours.
7․At about 2:26am, the victim sent two messages to a friend stating that the offender had sexual intercourse with her while she was asleep.
8․The offender woke between approximately 9:00am and 10:00am that morning. The victim sent a text message to her mother asking that she call and say she was coming over, because the victim needed to “get [the offender] out of the house”. The victim’s mother called the victim, who then told the offender her mother was coming over, and the offender left the residence between approximately 10:00am and 10:30am.
9․When the victim’s mother arrived approximately one hour later, the victim told her that the offender had sex with her while she was asleep.
10․At some stage, the victim’s friend called to check if the victim was okay. The friend suggested that the victim report what had occurred to the police.
11․On or around 15 January 2021, the offender and the victim exchanged messages on Facebook messenger. The victim asked the offender whether he thought it was okay that he had sex with her while she was asleep. The offender apologised and said that it was not. The offender promised that it would not happen again.
12․On 27 February 2021, the victim recorded two conversations between herself and the offender. In the second conversation the victim asked the offender whether he admitted to raping her in January, or if he did not see it that way. The offender replied, “as long as you see me as the bad guy”. The victim stated that she had not given consent as she was asleep, and asked the offender whether he felt any “guilt or shame”. The offender replied that he felt ashamed. The victim asked if this was because he felt he should not have done it, and the offender agreed.
13․On 21 July 2021, the victim submitted an online report to ACT Policing.
14․On 5 November 2021, the victim made a pre-text telephone call to the offender. The victim told the offender that due to seizures she had suffered in April 2021, she could not remember the period between December 2020 and April 2021.
15․During the conversation, the victim asked the offender about “the time in January where I was, I believe, asleep”. The offender said, “I don’t know if you were asleep because I was massaging you”. The offender also said words to the effect of “I felt horrible about what happened” and “I wasn’t in my right… mind”. The offender reminded the victim that he had previously apologised, as well as taking her out to lunch and booking them a night at a hotel to say sorry. The offender said he was haunted by what had happened, that he did not know why he did it, and he had “overstepped that boundary”. He said he still regretted what had happened and he was sorry about it.
Victim impact statement
16․The victim provided a victim impact statement. The offending has clearly had an enduring emotional and psychological impact on the victim. She described the offence as a “nightmare” that had “chipped away so much” of who she was. The victim explained that she now feels “scared all the time”.
17․The victim recorded that the offending has affected her experience of everyday life, including experiencing a constant sense of betrayal, and intrusive thoughts. She described the intense panic she experiences when reminded of the offending, and the effect it has had on her sleep. The victim revealed that it has severely influenced her hopes for the future, writing that she “find[s] it unfathomable that [she] would ever meet someone, get married and have children” because she feels so damaged by the offending. The victim expressed doubt that anyone would now treat her with the “respect, kindness and decency” that she deserved.
18․I am obliged to consider the effect upon the victim of the offending: ss 33(1)(f) and 53(1)(a) of the Crimes (Sentencing) Act2005 (ACT) (the Crimes (Sentencing) Act). No sentencing outcome can meaningfully restore the victim to the position she was in before the offending occurred. However, the Court is greatly assisted to understand the harm caused by the offending through the provision of the victim impact statement.
Sentencing considerations
Nature and circumstances of the offending
19․An assessment of the nature and circumstances of the offending requires consideration of the objective seriousness of the conduct establishing the offence. The maximum penalty for this offence reveals it to be a serious class of offence against the person. The nature and extent of the conduct engaged in will inform the level of seriousness of this example of the offence, within that serious class. Consistent with observations made in this jurisdiction about the utility of references to low, mid or high range offending (see R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 at [24] and Laipato v The Queen [2020] ACTCA 35 at [156]), McCallum CJ observed in DPP v Moala(No 3) [2023] ACTSC 306 (Moala) at [22] that it is not necessary to express a finding of objective seriousness “as a point on a hypothetical range”. I have assessed the objective seriousness of this offence consistent with that approach.
20․Justice Mossop, in R v Palmer [2017] ACTSC 357 at [22] (applying Jurj v The Queen [2016] VSCA 57 at [80]) set out the following factors as 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.
21․The offending conduct in this instance involved one act of penile-vaginal penetration and lasted for approximately 10 to 15 minutes. While such an act without consent is inherently violent, that there is a broad range of possible sexual offending must be borne in mind when assessing the conduct in this matter and determining the appropriate sentence to be imposed. The offending in this instance did not include any additional acts of overt violence, nor threats of violence and there were no additional acts of humiliation or degradation. While not a protracted incident, nor could the offending be regarded as brief or momentary.
22․There are some features which aggravate the offending. The offender did not use a condom. The victim was made acutely vulnerable by the state of sleep she was in and the lack of awareness of what was happening around her that necessarily accompanies that state, evidenced by her asking the offender “what are you doing?”. The offending occurred in the victim’s own bed, in her own home, a place she was entitled to feel safe and secure.
23․The offending represented a breach of trust, the victim having allowed the offender into her home on the basis that they were working through issues in their relationship. By his conduct the offender betrayed that trust. While the offending does not have the hallmarks of pre-meditated or well-planned conduct, it does have the appearance of being somewhat predatory; the offender exploiting the opportunity to take advantage of the victim’s state of unconsciousness.
24․The agreed facts make clear that the victim and the offender went to bed together. The victim then went to sleep. She awoke to the offender pushing her onto her left side. He then lifted her leg and inserted his penis into her vagina. In between the victim falling asleep, waking up and the offender penetrating her vagina with his penis, the victim did not say or do anything. She was pushed onto her left side by the offender to facilitate the offending. The remark from the victim, “what are you doing?” occurs after the act of penetration. There is nothing in the agreed facts that would found an inference that the offender was operating on the basis that the victim was awake.
25․I am satisfied beyond reasonable doubt that the offender knew the victim was asleep when the act commenced and accordingly, knew she was not in fact consenting. I am strengthened in that view by the content of the text message exchange and the conversation between the victim and the offender, summarised above. In those communications the victim made plain that part of the complaint she made as to the offender’s conduct is that she was asleep when the offender had sex with her. The offender accepted that proposition unequivocally and indeed indicated that he felt “sorry” and “ashamed”.
Subjective circumstances
26․The material before the Court includes an Intensive Corrections Order Assessment Report and a character reference tendered on behalf of the offender.
27․The report detailed the offender’s personal circumstances and background. He is 52 years old. He was born in the Cook Islands and grew up in New Zealand before moving to Australia at 18 years old. He was adopted and raised by his maternal aunt and great-grandmother. He had little contact with his biological mother and has never met his biological father. He described his upbringing in positive terms.
28․The offender’s adoptive mother passed away two years ago which was a significant loss for him. He currently resides with his aunt and uncle, with whom he shares a positive relationship. He was previously married and he has two adult children from this relationship as well as a third child from another relationship. He sees each of his children once or twice a month. He has been single since separating from the victim.
29․The offender previously worked as a warehouse supervisor, at a furniture company and in construction. He has been employed in his current role as a truck driver for over four years. The offender views himself as being financially comfortable. The offender described himself as being very sociable. The offender’s aunt advised the author of the report that he does not appear to socialise outside of work.
30․The offender disclosed experiencing problematic alcohol use 15 years ago, where he was drinking daily. He claimed his use of alcohol is no longer problematic and he has not drunk alcohol in about 18 months. The offender’s aunt advised that he occasionally drinks after work. The offender disclosed using amphetamines once in 2020 but claimed this was a “one-off” occurrence. He has regularly used cannabis at different stages in his life. The offender was required to undergo drug testing on two occasions during the preparation of the report which reflected ongoing use of cannabis. He advised that he was in the process of being assessed for a medicinal cannabis prescription as it assists him with sleep. He claimed he would be able to cease his cannabis use if required.
31․The offender advised that he spends most of his time sleeping and sometimes attends church with his family. The offender advised that his mental health is generally stable.
32․The author of the report noted that the offender appeared to lack insight into his offending behaviour. The offender told the author of the report that he believed the victim was consenting. The author formed the view that the offender did not appear to understand the impact of his behaviour on the victim. The offender commented that he was “sorry for what happened” but did not verbalise any victim empathy or awareness.
33․The report author considered that the offender had significant protective factors in the community, although he lacked insight into the criminality of his conduct. He was found to be unsuitable for an Intensive Correction Order due his ongoing use of cannabis. As I have identified above, a prescription for medicinal cannabis was subsequently tendered on behalf of the offender.
Character reference
34․A friend and employer of the offender, Ms Godfrey, provided a character reference in which she stated the offender is a person of strong moral character and demonstrates dedication to his family and the community through volunteering and other charitable pursuits. She wrote of his exemplary work ethic, his reliability and trustworthiness at work, and his compassion and empathy. Ms Godfrey was aware of the nature of the offending conduct, and wrote that she believed the offending was not reflective of the offender’s nature and character.
Responsibility, remorse and rehabilitation
35․The offender bears a high level of responsibility for the offending. He reported to the author of the report that he agreed with the statement of facts, and when asked about his understanding of consent, said “no means no”. However, the offender also indicated that at the time of the offence, he had believed that his relationship with the victim meant that she was consenting, and that he did not understand how this event was different, “when every other time was fine”. The author considered that the offender was focused on the effect of the offending on his own life, rather than verbalising any empathy for the victim when discussing the offending.
36․The offender’s view of the role of consent in his relationship with the victim is entirely consistent with his conduct. He was driven by an entrenched sense of entitlement to engage in sexual intercourse with the victim as he wished, because he considered them to be in a relationship. This mindset reflects a deeply concerning approach to consent; one that must be challenged in order to guard against similar offending and one that elevates the need for specific deterrence.
37․The presence of remorse is a central feature of an assessment as to the potential for rehabilitation. This is because an offender who is genuinely remorseful for their conduct is an offender potentially motivated not to engage in that conduct in the future and willing to examine the factors underlying their offending conduct.
38․In this matter, “there has been no real reckoning in his mind with his offending conduct”, which is relevant to an assessment of the need for specific deterrence and prospects of rehabilitation: Director of Public Prosecutions v Jones (No 2) [2023] ACTSC 99 (Jones (No 2)) at [63]. The offender was more focused on the effect of his conduct upon himself, telling the author of the report that he does not intend to start a romantic relationship with “anyone, anymore” after the offending.
39․Unsurprisingly, the offender’s lack of genuine remorse and insight was a “risk factor of concern” for the author of the report. The offender minimised his conduct and lacked awareness of the criminality of his conduct. The prosecution submitted that this lack of insight informs the weight that must be afforded to specific deterrence given the offender’s attitude towards consent in intimate relationships.
40․Counsel for the offender submitted that while the offender had previously held misconceptions regarding consent, these have now been clarified and he appreciated “acutely” how consent should operate in any future sexual encounters. Counsel for the offender further submitted that the offender’s awareness now, of the consequences of assuming consent in intimate relationships, is relevant to his likelihood of re-offending.
41․It may be that the offender has, since the offending, clarified his understanding of the unequivocal requirement for consent in any circumstance and gained some insight into the gravity of his offending. If that is so, it was not revealed in any of the material before me. The offender’s inability to conceive of the harm caused to the victim speaks to an ongoing absence of insight into the criminality of his conduct.
42․I acknowledge that the offender does not have any history for like offending. He presents with a supportive family and a capacity for long-term employment. These are protective factors relevant to his prospects of rehabilitation. The offending occurred some years ago now and there has been no re-offending of any kind since then.
43․I am satisfied that the offender is a low risk of general re-offending and in that respect does not present as a risk to the entire community. I remain somewhat guarded as to his overall prospects for rehabilitation with respect to this offence type. In my view, the sentence I impose must give some weight to specific deterrence in circumstances where there is an absence of genuine remorse and the mindset behind the offending remains, despite a significant period since the offending, within which the offender could have developed insight. He has not.
44․I accept that there is strength to the submission advanced on the offender’s behalf that the process of requiring the offender to confront the criminality of his conduct has had some deterrent effect upon him; though clearly not to the extent that it has generated meaningful reflection on the significant part his attitude toward consent has played in his appearance before this Court.
45․The offender’s prospects of rehabilitation with respect to this offence type would be improved by engagement with programs designed to expose to him the archaic and dangerous nature of his views about consent.
Criminal history
46․The offender has a criminal history that consists only of minor offences.
Time in custody
47․The offender has not spent any time in custody in relation to this offending.
Guilty pleas
48․The offender entered the plea of guilty after negotiations at Criminal Case Conferencing. There was real utilitarian value in the timing of the plea. Both the prosecution and the offender submitted the principles in Blundell v the Queen [2019] ACTCA 34 at [12] are applicable and that a discount of around 15 to 20 per cent should be applied. I agree and will reduce the penalty I impose by 20 per cent.
Sentencing practice
49․Acknowledging the well-known limitations of comparable sentencing outcomes, I have had regard to sentences identified by the prosecutor as comparable: DPP v Ware [2024] ACTSC 52 (Ware), Jones (No 2), R v Aroub [2017] ACTSC 187 (Aroub) and R v Ali (No 4) [2020] ACTSC 350 (Ali (No 4)). I have had regard to the circumstances of both the offending and the offenders in those matters, as well as the sentences imposed.
Ware
50․The offender was sentenced in relation to two counts of sexual intercourse without consent against the same victim. The conduct in each instance was penile-vaginal sexual intercourse. The victim was asleep for the conduct that made up the second occasion of sexual intercourse without consent. The offender knew the victim was not consenting. The offender had a criminal history consistent with that of a long-term drug user, though no history of sexual offending. The offender was diagnosed with a persistent depressive disorder. The offender was sentenced to 3 years of full-time imprisonment on each count of sexual intercourse without consent.
Jones (No 2)
51․The offender was found guilty by a jury of one count of sexual intercourse without consent and an act of indecency without consent. The offender was the victim’s direct supervisor at work. The offender, uninvited, joined the victim in bed and began touching her whilst she pretended to be asleep. The offender inserted one or two fingers into the victim’s vagina. The offending lasted for hours. The offender was sentenced on the basis that he knew the victim was not consenting. The offender was 25 years old, had no criminal history and was assessed as lacking remorse. The offender was sentenced to 2 years and 6 months of full-time imprisonment for the sexual intercourse without consent and 1 year of imprisonment for the act of indecency, with a non-parole period of 15 months.
Aroub
52․A jury found the offender guilty of an act of indecency and an act of sexual intercourse without consent. The offender and the victim came home from a night out together and were previously unknown to each other. The offender digitally penetrated the victim while she was asleep and did not immediately stop when she awoke and made it known the conduct was unwelcome. The victim was made vulnerable by her state of unconsciousness. The offending was characterised as brief and impulsive, and the offender as taking advantage of being a guest in her house. The offender was 25 years old. He was on conditional liberty at the time of the offending and showed no remorse. He had a significantly disadvantaged background and no relevant prior entries in his criminal history. It was considered rehabilitation should be given weight in the sentencing exercise. He was sentenced to 2 months of imprisonment for the act of indecency and for the act of sexual intercourse without consent, 2 years of imprisonment, to be suspended after serving 6 months of imprisonment upon the offender entering a good behaviour order for 18 months.
Ali (No 4)
53․The offender was found guilty by a jury at trial and sentenced for two counts of an act of indecency without consent and one count of sexual intercourse without consent. The offender and victim were work colleagues and stayed at the victim’s house after a night out. She awoke to him kissing her, he then placed a hand on her breast and inserted his fingers into her vagina. She said no and pushed him away on each occasion. The digital penetration was relatively brief. He was previously of relatively good character and had an unremarkable but positive upbringing. There was no positive finding as to remorse, though the offender was assessed as having a low risk of re-offending. He was sentenced to 2 years of full-time imprisonment for the sexual intercourse without consent.
54․The offender sought to rely on the outcome in DPP v Earle [2023] ACTSC 93 (Earle), where an Intensive Correction Order was imposed, to submit that either an Intensive Correction Order or a fully suspended sentence of imprisonment would not be an inappropriate outcome in this matter.
55․In The Queen v Miller [2019] ACTCA 25 (Miller) at [28] the Court of Appeal observed that for the offence of sexual intercourse without consent, over 90 per cent of offenders in the period 1 July 2012 to 31 December 2018 received a period of full-time imprisonment. In Miller a sentence of 2 years of imprisonment, fully suspended, for one count of sexual intercourse without consent, comprising of digital penetration, was ultimately held to be manifestly inadequate, though the Court (Burns and Loukas-Karlsson JJ, with Bromwich J in dissent) determined not to intervene.
56․Since that time, the prosecutor rightly identified that there have been only a small number of sentencing outcomes for the offence of sexual intercourse without consent in this jurisdiction that have not required an offender to serve at least a portion of the sentence of imprisonment full-time. Those outcomes include Earle, R v Brown(No 2) [2020] ACTSC 255 (Brown (No 2)) and DPP v Sarmiento [2023] ACTSC 92 (Sarmiento).
Earle
57․The offender was found guilty at trial by a jury of one count of committing an act of indecency without consent and one act of sexual intercourse without consent. The offender and the victim had previously been in a relationship. The victim had invited the offender to her house to “stay over” and the offender engaged in penile-vaginal intercourse with the victim. The act lasted a couple of minutes until the victim said “wait, wait, wait”, at which point the offender immediately stopped. The offender was relatively young with no criminal history. He was assessed as being unlikely to re-offend and was genuinely remorseful. He was diagnosed with Major Depressive Disorder and his risk of committing suicide in custody was assessed as high. For the act of sexual intercourse, the offender was sentenced to two years and six months of imprisonment to be served by way of an Intensive Correction Order with the imposition of 300 hours of community service and 20 hours of counselling. Chief Justice McCallum reconciled the jury’s verdicts, the offender having been found not guilty of other sexual offences committed within the same incident, by finding that the offender had an honest though mistaken belief as to consent for the counts of which he was acquitted, but that he did not turn his mind to consent in relation to the sexual intercourse.
58․The specific circumstances of Brown(No 2) reveal it to be an unhelpful comparison.
59․Sarmiento involved an offence of attempted sexual intercourse without consent. The attempt was a “serious” one: at [11]. The offender was sentenced to two years of imprisonment to be served by way of an Intensive Correction Order. The offender had a low risk of re-offending, no criminal history and was assessed as having an elevated risk of suicide in custody as a result of severe depression. These factors were the basis of a determination that full-time imprisonment was not warranted.
60․In my view, there were significant considerations in Earle and Sarmiento not present in this case. In Earle the offender was a young man who “honestly but mistakenly believed that the victim was consenting to his first two acts of sexual intercourse but […] did not turn his mind to that important question before moving to a different sexual act” (at [29]) and he had severe depression. Similarly in Sarmiento the offender was relatively young, had been diagnosed with severe depression and the conduct though serious, was an incomplete example of the offence.
Determination
61․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. As I have already recorded, sexual offences are inherently violent and are properly regarded as objectively serious by the courts.
62․In Miller 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.
63․Consistent with those observations, it can be readily accepted that sexual offending will often result in the imposition of periods of full-time imprisonment, such is the gravity of the offending. As I observed in DPP v Rue [2023] ACTSC 270 at [119], when considering the observations in Miller, “the instinctive synthesis that attends to every sentencing exercise must still give effect to individualised justice”.
64․Of particular significance in this sentencing exercise is the need to give proper effect to general and specific deterrence, punishment, denunciation, and recognition of harm. There is weight to be afforded to rehabilitation but not to the extent that the other purposes are overwhelmed.
65․There was no dispute that the offending warranted the imposition of a period of imprisonment. It is the only appropriate outcome: s 10 of the Crimes (Sentencing) Act.
66․The prosecution submitted that the sentence imposed must include some period of full-time imprisonment; any other outcome would be unduly lenient.
67․It was submitted on the offender’s behalf that the purposes of sentencing could be achieved by the imposition of a fully suspended sentence of imprisonment or an Intensive Correction Order. Counsel for the offender sought to draw comparison with the maximum penalty for the offence of burglary in support of the submission, referencing R v Collins [2018] ACTSC 127 where Murrell CJ observed that the offence of burglary, with a maximum penalty of 14 years of imprisonment, is an offence where “first time offenders frequently receive a good behaviour order”. As to the frequency of that outcome, so much may be accepted.
68․I do not read her Honour’s observation as inviting such comparisons in the application of sentencing principle. In any event, numerical equivalence between maximum penalties says little about the nature and circumstances of the conduct making up an offence, upon which an assessment of objective seriousness is founded. A burglary offence is a property offence the gravamen of which is an incursion into property without authority and with a particular intent. Sexual intercourse without consent is an offence directly against the person involving a most intimate violation of bodily autonomy. I do not consider the comparison as between maximum penalties or a consideration of a “frequent” outcome for the offence of burglary, to be at all useful.
69․The offender was found unsuitable for an Intensive Correction Order because of his ongoing dependence on cannabis. The author of the assessment report did indicate that a prescription for medicinal cannabis would positively influence his suitability and the offender has now provided evidence that he is in receipt of such a prescription.
70․Ultimately though, I am of the view that the imposition of an Intensive Correction Order is not an appropriate outcome in all the circumstances: s 77(1)(b) of the Crimes (Sentencing) Act. This is not as a result of any concern about the offender’s use of cannabis. Rather, such an outcome would be inappropriate because it would not achieve the purposes of sentencing. It is also my view that a fully suspended sentence is similarly inappropriate for the same reason.
71․It can be accepted that not every offence of this kind must necessarily result in a period of full-time imprisonment. There are, as has been identified, examples where a conclusion was reached that the circumstances particular to the offence and the offender did not warrant service of a period of full-time imprisonment. In my view this is not a case where such a conclusion can be drawn. An outcome that does not require the offender to serve any period in full-time imprisonment would fail to properly acknowledge the seriousness of the offending and fail to give effect to the other sentencing purposes of significance, including punishment, general deterrence and recognition of harm.
72․That said, I am satisfied that this is a matter where a partly suspended sentence does meet the demands of the sentencing purposes, including the offender’s prospects for rehabilitation. I am satisfied that a short period of full-time imprisonment adequately addresses the need for punishment and denunciation. A partly suspended sentence need not reflect the relationship required between a parole and non-parole period, and a period of supervision would allow for the enforcement of a condition requiring the offender to engage in educative programs to address his attitude to the offending: R v UG [2020] ACTCA 8; 281 A Crim R 273 at [82]. I consider this engagement is the kind of education to be in the offender’s and the community’s interests.
73․The starting point for the charge of sexual intercourse without consent is 2 years and 6 months of imprisonment reduced to 2 years of imprisonment for the plea of guilty.
Orders
74․For those reasons I make the following orders:
(1)On the charge of sexual intercourse without consent the offender is convicted and sentenced to 2 years of imprisonment commencing on 13 September 2024 and expiring on 12 September 2026.
(2)The sentence is to be suspended on 12 March 2025 after the offender has spent 6 months in custody, upon him entering an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) until 12 September 2026.
(3)In addition to the core conditions the offender is to accept the supervision of the Director-General of ACT Corrective Services and comply with all reasonable directions for the period deemed necessary by the Director-General or their delegate.
(4)The offender is to be assessed for, engage in and complete educational programs in relation to sexual offending as directed by the Director-General or their delegate.
| I certify that the preceding seventy-four [74] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Taylor. Associate: A Turner Date: 13 September 2024 |
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