R v Mynott (No 2) - [2020] ACTSC 232

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Mynott (No 2)
Citation:	[2020] ACTSC 232
Hearing Date:	24 August 2020
DecisionDate:	24 August 2020
Before:	Murrell CJ
Decision:	Sentenced to three years and four months’ imprisonment with a 16-month nonparole period.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Sexual intercourse without consent – Offences against sex workers –Consent negated by fraudulent misrepresentation
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 7, 33 Crimes Act1900 (ACT) ss 54(1), 67(1)(g)
Cases Cited:	Livas v The Queen [2015] ACTCA 54 R v Abuuh [2017] ACTSC 375 R v Livas [2015] ACTSC 50 R v Miller [2019] ACTCA 25 R v Miller [2019] ACTSC 18 R v Mynott [2020] ACTSC 3
Parties:	The Queen (Crown) Kristian James Mynott (Offender)
Representation:	Counsel S Jerome (Crown) J Sabharwal (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Numbers:	SCC 20, 263 of 2019

MURRELL CJ:

Introduction

The offender is to be sentenced for two counts of engaging in sexual intercourse without consent. Each offence is contrary to s 54(1) of the Crimes Act1900 (ACT) (Crimes Act) and carries a maximum penalty of 12 years' imprisonment.

The offender pleaded guilty on 18 March 2020 (12 days prior to the scheduled trial date) following discussions between the parties. The appropriate discount for the pleas is approximately 12 per cent.

Facts

The complainants worked as escorts.

Without using his correct name, the offender arranged to pay each complainant for sexual intercourse and the complainant travelled to Canberra for that purpose, in accordance with arrangements made by the offender.

In relation to the expenses of the complainants, the offender offered to use credit card details that he had fraudulently obtained in the course of his employment. However, after each episode of sexual intercourse, he failed to pay the agreed fee to the complainant.

The consent to sexual intercourse that had been given by each complainant was negated because it had been caused by a fraudulent misrepresentation by the offender: Crimes Act s 67(1)(g).

Count 1

On 7 June 2017, NI was working as an escort. In response to an online advertisement that he had posted, he received the following text message from the offender:

Hey im looking to fly a rent boy or two to Canberra tonight for an over night stay from 8pm , until 8am the next day. Your return flights will be pre booked and paid … for, airport transfers and a payment of 1500.00. if keen get back to me asap.

NI agreed to the proposition. The offender booked a flight for him using credit card details that he had obtained fraudulently through his employment.

NI's flight from Sydney was delayed. At the airport, he met KC, another escort who had been engaged by the offender. On arrival, they were greeted by a chauffeur, who took them to the Canberra Rex Hotel. The offender paid the…

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 Mynott (No 2)

Details

AGLC: R v Mynott (No 2) [2020] ACTSC 232
Case: [2020] ACTSC 232
Decision Date: 24 August 2020

CaseChat Overview and Summary

The case before the court was R v Mynott (No 2), in which the defendant was charged with engaging in sexual intercourse without consent. The dispute centred around whether the defendant's fraudulent misrepresentation concerning the nature of the sexual activity negated the consent of the sex worker. The case was heard in a court of appeal, with the defendant seeking to overturn a previous conviction and sentence. The primary legal issue before the court was whether the fraudulent misrepresentation by the defendant invalidated the consent of the sex worker, thereby constituting a criminal offence. Additionally, the court had to consider the appropriate sentence for the defendant given the nature of the offence and the circumstances surrounding it.

In examining the legal principles, the court noted that the common law principle that consent must be genuine and informed was paramount. Fraudulent misrepresentation regarding the nature of the sexual activity was held to vitiate consent, aligning with established legal precedents. The court also considered the gravity of the offence and the need for deterrence. It was acknowledged that offences against sex workers required careful consideration due to the vulnerable nature of the profession. The court deliberated on the appropriate sentence, balancing the need for punishment, deterrence, and rehabilitation. Ultimately, the court found that the defendant's actions warranted a substantial custodial sentence to reflect the seriousness of the offence.

The court sentenced the defendant to three years and four months’ imprisonment, with a non-parole period of 16 months. This sentence was deemed appropriate to uphold the deterrent effect of the law and to provide adequate punishment for the defendant's actions. The appeal was dismissed, and the original sentence was upheld. The decision underscored the importance of protecting the rights of sex workers and the necessity of robust legal measures to address offences involving fraudulent misrepresentation.

Orders

Orders of the court

Sentenced to three years and four months’ imprisonment with a 16-month nonparole period.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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