R v Emberton
[2022] ACTSC 286
•14 October 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Emberton |
Citation: | [2022] ACTSC 286 |
Hearing Date: | 6 October 2022 |
DecisionDate: | 14 October 2022 |
Before: | Kennett J |
Decision: | See [57] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated robbery – destroying or concealing evidence – sexual intercourse without consent – where victim of offences is a sex worker – where offender has no criminal antecedents and strong prospects for rehabilitation |
Legislation Cited: | Crimes (Sentencing) Act2005 (ACT) s 35 Crimes Act 1900 (ACT) s 54 Criminal Code 2002 (ACT) ss 310, 706 |
Cases Cited: | Hall v The Queen; Barker v The Queen [2017] ACTCA 16 Jurj v The Queen [2016] VSCA 57 O’Brien v The Queen [2015] ACTCA 47 R v Al Abbasi [2017] ACTSC 239 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Incandela (No 4) [2022] ACTSC 139 R v Miller [2019] ACTCA 25; 279 A Crim R 232 R v Verdins [2007] VSCA 102; 16 VR 240 |
Parties: | The Queen ( Crown) Craig Emberton ( Offender) |
Representation: | Counsel S Bargwanna ( Crown) J Moffett ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Rachel Bird & Co ( Offender) | |
File Number: | SCC 182 of 2022 |
KENNETT J:
Introduction
The offender, Craig Emberton, pleaded guilty to the following offences:
(a) Aggravated robbery, contrary to s 310 of the Criminal Code 2002 (ACT) (Criminal Code). The maximum penalty is 25 years’ imprisonment, a fine of $400,000, or both.
(b) Destroying or concealing evidence, contrary to s 706(1) of the Criminal Code. The maximum penalty is seven years’ imprisonment, a fine of $112,000, or both.
(c) Sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT) (Crimes Act). The maximum penalty is 12 years’ imprisonment.
Facts
The facts are agreed and set out in an agreed statement of facts before the Court.
On 25 March 2022 the victim, who is an independent sex worker, received a text message from the offender requesting her services. The victim accepted the booking and the two arranged to meet at the victim’s apartment in Canberra City that afternoon.
At 4:00PM, the offender arrived at the apartment. On entering, he pulled a knife from his pocket, pointed it at the victim and demanded money from her. The victim retrieved her wallet and handed the offender approximately $430 from it.
The offender then directed the victim to take off her clothes and have sex with him. At the request of the victim, the offender placed a condom over his penis. He also placed the knife on a nearby dining table.
The offender proceeded to have sexual intercourse with the victim. At some stage, the offender removed the condom and continued the sexual intercourse.
He then told the victim to get on her knees and give him oral sex, which the victim did. The offender told the victim that he was going to ejaculate and proceeded to ejaculate in her mouth.
The offender then demanded the victim’s phone. Once it was provided, he deleted her call log and message history.
Objective seriousness
Aggravated robbery
The guideline judgment of the NSW Court of Criminal Appeal in R v Henry [1999] NSWCCA 111; 46 NSWLR 346 (Henry) is not binding but has been treated as persuasive when assessing the objective seriousness of an aggravated robbery: Hall v The Queen; Barker v The Queen [2017] ACTCA 16.
Without setting out exhaustively every factor discussed in that case, the following features discussed in Henry are relevant.
The offence involved the use of a knife. While not as dangerous as a firearm, a knife is “always loaded” and capable of inflicting serious injury. The other statutory circumstance of aggravation, being in company, was not present.
The complainant was somewhat vulnerable. I infer that, because he was attending the apartment under the pretence of obtaining commercial sex services, the offender considered it likely that the victim would be alone inside the apartment and unable to easily obtain assistance.
No actual violence was inflicted on the complainant. Nor was there any overt threat made. However, the brandishing of the knife and the subsequent demand for money constituted an implied threat to use the knife to harm her if she did not comply; it was a threat of some intensity.
There was a significant degree of premeditation involved. The offender attended the apartment armed and, on entry, almost immediately proceeded to brandish the knife. As the offender admitted to police, he was in financial difficulty and his motivation for the offending was financial gain. I infer from this that the whole process of making an appointment with the complainant and then going to her apartment was conceived for the purpose of carrying out the robbery.
The victim provided a victim impact statement. Evident from that statement is that she was concerned for her life. Following the offence, she considers that she was constantly in “flight mode”, scared to go outside and meet other people.
Approximately $430 was taken from the complainant. This is a small, but not insignificant amount.
I assess the objective seriousness as falling in the mid-range.
Destroying or concealing evidence
To my mind the salient features of this kind of offence are the:
(a) nature of the evidence that was destroyed or concealed, including if it was able to be later recovered;
(b) degree of sophistication of the offending;
(c) offence to which the evidence related and its materiality to any associated legal proceeding; and
(d) intention with which the offence was committed (noting that an element of the offence is that the intention includes either influencing a decision about starting a legal proceeding or influencing the outcome of a legal proceeding).
The present offence was unsophisticated. It involved the destruction of phone records that were easily able to be recovered. It was accepted by the Crown that it was not planned. Although the phone records were inculpatory, they were not essential to the Crown case: the offender had been captured on CCTV walking in and out of the building containing the apartment; and during the execution of a search warrant of the offender’s premises, police located the knife used during the offending and the clothes visible on the CCTV footage. In light of this evidence, the offender’s identity is unlikely to have been in issue at trial and any contest would have concerned what occurred between him and the complainant inside the apartment.
The intention I infer from the circumstances surrounding the offending is that the offender was intending to influence the victim’s decision whether to report his conduct to authorities, as well as to conceal his identity if she did report.
The offences to which the destroyed evidence related, being aggravated robbery and sexual intercourse without consent, are both serious offences that carry large maximum penalties.
I assess the objective seriousness of this offence as falling at the lower end of the mid-range.
Sexual intercourse without consent
The decision of the Victorian Court of Appeal in Jurj v The Queen [2016] VSCA 57 has been frequently cited with approval in this jurisdiction when considering the salient features of a sexual offence. These features are:
(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.
As accepted by the parties, the sexual assault was not premediated but opportunistic. The offender entered the apartment armed and, I infer, with the intention of robbing the victim. I am not satisfied that, prior to entering the victim’s apartment, the offender had planned to sexually assault her.
The offender acted alone. The statement of facts does not make the exact duration of the sexual intercourse clear. However, the offence occurred between 4:00pm and 4:13pm and was therefore not of extended duration. The offending encompassed both penile/vaginal penetration performed in multiple positions and oral sex culminating in ejaculation.
A weapon was present during the offending, being the knife. This aggravating feature was an element of the offence of the aggravated robbery. It was nevertheless accepted by counsel for the offender that the presence of the knife (which was on the table while the offending occurred) should be taken into account in assessing the objective seriousness of this offence. I accept that the presence of the knife would have instilled fear in the victim’s mind.
Although the offender did wear a condom, he removed this at some point exposing the victim to risk of sexually transmitted infection.
No physical injury was occasioned during the course of the offence. However, as is often the case with this type of offending, it has ongoing psychological consequences. In the victim impact statement, the victim explains the significant effect that the offending has had on her. She describes experiencing depression, anxiety and embarrassment that culminated in her experiencing suicidal ideation. The offence affected her relationship with her family and her ability to move through the community without fear.
Because of the nature of their profession which often places them alone with their clients undressed and in isolated places, sex workers are particularly vulnerable to offences of this kind: See, eg, R v Miller [2019] ACTCA 25; 279 A Crim R 232 (Miller), [34]. Sex workers are required to place a degree of trust in their clients in order to perform their services and this trust is easily abused. This is particularly so where, as in the present case, the sex worker does not have access to protective features such as a duress alarm or security personnel.
Offences of this kind are invariably humiliating and degrading to a degree. This offending was not associated with any kind of gratuitous humiliation or degradation (which might occur where offences are performed in the view of the public or before a group of people: see, eg, R v Incandela (No 4) [2022] ACTSC 139, [13]).
On the facts before the Court there is no evidence of protest by the victim. However, it would have been clear to the offender from the basis of their prior agreement and the aggravated robbery that proceeded the offence that sexual acts were only agreed to on a commercial basis and that he was proceeding without the victim’s consent.
Having regard to the above features, I assess the offence as falling in the mid-range of objective seriousness, but towards the upper end of that range.
Subjective circumstances
The offender is a 34 year old man. He was born in Brisbane and raised in a loving and pro-social household. From Brisbane, his family moved to Adelaide where he spent the majority of his childhood.
At around the age of 17, he relocated to Canberra without his family to live with his partner. The two remained together for a period of approximately 16 years and had two children together. They separated in 2018. Since then, the offender has had limited contact with his children but hopes to increase the amount of time they spend together.
He met his current partner in 2021 and they remain together. Before the Court is a letter written by her in which she describes him as a devoted father and loving partner. Various other letters were also tendered on behalf of the offender from family, friends and colleagues, who each describe the offending as out of character.
The offender left school midway through Year 12. He reports being bullied and being suspended from school on at least one occasion for fighting.
He has maintained employment throughout his adult life. His most recent period of employment was as a truck driver. Once released, he seeks to study IT, get further licencing qualifications for driving heavy vehicles or to work in a warehouse.
He reported suffering financial stress prior to the offending, with the majority of his income being consumed by rent, child support and household bills. He also has debts of approximately $6000.
The offender has no history of illicit drug use and consumes alcohol rarely. There is no evidence that the offending was contributed to by use of drugs or alcohol.
He reports some prosocial peers, who he communicates with predominantly through online gaming.
Prior to entering custody, the offender had limited mental health engagement, consisting of psychology sessions following the breakdown of his relationship. Since entering custody, he has been prescribed anti-depressant medication and has reported improvements in his mental health. He currently considers his condition stable. A psychological assessment report authored by Dr Matt Visser noted significant elevation on the anxiety related disorders scale. It was not submitted that this condition enlivened the principles in R v Verdins [2007] VSCA 102; 16 VR 240.
He told the author of the pre-sentence report that he agreed with the statement of facts and accepted responsibility for the offending, nominating financial strain as his primary motivation.
The offender wrote a letter to the Court in which he expresses his apologies to the victim and regret for his actions. He says that he endeavours to become a better person to demonstrate to his friends and family that they can still trust and rely on him.
I consider that the offender’s prospects for rehabilitation are strong. He has no criminal antecedents and numerous protective factors in place on release, including supportive family and friends, no history of substance abuse, and good prospects of employment. The only significant concern I have related to financial stress, which was the motivation for the offending. However, the offender seems willing to accept assistance in this respect, including by speaking to his father who is currently assisting him with legal fees.
Other sentencing considerations
Guilty plea
On 18 July 2022, on the fifth mention of the matter in the Magistrates Court, the offender pleaded guilty to the charges before the Court. There is no suggestion that the Crown case was overwhelming such as to engage the operation of s 35(4) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). Given their early entry, the pleas have significant utilitarian value and pursuant to s 35 of the Sentencing Act I will discount the sentences I would have imposed by approximately 25 per cent.
Time in custody
The offender has been in custody since his arrest on 5 April 2022. This is a period of 192 days. I will backdate the sentence to 5 April 2022 to take into account this time in custody.
Comparative cases
Although I was referred to a range of comparative cases, the Crown placed particular emphasis on the case of R v Al Abbasi [2017] ACTSC 239. This case concerned two incidents. Both involved booking the services of a sex worker.
In one instance the offenders, in company with another man, forced entry into the sex worker’s apartment after being told they could not enter as a group. They forced her, and another sex worker inside the apartment to perform sexual acts on them including oral sex and penile vaginal intercourse. One victim initially resisted but ceased when she saw that one of the offenders was holding a knife.
In the other instance, when being taking to the victim’s apartment, one of the offenders (not in company with the others) brandished a box cutter and demanded money. When informed that the victim did not have money, he requested penile/vaginal intercourse which occurred with a condom on and culminated in ejaculation.
Unlike the present offending, which is a rolled-up count encompassing multiple sexual acts, the offenders pleaded to a range of offences. For offences of sexual intercourse without consent in company or attempt at this offence, his Honour imposed sentences that ranged between one year and six months imprisonment and two years, 11 months, and 21 days’ imprisonment. For offences of aggravated robbery or attempt at this offence, his Honour imposed sentences between 10 months and five days’ imprisonment and three years’ imprisonment. All sentences imposed included a discount of 15 per cent in recognition of the plea of guilty.
I note that the majority of the sexual offences were offences against s 54(2) of the Crimes Act (sexual intercourse without consent in company) as it then was which carried a maximum penalty of 14 years’ imprisonment, more than the maximum penalty for the sexual offending in this case.
Consideration
As the Court of Appeal acknowledged in Miller, the primary sentencing considerations for sexual offending will usually be punishment, deterrence (both general and specific), denunciation and recognition of the harm done to the victim. This is certainly the case in the present circumstances.
In respect of the offence of destroying or concealing evidence, the most prominent sentencing purpose is general deterrence. Any attempt to influence the bringing of a prosecution by the destruction of evidence is an attack on the administration of justice that must be denounced by the Court.
Rehabilitation is also an important sentencing purpose given the offender’s strong prospects. However, because of the gravity of the offending, it must not detract from proper recognition of the other sentencing considerations I have described above.
In fixing the sentences, I have had regard to the principle of totality as expounded by the Court of Appeal in O’Brien v The Queen [2015] ACTCA 47 at [26].
The offences occurred as part of a single incident concerning a single victim. This warrants some degree of concurrency. But given the distinct nature of the offences, making the sentences entirely or substantially concurrent would not reflect the total criminality of the offending.
Sentence
The orders of the Court are:
(1)On the charge of sexual intercourse without consent, the offender is convicted and sentenced to two years and seven months’ imprisonment (discounted from three years and five months’ imprisonment in recognition of the guilty plea), from 5 April 2022 to 4 November 2024.
(2)On the charge of aggravated robbery, the offender is convicted and sentenced to imprisonment for two years and nine months’ (discounted from three years’ and eight months’ imprisonment in recognition of the guilty plea), from 5 August 2023 to 4 May 2026.
(3)On the charge of destroying or concealing evidence, the offender is convicted and sentenced to nine months’ imprisonment (discounted from one year’s imprisonment in recognition of the guilty plea), from 5 December 2025 to 4 September 2026.
(4)The total sentence is four years and five months’ imprisonment, from 5 April 2022 to 4 September 2026.
(5)I fix a nonparole period of two years and four months’ imprisonment, from 5 April 2022 to 4 August 2024.
| I certify that the preceding fifty-seven [57] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Kennett Associate: Date: |
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