R v March
[2014] ACTSC 244
•31 July 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v March |
Citation: | [2014] ACTSC 244 |
Hearing Date(s): | 31 July 2014 |
DecisionDate: | 31 July 2014 |
Before: | Murrell CJ |
Decision: | See [37]-[41] |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence – burglary – sexual intercourse without consent – guilty plea |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) Crimes Act 1900 (ACT) s 54 Criminal Code 2002 (ACT) s 311(1)(b) |
Cases Cited: | Pearce v The Queen (1998) 194 CLR 610 R v Ponfield (1999) 48 NSWLR 327 |
Parties: | The Queen (Crown) James March (Offender) |
Representation: | Counsel Mr T Hickey (Crown) Ms L Taylor (Offender) |
| Solicitors Director of Public Prosecutions (ACT) (Crown) Legal Aid ACT (Offender) | |
File Number(s): | SCC 61 of 2014 |
MURRELL CJ:
The offences for which the Court is to sentence the offender involved a horrendous personal violation of the victim. On behalf of the community, I express the deepest sympathy of the Court for the victim and her family.
Two offences were committed on 10 September 2013. The first is an offence of burglary, contrary to s 311(1)(b) of the Criminal Code 2002 (ACT). That offence carries a maximum available penalty of 14 years’ imprisonment. The second is an offence of sexual intercourse without consent, contrary to s 54 of the Crimes Act 1900 (ACT). In the circumstances of this case, this is the principle offence. It carries a maximum available penalty of 12 years’ imprisonment.
The offender was committed for trial in relation to the matters before the Court and related charges. After two mentions, the proceedings were listed for trial at short notice. The trial was to commence on 30 June 2014. On 25 June 2014 the offender pleaded guilty to the charges before the Court in full satisfaction of the indictment. The plea was entered neither as soon as the offender was committed for trial nor at the last minute in the Supreme Court. In these circumstances, a discount of 15 percent for the pleas of guilty is appropriate.
The offender was arrested in Queensland on 10 October 2013. Subsequently, he served a one month sentence for an unrelated matter. Consequently, the appropriate date from which to commence the sentences that I will impose is 10 November 2013.
The victim was an 18 year old girl who resided in a granny flat at her mother’s house. At about 12.40 am on 10 September 2013, she was alone in bed in the granny flat. The offender opened the door to the granny flat and walked in. The door had not been locked. The offender smelt strongly of alcohol. The victim told him that he should not come in and should go away. She reached for her phone but the offender told her that she should not touch it.
The offender then forced the victim to engage in a series of acts of sexual intercourse. He threatened that he would “hurt” her if she did not comply. She began to cry and asked him to desist. Initially, he forced her to perform oral sex. After a period, he directed her to take off her clothes. The victim begged him to use a condom and ultimately he agreed to do so. He had penile/vaginal sexual intercourse with her. He then directed her to change positions and he continued to have intercourse with her. He used a number of condoms because they kept coming off. Ultimately, he ejaculated within the victim. The offender forced the complainant to insert her fingers into his anus. He also performed oral sex on her despite her clear request for him to stop. Again he threatened to “hurt” her if she did not comply. At various times through the episode, the victim attempted to reason with the offender, but without success.
The offender’s behaviour throughout the episode was erratic. At times he threatened the victim that she should not tell anyone and that, if she did so, he would return and harm her and her family. At times the offender made statements such as, “I shouldn’t be doing this”. At other times the offender told the victim that she “deserved” the treatment. After the offender had completed the acts of sexual intercourse he demanded that the victim locate all the used condoms and wrappers and give them to him. He also said, “I’ve ruined your life, I’m sorry” but then proceeded to say, “I really don’t want to come back here and have to hurt you or have to make you disappear”.
The latter statement was made in support of the offender’s demand that the victim should not disclose the offence to anyone else. As he was leaving, the offender saw a reference to the victim’s name on a letter and he said, “bye” to her using her name and then winking. It almost goes without saying that throughout the incident the victim felt coerced, fearful for her safety and fearful for the safety of her family. She felt extremely frightened, exhausted and quite helpless. The incident lasted for about two hours.
After the incident, the victim went to the main part of the house and slept with her mother. She did not disclose what had occurred. The following day, fearing pregnancy, she took steps to address that possibility. She also attended Canberra Hospital, where she disclosed what had occurred. She was medically examined. During the course of that day, she disclosed the occurrences to a number of people.
When she first spoke to police she told them that, although the incident had occurred, she did not want to provide a statement because she was fearful about repercussions.
Meanwhile, the day after the incident, the offender told to his employer that he needed to leave Canberra and he boarded a bus for Brisbane.
A few weeks after the incident, the victim made a statement to the police. The police obtained DNA evidence linking the offender to the incident. On 10 October 2013 the offender was arrested in Queensland. He was extradited to the ACT. When spoken to by AFP officers on 12 October 2013 the offender said, “I can’t believe I’ve done this shit”.
The offence of burglary is an objectively serious offence. It occurred at night time at a residence where somebody was likely to be present and was indeed in occupation. The offender’s intention when entering the residence goes to the seriousness of the offence. It was an intention to cause harm of a sexual nature to the occupant. It was not, for example, an intention to steal a small amount of property.
The offence of sexual intercourse without consent is objectively a very serious offence. The offence occurred in the victim’s home at night when she was alone in bed. The charge is involved a number of acts of sexual intercourse of different types, including penile/vaginal sex, oral sex and other types of penetration and intercourse. It was not a case of one brief, isolated act of sexual intercourse. The duration of the incident, estimated at two hours, significantly aggravates the seriousness of the matter. Throughout the incident the victim was terrified. Thereafter, she remained so concerned about repercussions that she delayed in making a written statement to police for a period of some weeks. She was concerned about repercussions for herself and her family.
During the incident, the victim did everything that she could do to convey clearly to the offender that she did not consent to the conduct and that she wished him to stop. She tried to reach for her telephone at the outset. She repeatedly told him that she did not want to engage in the activity and tried to reason with him. The offender’s behaviour was erratic, very likely because of his heavy consumption of alcohol and (possibly) drugs. The offender’s erratic behaviour could only have exacerbated the victim’s concerns.
The offender violated not only the victim’s body, but also her home and her entire sense of personal safety. The offender engaged in unprotected sex and ejaculated, albeit after repeated attempts to comply with the victim’s request to use a condom. The victim was subjected to additional worry about the possible transmission of sexually transmitted diseases and pregnancy. The victim’s conduct after the incident attests to the fact that she genuinely harboured those concerns.
The offender’s conduct towards the victim was demeaning in that, just prior to leaving, he obliged her to collect the used condoms and, when leaving, he used her name and winked at her in a manner that was, no doubt, designed to further unsettle her.
The offender has a significant criminal history. He is now 27 years of age. He was 26 years of age at the date of the offences. When he was about 14 years of age he first appeared in the Children’s Court. He appeared on several occasion for relatively minor matters, generally involving dishonesty. He also appeared in the Magistrates Court on several occasions between 2007 and 2009, generally for minor dishonesty offences and driving matters.
In 2009 he appeared in relation to three burglary and related theft matters committed in 2006 and, ultimately, he was sentenced to an effective sentence of two years and three months’ imprisonment from January 2010. He was to serve three months’ imprisonment and then be subject to a two year good behaviour order with the remaining part of the sentence suspended. He breached the good behaviour order and was dealt with in relation to breaches.
In October 2011 he appeared in the Supreme Court for burglary and theft matters and breach matters and received a total sentence of three years and eight months’ imprisonment. Part of that sentence was to be served by full time imprisonment, part by periodic detention and the balance of 18 months was to be suspended. The offender’s periodic detention came to an end in mid 2013 and, at the time of the commission of the subject offences, he was serving a suspended 18 month sentence. He was resentenced for that breach on 7 February 2014. The result of the resentencing exercise does not affect the overall picture of sentencing in a way that causes me to alter the sentence that I would otherwise have imposed.
In late 2013 he received a one month sentence for an unrelated matter of driving under the influence. Interestingly, because it provides some evidence concerning the offender’s substance abuse, that offence occurred approximately a week prior to the offences before me.
The offender spent 14 months in full time imprisonment from May 2011 to July 2012 and thereafter he served 12 months by way of periodic detention. Otherwise he has not served any significant period in custody. While his criminal history is unimpressive in terms of matters of dishonesty and it does contain a couple of minor matters of violence, it contains no significant matter of violence and there is no prior record of sexual misconduct.
The fact that the offender was serving a suspended sentence and was on a good behaviour order at the time that these offences were committed is very significant, as is the fact that the sentence related to burglary matters.
I had the benefit of two victim impact statements, one from the victim and the other from her mother. The victim’s mother said that, at this stage, the victim has been unable to fully confront and address the offences. For some time after the offence, the victim was very depressed and anxious. She slept with her mother for two months because she was afraid at night. She was also very fearful of being left alone at home. She has had to move into the main house with her mother and brother, although the house is too small to adequately accommodate all the family. Because the victim’s sense of safety and her family’s sense of safety have been so challenged by the incident the victim’s mother feels obliged to sell the formerly loved family home, a very expensive and stressful undertaking.
The victim’s mother articulated the feelings of guilt and powerlessness from which she and the victim’s brother suffer. It is common that family members feel personally guilty when those close to them are the victims of offences. Although there is no solid foundation for such feelings, one must recognise that they do occur. I hope that the victim’s family are able to come to overcome that sense of guilt.
As far as the victim herself is concerned, in her statement she says that she will never feel safe again in her own home. I accept that that is her current feeling. However, I hope that with the passage of time she can learn strategies that will enable her to feel a degree of safety in her own home. Whereas she previously relished her own company, she is now unable to enjoy being alone. She was only 18 years of age at the time of the incident. She was in a relationship; that relationship was seriously challenged by the incident and it is now over. The victim was unable to cope in her workplace. Prior to the incident, she was working and saving for an overseas trip. She has been deprived of the pleasure of undergoing this rite of passage (probably for psychological reasons as well of financial reasons). She is fearful in all sorts of ways. Although the expression “post traumatic stress disorder” has not been mentioned, the sorts of fears that she expresses are commonly described to the courts by people who suffer from post traumatic stress disorder. The victim is hypervigilant, she is constantly fearful, and she is very anxious. Her fears and anxieties are continuing, although it is to be hoped that they will diminish with the passage of time. The resolution of these proceedings may also assist the victim to move on with her life.
The offender had a very troubled and dysfunctional background. The Court has not received a fulsome account of the offender’s background. I infer that that is partly because the offender himself has limited insight into the impact of his background upon him. He has taken only very limited steps to address the problems with which he has been left as a result of his upbringing. He has a long history of estrangement from his biological family. He was removed from their care at a young age because of concerns about their substance abuse. He has no family support and no pro-social contacts. He was in a relationship for some time and there are two children in that relationship but he has no contact with those children at the request of their mother. He would like to re-establish contact with them.
The one cause for optimism is that the offender has a good history of employment. At the time of the offences he was employed as a tyre fitter. He was a good worker. His employer would re-employ him, should there be an opportunity to do so. That is a basis upon which a future stable and law abiding lifestyle could be built.
The offender has very serious substance abuse problems. He has consumed alcohol since he was 13 or 14 years old and, in the period leading up to the offences, he consumed up to 1.4 litres of spirits per day (or 50 standard drinks per day). In addition, he abused other substances. He has consumed cannabis since he was eight years of age and methamphetamines since he was 18 years of age. There is material suggesting that he was using half a gram of methamphetamines per day at the date of the offence. The author of the pre-sentence report says that he is at medium to high risk of reoffending. One important contributor to that risk is his substance abuse. The CADAS report says that the offender has little insight into the role of substance abuse in his life. He takes a fairly simplistic approach, thinking that, if he can remain clean in custody (and he says that he can) he will not need much extra help. On the other hand, he has some history of contact with a counsellor and he has enrolled in some courses that might assist. He has been on methadone for nine months and he is currently being medicated for depression and to achieve mood stability.
The offender will have plenty of time in custody to reflect upon the role of substance abuse in his life. I hope that he will take the opportunity to address substance abuse because that problem has played a role in many of the offences on his criminal record, including the offences before the Court.
The parties have referred me to a number of cases by way of providing some guidance as to the appropriate sentencing range for the offences before the Court. I will not refer to any particular passages of those decisions. The decisions were helpful because, to my mind, they do identify a sentencing pattern, and I intend to sentence consistently with that pattern.
In sentencing the offender, the Court has regard to the sentencing objectives set out in the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). Those objectives relevantly include specific and general deterrence, punishment, denunciation, accountability and rehabilitation.
I accept that rehabilitation is possible and that that the offender is capable of rehabilitation. As I have mentioned, although his criminal history includes a number of matters of dishonesty, most of his offending behaviour is related to substance abuse, which may be capable of being addressed. There is also no significant history of violence and none of prior sexual misconduct.
In sentencing the offender, the Court must take into account (in so far as they are known and relevant) the matters referred to in s 33 of the Sentencing Act. I believe that I have referred to those matters.
I am aware of the New South Wales guideline decision of R v Ponfield (1999) 48 NSWLR 327 in relation to burglary. However, that case does not seem to have any great application to the circumstances of the present case because this is not a typical case.
I am aware of the need to avoid double counting the matters that pertain both to the burglary and to the sexual intercourse. Where matters relate to both counts, I have chosen to take them into account in relation to the sexual intercourse offence, the primary focus of these proceedings.
I am aware of the decision in Pearce v The Queen (1998) 194 CLR 610 and the need to construct a sentence that reflects the overall criminality in question.
I record a conviction for each of these matters and I impose the following sentences.
For the offence of burglary, the starting point for the sentence was 4 years’ imprisonment. I have deducted approximately 15 percent for the plea of guilty (7 months). I therefore impose a sentence of 3 years and 5 months’ imprisonment from 10 November 2013 to 9 April 2017.
In relation to the offence of sexual intercourse without consent, the starting point for the sentence was eight and a half years’ imprisonment. I have deducted approximately 15 percent (15 months) from that figure to arrive at a sentence of 7 years and 3 months’ imprisonment. That sentence will run from the 10 May 2014 to 9 August 2021.
The total effective sentence is 7 years and 9 months’ imprisonment starting from the 10 November 2013. I fix a non parole period of 5 years and 2 months. The offender will be eligible for parole on 9 January 2019.
| I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
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