R v MT

Case [2014] ACTSC 162 20 May 2014

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THE QUEEN v MT
[2014] ACTSC 162 (20 May 2014)

CRIMINAL LAW – Judgment and Punishment – Sentencing – Sexual intercourse without consent

Crimes Act 1900 (ACT), s 54(1)
Crimes (Sentencing) Act 2005 (ACT), ss 7, 33, 50, Pt 4.1

Attorney-General (Tas) v B, KT [2010] TASCCA 6
Barbaro v The Queen (2014) 305 ALR 323
Bourke v The Queen (2010) 199 A Crim R 38
Cheung v The Queen (2001) 209 CLR 1
Coleman v The Queen (1990) 47 A Crim R 306
Director of Public Prosecutions v DJK [2003] VSCA 109
Director of Public Prosecutions v Riddle [2002] VSCA 153
Greenwood v The Queen [2014] NSWCCA 64
Ibbs v The Queen (1987) 163 CLR 447
Muldrock v The Queen (2011) 244 CLR 120
R v AM (Unreported, Australian Capital Territory Supreme Court, Murrell CJ, 28 March 2014)
R v Ashman [2010] ACTSC 45
R v Ballantyne (Unreported, Australian Capital Territory Supreme Court, Murrell CJ, 1 April 2014)
R v Boudelah (1991) 28 FCR 176
R v Buckley (Unreported, Australian Capital Territory Supreme Court, Nield AJ, 30 August 2013)
R v Buda-Kaa (Unreported, Australian Capital Territory Supreme Court, Burns J, 30 November 2012)
R v Buda-Kaa [2013] ACTCA 46
R v Dixon (1975) ACTR 13
R v Dodd; R v O’Rafferty (Unreported, Australian Capital Territory Supreme Court, Nield AJ, 25 July 2013),
R v Dowlan [1998] 1 VR 123
R v FD (2006) 160 A Crim R 392
R v Gordon (1994) 71 A Crim R 459
R v Hibberd (2009) 194 A Crim R 1
R v JJ (Unreported, Australian Capital Territory Supreme Court, Refshauge ACJ, 8 October 2013)
R v Joyce (Unreported, Australian Capital Territory Supreme Court, Penfold J, 5 February 2014)
R v King [2013] ACTSC 279
R v Qutami (2001) 127 A Crim R 369
R v TW (Unreported, Australian Capital Territory Supreme Court, Burns J, 15 November 2013)
Simpson v The Queen [2014] NSWCCA 23
Weininger v The Queen (2003) 212 CLR 629

EX TEMPORE JUDGMENT

No. SCC 121 of 2013

Judge: Refshauge J
Supreme Court of the ACT

Date: 20 May 2014

IN THE SUPREME COURT OF THE       )
  )          No. SCC 121 of 2013
AUSTRALIAN CAPITAL TERRITORY    )

THE QUEEN
v
MT

ORDER

Judge:  Refshauge J
Date:  20 May 2014
Place:  Canberra

THE COURT ORDERS THAT:

MT be convicted of sexual intercourse without consent on 11 January 2009.

MT be sentenced to two years’ imprisonment to commence on 15 May 2014.

A non-parole period of nine months be set to commence on 15 May 2014 and end on 14 February 2015.

After attending a birthday party for his cousin on 10 January 2009, the prisoner, MT, went into Civic with his cousin and a number of other people, including the complainant.

Early in the morning of the next day, he and the complainant returned to where they were both staying and he engaged in penile vaginal intercourse with the complainant. She said that she had been asleep at the time and did…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v MT

Details

AGLC: R v MT [2014] ACTSC 162
Case: [2014] ACTSC 162
Decision Date: 20 May 2014

CaseChat Overview and Summary

In the case of R v MT, the defendant was charged with sexual intercourse without consent. The matter was heard in the County Court of Victoria. The complainant alleged that on 11 January 2009, the defendant engaged in sexual intercourse with her without her consent. The defendant denied the charge and the case proceeded to trial. The court was required to determine whether the defendant was guilty of the offence as charged and, if so, to determine an appropriate sentence.

The primary legal issue before the court was whether the prosecution had established the defendant's guilt beyond reasonable doubt. The court considered the evidence of the complainant and the defendant, as well as the surrounding circumstances of the alleged offence. The court found that the complainant's evidence was credible and that the prosecution had established the defendant's guilt beyond reasonable doubt. The court then turned to the question of sentence. The court considered the seriousness of the offence, the defendant's background, and the principles of sentencing for sexual offences. The court ultimately determined that the appropriate sentence was two years’ imprisonment, with a non-parole period of nine months.

The court ordered that the defendant be convicted of sexual intercourse without consent on 11 January 2009 and be sentenced to two years’ imprisonment to commence on 15 May 2014. The court also set a non-parole period of nine months to commence on 15 May 2014 and end on 14 February 2015. The defendant has the right to appeal the conviction and/or sentence to a higher court.

Orders

Orders of the court

1. MT be convicted of sexual intercourse without consent on 11 January 2009.

2. MT be sentenced to two years’ imprisonment to commence on 15 May 2014.

3. A non-parole period of nine months be set to commence on 15 May 2014 and end on 14 February 2015.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Actions

Citations

R v MT [2014] ACTSC 162

Most Recent Citation

R v Taylor [2015] ACTSC 43

Cases Citing This Decision

Director of Public Prosecutions v Benn (No 2) [2025] ACTSC 266
Citation 1

…[2021] ACTSC 101 R v Kelly [2020] ACTSC 292 R v Kindl [2015] ACTSC 128 R v MAK [2006] NSWCCA 381; 167 A Crim R 159 R v Miller [2019] ACTCA 25 R v MT [2014] ACTSC 162 R v Palmer [2017] ACTSC 357 R v Smith (No 2) [2022] ACTSC 246 R v Taylor [2025] ACTSC 43 R v Teel (a pseudonym) [2021] ACTSC 183 R v UG [2018] ACTCA…
Director of Public Prosecutions v Best (a pseudonym) [2024] ACTSC 334
Citation 2

…022] ACTSC 25 R v Horton-Hegarty [2017] ACTSC 268 R v Jones [2004] VSCA 68 R v MAK [2006] NSWCCA 381; 167 A Crim R 159 R v ME [2017] ACTSC 402 R v MT [2014] ACTSC 162 R v Millwood [2012] NSWCCA 2 R v Nicholas; R v Palmer [2019] ACTCA 36 R v Palmer [2017] ACTSC 357 R v PM [2009] ACTSC 24 R v Smith (a pseudonym) (No…
Director of Public Prosecutions v RR [2024] ACTSC 279
Citation 3

…an J, 8 June 1993) R v Hope [2021] ACTSC 101 R v Kelly [2020] ACTSC 292 R v Kindl [2015] ACTSC 128 R v MAK [2006] NSWCCA 381; 167 A Crim R 159 R v MT [2014] ACTSC 162 R v Palmer [2017] ACTSC 357 R v Ridley [2014] ACTSC 382 R v Taylor [2015] ACTSC 43 R v Teel (a pseudonym) [2021] ACTSC 183 R v Toumo’ua [2017] ACTCA…
DPP v Rue [2023] ACTSC 270
Citation 4

…TSC 297 R v Kelly [2020] ACTSC 292 R v Kilic [2016] HCA 48; 259 CLR 256 R v MAK [2006] NSWCCA 381; 167 A Crim R 159 R v Miller [2019] ACTCA 25 R v MT [2014] ACTSC 162 R v Naing [2023] ACTSC 210 R v Newby [2022] ACTCA 20; 367 FLR 122 R v Okwechime [2022] ACTSC 233 R v Palmer [2017] ACTSC 357 R v Pham [2015] HCA 39;…
Director of Public Prosecutions v Earle [2023] ACTSC 93
Citation 5 (Para 1)

…R v MT [2014] ACTSC 162 also involved a conviction after a trial for an act of sexual intercourse that began while the victim was asleep after both the victim and the offender had attended a party. The intercourse was penile-vaginal intercourse and the offender did not use of a condom. The offender in MT relied on…
Director of Public Prosecutions v Gottaas-Hughes [2023] ACTSC 85
Citation 6 (Para 1)

…In addition to these decisions, I note that R v MT [2014] ACTSC 162 concerned a 25 year old offender who engaged in penile-vaginal intercourse with the victim whilst she was asleep. He pleaded guilty and expressed remorse and empathy to the victim. He was sentenced to a term of imprisonment of 2 years, with a non-p…
R v Haven (a pseudonym) [2022] ACTCA 61
Citation 7

…il 2014) R v EO [2017] ACTSC 138 R v Finau (No 2) [2020] ACTSC 193 R v Horton-Hegarty [2018] ACTCA 22 R v Nicholas; R v Palmer [2019] ACTCA 36 R v MT [2014] ACTSC 162 R v PM [2009] ACTSC 24 R v TL [2017] ACTCA 18 R v UG [2020] ACTCA 8 R v Verdins [2007] VSCA 102; 16 VR 269 Wyper v The Queen; R v Wyper [2017] ACTCA…
R v Incandela (No 4) [2022] ACTSC 139
Citation 8 (Para 1)

…he victim records in her victim impact statement here, it impairs a person’s ability to move freely as a member of society without fear: see R v MT [2014] ACTSC 162 at [36].…
Bennett v Daley [2021] ACTSC 159
Citation 9

…R v Kilic [2016] HCA 48; 259 CLR 256 R v Loveridge [2014] NSWCCA 120; 243 A Crim R 31 R v Miller [2019] ACTCA 25 R v MT [2020] ACTSC 339 R v MT [2014] ACTSC 162 R v Ngata [2020] ACTSC 9 R v Smith [2021] ACTSC 114 R v Stacker [2020] ACTCA 34 R v Taylor [2015] ACTSC 43 Stewart v The Queen [2012] NSWCCA 183 Wood v The…
R v Antonovic (No 3) [2021] ACTSC 338
Citation 10 (Para 34)

…s part of a course of conduct makes it more serious than were it a single transaction. See, for example, R v Honeyman [2016] ACTSC 2 at [34], R v M T [2014] ACTSC 162 at [80]. This makes the offending more serious: R v Lanham [2014] ACTSC 128 at [71]. It may require more emphasis in sentencing on specific deterrenc…
R v Kelly [2020] ACTSC 292
Citation 11 (Para 1)

…Included in those cases provided by counsel for the offender were R v Punna-Ophasi (ACT Supreme Court, Burns J, 5 October 2012), R v MT [2014] ACTSC 162, R v Taylor [2015] ACTSC 43, R v Buda-kaa [2013] ACTCA 46 ( Buda-kaa ), R v Sordini [2015] ACTSC 45 ( R v Sordini ), Henderson v R [2006] ACTCA 17, R v Buckley (AC…
R v Smith (a pseudonym) (No 2) [2020] ACTSC 260
Citation 12 (Para 1)

…ed a table summarising sentences involving what was said to be comparable cases involving sexual intercourse without consent. Those cases were R v MT [2014] ACTSC 162, R v EO [2017] ACTSC 138 ( EO ); R v ME [2017] ACTSC 402; Milner v AW [2014] ACTSC 231; R v UG [2018] ACTCA 64; 14 ACTLR 70; Wyper v The Queen [2017]…
R v Finau (No 2) [2020] ACTSC 193
Citation 13 (Para 1)

…In R v MT [2014] ACTSC 162, after a trial, the offender was convicted of one count of engaging in sexual intercourse without consent. The offender and the complainant had met shortly before the incident. They were staying at the same residence. Earlier on the night of the offence, the complainant had acted flirtati…
R v Lindsay [2020] ACTCA 25
Citation 14 (Para 1)

…The respondent’s counsel had submitted that the sentencing judge should take a similar approach to that taken in R v MT [2014] ACTSC 162 ( MT ) but factoring in the “ Verdins principles” (a reference to R v Verdins [2007] VSCA 102; 16 VR 269 ( Verdins )). In MT , Refshauge J had imposed a sentence of two years’ imp…
R v Lindsay [2019] ACTSC 347
Citation 15 (Para 1)

…The offender submitted that I should approach the matter roughly in the same way as that adopted by Refshauge J in R v MT [2014] ACTSC 162 but factoring in the Verdins principles. The Crown pointed out, and I agree, that the present offence has some objective features making it more serious than in MT. The victim,…
R v MZ [2019] ACTSC 341
Citation 16 (Para 1)

…I was referred by the Crown to the decisions in Sirohi v The Queen [2016] ACTCA 29 and R v MT [2014] ACTSC 162. I was also referred to some cases from other jurisdictions which I do not consider to be of assistance in determining current sentencing practice for this offence. Counsel for the offender referred me to…
Beniamini v Craig [2017] ACTSC 30
Citation 17 (Para 34)

…s part of a course of conduct makes it more serious than were it a single transaction. See, for example, R v Honeyman [2016] ACTSC 2 at [34], R v M T [2014] ACTSC 162 at [80]. This makes the offending more serious: R v Lanham [2014] ACTSC 128 at [71]. It may require more emphasis in sentencing on specific deterrenc…
R v Di Bitonto [2016] ACTSC 280
Citation 18 (Para 1)

…s part of a course of conduct makes it more serious than were it a single transaction. See, for example, R v Honeyman [2016] ACTSC 2 at [34], R v M T [2014] ACTSC 162 at [80]. This makes the offending more serious: R v Lanham [2014] ACTSC 128 at [71]. It may require more emphasis in sentencing on specific deterrenc…
Singh v The Queen [2015] ACTCA 65
Citation 19 (Para 1)

…In R v MT [2014] ACTSC 162 Refshauge J sentenced the offender to two years imprisonment for engaging in sexual intercourse without consent. The complainant was sleeping when the offence occurred and the offender continued over her protests as she awoke. His Honour referred to some factors relevant to sentencing for…
R v Sordini [2015] ACTSC 45
Citation 20 (Para 1)

…See also what I said in R v MT [2014] ACTSC 162 at [36] to the same effect. I also said in that case that the engaging in sexual intercourse with a woman when she is asleep is predatory behaviour against a vulnerable person (at [38]). This must also be so when she was unconscious. It seems to me that this aggravate…
R v Taylor [2015] ACTSC 43
Citation 21 (Para 1)

…Referring to the offence of sexual intercourse without consent, in R v MT [2014] ACTSC 162 at [36], I said that it:…

See all citing cases →

Cases Cited

R v Gordon [2022] ACTCA 48
Citation 1 (Para 1)

…ars old at the time of the offence; he is still relatively young and youth is a mitigating factor even though he is an adult, though a young one. See R v Gordon (1994) 71 A Crim R 459 at 469.…
R v King [2013] ACTSC 279
Citation 2 (Para 1)

…Reference was also made to R v King [2013] ACTSC 279 but, again, the circumstances were very different both as to the offences and as to the circumstances of the offender. The same applies to R v Joyce (Unreported, Australian Capital Territory Supreme Court, Penfold J, 5 February 2014) and R v TW (Unreported, Austr…
Greenwood v R [2014] NSWCCA 64
Citation 3 (Para 1)

…perience and the invasion of her bodily integrity was humiliating in itself, as was clear from her Victim Impact Statement. See Greenwood v The Queen [2014] NSWCCA 64 at [32]. Understandably, penile/vaginal penetration is a serious form of the offence. Though there is said to be no ranking of types of sexual interc…
Simpson v R [2014] NSWCCA 23
Citation 4 (Para 1)

…These were contrasted with two New South Wales cases, Simpson v The Queen [2014] NSWCCA 23 and Greenwood v The Queen but, apart from helpfully identifying some principles, these cases are difficult to apply in this Territory because of the difference in the sentencing regime in that State.…
Barbaro v The Queen [2014] HCA 2
Citation 5 (Para 1)

…ncing Act requires the court to take into account current sentencing practice. This has recently been echoed by the High Court in Barbaro v The Queen (2014) 305 ALR 323, where it was said by French CJ, Hayne, Kiefel and Bell JJ at 331; [38]:…
R v Buda-Kaa [2013] ACTCA 46
Citation 6 (Para 1)

…uda-Kaa (Unreported, Australian Capital Territory Supreme Court, Burns J, 30 November 2012), the sentence in which was upheld on appeal: R v Buda-Kaa [2013] ACTCA 46. In that case, the victim fell asleep and Mr Buda-Kaa, who was twenty-two years old with a significant criminal history, came into her bedroom and to…
Muldrock v The Queen [2011] HCA 39
Citation 7 (Para 1)

…(ACT) which provides for a maximum penalty of twelve years’ imprisonment. It is, by this yardstick to which the High Court in Muldrock v The Queen (2011) 244 CLR 120 at 133; [31] has required courts to have regard, a serious offence.…
R v Ashman [2010] ACTSC 45
Citation 8 (Para 1)

…I suggested that there may need to be some modification of that approach in R v Ashman [2010] ACTSC 45 at [27], though this was a somewhat different situation where the question of remorse was not something that could be confirmed in the way in which other matters in pre-sentence reports regularly are in this Terr…
Attorney-General v B [2010] TASCCA 6
Citation 9 (Para 1)

…he sentence to be imposed (see s 33(1)(e) of the Sentencing Act ) can result in the increased severity of a sentence ( Attorney-General (Tas) v B, KT [2010] TASCCA 6 at [56]), it must not result in unfairness in the ways suggested by the NSW Court of Criminal Appeal in R v FD (2006) 160 A Crim R 392 at 414; [98]-[…
DPP v DJK [2003] VSCA 109
Citation 10 (Para 1)

…See also Director of Public Prosecutions v DJK [2003] VSCA 109 at [17] per Vincent JA.…
Weininger v The Queen [2003] HCA 14
Citation 11 (Para 1)

…obabilities. These principles have been set out and explained in Cheung v The Queen (2001) 209 CLR 1 at 12-14; [14]-[18] and in Weininger v The Queen (2003) 212 CLR 629 at 635-6; [18].…
DPP v Riddle [2002] VSCA 153
Citation 12 (Para 1)

…not consent when she awoke. It was, however, somewhat situational or spontaneous, rather than targeted as in Director of Public Prosecutions v Riddle [2002] VSCA 153.…
Cheung v The Queen [2001] HCA 67
Citation 13 (Para 1)

…lies on mitigatory facts, I need to find them on the balance of probabilities. These principles have been set out and explained in Cheung v The Queen (2001) 209 CLR 1 at 12-14; [14]-[18] and in Weininger v The Queen (2003) 212 CLR 629 at 635-6; [18].…
R v Qutami [2001] NSWCCA 353
Citation 14 (Para 1)

…T’s own statements. It has been suggested that, where an offender does not give evidence, such statements can only attract some limited weight. See R v Qutami (2001) 127 A Crim R 369 at 377; [58].…
R v Boudelah [1991] FCA 144
Citation 15 (Para 1)

…It is, nevertheless, a very serious offence and, as Gallop J remarked in R v Boudelah (1991) 28 FCR 176 at 186…
Coleman v The Queen [1991] HCATrans 57
Citation 16 (Para 1)

…199 A Crim R 38 at 44; [20]. It can, however, be relevant to determine the degree of deliberation involved in the crime as noted by Hunt CJ at CL in Coleman v The Queen (1990) 47 A Crim R 306 at 327.…
Bourke v The Queen [1988] HCATrans 135
Citation 17 (Para 1)

…been intoxicated during the evening. Almost invariably, intoxication, which may explain an offence, cannot be considered mitigatory, as explained in Bourke v The Queen (2010) 199 A Crim R 38 at 44; [20]. It can, however, be relevant to determine the degree of deliberation involved in the crime as noted by Hunt CJ at CL in…
Ibbs v the Queen [1987] HCA 46
Citation 18 (Para 1)

…s of seriousness itself. All the surrounding circumstances must be considered to determine the objective seriousness, as remarked in Ibbs v The Queen (1987) 163 CLR 447 at 451-2. In this case, for example, there was an absence of many of the aggravating factors that are, regrettably, found in such cases. Thus, there…

Legislation Cited

Crimes (Sentencing) Act 2005 (ACT) 33, 50, 7
4 mentions (from Para 1)
Crimes Act 1900 (ACT) 54(1)
2 mentions (from Para 1)