R v Miller
[2019] ACTSC 18
•8 February 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Miller |
Citation: | [2019] ACTSC 18 |
Hearing Date: | 13 December 2018 |
DecisionDate: | 8 February 2019 |
Before: | Elkaim J |
Decision: | See [26] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse without consent – offences against sex workers – common assault |
Legislation Cited: | Crimes Act 1900 (ACT) ss 26 and 54(1) Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10 and 33 |
Cases Cited: | Livas v The Queen [2015] ACTCA 54 R v Abuuh [2017] ACTSC 375 R v Livas [2015] ACTSC 50 |
Parties: | The Queen (Crown) Aaron John Miller (Offender) |
Representation: | Counsel Ms S Janackovic (Crown) Mr J Sabharwal (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson Solicitors (Offender) | |
File Numbers: | SCC 202 of 2018; SCC 203 of 2018 |
ELKAIM J:
On 21 November 2018, the offender was arraigned on an indictment dated 12 September 2018. The offender entered a plea of guilty in relation to Count 3 in full satisfaction of the indictment.
Count 3 states that the offender engaged in sexual intercourse with Ms CB without her consent or was reckless as to whether or not she was consenting. The offence is contrary to s 54(1) of the Crimes Act 1900 (ACT). The maximum penalty is 12 years’ imprisonment.
There was also a transfer charge of common assault (CC 2018/02744), contrary to s 26 of the above Act but the Crown is not proceeding with this charge.
The offence occurred on 13 January 2018. Ms CB was a sex worker who had been engaged by the offender. Prior to the provision of services it was made clear to the offender that Ms CB did not permit any activity involving her anus.
The offender accepted this limitation and agreed that the session would be for two hours, at a price of $780, and would include various extra services including kissing, vaginal oral sex, hair pulling, choking, spanking on the bottom and assorted sexual positions.
The fee was paid by credit card. The offender and Ms CB entered a room. After the offender had showered, the intended services began. During intercourse the offender slapped the complainant’s left breast. She told him not to do it again. He disobeyed. He then grabbed Ms CB by the throat, placed his hand over her mouth and told her to be quiet. That series of events made up the charge of common assault that is no longer being pursued.
A little later the offender performed oral sex upon the complainant. While he did so he inserted his finger into her anus, contrary to the terms of engagement that had been agreed.
Ms CB protested and left the room. The offender left the premises shortly afterwards. He was arrested on 13 February 2018. He had been identified through his credit card. When interviewed by the police the offender suggested that he engaged in the offensive conduct because he got carried away whilst being intimate. If this was put forward as any form of justification it is entirely without substance.
I said this in R v Abuuh [2017] ACTSC 375:
The offence of sexual intercourse without consent is always serious. The fact that these offences were committed against sex workers does not lessen their severity.
The same is true here. Ms CB was entitled to carry on her work with safety. She explicitly set the boundaries of the sexual activity she was prepared to engage in. The offender agreed to those limitations.
The offender was born in 1978 and is currently 40 years old. After leaving school the offender completed an apprenticeship as a carpenter and was apparently successful. He later moved to a senior position as a site supervisor for construction companies. He performed some work in Canberra where he apparently became lonely. He was away from his family for a long period of time. The references tendered on his behalf from friends describe a decent family man. The picture they paint is far from the reality that describes the offence that he committed.
I accept his conduct was out of character and influenced by alcohol. I can take these matters into account but they are not an excuse. The offender is currently in full-time employment and working in a contract that has the potential to continue for some years.
The offender has a criminal record in Victoria. It is not extensive but it does contain acts of violence although not in relation to any sexual activity. There are a series of relevant entries in the period between 1995 and 2007.
I need to take into account that these offences occurred some time ago. Nevertheless the offender will not have the benefit of the leniency which would attach to a person with no record at all.
The offender has not spent any time in custody in relation to this matter.
I have had the benefit of a very useful report from the Department of Justice and Regulation in Victoria. It assesses the offender as having a high risk of reoffending. Nevertheless it says that he is suitable for a community correction order which would be administered in Victoria. If this option is taken the recommendation by the Department is that the order be for 18 months and contain conditions in particular for his alcohol consumption. Because the offender lives in Victoria it is not possible for me to refer him for assessment for an Intensive Correction Order.
Learned counsel for the offender suggested that the same objectives, and a means of adopting the Victorian recommendations, would be to impose a fully suspended sentence with attached conditions to be supervised in Victoria.
The Crown argued against this proposal, submitting that there should at least be a period of full-time imprisonment. I was referred to the case of Livas v The Queen [2015] ACTCA 54 in support of this submission. The offender in that matter had sexual intercourse with a sex worker but departed before paying. This act vitiated the sex worker’s consent and the offender was convicted of sexual intercourse without consent. At first instance (R v Livas [2015] ACTSC 50) Penfold J sentenced the offender to a term of imprisonment which included both full-time imprisonment and a suspended portion. The offender appealed, primarily complaining about the period of full-time imprisonment. The appeal failed. The Court of Appeal said at [25]:
Her Honour was correct to describe the offence as a serious one. In our view, a period of full-time custody was inevitable and the period he was ordered to serve was modest. In this regard we read her Honour’s remarks at paragraph [36] as saying merely that despite the appellant’s favourable subjective circumstances, the objective circumstances required the imposition of full-time custody.
The offender pointed out that his offence, unlike the position in Livas, was not premeditated and was essentially an impulsive act which occurred over a very short period of time.
The offender entered a plea of guilty after having initially entered a plea of not guilty in the ACT Magistrates Court where he was ultimately committed for trial. The matter subsequently resolved at conference. The offender is entitled to a discount on his sentence.
The sentencing process requires consideration of the purposes and principles of sentencing, as set out in ss 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT). Section 33 dictates matters that must be taken into account. Section 10 is also important because it tells the Court that an offender should not be imprisoned unless there is no other alternative.
I have found sentencing this offender very difficult. My initial impression is that he must serve a period of full-time imprisonment. Sex workers, like any other employees, as I have said above must be able to carry on their professions in a safe environment where they are not in constant fear of being assaulted. This particular sex worker, although there is no victim impact statement, has obviously suffered from the experience. I note that in the Statement of Facts, at [21], it is stated:
The complainant felt angry, shaken up and uncomfortable by this act as she had been anally raped by her first boyfriend years prior. This act brought back flashbacks for her.
This offender and potential offenders at large must know that offences of this type are simply not acceptable and it is no excuse that the victim is a sex worker.
On the other hand there are strong subjective features in this matter. The offender is a family man, has full-time employment and the capacity to contribute to society. But of course he must deal with his alcohol problem. I have been particularly influenced by the Victorian recommendations which I think should be followed as far as possible.
This approach is I think consistent with the exhortation made by s 10 of the above Act. There is an alternative, namely the recommendation made in the Victorian Pre-Sentence Report and it conforms with s 10 that I should substantially adopt that recommendation.
I make the following orders:
(a)In relation to Count 3, sexual intercourse without consent (CC 2018/2747), the offender is sentenced to two years’ imprisonment commencing today and ending on 7 February 2021.
(b)The above sentence of imprisonment is suspended with immediate effect on condition the offender enter into a Good Behaviour Order for a period of 2 years’ and comply with his obligations under the Crimes (Sentence Administration) Act 2005 (ACT) and further that he accept the supervision of ACT Corrective Services and obeys all reasonable directions of the Director-General or her delegate for 2 years or such shorter time as the Director-General decides. The Good Behaviour Order is subject to the following additional condition that the offender engage in such programs as the Director-General decides in respect of alcohol abuse.
| I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: |
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