R v Lindsay

[2019] ACTSC 347

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Lindsay

Citation:

[2019] ACTSC 347

Hearing Date:

11 December 2019

DecisionDate:

11 December 2019

Before:

Elkaim J

Decision:

See [21]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – sexual intercourse without consent – plea of guilty

Legislation Cited:

Crimes Act 1900 (ACT) s 54(1)

Cases Cited:

R v MT [2014] ACTSC 162
R v Verdins [2007] VSCA 102; 16 VR 269

Parties:

The Queen (Crown)

Timothy Lawson Lindsay (Offender)

Representation:

Counsel

P Dixon (Crown)

J Campbell (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Offender)

File Number:

SCC 134 of 2019

ELKAIM J:

1. On 18 September 2019 the offender pleaded guilty to one count of engaging in sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT). The maximum penalty for the offence is 12 years’ imprisonment.

1. The plea to the charge was entered at a relatively early stage. This entitles the offender to a discount on his sentence, which I assess at 20%.

1. The details of the offence are set out in the statement of facts. Briefly put, the offender and the complainant were residing at a hostel in Canberra. They had a coffee together during the morning of 19 March 2019. In the early afternoon the complainant went to sleep in her room. At about 5:00pm the offender entered the room where the complainant was asleep in her bunkbed. The complainant woke up. The offender indicated that the complainant should be quiet. He requested a kiss. She denied the request.

1. The offender then asked if he could massage the complainant. She told him to “go away”. He then placed himself on top of the complainant in a straddling position. He tried to remove her top and bra. She told him to leave using a word sometimes denoting the sexual act as a verb of motion.

1. The offender grabbed the complainant by the throat and held her down. The complainant asked him “if I do this, you won’t hurt me?”. The offender responded “no, I won’t hurt you”.

1. The offender told the complainant to remove her underwear, which she did. He then attempted to insert his penis into the complainant’s vagina. He was unable to do so. She used her saliva as a lubricant. He then engaged in sexual intercourse before ejaculating. He did not use a condom.

1. The complainant left the room as soon as she could and made an immediate complaint.

1. The offender was born in 1980. He had a positive upbringing with two siblings. He has had one relatively long relationship and has no children.

1. The offender left school at the end of Year 10. He has completed some certificates at TAFE and has worked in various hotels and public bars. He has also worked as a kitchen hand.

1. The offender had a problem with alcohol, but he attended a residential rehabilitation program in 2011. He no longer drinks alcohol. He started using drugs as a teenager. Once again, his attending the rehabilitation centre cured him of this craving.

1. The offender has serious mental health issues. He has a diagnosis of treatment resistant paranoid schizophrenia. He has had frequent hospitalisations in New South Wales for mental health treatment. He is currently under a psychiatric treatment order which will expire in March next year.

1. The offender has a long and extensive criminal record in New South Wales. His offences do not include sexual offences. He was on parole when the offence occurred. When released from prison in the Australian Capital Territory he will no doubt be returned to New South Wales to serve the balance of his sentence.

1. There is a report from a psychiatrist, Dr Furst, who was asked whether the offender’s mental impairment had an “impact on his ability to exercise appropriate judgement”, and if a sentence of imprisonment would be more burdensome upon him compared to a person without a similar mental condition. In relation to the first question the doctor said that his mental illness, including cognitive defects, would have impaired his capacity to appreciate the seriousness of his offending.

1. As to the second question, the doctor thought that incarceration would be detrimental because of the exposure he would have to violent incidents and the lack of appropriate psychological and psychiatric services.

1. Dr Furst also thought the offender had a low to moderate risk of reoffending. He said that “stabilisation of his mental health will be of central importance in reducing his risk of sexual offending”.

1. Cross-examination of the author of the pre-sentence report revealed an improvement in his condition. It is apparent he shows more insight into his offending.

1. Both parties agreed that the offender’s mental health condition should be taken into account in accordance with the principles set out in R v Verdins [2007] VSCA 102; 16 VR 269. In particular, his moral culpability is reduced and there is a lesser call for general deterrence.

1. The offender submitted that I should approach the matter roughly in the same way as that adopted by Refshauge J in R v MT [2014] ACTSC 162 but factoring in the Verdins principles. The Crown pointed out, and I agree, that the present offence has some objective features making it more serious than in MT. The victim, being awake and having to plead for her safety is sufficient to put this case into a higher category of objective seriousness.

1. In setting a non-parole period I am mindful that, despite his bad record, the offender does have prospects of rehabilitation and he is a relatively young person. I also note he is receiving mental health treatment in custody and no doubt this will continue and continue to benefit him. 

1. The offender has been in custody for 8 months and 13 days, or 258 days.

1. I make the following orders:

(a)In relation to Count 1, sexual intercourse without consent (CC3742/2019), the offender is sentenced to 2 years’ imprisonment (reduced from 30 months) to commence on 29 March 2019 and end on 28 March 2021.

(b)I set a non-parole period of 17 months to commence on 29 March 2019 and end on 28 August 2020.

I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.

Associate:

Date: 11 December 2019