R v LQT

[2018] ACTSC 246

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v LQT

Citation:

[2018] ACTSC 246

Hearing Date:

31 July 2018

DecisionDate:

31 July 2018

Before:

Murrell CJ

Decision:

Sentenced to 22 months’ imprisonment suspended after 37 days.

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – individualised justice – sentencing purposes – general deterrence – denunciation

Legislation Cited:

Crimes Act 1900 (ACT) s 54(1)

Crimes (Sentencing) Act 2005 (ACT) s 35

Cases Cited:

Wyper v The Queen [2017] ACTCA 59

R v Aroub [2017] ACTSC 187

R v NL [2018] ACTSC 22

Parties:

The Queen (Crown)

LQT (Offender)

Representation:

Counsel

Mr P Dixon (Crown)

Mr A Doig (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

John O’Keefe Law Firm (Offender)

File Number:

SCC 178 of 2017

MURRELL CJ

1. The offender is to be sentenced on one count of having sexual intercourse without consent contrary to s 54(1) of the Crimes Act 1900 (ACT).

1. The maximum penalty is 12 years’ imprisonment.

1. The offender spent 37 days in custody before he was released on bail on 19 July 2017.

1. Three days prior to the scheduled trial date, discussions between the parties resulted in the offender agreeing to plead guilty to one count of sexual intercourse in full satisfaction of the indictment containing two counts of sexual intercourse without consent and two counts of act of indecency.  There was no suggestion of an earlier offer to plead guilty on that basis.  The offender gained the benefit of the discussions, although the prosecution case on the other charges was relatively weak.  The lateness of the plea limited its utilitarian value, but the nature of the offence and the relationship between the parties meant that the plea still had significant utilitarian value. 

1. In my view, the appropriate discount under s 35 of the Crimes (Sentencing) Act 2005 (ACT) is about 10 per cent.

Facts

1. The offender and the complainant are of Nepalese background.  They were married for about 10 years.  They have six-year-old son.

1. As at June 2017, their relationship was strained and they were sleeping in separate bedrooms.

1. On the morning of 13 June 2017, the offender accused the complainant of having an affair.  He led the complainant to her bedroom.  The offender and the complainant lay on the complainant’s bed and discussed their relationship issues.  They moved to the living area and then back to the complainant’s bedroom, where they again lay down and discussed their relationship.

1. As they were lying face-to-face, the offender placed a hand in the complainant’s genital area.  He took her hand and tried to place it down his pants.  The complainant asked the offender to desist.  Eventually, she agreed to engage in sexual touching in order to placate the offender.  The offender removed his clothes and those of the complainant.  He repeatedly asked her to engage in sexual intercourse but she refused.  She stated that she only wanted to talk.  However, the offender proceeded to have penile/vaginal intercourse.  After some…