R v Miller

[2019] ACTSC 18

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:

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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…