R v Hope

[2021] ACTSC 101

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Hope
Citation:	[2021] ACTSC 101
Hearing Date:	29 April 2021
Decision Date:	27 May 2021
Before:	Burns J
Decision:	See [27]–[30]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – engage in sexual intercourse without consent – act of indecency without consent – pleas of guilty – high moral culpability with regard to the offending – whether Klinefelter syndrome lessens moral culpability of offender – no significant evidence of remorse – consideration of appropriateness of intensive correction order
Legislation Cited:	Crimes Act 1900 (ACT) ss 54(1), 60(1)
Parties:	The Queen (Crown)
Simon David Hope (Offender)
Representation:	Counsel
K Marson (Crown)
J Moffett (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown) Rachel Bird & Co (Offender)
File Number:	SCC 268 of 2020
BURNS J:

1. Simon Hope, on 24 November 2020 you entered pleas of guilty in the ACT Magistrates Court to one offence of engaging in sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT) (Crimes Act) (CAN 9958/2020), and one offence of committing an act of indecency without consent, contrary to s 60(1) of the Crimes Act (CAN 9959/2020).

2.       The offence of engaging in sexual intercourse without consent carries a maximum penalty of 12 years' imprisonment, while that of committing an act of indecency without consent carries a maximum penalty of 7 years' imprisonment.

3.       You were committed for sentence to this Court and on 29 April 2021 you appeared before me and adhered to your pleas of guilty. It is now my responsibility to sentence you for these offences.

The facts

4.       A comprehensive Agreed Statement of Facts was tendered at the sentencing hearing on 29 April 2021. I will not recite the facts in full. In summary, the victim was a young woman who was known to you and who considered you to be a friend. The two of you separately attended a birthday party at the address of a mutual friend on 19 January 2019. During the party the victim consumed two or three alcoholic drinks, making her tipsy but not intoxicated. She spent the evening speaking to friends, both inside and outside the premises. She had friendly conversations with you in a group setting.

5.       Towards midnight, on 19 January 2019, the victim asked the owner of the residence, where the party was being held, if she could stay the night to which he agreed. Other guests, including yourself, were planning on staying overnight at the residence. You had previously slept in a spare room of that residence following earlier parties.

6.       On that occasion the owner took the victim to the spare room and provided her with bedding. The room contained a single bed. The victim was wearing a dress, a bra and underwear. She wore all of her clothing to bed and was the only person in the room when she fell asleep. During the night, while the victim was asleep, you entered the room and sexually assaulted her. You got into bed with her and pressed yourself against her and rubbed your hands along her legs. This is the basis of the charge of committing an act of indecency (CAN 9959/2020).

7.       You then put your head between her legs and licked her vagina and placed your fingers inside her vagina. This is the basis of the charge of engaging in sexual intercourse without consent (CAN 9958/2020). The victim initially thought that she was dreaming but realised that something had, in fact, happened the next morning when she saw that her clothing had been disturbed.

8.       The next day you exchanged messages with the victim on social media in which she said that she had a recollection of what you had done to her. You apologised and sought to explain your behaviour on your consumption of alcohol. You subsequently suggested that your behaviour may have been caused by exposure to the fumes of methylamphetamine which was smoked by one of your friends in your presence at the party.

9.       Some months later the victim reported this matter to police and on 21 November 2019 the victim engaged in a pretext telephone conversation with yourself whilst she was in the company of police. You made admissions in the course of that telephone conversation.

10.     On 5 March 2020 you participated in a recorded interview with police. You told them that you had consumed 12 to 14 cans of pre-mixed bourbon drinks during the party on 19 January 2019. You told police that you had sat with a friend who was smoking

“ice” at one point during the party. You said that you later entered the spare bedroom

looking for a place to sleep. You saw another woman, not the victim, on the bed and sat next to her for about 10 minutes and talked with her. She then left the spare room expressing the intention to drive home. You told police that you then left the room and told the occupant of the premises that the other woman had left and that you would now have the spare room to yourself. You told police that you re-entered the spare room and laid down on the bed. You said that about 10 minutes later the victim came into the room and laid down next to you. You said that you then fell asleep and had no recollection of anything happening inside the room until the following morning.

11.     When confronted with your social media messages to the victim, you told police that

you were apologising because that was what you thought the victim “needed to hear”

but you maintained that you had not engaged in the conduct alleged by the victim. You said that you took a similar approach in the telephone conversation with the victim on 21 November 2019.

12.     A Victim Impact Statement was read at the sentence hearing, in which the victim speaks forcefully of the continuing psychological and emotional effects of your actions upon her. The effects of these offences have been felt in her family life, in her relationship with her partner and in her work. She has been so significantly affected that she has had to give up work and is now struggling to survive on a parenting payment. There can be little doubt that the victim will continue to feel the consequences of your offending for the foreseeable future.

Objective circumstances

13.     All sexual offences are serious. There are a number of circumstances attending the present offences which make them particularly serious. I am satisfied that a degree of pre-meditation was involved. You must have been aware, when you entered the spare bedroom, that it was occupied by the victim. You had to proceed into the room and enter the bed before committing these offences. You also had to disturb the victim's clothing before committing the offence of sexual intercourse without consent. The victim was, at that time, vulnerable, because she was asleep, and to some extent, affected by alcohol. I accept that there was no evidence of significant planning prior to you entering the spare bedroom. You were only able to commit this offence because the victim trusted you as a person that she had known.

Subjective features

14.    A Pre-Sentence Report prepared for the sentence hearing notes that you are 26 years old. You have no prior criminal history. Your childhood was not marred by neglect or abuse, and you reported growing up in a loving and supportive household. You are currently single with no children. You reside with your parents in the ACT.

15.     You were educated to Year 12 level before undertaking an apprenticeship as a diesel mechanic. You had difficulty in completing that apprenticeship and you have not worked in that industry from that time on. You are currently employed in the window production industry.

16.     You have no history of illicit drug use, but it appears that you engaged in some binge drinking on weekends. This does not appear to have been a factor in any prior anti-social behaviour. You have significantly reduced your alcohol consumption since this offence.

17.     The Report notes that you suffer from Klinefelter syndrome, which leads to problems with you processing language and understanding social situations, especially under stress.

18.     You told the author of the Report that you agreed with the Statement of Facts and nominated intoxication from alcohol use as a primary contributing factor for your offending. You were assessed as a low risk of general re-offending and an average risk of sexual re-offending. You were assessed as suitable for a number of sentencing options, most relevantly an Intensive Correction Order.

19.     A number of letters were tendered on your behalf. A letter from your parents speaks of you as being a quiet and shy person, who is a reliable and caring family member. It speaks of the affect upon you of your Klinefelter syndrome and, in particular, how you struggle academically and socially. Your parents say that you had trouble socialising because you do not read social cues effectively. They describe the present charges as being entirely out of character for you.

20.     A letter from your sister speaks of the importance to you of your friends and how you have lost many of your friends because of the present offences. She states that you have become increasingly sad and alone. You have continued, however, to demonstrate commitment to your work. Your sister describes you as a caring and thoughtful person, respectful towards the feelings of others. She said that the present offences are completely out of character and go against your kind nature.

21.     I was also provided with a letter from a family friend who had close dealings with you in the Scout movement. He refers to your need to be part of a friendship group and how this has led to some questionable associations. He states that the present offences are completely out of character for you. He has observed that this incident has greatly affected you and your family and that you are now very withdrawn. Finally, I was provided with a letter from your employer which speaks highly of you as a diligent and honest employee.

22.     A brief report from a General Practitioner confirmed that you suffer from Klinefelter syndrome and that this condition leads to problems with you processing language and understanding social situations, especially when put under stress.

Consideration

23.     At the outset it is important to acknowledge that your moral culpability with regard to your offending is high. There is no evidence which connects your underlying Klinefelter syndrome to your offending behaviour. This is not a case in which there was any misreading of social cues or in which you were required to act under pressure. Your self-induced intoxication does not significantly reduce your moral culpability. I am also not satisfied that you were affected by methylamphetamine at the time that you committed these offences. The nature of your underlying syndrome will, I accept, probably make life slightly more difficult for you in custody than for a person without such a syndrome.

24.     I accept that these offences were momentary and were opportunistic, albeit that you had time to consider what you were doing. Beyond your plea of guilty, the evidence does not contain significant evidence of remorse. You lied to the police when spoken to about these offences. I accept that you did demonstrate some remorse to the victim in the course of your communications with her after these offences and I accept that your plea of guilty also demonstrates a level of remorse. Your pleas of guilty had significant utilitarian value and because of those pleas I will reduce by approximately 25 per cent the sentences that I would otherwise have imposed.

25.     In my opinion, a sentence of imprisonment is inevitable with regard to these offences. I have given careful consideration as to whether a sentence of imprisonment to be served by way of Intensive Correction Order would be sufficient to satisfy the aims of sentencing. In that regard I observe that punishment and deterrence are the predominant sentencing considerations for offences of this type, which are apt to cause great harm to other members of the community as these offences did. Whilst you have reasonable prospects for rehabilitation, personal deterrence is still relevant.

26.     The Crown provided me with a list of comparative authorities. None of the matters set out in that list are exactly the same as the present matter, but they do provide a guide regarding sentencing practice for offences of this nature. I have reached the conclusion that nothing less than sentences involving some period of immediate imprisonment will be adequate to address the requirements of sentencing.

Sentence

27.     With regard to the offence of sexual intercourse without consent (CAN 9958/2020), I record a conviction and you are sentenced to 18 months' imprisonment commencing today, 27 May 2021, and expiring on 26 November 2022. I have reduced this from two years' imprisonment because of your plea of guilty.

28.     With regard to the offence of committing an act of indecency without consent (CAN 9959/2020), I record a conviction and you are sentenced to six months' imprisonment commencing on 27 June 2022 and expiring on 26 December 2022. I have reduced this from eight months imprisonment because of your plea of guilty.

29.    The aggregate sentence which I have imposed is, therefore, one of 19 months' imprisonment commencing 27 May 2021 and expiring on 26 December 2022.

30.     Due to of your prior good character and the probability that you will find imprisonment somewhat more onerous because of your Klinefelter syndrome, I will set a shorter than usual non-parole period of nine months, commencing 27 May 2021 and expiring on 26 February 2022.

I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.

Associate:

Date: 21 June 2021