DPP v Dunn
[2022] ACTSC 355
•16 December 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Dunn |
Citation: | [2022] ACTSC 355 |
Hearing Date: | 16 December 2022 |
DecisionDate: | 16 December 2022 |
Before: | Mossop J |
Decision: | See [67] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – choking, suffocating or strangling – sexual intercourse without consent – contravening a family violence order – common assault – offences in low to mid-range of objective seriousness – where sexual intercourse without consent occurred where victim hoping offender would commit offence to provide a reason to separate – pleas of guilty – history of family violence offending – where offences constituted breaches of intensive correction order and good behaviour order – good behaviour order cancelled – sentences of imprisonment imposed |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT), ss 65, 108 Crimes (Sentencing) Act 2005 (ACT), ss 10, 34B Family Violence Act 2016 (ACT), s 43(2) |
Cases Cited: | DPP v McIntosh (No 3) [2022] ACTSC 348 R v XXL [2022] ACTSC 24 |
Parties: | ACT Director of Public Prosecutions Luke Bradley Peter Dunn ( Offender) |
Representation: | Counsel R Christensen SC ( DPP) S Robinson ( Offender) |
| Solicitors ACT Director of Public Prosecutions Fortify Legal ( Offender) | |
File Numbers: | SCC 88 of 2022 SCC 89 of 2022 |
MOSSOP J:
Introduction
Luke Dunn has pleaded guilty to the following charges:
(a)One count of common assault (CC2022/1255) contrary to s 26 of the Crimes Act 1900 (ACT). The maximum penalty is two years’ imprisonment.
(b)One count of choking, strangling or suffocating (CC2022/851) contrary to s 28(2)(a) of the Crimes Act. The maximum penalty is five years’ imprisonment.
(c)One count of sexual intercourse without consent (CC2022/1254), contrary to s 54 of the Crimes Act. The maximum penalty is 12 years’ imprisonment.
(d)One count of contravening a family violence order (SCCAN2022/50), contrary to s 43(2) of the Family Violence Act 2016 (ACT). The maximum penalty is 500 penalty units, five years’ imprisonment or both.
Facts
The facts are agreed and are in summary as follows.
Background
The offender met the victim, who I will refer to as UM, in 2020 and commenced a relationship with her.
On 7 January 2021 a Deputy Registrar of the Magistrates Court granted an interim family violence order against the offender, on the application of UM. The grounds for the making of that order are not disclosed in the Statement of Facts. On 8 January 2021, the order was served and explained to the offender by police. The order was granted for two years ending on 25 January 2023. Some of the conditions of the order prohibited the offender from being at UM’s house, being within 100 metres of her except at court or mediation, locating or contacting UM except through legal practitioners or at court or mediation or counselling, engaging in family violence towards UM, or causing anyone else to contact UM except as permitted by the order. The agreed facts do not explain this, but it appears that the prohibitions in the family violence order were consensually not complied with and that the relationship between the offender and UM continued.
Common assault 1 September 2021
On 1 September 2022 the offender was at UM’s residence while she was at work in the evening. When she returned home, he was cooking dinner. The pair had an argument and she went to have a bath. The offender took her phone and turned off the bathroom light. The offender returned to the bathroom to continue the argument, and UM screamed at him to give her her phone back. She splashed bath water at him. He hit a deodorant can that was on the vanity and it hit the victim in the head, which hurt a lot. UM told the offender to “get the fuck out of the bathroom” and tried to shut the door, but the offender was forcefully trying to open it. He opened the door and put his hands around UM’s throat, but did not squeeze, before pushing her back against the vanity. The pair went back and forth for some time. He eventually put her back in the bath.
This is the count of common assault (CC2022/1255).
UM went into her bedroom to get dressed and found her old phone in the cupboard. The offender came in and took the phone and said “Don’t be an idiot. Don’t fucking call anyone”. He then advised that dinner was ready and made light of what occurred. The argument calmed down and the pair had dinner and later had sex. UM intended to bring up what had occurred via text the following day.
Choke, suffocate or strangle – 1 December 2021
The offender attended UM’s residence between 9:30pm and 10:00pm on Wednesday 1 December 2021. The pair had a verbal argument and UM contacted the offender’s mother who had previously told UM to call her if anything happened with the offender. She said to the offender’s mother: “You need to get Luke out of my house” and the offender told his mother that he was coming home. However, he wanted UM to let him stay and would not leave, so the fight continued. UM threw the offender’s car keys on the lawn. While he went to get them, UM ran back inside. The offender said he was leaving, and UM opened the door to let her dog inside, and at which point the offender ran to the door and forced his way in. He took one of the sliding doors off the hinges in the process but put it back on straight away.
The offender locked the door once inside and UM was screaming for help. He picked her up over his shoulder and UM was screaming and yelling. He put his hand over her mouth. The victim kicked and punched him. He took her to the bedroom and shoved her onto the bed, telling her to shut up and be quiet so that the police would not be called. The offender was standing over her and pushing her down. UM was face up on the bed and the offender pushed her head into the bed while his hand was over her mouth. She had difficulty breathing.
UM’s lip was injured as a result of the incident. When she spoke to the offender about it the next day, because she did not want to be with him anymore, he said that she bit her lip and that he did not hurt her. He admitted that he put his hand over her mouth but was saying things like “I left your nose so you could breathe. Sorry if it felt like you couldn’t, but I didn’t suffocate you”.
This is the count of choking, strangling or suffocating (CC2022/851).
Sexual intercourse without consent – 13 January 2022
The offender had planned to stay with UM on the night of 13 January 2022. From about 10am that day, UM had been drinking with a friend at her house. They shared a bottle of vodka and sparkling wine along with lines of cocaine, on account of a birthday celebration.
The offender came over at about 4:30-5:00pm by which time UM was very drunk. He brought a bottle of wine which was a gift from his mother. UM’s friend went home at about 6:30pm. By this time, UM’s intoxication level was, as stated in the Statement of Facts “about eight on a scale of zero – ten, zero being totally sober and ten being unconscious drunk”. The offender and UM continued to spend time together. UM was tired and had a headache. The offender said: “We’ll go get dinner and cuddle and have sex” and UM responded “Maybe. I have a headache”.
At some point the offender drove the pair to a supermarket to get dog food and food for dinner. They returned to her house and had dinner in bed. At some point UM fell asleep. She does not recall the period between eating dinner and falling asleep. She was wearing only a pair of underwear.
Sometime during the evening, UM awoke to find the offender “rubbing her vagina everywhere in an up and down motion, both on top and through her underwear, using his fingers”. She was lying on her side and facing the wall. Initially she “pushed back” on the offender’s fingers giving him the impression she was consenting, because she felt that if she told the offender she did not want to engage in sexual activity, it would start a fight. She pretended to be asleep because she wanted to see if the offender would stop if he thought she was asleep. She thought that if she let him continue, she would be able to leave the relationship because it was such serious conduct and that he would not be able to manipulate her.
At some point, the offender rolled UM onto her back and pulled down her underwear. He started to have sexual intercourse with her by inserting his penis into her vagina and moving back and forth. He said: “Open your eyes babe, this is weird”. UM continued to pretend to be asleep by keeping her eyes closed and pretending to snore or breathe heavily.
The offender then rolled her onto her stomach, forcefully pushed her legs up and re‑initiated sexual intercourse. He rolled her onto her back again and was engaging in sexual intercourse “quite hard”. He ejaculated into her vagina. He laid on top of her for a while before putting her underwear back onto her. One of her legs was off the side of the bed, which he lifted back on. He went to the bathroom and on return put toilet paper in her underwear.
UM continued to pretend to be asleep and at some point acted as though she was waking up. When she got up in the morning, the offender had gone to work and she still had toilet paper in her underwear. She called the offender upon his request and she asked: “Why did I have tissue down my undies?”. The offender said it was “because she was so wet”. UM asked if they had had sex and he replied: “We started to and you were on top but I stopped because it felt like rape”. The pair then had a message exchange which is set out in the Statement of Facts in which UM indicated that she was breaking up with him because of what had occurred and in which he asserted:
You were pushing back onto my dick. You told me yesterday afternoon that you were going to cuddle and have sex after. If you didn’t want to fuck, why didn’t you just tell me?
Subsequently in a message to another person, he made a similar point.
Contravene family violence order – 13-20 January 2022
At some point UM took the offender’s clothes to his mother’s house. The offender called her from an unknown number several times. She blocked his number and social media accounts.
On 14 January 2022 the offender contacted the friend of UM who had been at UM’s house the day before via Facebook Messenger.
The offender sent further messages to UM’s friend over the following days asking her to communicate with UM on his behalf, offering money for the pets’ vaccinations and offering to buy them both wine.
The offender’s mother called UM on 14 January 2022 after UM dropped clothes at her house. UM returned her call and told her what had happened. The offender returned home and told his mother that the intercourse was consensual.
At some point on 16 January 2022 the offender messaged UM from an Instagram account after she had blocked his usual Instagram account. In that message he again raised the fact that she had pushed back on his fingers during the intercourse incident. He indicated a desire to continue their relationship.
UM replied “leave me the fuck alone”. The two continued to exchange messages and disagreed about what had happened.
The offender messaged UM again on 19 January 2022 from the same Instagram profile, and also sent an audio message. The offender attended her residence that evening with some chicken from Kentucky Fried Chicken. She saw him on her surveillance cameras, activated sirens and he left. She then told him to return to get the food away from her dog who was in the yard. He came to dispose of the food and then entered the laundry. UM was not at home. He attended the premises several times that evening. UM’s sister attended the premises and had a conversation with the offender when he returned at about 9:08pm. She told him he needed to leave and he said that he just wanted to talk to UM. He spoke with UM briefly and asked if they could have a chat. He made excuses for his behaviour on 13 January 2022 and left.
On 20 January 2022 at 1:45am, he was arrested for breaching the family violence order.
The incidents from 13-20 January 2022 involving contact with or attendance at the property of UM are a rolled-up charge of breaching the family violence order (SCCAN2022/50).
The offender has been in custody since his arrest on 20 January 2022 up until today.
Objective seriousness
The common assault when the victim was placed in the bath involves some use of force including putting the offender’s hand on her neck. It occurred in the context of an intimate relationship and involves the use of physical force to control the victim. As a result, its significance extends beyond its physical nature and is an element of domination and control through superior physical power. It is in the mid-range of objective seriousness for a common assault.
Count two, choke or strangle suffocate is, for the reasons that follow, in the low to mid‑range of objective seriousness. I accept the submissions made on behalf of the offender that the factors informing the seriousness of such an offence include:
(a)the duration;
(b)the extent of difficulty breathing;
(c)any injury caused to the victim;
(d)the surrounding circumstances; and
(e)the reason for the offending.
In the present case, the duration of the suffocation was unclear but does not appear to have been very long. The offender was pushing her down and attempting to prevent her screaming for help. The victim had some difficulty breathing but does not appear to have approached passing out. The victim had only a minor injury to her lip. The offender committed the offence in order to stop the victim from contacting police.
In relation to count three, sexual intercourse without consent, I accept the submissions of the offender that the following matters are relevant to the assessment of the objective seriousness of the offence:
(a)there was no premeditation;
(b)the offender acted alone;
(c)although the duration is somewhat unclear, the offending only occurred partway through the sexual act;
(d)there was no violence during the course of the offence;
(e)there was no weapon used;
(f)the victim was not injured during the incident;
(g)the victim was not humiliated or degraded;
(h)the offender did not use a condom and ejaculated but that occurred in the context of an existing intimate relationship and there was no evidence that what occurred was different to what occurred during consensual intercourse;
(i)the victim was not particularly vulnerable as she was not in fact asleep during the incident; and
(j)the victim did not resist or indicate that consent was withdrawn during incident.
The offending occurred while the offender was on conditional liberty.
The offender did not have actual awareness that the victim was not consenting. It was a case of advertent recklessness.
The offending occurred in the context of an ongoing relationship which included sexual intercourse. Although it is clear from the Statement of Facts that UM was unhappy with the relationship, the Statement of Facts is consistent with sexual intercourse remaining part of that relationship. The offending occurred after the victim had deliberately behaved in a manner which was consistent with her consenting to sexual intercourse and then deliberately pretending to be asleep and not vocalising her lack of consent, in the hope that the offender would commit an offence which would provide a basis on which she could separate from him.
Counsel for the DPP submitted that it was the offender’s state of mind that is significant in relation to the offending. That is accurate, but the moral culpability of the offender must be considered in the context of what had occurred previously and the reasons why there was no indication of a lack of consent on the part of the victim other than by her continuing to pretend to be asleep.
Those unusual circumstances would place the offending in the low range of objective seriousness for this offence. Because of the unusual circumstances, the cases referred to which were said to be comparable were not in fact comparable.
Subjective circumstances
The offender is 28 years old. He was born in Canberra and experienced a difficult childhood. It was marred by his father’s alcoholism and tendency to become abusive towards him and his family members. His parents separated when he was 12 years old. He moved out of the family home at the age of 16. In his twenties he reconnected with his father. His relationship with his mother has involved significant discordant periods and periods of estrangement.
He completed school to Year 10 before commencing full-time work in the concreting business. He has had consistent employment and would be able to gain such work upon his release from the AMC. The evidence does not disclose any history of drug or alcohol abuse or any relevant mental health conditions.
He acknowledged that he caused harm to the victim and demonstrated, to the author of the pre-sentence, some victim empathy. If given a community-based sentence, he indicated that he would engage in interventions to address family violence and sexual offending. His history of doing so is patchy, having previously been suspended from a program that he was undertaking in 2021. He was identified as demonstrating absenteeism and a lack of engagement with the group sessions involved in that program. While in custody he has completed what is referred to as “peer mentor training” and performed that role in the part of the prison where is detained. He currently works in the maintenance area and is recorded as having made a positive effort and working well with others. He has also completed other self-improvement programs while at the AMC.
He has accommodation available to him when released from custody. He is identified as having a “well above average risk” of sexual reoffending assessed in accordance with the STATIC-99R assessment. He has a low risk of general reoffending.
He is assessed as suitable for a community service work condition and suitable for an intensive correction order.
A letter from his uncle indicates that there is an opportunity for him to relocate to Queensland and work on a farm there. I accept that the offender wishes to move to Queensland and have a fresh start there. The offender also tendered a letter that he had written to the court. This letter reflects insight into the offending and emphasises the progress that he has made while in custody. It refers also to his dysfunctional background. I treat the statements of insight and remorse in the letter with considerable caution. Letters such as this may be genuine but may also reflect an attempt by an offender to say what the court would like to hear. In the absence of the offender having given evidence, it is not possible to gain any real assurance that the statements reflect a real change in attitude that would be reflected in the future in dealings by the offender with an intimate partner.
Despite this caution, I take into account the conduct of the offender while in prison, the courses he had completed and the leadership role that he has taken in there.
Criminal history
The offender has an unfortunately significant criminal history. In 2017, 2018 and 2019 he committed minor driving offences for which he received fines. In 2019 he committed the offence of common assault and trespass. These involved a previous partner who, as at April 2019, he was no longer in a relationship with. He went to her house. Despite being asked to leave on multiple occasions, he remained inside the premises and followed her around while she was trying to get ready for work. He committed a minor assault on her and he was fined.
In February 2019 he committed the offence of assault occasioning actual bodily harm. This related to the child of the ex-partner. It involved striking the child in a way that caused bruising and scratching. He was given a two-month sentence of imprisonment.
Between June 2019 and October 2019 he committed two offences involving contravening a family violence order, contravening a protection order, common assault and destroying or damaging property. He was given a 18‑month good behaviour order and two suspended sentences. The common assault involved the same ex-partner who had family violence orders protecting her and her son. The offender threatened to ruin her life and make sure her children were taken away. He attended a residence and had a violent argument with her.
In November 2020 he committed the offence of contravening a family violence order and threatening to distribute intimate images. He was given an aggregate sentence of six months’ imprisonment which was to be served by intensive correction order. The sentence was from December 2021 until June 2022. This offending involved the victim of the current offending. There was an interim family violence order in place. The victim said that the offender was not permitted to attend her premises when her son was present. Nevertheless, he did so, driving his car in a way that blocked the driveway so as to prevent the victim from leaving the premises. He threatened to release videos of the pair of them having sex.
The history of offending is significant because it involves a pattern of offending directed towards intimate partners involving violence, trespass and breach of family violence orders.
Plea of guilty
The offender entered a plea of guilty at the criminal case conference stage. A criminal trial had been listed. In the circumstances, a discount of approximately 15 percent as a result of the plea of guilty is appropriate.
Time in custody
The offender has been in custody since his arrest on 20 January 2022. That means that prior to today, he has been in custody for 330 days or 10 months and 26 days.
Consideration
Sentencing the offender must occur within the framework established by the legislature under s 34B of the Crimes (Sentencing) Act 2005 (ACT) Act. Generally speaking, the provision emphasises the significance of matters which courts would have taken into account in any event and took into account prior to its enactment. The reference in s 34B to the preamble to the Family Violence Act obviously emphasises the significance with which the legislature treats family violence. Nothing in the section or the preamble requires the court to sentence in a way that ignores the facts of a particular case.
The general picture presented by the evidence is of a young man who has difficulties in behaving lawfully within intimate relationships and has demonstrated a consistent failure to comply with family violence orders. The offending in the present case is not at the high end of objective seriousness but reflects a disturbing pattern of conduct in relation to intimate partners and former intimate partners.
The Statement of Facts focuses on particular incidents that occurred during what appears to have been a relationship that had, at the very least, a significant degree of dysfunction within it. However, the extent and nature of that dysfunction is not fully traversed in the Statement of Facts, It is only through the facts that are agreed that some impression of the broader picture may be obtained.
Clearly the denunciation, deterrence and recognition of the harm done to the victim must play significant roles in sentencing the offender. Specific deterrence of the offender, if effective, will have the effect of protecting the community. Notwithstanding his significant criminal history for related offences, he remains relatively young and his rehabilitation must be in the long-term interests of the community. Having said that, the prospects for rehabilitation must be guarded, having regard to his history and lack of engagement with previous opportunities to undertake programs directed to reducing his prospects of further offending.
I accept that his dysfunctional behaviour in relation to intimate partners may have been contributed to in a general way by his dysfunctional upbringing. That may moderate. to a minor extent, the significance of general deterrence as a sentencing consideration, but any such moderation is subject to the countervailing necessity for specific deterrence.
I accept that the plea of guilty to the count of sexual intercourse without consent reflects a degree of remorse, acceptance of responsibility and a willingness to facilitate the course of justice. It is a case where the offender has clearly chosen not to contest the matter even though the circumstances were such that he had an arguable defence to the charge. As I have indicated. the unusual circumstances of the offending put it at the low end of the range of objective seriousness for this very serious offence.
The offending is of such a nature that, in the context of his criminal history, the threshold in s 10 of the Crimes (Sentencing) Act 2005 (ACT) is passed in relation to each of the counts.
The commission of counts 3 and count 5 (sexual intercourse without consent and breach of family violence order) puts him in breach of an intensive correction order imposed on 6 December 2021 by the Magistrates Court.
Section 65 of the Crimes (Sentence Administration) Act 2005 (ACT) (CSA Act) provides for the cancellation of the intensive correction order imposed on 6 December 2021 in relation to charges CC2020/13937 and CC2020/13940. That would involve the cancellation of an intensive correction order that has already expired by the effluxion of time. The operation of s 65 of the CSA Act in those circumstances was addressed by me in R v XXL [2022] ACTSC 24 at [35]-[37], in which I concluded that it should be interpreted on the basis that the reference to “remainder” in s 65(2) referred to the remainder outstanding at the time of cancellation. The offender submitted that I should adopt the approach in XXL. The prosecution made no submission to the contrary. I will therefore adopt the same approach as in XXL. That involves a conclusion that having regard to the fact that there is no remainder of the offender’s sentence to be served as at today’s date, it is not in the interests of justice within the meaning of s 65(2)(a) to cancel the intensive correction order. Having regard to that conclusion, nothing more needs to be done about that issue. However, it is worth noting that the uncertainties surrounding the operation of s 65 are similar to other issues with the legislation that I pointed out in DPP v Macintosh (No 3) [2022] ACTSC 348 as warranting consideration by the legislature at some stage.
The common assault and count two (choke, strangle or suffocate) also put the offender in breach of a good behaviour order. That was imposed on 22 June 2021 as part of a resentence due to a breach of such an order imposed on 7 February 2020. That was imposed in relation to the offence of contravening a family violence order committed in October 2019. The good behaviour order initially imposed was from February 2020 until August 2021 but in June 2021 was extended until 6 December 2021. Therefore, it was breached by the commission of the offences on 1 September 2021 (common assault) and 1 December 2021 (choke, strangle or suffocate). I was not provided with the factual circumstances relating to that contravention of family violence order other than to say that it involved contact with a previous partner when that contact should not have occurred. Given the further breach of the good behaviour order and the limited information that I have about the circumstances in which that occurred, but recognising the importance of there being some consequences for the breach of a good behaviour order, I will cancel the good behaviour order and fine the offender $500 with one month to pay.
For the other offences, the sentences that I will impose are as follows:
(a)on the count of common assault, the starting point is four months’ imprisonment reduced to three months and 15 days on account of the plea of guilty;
(b)for the choke, strangle or suffocate offence, 10 months reduced to eight months and fifteen days on account of the plea of guilty;
(c)for sexual intercourse without consent, the starting point is seven months reduced to six months on account of the plea of guilty; and
(d)on the count of contravening a family violence order, the starting point is 14 months reduced to 12 months on account of the plea of guilty.
The sentences will be imposed so as to achieve an aggregate sentence of 24 months’ imprisonment.
I accept the submissions put on behalf of the prosecution that it is more appropriate to deal with the matter by way of a non-parole period than by a suspended sentence. That is notwithstanding that the process of an application for parole may take some time. I accept the prosecution submission, because in my view the processes and supervision available on parole will provide a greater capacity for the close supervision of the offender and hence it is more likely to be effective in managing his return to the community.
The aggregate sentence will be 24 months’ imprisonment and the non-parole period will be 14 months. The non-parole period is approximately 60 percent of the head sentence.
Orders
The orders of the Court are as follows:
1. On the charge of contravening a family violence order (SCCAN2022/50), the offender is convicted and sentenced to imprisonment for 12 months from 20 January 2022 until 19 January 2023.
2. On the charge of sexual intercourse without consent (CC2022/1254), the offender is convicted and sentenced to imprisonment for six months from 20 November 2022 until 19 May 2023.
3. On the charge of choke, strangle or suffocate (CC2022/851), the offender is convicted and sentenced to imprisonment for eight months and 15 days commencing on 5 March 2023 and ending on 19 November 2023.
4. On the charge of common assault (CC2022/1255) the offender is sentenced to imprisonment for three months and 15 days commencing on 5 October 2023 and ending on 19 January 2024.
5. The non-parole period commences on 20 January 2022 and ends on 19 March 2023.
6. In relation to breach of the good behaviour order on count CC2019/12108, under s 108 of Crimes (Sentence Administration) Act 2005 (ACT), the Court cancels the order and fines the offender $500 with 1 month to pay.
7. Charges 2022/1526 and 2022/1409 are dismissed.
8. Note that the Prosecution will file notices declining to proceed with the remaining charges on the indictment.
| I certify that the preceding sixty-seven [67] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 3 February 2023 |
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Amendments
| 6 February 2023 | Replace the first appearing name in paragraph [7] with ‘UM’. | Paragraph [7] |
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