R v Aroub

[2017] ACTSC 187

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Aroub

Citation:

[2017] ACTSC 187

Hearing Dates:

16 May 2017; 7 June 2017; 14 July 2017

DecisionDate:

14 July 2017

Before:

Murrell CJ

Decision:

Sentenced to 2 years’ imprisonment, suspended after 6 months upon the offender entering into a good behaviour order for 18 months.

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Jury trial – Offences against the person – Sexual intercourse without consent – Act of indecency – Opportunistic digital penetration of sleeping victim – Significant impact on victim – Offender with disadvantaged background – No prior relevant criminal history – Totally concurrent sentences

Legislation Cited:

Crimes Act 1900 (ACT) ss 50(1), 54(1), 60(1)

Crimes (Sentencing) Act 2005 (ACT)ss 7, 33

Cases Cited:

Markarian v The Queen [2005] HCA 25; 228 CLR 357

R v Ballantyne (Unreported, Supreme Court of the Australian Capital Territory, Chief Justice Murrell, 1 April 2014)

Parties:

The Queen (Crown)

Ozogow Aroub (Offender)

Representation:

Counsel

Ms S McMurray (Crown)

Mr R Davies (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Offender)

File Number:

SCC 208 of 2015

MURRELL CJ:

1. On 15 March 2017, a jury found the offender guilty of two offences committed on 19 April 2015:

(a)Count 1: Engaging in sexual intercourse with the victim without her consent and being reckless as to whether she consented contrary to s 54(1) of the Crimes Act 1900 (ACT) (Crimes Act).

(b)Count 2: Committing an act of indecency on the victim without her consent and being reckless as to whether she was consenting contrary to s 60(1) of the Crimes Act.

1. The offence of engaging in sexual intercourse without consent carries a maximum penalty of 12 years’ imprisonment.

1. The offence of committing an act of indecency without consent carries a maximum penalty of seven years’ imprisonment.

Facts

1. On the night of 18 April 2015, the victim accompanied a friend to Civic. During the evening, the friends consumed alcohol at several nightclubs. They met the offender.

1. The offender consumed alcohol during the evening.

1. In the early hours of 19 April 2015, the victim, her friend, the offender and others went to the offender’s home. Eventually, the victim went to a spare room where she lay down and fell asleep.

1. The victim awoke to find the offender digitally penetrating her (Count 1). He had unzipped her dress and was kissing her back between the shoulder blades (Count 2).  The victim pushed the offender’s hand away.  He smiled and told her to “relax”.  She told the offender that she needed to go to the bathroom. She attempted to do so but was unable to open the door as it had no handle.  The offender assisted her to open the door and she left the room.  The victim found her friend and told her what had occurred. 

1. The victim and her friend telephoned the police and called a taxi.  A few hours later, the police…