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…