DPP v Rue
[2023] ACTSC 270
•22 September 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Rue |
Citation: | [2023] ACTSC 270 |
Hearing Date (s): | 1 September 2023 |
Decision Date: | 22 September 2023 |
Before: | Taylor J |
Decision: | See [131]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual offending – one count of committing an act of indecency – one count of sexual intercourse without consent – rolled up counts – pleas of guilty – overwhelmingly strong prosecution case for Count 1 – breach of trust – vulnerable victim – consideration of impact of drug use on moral culpability – consideration of offender’s state of mind – very good prospects of rehabilitation providing drug use addressed – consideration of impact on third-parties – limited criminal history – sentence of imprisonment |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), ss 6, 7, 10, 33, 35(4), 53(1)(a), 65 Crimes Act 1900 (ACT), ss 53(1), 54, 60, 67A(2)(b) |
Cases Cited: | Blundell v The Queen [2019] ACTCA 34 Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 Director of Public Prosecutions v Earle [2023] ACTSC 93 Director of Public Prosecutions v Myers (a pseudonym) [2023] ACTSC 142 Hasan v The Queen [2010] VSCA 352; 31 VR 28 Henry v The Queen [2019] ACTCA 5 Hili v The Queen [2010] HCA 45; 242 CLR 520 Laipato v The Queen [2020] ACTCA 35 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mill v The Queen (1998) 166 CLR 59 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Ngata v The Queen [2020] ACTCA 18 O'Brien v The Queen [2015] ACTCA 47 Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v Alabbasi [2017] ACTSC 231 R v Ali (No 4) [2020] ACTSC 350 R v Aroub [2017] ACTSC 187 R v BC (No 4) [2021] ACTSC 119 R v Ballantyne (Unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 1 April 2014) R v Buda-Kaa [2013] ACTCA 46 R v Buda-Kaa(Unreported, Supreme Court of the Australian Capital Territory, Burns J, 30 November 2012) R v Coleman (1990) 19 NSWLR 467; 47 A Crim R 306 R v Finau (No 2) [2020] ACTSC 193 R v Hancock [2021] ACTSC 52 R v Incandela (No 4) [2022] ACTSC 139 R v John [2017] ACTSC 144 R v Kekalainen(No 3) [2016] ACTSC 297 R v Kelly [2020] ACTSC 292 R v Kilic [2016] HCA 48; 259 CLR 256 R v MAK [2006] NSWCCA 381; 167 A Crim R 159 R v Miller [2019] ACTCA 25 R v MT [2014] ACTSC 162 R v Naing [2023] ACTSC 210 R v Newby [2022] ACTCA 20; 367 FLR 122 R v Okwechime [2022] ACTSC 233 R v Palmer [2017] ACTSC 357 R v Pham [2015] HCA 39; 256 CLR 550 R v Snowden [2022] ACTSC 186 R v Taylor [2015] ACTSC 43 R v Stevens (No 3) [2016] ACTSC 297 R v Teel (a pseudonym) [2021] ACTSC 183 R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 R v UG [2020] ACTCA 8; 281 A Crim R 273 R v UG [2018] ACTCA 64; 14 ACTLR 70 R v Vunilagi; R v Vatanitawake; R v Masivesi; R v Macanawai (No 2) [2020] ACTSC 274 Subasic v Williams [2018] ACTSC 207; 85 MVR 209 Wyper v The Queen; R v Wyper [2017] ACTCA 59 |
Parties: | Director of Public Prosecutions Benjamin Rue ( Offender) |
Representation: | Counsel J Melloy ( DPP) J Nottle ( Offender) |
| Solicitors ACT Director of Public Prosecutions Tu’ulakitau McGuire Legal ( Offender) | |
File Number: | SCC 9 of 2023 |
TAYLOR J:
Introduction
1․As is regularly observed by sentencing courts across Australia, the significant consequences of sexual offending often include enduring psychological, emotional and physical harm. Non-consensual sexual intercourse is inherently violent and typically involves acutely intimate violation. The resulting trauma for victims can be pervasive and intense. That trauma can impact a person’s sense of security and safety as they move around in the world. The community rightly expects sentencing courts to treat this kind of offending with real seriousness.
Charges
2․The offender Benjamin Rue has been committed to this Court for sentence in relation to the following offences:
(i)Count 1 (CC2022/11048): Act of indecency without consent contrary to section 60 of the Crimes Act 1900 (ACT) (the Crimes Act) which carries a maximum penalty of 7 years imprisonment;
(ii)Count 2 (CC2022/11055): Sexual intercourse without consent contrary to section 54 of the Crimes Act which carries a maximum penalty of 12 years imprisonment.
3․These counts are rolled-up counts each encompassing multiple acts.
4․The offender entered pleas of guilty to these counts in the ACT Supreme Court on 25 July 2023, following a Criminal Case Conference.
Facts
5․The victim in this matter resided at a unit with her two young children at the time of the offending. She had CCTV cameras installed inside her apartment, including one directly above her bed in her bedroom. The victim had these cameras installed because she was selling illicit drugs. This included the sale of the drug Gamma Butyrolactone, known as ‘GBL.’
6․The victim regularly used GBL and occasionally experienced loss of consciousness if she consumed the drug to excess.
7․The offender and the victim met in approximately October 2019 as he was a friend of her partner at the time. Prior to the offending, the offender had purchased drugs from the victim on three or four occasions. He had also previously engaged in drug use when at the victim’s residence and she had seen him pass out as a result. There was no prior romantic or sexual relationship between the offender and the victim.
8․The offending occurred in the early hours of 27 July 2020 in the victim’s bedroom at her residence while her two children were asleep in the second bedroom of the apartment.
9․The offender organised to come to the victim’s residence and when he arrived, he and the victim spent time in her bedroom listening to music and using GBL. At some point, the offender fell asleep for approximately an hour. The offender woke up and had a cigarette on the balcony. While he was absent, the victim turned on the CCTV camera positioned above her bed as she had what she described as “a bad feeling”.
10․They continued to consume GBL. The victim could not recall how much she consumed but at some point, she lost consciousness.
11․The CCTV camera located in her bedroom captured the offending in its entirety.
Count 1 - Act of indecency without consent.
12․The conduct making up this rolled-up count lasted for approximately 44 minutes, during which time the offender intermittently touched the victim’s vaginal area and legs, stopping only when she appeared to stir or regain consciousness.
13․While the offender and the victim were lying on the bed, the offender traced his right index finger between the victim’s legs. As he moved up towards her groin she said “whoa” causing the offender to remove his hand immediately.
14․The victim mumbled unintelligibly, and the offender then brushed his right index finger between the victim’s legs to which she did not respond.
15․The offender ran his right hand over her legs and up to her vaginal area. During this, the victim remained entirely unresponsive, appearing unconscious.
16․The offender then exposed the victim’s underwear and put his fingers inside it, continuing to rub her vagina and leg. He ran his hand back down to her knee and then placed his right fingers back inside her underwear and continued to rub her vaginal area.
17․A short time later, the offender used his right hand to rub the victim’s legs and vaginal area more forcefully, both above and underneath her underwear.
18․He continued to do this and at one point he smelled his hand, inserted a finger into his mouth and then put his right hand inside the victim’s underwear and continued to rub her vagina. He repeated this action, then moved his hand away before the victim began to stir and rub the side of her face with her hand.
19․Once the victim finished stirring, he once again began to rub her legs and vaginal area, then rubbed her vagina above and underneath her underwear, this time more aggressively.
20․The offender then touched the victim’s breast for approximately 2 seconds and then continued to rub the victim’s vagina both above and beneath her underwear. He licked his hand again then continued rubbing her vagina.
21․This episode lasted approximately 30 minutes before the victim regained consciousness. At this point, she kicked out her legs and covered her face with her hands. The offender stopped touching her vagina but continued to rub her right leg, during which the victim was mumbling unintelligibly.
22․Once she stopped moving, the offender started touching her vagina again, continuing to rub above and underneath her underwear. Throughout this, whenever the victim would occasionally stir, the offender would move away from touching her vagina to touching her leg, then continue to rub her vagina when she stopped stirring. This second episode after the victim regained consciousness the first time lasted approximately 14 minutes.
Count 2 – Sexual intercourse without consent.
23․The offender then sat up and pulled the victim’s pants down and removed them. He put his hands on her legs and began to perform cunnilingus on her. During this time, the victim could be heard moaning, and was covering her mouth with her hand and moving her body while he performed cunnilingus. During this time, the offender also digitally penetrated the victim’s vagina on two separate occasions. Over the course of this conduct, the victim became more responsive and held a piece of pink fabric or clothing over her mouth.
24․The offender then sat up and pulled down his pants then continued to perform cunnilingus. The victim then sat up suddenly and looked at the offender then lay back down and put her hand over her mouth.
25․The offender then rubbed her vagina and digitally penetrated it with at least one finger.
26․The offender then penetrated the victim’s vagina with his penis. He was not wearing a condom. He proceeded to engage in sexual intercourse with the victim while she lay on her back. The victim recalled regaining consciousness while the offender was engaging in penile vaginal intercourse with her. She believed he had ejaculated.
27․The offender ceased moving his hips and remained positioned above the victim with his penis still inserted before withdrawing it and lying next to her.
28․The act of penile-vaginal penetration lasted for approximately 1 minute and 10 seconds.
Following events
29․After she regained consciousness, the victim was confused so she got up and asked the offender to leave as she had to get her children ready for day-care. She believed it may have been 7am when she told the offender to leave.
30․Later that morning, the victim complained to her friend and said that “something had happened” and that she had CCTV footage. The victim and her friend watched the footage together. Her friend told the victim she should report the matter to the police.
31․On 9 June 2021, the victim attended Belconnen Police Station to report being sexually assaulted by the offender and advised police there was footage of the incident. She made a copy of this footage. The victim withdrew her complaint shortly afterwards. The copy of the footage she had made was stolen from her wallet in around October or November 2021.
32․On 7 June 2022, the victim contacted police again and the following day she provided police with the CCTV footage and disclosed to them the abovementioned events.
33․On 10 November 2022, police attended the offender’s residence and placed him under arrest. A short time later, the offender told police he had footage of the alleged incident and provided an SD card that had been hidden in his garage.
34․Under caution, the offender told police his mate had acquired it for him, and he had done nothing wrong. This footage was confirmed by police to be the exact same footage as that provided by the complainant.
Time in custody
35․The offender has spent two days in custody in relation to these offences.
Criminal history
36․The offender has a very limited criminal history, consisting only of a small number of driving offences in 1998, 2000 and 2017.
The nature and circumstances of the offending
The state of mind of the offender
37․There is an issue I must determine in relation to the offender’s state of mind at the time of the acts in Count 2. These offences occurred in July 2020 and pre-date amendments to the Crimes Act relevant to the offence provision contained in Count 2. Section 54(3) of the Crimes Act provided that, for the purposes of the section, proof of knowledge or recklessness is sufficient to establish the element of recklessness. As the Chief Justice observed in Director of Public Prosecutions v Earle [2023] ACTSC 93 (Earle) at [10]:
Recklessness can accordingly be proved in any one of three ways: if the offender knew the victim was not consenting; if he realised there was a possibility that she was not consenting and proceeded anyway or if he did not consider whether she was consenting or not.
38․The offender concedes that he knew that victim was not conscious and therefore not consenting to the acts making up Count 1. This is a factor relevant to his moral culpability and the objective seriousness of the offending which I will address below.
39․The same concession is not made in relation to his knowledge of the victim’s level of consciousness and the absence of consent when the acts relied upon for Count 2 occurred.
40․The offender submitted that there is a distinction between the response of the victim to the conduct contained in Count 1 and the response of the victim to the conduct contained in Count 2, such that it cannot be established beyond reasonable doubt that the offender knew the victim was unconscious.
41․The prosecution tendered footage (made up of numerous individual ‘clips’ of varying duration) taken from inside the victim’s bedroom which, unusually for this kind of offending, captures the entire incident. The agreed facts include a reflection by the victim that she recalled regaining consciousness when the offender was penetrating her vagina with his penis.
42․The offender submits that I must be satisfied beyond reasonable doubt that he knew the victim was unconscious and not consenting to the acts before I can approach the offending for Count 2 on that basis. The prosecution does not contest that proposition though contend that the footage leads to the conclusion beyond reasonable doubt that the offender knew the victim was unconscious for the acts in Count 2.
43․For the reasons that follow I do not agree.
44․I consider it appropriate to make clear that the following observations are not intended to undermine in any way that the victim in fact did not consent to the conduct captured by Count 2. In making the observations that follow I do not intend to diminish the impact of the offending on the victim or to suggest that she in any way contributed to the situation that saw the offence perpetrated against her. It is the offender alone who bears responsibility for his offending.
45․It is necessary though to closely observe the behaviour of both the offender and the victim in order to make the determination about the offender’s state of mind in relation to Count 2 that I am required to make as part of these proceedings.
46․The footage is lengthy. The concession made by the offender in relation to his state of mind for Count 1 is easily established by the physical state of the victim. Indeed as I will go on to address, the footage establishes an “overwhelming” prosecution case in relation to Count 1. Count 2 is more complex in my view. There is a difference in the physical conduct of the victim from just before the time the offender moves to take off her underwear. This is the moment that effectively signals the commencement of the conduct relied on for Count 2.
47․It is necessary to establish the difference in response to which I refer by first identifying the physical observations that can be made about the victim during the course of the Count 1 offending.
48․There is a point prior to the beginning of the conduct for Count 2 where the victim appears to move from a state of being unconscious to a state of increased physical movement and response to the conduct of the offender. For the period of time that encompasses Count 1 the victim’s body appears to maintain a consistent position, with the appearance of being in a state of unconsciousness. The victim’s body is very still, her arms are at something of an unusual angle to each other and to the rest of her upper body, and as detailed in the agreed statement of facts the victim can be heard mumbling some words. During the course of Count 1 the physical movements of the victim are very limited. For much of the conduct her legs are lying straight out and flat on the bed with her left leg crossed over her right. The offender is to the right of her body and her head is facing away from the offender pointing in the direction of a television opposite the bed they are laying on.
49․In my view, for Count 1, the offender can be observed engaging in conduct best described as ‘testing the waters’. That is, the offender can be seen making physical contact with the victim and awaiting her response before progressing the contact. The more contact the offender makes with the victim’s body without any real response from her, the more emboldened he appears to become with the nature and extent of the contact with her body eventually moving his hand under the victim’s underwear and rubbing her vagina for some time. It can be observed that throughout the contact subject of Count 1 the victim makes minimal intelligible sound and engages in very little physical movement of her body.
50․As described in the agreed statement of facts there are moments when the victim briefly “stirs”, including some movement of her legs, hands, and some mumbling. The offender appears to pause in his contact with the victim’s body at these moments and recommences that contact when she appears to settle again. In clip 19 at 1:12 the victim startles and raises both arms to her face/head area at which point the offender removes his hand from inside her underwear. Moments after this the victim raises her right knee so that it is now raised and bent. The offender continues to run his right hand over both of her legs before moving to again touch her vagina over her underwear. In the first 30 seconds of clip 20 the victim bends her left knee so that it is in the same position as her right knee, so that both of her knees are now bent with her feet flat on the surface of the bed.
51․In clip 21 at approximately 4:27 the offender moves so that he is kneeling between the now bent knees of the victim. Her feet appear flat on the surface of the bed. The offender lifts the front of the victim’s underpants up and away from the front of her body and then up and over her bent knees and down over her legs before removing them entirely. The victim’s knees can be seen swaying to some extent back and forth immediately prior to the offender moving to take off her underwear. The statement of facts at paragraph 33 describes the offender as using both hands to pull the victim’s legs apart before beginning the act of cunnilingus. This is not entirely accurate. Observing the footage at clip 21 from around 4.32 the offender’s right hand can be seen to nudge the victim’s left foot out further to the side of her body and then he places his hands on the outside of the victim’s thighs rubbing up and down. It is at this point that the victim’s knees fall apart enabling the offender to move his head down to her vagina. The offender does not push her knees apart. As the offender begins to perform cunnilingus the victim’s left thigh falls open further and she begins to breathe heavily, move her arms, and can be observed to lift her hips up towards the offender. The victim’s upper body does not move significantly though her breathing is audibly heavy, and she can be heard to moan. As the offender continues the victim can be heard to continue heaving breathing, panting and moaning as well as moving her legs and feet. At one moment the victim can be seen to move her head and upper body up as if to observe what the offender is doing until she lays back down again. The victim can be heard to say “oh fuck” at around 2:40-2:55 in clip 25.
52․As the conduct for Count 2 progresses to digital penetration and then penile/vaginal penetration, the victim can be observed to move with some more intent and purpose, using her own hands to cover her mouth while she is moaning and reaching for a pink piece of material to place over her own mouth while she is breathing loudly and moaning. The act of placing her own hand over her mouth and then reaching for a piece of material to put over her own mouth is consistent with awareness on the victim’s part that she is making noises in response to the offender’s conduct and that she is seeking to contain that noise. A concern to minimise the noise she is making is consistent with the agreed statement of facts that records her two children as being asleep in the house, in their bedrooms. It is conduct that reflects some intent and purpose, revealing a level of consciousness not present for Count 1. At one point while the penile penetration is occurring the victim reaches out and grabs the offender’s left bicep, adjusts her right leg up and around the offender’s body and also removes her glasses.
53․The prosecution’s submission seemed to place weight on the concession in relation to the state of mind the offender accepts accompanied Count 1 necessarily influencing the state of mind he had for Count 2. There would be some strength to that submission were there no change in the physical response from the victim when the offender moves to the acts for Count 2. The submission seemed to disavow the idea that a state of mind can alter as a situation alters, as I am satisfied there is a basis to infer it did in this matter. The prosecution’s submission that the conduct in Count 1 was predatory and exploited the victim’s vulnerability because he knew she was not consenting is not at all undermined by a finding that I cannot be sure to the requisite standard that the offender maintained that state of mind throughout the entire incident.
54․The observations from the footage do allow for a delineation between the absence of any real physical response by the victim to the acts for Count 1 and the presence of a physical response from the victim in the acts for Count 2 which included her knees falling open at the commencement of the conduct, loud heavy breathing and other physical indicators that I have already mentioned that she was no longer in the same state of unconsciousness that she was so clearly in when Count 1 occurred. It is against the background of those observations that I cannot be satisfied beyond reasonable doubt that for the acts that make up Count 2 the offender had actual knowledge that the victim was unconscious. This analysis is relevant to a consideration of whether the prosecution case in relation to Count 2 was “overwhelming” and I will address that below.
55․Both counsel submitted that the offender’s use of GBL is a factor relevant to determining whether the offender was reckless in relation to the victim’s consent: see R v Vunilagi; R v Vatanitawake; R v Masivesi; R v Macanawai (No 2) [2020] ACTSC 274, this matter being a matter that predates the insertion of s 67A(2)(b) into the Crimes Act on 24 May 2023.
56․In determining the state of mind of the offender for Count 2 as I have, I have not placed any weight on the fact that the offender had used GBL with the victim, at her home at some imprecise time prior to the offending. The finding I have made about the offender’s state of mind for Count 2 is based on the observations I have identified from the footage tendered by the prosecution without reference to the offender’s use of GBL. The reason for this approach is firstly, the offender accepted by virtue of his plea that he was reckless as to consent and it is not a matter of any contest between the parties.
57․Secondly, there is insufficient evidence upon which I could draw any conclusion beyond reasonable doubt or indeed on the balance of probabilities about the effect of self-administered GBL on the offender. There was no evidence about the amount of GBL the offender had used. The agreed statement of facts refers to the offender falling asleep and being unconscious after self-administering GBL. The offender himself did not give any evidence about the impact upon him of GBL use nor was there any substantial evidence, expert or otherwise, detailing the influence of GBL upon a person’s physical or mental capacity. The highest the agreed statement of facts goes is to identify that the victim was a regular user of GBL and that it typically made her experience a feeling of euphoria and “excessive usage” would cause her to lose consciousness. It would be pure speculation to engage in an assessment of the level or extent of intoxication of the offender and the degree to which that impacted his state of mind. The observations that can be made of the offender during the incident are not consistent with a person physically or mentally impaired to any significant degree by an intoxicating substance. His movements are sure and certain. He does not appear to be struggling to maintain consciousness or to control his physical movements.
58․Indeed, consistent with the prosecution’s submissions I do consider the conduct he engaged in for Count 1 to have the appearance of being quite carefully timed and controlled so as not to completely rouse the victim. I do not consider that view to be mutually exclusive from or inconsistent with the finding I have made about the offender’s state of mind for Count 2 for the reasons I have articulated.
59․Notwithstanding that the finding about the offender’s state of mind for Count 2 does have some impact on his moral culpability and the overall objective seriousness of the offence, Count 2 remains a serious example of the offence for the reasons that follow.
Objective seriousness and the degree of responsibility of the offender
60․A consideration of the nature and circumstances of the offending requires an assessment of the objective seriousness of the conduct. The sentence I impose must appropriately reflect the outcome of that assessment. I must have regard to where the facts of the particular offence and offender lie on the spectrum from the least serious examples of the offending to the most serious: R v Kilic [2016] HCA 48; 259 CLR 256 at [19]. I must consider the factors that bear upon the objective seriousness of each offence. It has been observed that references to low, mid or high range may generally be unhelpful in this jurisdiction and it is preferable to identify the factors that inform the character of the offence’s objective seriousness: R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [24] and Laipato v The Queen [2020] ACTCA 35 at [156].
61․I approach the task of assessing the objective seriousness of the offending bearing in mind the “unifying principles” endorsed by the Court of Appeal in Wyper v The Queen; R v Wyper [2017] ACTCA 59 at [114]:
(a) Sexual offences are regarded as objectively serious offences by the courts;
(b) The serious nature of sexual intercourse without consent demands that the sentencing purposes of deterrence, denunciation and recognition of harm to the complainant be given prominence; and
(c) A period of full-time imprisonment is usually necessary to give effect to the above sentencing principles.
62․Of course, the need to give effect to individualised justice requires those principles to be considered in light of the particular circumstances of each case. It is useful to note the observations of the Chief Justice in Earle at [22]-[23], citing the statement by Gleeson CJ (with whom Meagher JA and Newman J agreed) in R v Hartikainen (unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Meagher JA and Newman J, 8 June 1993):
It was pointed out by his Honour in his remarks on sentence that the sexual intercourse was not accompanied by any additional violence of the kind that is sometimes encountered in cases of rape. However, non-consensual sexual intercourse is itself an extreme form of violence, and one which the community expects will be taken very seriously by the courts.
Those remarks confirm, as is trite, that all offences of sexual intercourse without consent should be treated as offences of considerable seriousness. While the offence itself may involve conduct of short duration (as is the case here), the resulting trauma suffered by victims is often intense and enduring. That is clearly the case here, and that is a relevant factor.
At the same time, in determining the appropriate sentence for these offences, I must have regard to the fact that the range of possible sexual offending is broad; from violent, predatory and humiliating attacks involving penetration achieved by deliberate force or threat, to fleeting, impulsive acts undertaken without regard to whether there is consent from the victim.
63․In each case the offending is a “rolled-up" count capturing a course of conduct made up of individual acts. Count 1 represents conduct that occurs over a 44-minute period and involves numerous contacts by the offender with the victim’s bare legs, her groin area, and her vagina both underneath and on top of her underpants and includes rubbing of the victim’s vagina. Count 2 represents the acts of cunnilingus, digital penetration and penile-vaginal penetration, over a period of around 12 minutes. Acting Justice Refshauge in R v Hancock [2021] ACTSC 52 at [28] summarised the approach he previously articulated in R v John [2017] ACTSC 144 at [107] to be taken to rolled up counts:
· for sentencing purposes, the rolled up count is one charge and the sentence may not exceed the maximum penalty for the offence charged;
· nevertheless, the criminality encompassed within the count is greater than were the count to be constituted by only one offence;
· the sentence is not necessarily, and perhaps not usually, the sum of the sentences that would be imposed for the offences comprising the count, though in an appropriate case it may be; and
· the fact that the count is a rolled up count may have a bearing on the application of the relevant principles as to accumulation or concurrency.
64․In R v Palmer [2017] ACTSC 357 at [22] Mossop J identified 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.
65․A number of those factors are absent from this offending. There was no weapon used and the offender acted alone; there were no threats made by the offender; apart from the violence inherent in sexual offending there were no additional acts of physical violence; there is no evidence of any physical injury suffered by the victim; while the conduct engaged in may have had the consequence of causing the victim to feel humiliated or degraded given she was unconscious for much of the offending there were no overt acts specifically designed to achieve that end.
66․There are features that aggravate the offending:
(i)the offender did not use a condom, potentially exposing the victim to sexually transmitted infections and pregnancy;
(ii)the victim was particularly vulnerable because of the state of unconsciousness she was in for Count 1. The offender knew she had consumed GBL. The victim was generally made vulnerable to all of the conduct arising from her initial state of complete unconsciousness;
(iii)the offending occurred in the victim’s home, in her own bedroom, a place she was entitled to feel safe and secure; and
(iv)the offending represents a breach of trust in the context of their friendship.
67․The prosecution submitted that the offending reveals a degree of pre-meditation. In my view the offending is properly characterised as opportunistic and predatory. There is no evidence that the offender planned to offend against the victim prior to her becoming unconscious but I am satisfied that once the victim fell unconscious, the offender preyed on that state of vulnerability for his own gratification and took full advantage of that vulnerability. Indeed I am satisfied he was emboldened by it.
68․The fact of an offender’s intoxication during the course of offending is a mandatory relevant consideration on sentence: see below 33(1)(p) Crimes (Sentencing) Act 2005 (ACT) (the Crimes (Sentencing) Act).
33Sentencing–relevant considerations
(1)In deciding how an offender should be sentenced (if at all) for an offence, a court must consider whichever of the following matters are relevant and known to the court:
…
(p)whether the offender was affected by alcohol or a controlled drug when the offence was committed and the circumstances in which the offender became affected
69․I accept that the offender was affected to some degree by self-administered GBL when the offence was committed. Sentencing courts across the country have consistently rejected the proposition that intoxication operates to mitigate the seriousness of an offence or to reduce an offender’s moral culpability. The offender submitted that his moral culpability is “somewhat reduced” by the “significant” effect upon him of the use of drugs. The offender cites R v Naing [2023] ACTSC 210 (Naing) in support of the submission. I do not accept that submission. I do not consider the circumstances in Naing to be analogous to the circumstances in this matter. Nor do I consider that the principles carefully articulated in Naing and elsewhere in relation to the limited circumstances in which the effect of intoxication can be taken into account on sentence as mitigation have application in this matter.
70․The Victorian Court of Appeal in Hasan v R [2010] VSCA 352; 31 VR 28 (Hasan) at [33] stated “that the circumstances must be quite exceptional before intoxication at the time of the offending can mitigate the offender’s moral culpability”.
71․Hasan at [21] referred to the “out of character” exception in the context of summarising the state of the law as it relates to intoxication and moral culpability:
In the circumstances, it is timely to review the state of the law regarding intoxication as a sentencing consideration. As will appear, courts around Australian have consistently rejected the proposition that intoxication can mitigate the seriousness of an offence or reduce the offender’s moral culpability. An “out of character” exception is acknowledged to exist, but it has almost never been applied. On the other hand, it is recognised that intoxication can be an aggravating factor where the offender is shown to have had foreknowledge of how he/she is likely to behave when affected by alcohol. No issue of that kind arises here.
72․In Naing evidence at the offender’s trial established that he was intoxicated at the time of the offending. The offender gave evidence in relation to his level of intoxication. The offender had a long, established history of heavy drinking without incident and sought to rely on a characterisation of his offending behaviour as “out of character” in the context of his prior experience with alcohol intoxication, submitting his was an exceptional case. Loukas-Karlsson J found, the prosecution conceding the point, that Mr Naing experienced “severe ‘black out’ intoxication” and determined that his moral culpability was “somewhat qualified” at [62].
73․In these proceedings the evidence before the Court does not establish on the balance of probabilities that the offender was “significantly” affected by drugs or indeed to what extent he was affected by drugs at all by the time the offending occurred. There is certainly reference in the agreed statement of facts to him losing consciousness earlier in the morning after using GBL with the victim but that is the extent of any exploration of that issue. As I have already stated, the offender did not give evidence in these proceedings. The offender bears the onus of establishing that he was not aware of the impact GBL would have on his conduct. This would be a difficult burden for him to discharge given the accepted history of some use of GBL prior to the day of the incident and would potentially expose the offender to the forensic risk that an inquiry into his drug use might lead to a conclusion that his state of intoxication was an aggravating rather than a mitigating circumstance: see Hasan at [34]. Consistent with the potential for that risk, the NSW Court of Criminal Appeal in R v Coleman (1990) 47 A Crim R 306 at [327] (per Hunt J with whom Finlay and Allen JJ agreed) observed “where the reason for the offender’s intoxication is a self-administered drug rather than alcohol, the cases suggest that that fact may well be more likely to aggravate than mitigate”.
74․I am satisfied that the offender was affected by GBL to some degree during the course of the offending. I do not consider that his moral culpability should be moderated as a result.
75․The moral culpability of the offender for Count 1 is very high. The offender knew the victim could not consent and persisted with the acts for a long period of time. Her vulnerability was obvious and the offender exploited that vulnerability for his own gratification. The offending conduct is a very serious example of the offence noting the features as I have.
76․While I am not satisfied that the offender knew the victim was unconscious for Count 2 I nonetheless consider his moral culpability to be high. The offender knew the victim had ingested GBL and he knew she had been very recently unconscious. I am satisfied the offender turned his mind to the possibility that the victim was not consenting and proceeded nonetheless. The acts in Count 2 went over a protracted period of time and involved multiple invasive acts. On any view, this is a serious example of the offence.
Victim impact statement
77․The victim of this offending provided a Victim Impact Statement (VIS) that was tendered in these proceedings as per the victim’s request. I am obliged to take into account the effect upon her of the offending: ss 33(1)(f) and s 53(1)(a) Crimes (Sentencing) Act. The offending has clearly had a significant impact upon the victim’s psychological wellbeing including her sense of personal safety and emotional security.
78․The victim details the detrimental impact of the offending on her mental health and the ripple effects on her young children and her family. As a result of this offending, she suffers from Post Traumatic Stress Disorder (PTSD). Unsurprisingly given the context and nature of the offending, she experiences significant trust issues and a fear of men. The victim expressed that she constantly fears for her safety, experiences hyper-vigilance and has engaged in counselling to assist her to address the mental health challenges she now faces. She identified the negative impact the offending has had on her ability to form relationships, leaving her feeling isolated. There is a need to recognise the harm suffered by the victim in the sentence that is imposed and the detail provided in the VIS assists the Court to appreciate the extent of that harm.
Subjective circumstances
79․I turn to the subjective circumstances of the offender. Mr Rue is a 44-year-old man. He has a very limited criminal history containing a small number of driving offences. Despite the serious nature of the offences and additionally that they represent infidelity on his part, he maintains the support of his long-term partner.
80․A Pre-Sentence Report (PSR) dated 23 August 2023 is before the court. The author of this report observed some inconsistencies in his first interview but ultimately formed the view that he appeared to be honest in terms of the information provided in the final interview.
81․The offender provided a history of a positive and supportive upbringing by his mother and stepfather though he had only limited contact with his biological father until the age of 16. He has limited contact with his half-brother. He has been with his current partner for approximately 20 years and stated that he has been unfaithful to her by virtue of committing these offences but does not believe their relationship has changed since she became aware of the offences. However, his mother provided a different account, stating that the relationship has been strained and that she believes he has not been entirely honest with his partner regarding the details of the offending.
82․The offender attained a Year 12 level of education and has had intermittent periods of employment throughout his adult life, working in various industries such as the construction industry, retail and factory work. He has most recently been engaged in casual construction work and is in receipt of Centrelink payments.
83․He advised he has limited pro-social connections and that most of his friends have criminal records or are involved in criminal activity specifically illicit substance use. The offender detailed a prolonged history of drug use. He regularly smokes cannabis, and reported prior use of speed and dexamphetamines, and currently still consumes cannabis, GBL and methamphetamine. He has consumed GBL approximately six times in the last 12 months, and as a result of the offending only consumes it in his own residence and with close friends.
84․The obligations of an Intensive Correction Order (ICO) were explained to Mr Rue and he stated he was confident he could cease use of GBL and methamphetamine and would obtain a prescription to allow cannabis use. The offender’s confidence in relation to his ability to cease the use of illicit substances is difficult to reconcile with his long and consistent history of drug use, particularly his current, almost daily use of methamphetamine and cannabis.
85․The offender reported poor mental health and stated he suffered from symptoms of depression and anxiety, and suicidal ideation. He is open to engaging in counselling or treatment.
86․The offender accepted responsibility for the offences, agreed with the statement of facts and expressed remorse, indicating he was appalled by his behaviour.
87․He was assessed as a medium risk of general re-offending, with risk factors identified as illicit substances use, anti-social companions, poor mental health and a strained relationship with his partner. He was assessed as not suitable for an ICO due to his substance abuse issues.
88․The author assessed the offender as requiring a medium level of intervention by ACT Corrective Services in accordance with his medium risk of general re-offending. The offender was assessed as not suitable for a community service work condition due to his substance abuse problems.
89․The Court was provided with six character references in support of the offender, including one from his current partner. She stated that she knew the offender to be respectful towards women, and that he was a polite and gentle person who was never angry or violent. She also spoke of the guilt and shame he felt around the offending and the hurt he had caused. She expresses concern that he will harm himself as a result of his declining mental health. She identified that the relationship between her and the offender had become strained because of these offences. She also spoke of the financial, practical and emotional support the offender provided to her and the hardship that would be caused to her if he were to be in custody. In addition, she expressed a view that because of the offending conduct they would not be able to adopt children in the future due to the nature of the offences.
90․The other character references spoke generally of the conduct being out of character for the offender. The authors considered that the offender was a person who is respectful towards women and generally otherwise of good character. The authors universally considered the offender to be honest, hardworking, and polite. In his reference, Mr Connor Mackenzie observes that the offender has expressed remorse for his conduct and that he deeply regrets his actions.
The probable effect of any sentence on the offender’s partner
91․Pursuant to s 33(1)(o) of the Crimes (Sentencing) Act the offender sought to raise the probable effect that any sentence or order under consideration would have on his partner. It is a matter for the Court to determine the weight to be attached to this factor.
92․Counsel for the offender submitted that the following circumstances were relevant to this consideration:
(i)That the offender’s partner relies on his income and will be unable to afford to continue to rent in Canberra which will have flow on effects for her business; and
(ii)that the offender and his partner have been unable to conceive despite attempts through IVF and will be unable to adopt or foster children due to the offender’s conduct and conviction.
93․I readily accept that a sentence of imprisonment will negatively affect the offender’s partner. That effect, I accept, is in addition to the emotional impact upon her created by the nature and circumstances of the offending. This is indeed regrettable and reflects the real ripple effect that offending conduct can have on the people who love, support and rely on offenders.
94․Section 33(1)(o) is a mandatory consideration. Section 33(4) of the Crimes (Sentencing) Act makes clear that a known factor does not “require the court to increase or reduce the severity of the sentence for the offence.” The Court of Appeal in R v UG [2020] ACTCA 8 observed as much at [58] though declined to definitively resolve whether a s 33(1) mandatory consideration once known and relevant was required to be “out of the ordinary” before it can influence the sentencing outcome stating that “in this case, it is neither appropriate nor necessary to determine the proper approach to s 33(1)(o) of the Sentencing Act”: cf Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 at [82]. In R v Wright at [96], Murrell CJ observed:
Ms Wright relied on s 33(1)(o) of the Sentencing Act, which was discussed in R v UG [2020] ACTCA 8 at [52]-[60], where the Court suggested that, absent circumstances out of the ordinary, there was no requirement that the effect of a sentence on family be taken into account. While this may be true in other jurisdictions, I doubt that the words of s 33(1)(o) support such a limitation.
95․The principles in relation to hardship in the ACT were summarised by McWilliam AJ, as her Honour then was, in Subasic v Williams [2018] ACTSC 207 at [39] emphasising that:
Taking that factor into account does not mean that a sentencing court must provide a sentencing discount, or otherwise reduce a sentence, because there is evidence before it that a particular sentence will impose hardship on an offender’s dependents.
96․This is consistent with the approach of the Court of Appeal in Ngata v The Queen [2020] ACTCA 18 to s 33(1)(o) in the context of deportation at [43]:
Turning to how s 33 of the Sentencing Act is to be applied, the existence of a factor that must be considered pursuant to that provision does not necessarily translate into a sentence discount: see R v NO (No 2) [2018] ACTSC 37 at [61] per Penfold J. It certainly cannot result in a percentage or quantified discount arrived at mathematically; that would offend the instinctive synthesis principle.
97․In R v BC(No 4) [2021] ACTSC 119 Loukas-Karlsson J comprehensively considered the relevant authorities before determining that the test of “highly exceptional” or “exceptional” is not required on a proper reading of s 33(1)(o): at [93].
98․I take the effect on the offender’s partner of a sentence of imprisonment into account. That effect is not a matter in my view, given the nature and circumstances of the offending and the prominent purposes of sentencing to which I will come, that should see any significant reduction in the sentence that should be imposed.
Plea of guilty: an “overwhelmingly strong case”
99․The pleas of guilty were entered in the ACT Supreme Court on 25 July 2023, following a Criminal Case Conference after the offender was committed to this Court for trial.
100․The prosecution submitted that there was an overwhelming strong prosecution case in relation to Count 1 and Count 2. Section 35(4) of the Crimes (Sentencing) Act prohibits the court from making any significant reduction for the fact that the offender pleaded guilty if, based on established facts, the court considers that the prosecution’s case for the offence was overwhelmingly strong.
101․The offender conceded that s 35(4) applied to Count 1. In my view it is an overwhelmingly strong prosecution case.
102․A consideration of this issue in relation to Count 2 “calls for a practical assessment of the reality of the situation”: The Queen v Newby [2022] ACTCA 20 at [31].
103․The offender submitted that while Count 2 was a strong case given the physical acts were captured on CCTV, it was not an “overwhelmingly strong” case pointing to the same factors that undermined the prosecution’s capacity to establish knowledge as factors relevant to this issue. While the physical acts were captured by the CCTV camera in the victim’s bedroom the burden on the prosecution to also prove beyond reasonable doubt the requisite state of mind, recklessness, would have necessarily required a close assessment of the matters I have referred to above at [46]-[54]. Based on that analysis in my view this is not a matter where the conclusion could be drawn that “an acquittal [would be] realistically unlikely”: Newby at [31]. I do not consider Count 2 represents an “overwhelmingly strong” case and therefore s 35(4) is not engaged for Count 2.
104․In R v Snowden [2022] ACTSC 186, Mossop J suggested at [48] that a discount that reflects the utilitarian value of the plea but is not a “significant reduction” for the purposes of s 35(4), will be in the order of 5 percent: see also DPP v Samuel Myers(a pseudonym) [2023] ACTSC 142.
105․As Mossop J recognised in Snowden a determination of what is a significant reduction may “vary from case to case”: at [47]. In cases involving sexual offending in particular, sparing the victim the ordeal of giving evidence in court through the entry of a plea of guilty is a significant consideration. In this matter the plea of guilty to Count 2 especially, spared the victim a particularly difficult and distressing cross examination in circumstances where the footage may have featured.
106․The benefits of a guilty plea following a case conference were stated in Blundell v The Queen [2019] ACTCA 34 (Blundell) at [12]:
The benefits, not only to the accused person, but also to the Crown (representing the community) and to the courts are so significant that a discount in excess of 10%, and almost always within the range of 15 to 20%, is required.
107․In relation to Count 2 noting the timing of the plea and the factors I have identified I consider that a discount of around 15 percent is appropriate. In my view a discount of 5 percent is appropriate in relation to Count 1 and does not infringe the prohibition in s 35(4).
Sentencing practice
Sexual intercourse without consent
108․The use of sentencing statistics and comparable sentences must be put in its proper place. They illustrate, not define, the possible range of sentences available: R v Pham (2015) 256 CLR 550 at 560 [29]. Sentencing practice does not cap the upper nor lower ranges of a possible sentence: Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [51]-[53]. The provision of comparative cases is not to pursue strict mathematical equivalence as between sentencing outcomes for the same offence but rather to ensure consistency in the application of relevant principles: Hili v The Queen [2010] HCA 45; 242 CLR 520.
109․The prosecution and counsel for the offender relied on the comprehensive detail included in the sentencing remarks of the Chief Justice in Earle at [47]-[56] about comparative cases. I have had regard to the circumstances and outcomes mentioned therein; R v Buda-Kaa(unreported, Supreme Court of the Australian Capital Territory, Burns J, 30 November 2012) and the subsequent appeal, R v Buda-Kaa [2013] ACTCA 46, R v Ballantyne (unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 1 April 2014), R v MT [2014] ACTSC 162, R v Taylor [2015] ACTSC 43, R v Wyper [2017] ACTCA 59, R v Aroub [2017] ACTSC 187, R v Finau (No 2) [2020] ACTSC 193, R v Ali (No 4) [2020] ACTSC 350, R v Incandela (No 4) [2022] ACTSC 139 and R v Okwechime [2022] ACTSC 233.
110․Additionally, I have also considered R v Stevens (No 3) [2016] ACTSC 297, R v Alabbasi [2017] ACTSC 231, R v Teel (a pseudonym) [2021] ACTSC 183, R v Kelly [2020] ACTSC 292 and R v UG [2018] ACTCA 64.
111․In Stevens, the offender was found guilty by a jury of four counts of sexual intercourse without consent. The victim met the offender online and she invited him to stay at her home for a period while he was searching for accommodation. The offending occurred in her home. Prior to engaging in a sexual relationship, the victim had explained to the offender that anal intercourse was a “no-go area.” During the course of consensual sexual intercourse the offender penetrated the victim’s anus without her consent on two separate occasions. There were two other incidents of sexual intercourse without her consent, one involving oral intercourse and one involving penile/vaginal intercourse. The offender had a significant criminal history mostly for driving related offences and did not demonstrate remorse. The offender was sentenced to 24 months and 36 months imprisonment for each count of anal intercourse, 26 months imprisonment for the oral intercourse and 36 months for the vaginal intercourse. An aggregate period of imprisonment of 5 years and 8 months imprisonment was imposed.
112․In Alabassi, Burns J considered sexual offences committed with the aid of threats of additional violence. The offender was found guilty by of jury of anally raping the victim while physically threatening her with a pair of scissors. His Honour sentenced the offender to 30 months’ imprisonment for a charge of sexual intercourse without consent. The offender was also found guilty of an offence pursuant to s53(1) of the Crimes Act. The offender was a refugee from a war-torn country and had been influenced by his father and brother both of whom were involved in criminal activity. The offender was using illicit substances at the time of the offending and expressed remorse. He was assessed as having “reasonable” prospects for rehabilitation.
113․In Earle the offender was a relatively young man with no criminal history. He was found guilty by a jury of one act of indecency and one act of sexual intercourse without consent. The act of indecency was rubbing the victim’s clitoris while she was asleep knowing she was not consenting. The act of sexual intercourse without consent was penile/vaginal intercourse in circumstances where the Chief Justice determined she could not be satisfied beyond reasonable doubt that he knew she was not consenting and sentenced him on the basis that he “did not turn his mind to the need to ascertain consent to the different kind of intercourse in which he was about to engage”: at [12]. That act lasted a couple of minutes He was found to be unlikely to reoffend. For the act of indecency, the offender was sentenced to a term of imprisonment for 1 year and for the act of sexual intercourse without consent he was sentenced to a term of imprisonment for a period of 2 years and 6 months. The total period imposed was 3 years imprisonment to be served by way of ICO with an additional condition requiring the offender to perform 300 hours of community service.
Act of indecency
114․In Teel, Burns J sentenced an offender in relation to a large number of sexual offences committed against his then partners at the time of offending. The offender was 25 years of age with no criminal history. He entered pleas of guilty at a very early stage in the proceedings and provided assistance to police investigations which saved considerable time and resources. Justice Burns allowed a total discount of 30% in those circumstances. He was sentenced for eight counts of acts of indecency, three were rolled-up counts, as well as a large number of other serious sexual offences. Both victims were married to the offender at the time of the offending which occurred in their own homes; all but one occurred while the victim was unconscious. The first rolled up count of an act of indecency involved touching of this victim’s breasts and genital area, and manipulating her hand so she that touched these areas, all whilst filming. The offender was sentenced to a period of 10 months imprisonment for this charge. The second rolled-up count of an act of indecency encompassed acts of sexual touching of the victim’s legs, breasts and genital areas, masturbation, ejaculating on the victim and touching the victim with his penis all while filming, lasting for under 10 minutes. A sentence of 12 months imprisonment was imposed. The third rolled-up count of an act of indecency encompassed stroking to victims face while masturbating, while filming, and lasted five minutes. A sentence of 12 months imprisonment was imposed. Two other single charges included the offender putting the victims’ hand on his penis and ejaculating on her breasts. In each case sentences of 12 months imprisonment were imposed. There were 3 other offences of acts of indecency that saw sentences imposed of 12, 9 and 3 months imprisonment. The offender was regarded as having reasonable prospects for rehabilitation and had undertaken some programs. A slight reduction in moral culpability was allowed for the offender’s psychological conditions and alcohol abuse. He had demonstrated some degree of remorse for the conduct. Including 15 other offences, the total period imposed was an aggregate sentence of 9 years and 10 months imprisonment with a non-parole period of 5 years and 10 months.
115․In Kelly, the offender was sentenced for a single count of an act of indecency amongst multiple counts of theft and burglary. The offender had broken into an Australian National University (ANU) residential college at night and stolen multiple items, then went into the victim’s room. The victim woke up to the offender standing over her, rubbing her breasts. While doing this he said, “you don’t know me” and then attempted to steal the victim’s laptop. He also said, “I will rape you.” The offender was unknown to the victim and the offending was described as opportunistic. The offending was assessed as objectively very serious. The offender expressed sincere remorse, and the offender was considered to have somewhat guarded prospects for rehabilitation. He had a criminal history including a prior conviction for an act of indecency. The offender was sentenced to 2 years and 6 months imprisonment for an act of indecency; a 20% discount for a plea of guilty was allowed reducing the sentence to 2 years imprisonment.
116․In UG, the offender was re-sentenced on appeal for sexual intercourse without consent and an act of indecency without consent and burglary with intent to cause harm. The offender was the prospective brother-in-law of the victim. After a family dinner, in the early hours of the morning the offender drove to the victim’s home with the intent of having sexual intercourse with her, went into the victim’s bedroom and began to engage in sexual activity with her while she was asleep, including grinding on her, “dry-humping” her, feeling her body, touching her nipples and vagina (constituting the act of indecency) and engaging in cunnilingus (constituting the sexual intercourse without consent). The offending was determined to have involved some level of planning and was found to be a breach of trust. On appeal, the offender was re-sentenced to a starting point of 8 months imprisonment, reduced to 6 months imprisonment for the plea of guilty, for the act of indecency.
Determination
117․I sentence the offender against the background of the objects and purposes of the Crimes (Sentencing) Act contained in ss 6 and 7.
118․In The Queen v Miller [2019] ACTCA 25 the Court of Appeal said 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.
119․Of course, in observing that guidance the instinctive synthesis that attends to every sentencing exercise must still give effect to individualised justice. Again, in Earle, citing the above extract from Miller, the Chief Justice observed at [44]:
Such comments are important for general guidance and in supporting consistency in sentencing, but they must not be hardened into immutable rules. To apply statements of broad application in that way would put a gloss on the terms of s 7(2) of the Crimes (Sentencing) Act and would subvert individualised justice and the process of instinctive synthesis that this Court is required to undertake in accordance with decision of the High Court in Markarian v the Queen [2005] HCA 25; 228 CLR 357.
120․As is the case for every sentencing exercise, careful attention must be paid to the maximum penalty as it provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31]. The offending is plainly very serious. It involved deliberate exploitation of the victim’s vulnerable state and significant, prolonged violation of her bodily integrity in multiple ways. The offender’s culpability is high. The trauma suffered by the victim as a direct consequence of the offending is powerfully set out in the VIS. Consent to sexual activity is fundamental to bodily autonomy, it should not ever be taken or assumed to exist. In this case the offender completely ignored the right of the victim to have any say about what should happen to her body and for Count 1 did so knowing she was in no position to do so. General deterrence is a prominent sentencing consideration - so too punishment, accountability and denunciation to demonstrate to the offender and to the community that the conduct is unacceptable and must be condemned.
121․I take into account the subjective circumstances of the offender. I am satisfied that he has demonstrated genuine remorse and this is an important factor when considering his prospects for rehabilitation: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at [41]. Despite the offender’s ongoing use of drugs I am not persuaded, in part because of the significant history of drug use combined with the absence of any significant criminal history, that he presents a risk specifically to the victim or to other women or to the community more broadly. I am satisfied the offending was generally, out of character for the offender.
122․It is indeed curious that in the time since the offending, in particular since the time the offender was charged with these offences, he has not sought any significant assistance to address his use of drugs given it featured in the circumstances of the offending. The offender frankly admits to ongoing, daily drug use albeit with the small moderation of now only using GBL in his own home. This unaddressed drug issue was a critical factor in the finding that he was unsuitable for an ICO, removing it as a realistic option as an alternative to full time imprisonment. While the court can still determine to make an ICO even where a person is assessed as being unsuitable (s 78(5) Crimes (Sentencing) Act) the circumstances as I have outlined them here do not support that approach.
123․The offender’s inaction in relation to addressing his drug use is also curious in the context of the ongoing support of his partner who clearly and unsurprisingly considers his drug use a problematic issue for the future of their relationship; a relationship the offender holds out as a cherished feature of his life. His partner specifically addressed this in her reference saying, “I would be open to marriage counselling – but Ben will need to get psychological help and address his drug problem first.” The confidence expressed by the offender to the author of the PSR about his ability to cease using drugs without any supports or assistance is completely at odds, in my view, with the total inaction on his part to do anything to address his drug use at least since his arrest in November 2022. The offender’s reluctance to address that issue does impact an assessment of his prospects for rehabilitation and requires some degree of specific deterrence. The offender seems almost resigned to the idea that he will go to prison for these offences and consequently considers his drug use to be something he can address while in custody. He will get that opportunity. If the offender is able to successfully address his drug use I am satisfied he has very good prospects for rehabilitation.
124․The only appropriate outcome having regard to possible alternatives is a period of imprisonment: s 10, Crimes (Sentencing) Act. Counsel for the offender conceded as much and further conceded that in the circumstances it should be served as an immediate, full time period. I agree. It is the only outcome that properly respects the sentencing purposes that I have identified.
125․I must fix a sentence for each offence and then consider questions of accumulation or concurrence applying the principle of totality: Pearce v The Queen (1998) 194 CLR 610 at 623-624. The sentence must be just and appropriate to reflect the total criminality of the offending: Mill v The Queen (1998) 166 CLR 59. The offending was a continuing course of conduct and the counts occurred one after the other. I consider that some degree of accumulation is required to recognise the separate nature of the counts, the prolonged nature in particular of Count 1, the criminality involved in each count given they are rolled up counts and to properly achieve the purposes of sentencing.
126․The starting point for the act of indecency offence is 20 months imprisonment. It will be rounded down to 19 months imprisonment for the plea of guilty.
127․The starting point for the sexual intercourse without consent offence is 42 months imprisonment. It will be rounded down to 35 months imprisonment for the plea of guilty.
128․I must set a non-parole period: s 65 Crimes (Sentencing) Act. Nominating a non-parole period involves a consideration of the sentencing purposes contained in s 7 Crimes (Sentencing) Act. The non-parole period is imposed because justice requires that the offender serve that period in custody: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [57]. It is the minimum period of actual incarceration that an offender must spend in full time custody having regard to the objective seriousness of the offending, the offender’s subjective circumstances and the purposes of sentencing including punishment and rehabilitation.
129․The relevant principles in relation to non-parole periods have been discussed in Henry v The Queen [2019] ACTCA 5 at [33]-[37], Taylor v The Queen [2014] ACTCA 9 at [19], and O’Brien v the Queen [2015] ACTCA 47. I have had regard to those principles.
130․An offender’s prospects for rehabilitation are an important factor in determining a non-parole period. They can make a significant difference to the non-parole period and are relevant to an assessment of what is required to protect the community. The setting of a non-parole period involves the exercise of a wide discretion. Here I consider the offender has very good prospects for rehabilitation. I have already commented that I do not consider protection of the community to be a significant concern. On the other hand, the offences are serious and a non-parole period reflects the minimum term the offender must serve before release into the community can be considered. Having carefully considered all the relevant factors in my view the appropriate non-parole period in this matter is around 55 percent of the head sentence.
131․The orders of the court are:
(1)On Count 1 of committing an act of indecency without consent (CC2022/11048) the offender is convicted and sentenced to 19 months imprisonment (6 months will be cumulative on Count 1 – sexual intercourse without consent) starting on 22 July 2025 and ending on 21 February 2027.
(2)On Count 2 of sexual intercourse without consent (CC2022/11055) the offender is convicted and sentenced to 35 months imprisonment starting on 22 September 2023 and ending on 21 August 2026.
(3)This is a total head sentence of 41 months or 3 years and 5 months. The non-parole period starts on 22 September 2023 and will end on 22 July 2025.
| I certify that the preceding one hundred and thirty-one [131] paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Taylor. Associate: Date: 25 September 2023 |
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