R v Mynott (No 2)
[2020] ACTSC 232
•24 August 2020
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 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 chauffeur's costs using the fraudulent credit card details.
The two escorts checked into the Rex Hotel, which was very close to the offender's residence. After they had waited for some time, the offender communicated by text message with NI, telling them to come to his apartment, where he had two other escorts. NI and KC went to the offender's apartment, where the group drank alcohol and watched pornography.
One of the escorts who was already at the offender's apartment asked NI whether he had been paid yet. NI was prompted to speak to the offender, who said that he had not yet withdrawn the money but would go to an ATM later. NI agreed to that course.
In the early hours of 8 June 2017, the offender, NI and the three other escorts engaged in sexual activity. During the sexual activity, the offender (who may have been suffering from a disease) performed unprotected oral sex on NI, and there were at least two episodes of protected penile/anal intercourse. Eventually, NI fell asleep.
When NI woke up, he questioned the offender about payment. The offender told NI that they would stop at an ATM on the way to the airport. The offender accompanied NI and KC in a taxi to the airport. On the way, he asked the taxi to stop at an ATM and left the vehicle for the stated purpose of withdrawing money, but did not return.
NI and KC returned to the offender's apartment to wait for the offender. The other two escorts were still there. When NI texted the offender, the offender told him that he was “in class”. NI demanded payment and said that he would call the police if he was not paid.
While at the apartment, NI observed personal mail addressed to the offender by his correct name.
At some point, the four escorts had to leave the apartment as the building was evacuated because of a fire alarm. When they attempted to re-enter the apartment, they discovered that the apartment door was locked. No one answered the door, and the offender did not answer their calls or texts.
Eventually, NI and KC caught a bus back to Sydney. NI did not receive the agreed sum of $1,500.
Count 2
The second complainant, KS, worked as a male escort in Victoria.
On 17 August 2017, the offender contacted KS's work number using a prepaid mobile telephone number in a false name. After they had exchanged photographs, the offender sent a text message to KS, saying:
Hi there. Are you available for an over night stay in Canberra. Flights will be arranged and 2000.00 cash. Fly out at 8pm and fly home at 8am following morning. Let me know asap.
KS agreed.
The offender's attempts to book flights were unsuccessful because of the short notice. KS booked and paid for a flight on the offender’s promise to “fix [him] up”.
The offender had told KS that he would collect him from the airport, but when KS arrived the offender was not there to meet him. The offender told KS to take an Uber to the Rex Hotel, which was next to his residence, and KS did so.
After KS arrived at the hotel, the offender told him that a third person may join them. Initially, KS protested, saying that it was not part of their agreement. However, he agreed when the offender offered to pay him an additional $500.
In text messages, KS repeatedly emphasised the importance of payment, told the offender to bring the first half of the payment, and said that he would not engage in sexual activity until he had received part payment.
At the offender's request, KS went to the offender's apartment, where he met the offender and another man. The offender told KS that he would pay him half the money now and said that KS should return to the hotel room, where the offender would meet him.
KS returned to the hotel room. The offender did not arrive for some time. At about 1:15 AM, KS had a text exchange with the offender, expressing concern at the delay, referring to the need for payment, and telling the offender to “bring condoms and lube”.
At about 2 AM, the offender and the other man arrived at the hotel room. The three men undressed and went into the “steam room”. They engaged in unprotected oral sex. The offender set up a projector and projected pornography. They drank some wine. The offender engaged in further unprotected oral sex with KS and the other man. They returned to the steam room, where the offender engaged in further oral sex with KS.
The offender then told KS that he was taking the other man back to his apartment and that he would be back in 10 minutes. He never returned.
KS sent several messages to the offender, asking him where he was and providing details for payment. When the offender did not reply, KS went to the offender's apartment. The other man answered the door and told KS that the offender had gone to work. While at the apartment, KS saw documents in the offender's correct name.
After again attempting to contact the offender, KS left the apartment, gathered his things, and went to the police station, where he reported the incident to police.
On 7 November 2017, police spoke to the offender. The offender said that, on two or three occasions, there had been an escort in his apartment, but he had not realised at the time that they were an escort. He believed that KS was an escort that had been arranged by an associate of the offender.
Victim impact
NI provided the court with a victim impact statement. He stated that, when he had realised that he would not be paid, he had felt “very upset, betrayed and sad”. Because he was not paid, he had been unable to pay rent and buy food and had had to ask friends for financial assistance.
The loss of trust associated with the incident affected NI's ability to engage in escort work and he had to change his line of work.
KS did not provide a victim impact statement, but it is clear from the agreed statement of facts that he was shocked and upset by the offence.
Objective seriousness
Each offence was of significant objective seriousness. Each was associated with significant planning. The offender did not reveal his real name to the complainants, and he financed or attempted to finance their expenses using the credit card details of a third party. Each offence encompassed several episodes of sexual activity. Because of the nature of sex work, sex workers are vulnerable to sexual offences of this kind.
On the other hand, neither offence was particularly sophisticated. By inviting the complainants to his apartment, the offender enabled them to ascertain his identity. The complainant was never entirely alone with the offender; other persons were present. However, the third party who was present with KS was an associate of the offender, so his presence may not have provided reassurance to the complainant.
Subjective features
The offender is 42 years old. At the time of the offences, he was 39 years old.
The offender has a lengthy criminal record, although it does not include matters of a sexual nature, and most of the record concerns matters that are significantly less serious than the subject offences. In Victoria and New South Wales, he has been convicted of dishonesty offences, driving offences, drug offences, and offences of violence, most of which, based on the sentences imposed, were of relatively low objective seriousness.
In July 2016, the offender was sentenced by the Melbourne Magistrates Court to a 12-month community correction order for obtaining property by deception. He was subject to that order when the first offence was committed.
In October 2017, he was sentenced for an offence of affray that had been committed in June 2017 (i.e. at about the time that Count 1 was committed) and he received a 12-month suspended sentence from 29 October 2017.
In January 2020, he was sentenced by Elkaim J for seven dishonesty offences committed in 2016 and 2017. Some of the offences related to the credit cards that were fraudulently used in connection with the offences that are the subject of these proceedings. Elkaim J “narrowly” decided to give the offender the opportunity of participating in a rehabilitation program and imposed a total sentence of two years and five months' imprisonment to be served by way of an intensive correction order: R v Mynott [2020] ACTSC 3. The offender's compliance with the intensive correction order was described as “satisfactory” but it would appear that it has been better than satisfactory, albeit that recently the offender returned a positive reading for cannabis on a drug test.
In sentencing the offender for the sexual offences, his culpability is not increased by the fraudulent use of credit cards. Those matters were the subject of separate sentencing proceedings. However, the use of the credit cards is relevant to an assessment of the degree of planning associated with the subject offences.
The offender committed offences after the present offences, which simply provide context to the sentencing exercise. In October 2019, he was sentenced to one month’s full-time imprisonment for an offence of contravening a family violence order committed in August 2019. In April 2019, he received a sentence of three months’ imprisonment for an offence of common assault committed in 2018, which was suspended after 45 days on the offender entering into a 12-month good behaviour order.
The pre-sentence report stated that the offender was raised in a supportive family environment. However, Dr Furst (who provided a report dated August 2019 for the proceedings before Elkaim J) reported that, during his upbringing, the offender’s father was a violent and abusive alcoholic. The offender's parents separated when he was 16 years old.
Having recovered from alcoholism, the offender's father passed away in 2017 after a lengthy illness. The offender maintains a positive relationship with his mother and brother, and he resides with his mother.
After leaving school, the offender undertook certificate study in hospitality. He was employed in the hospitality and media industries until approximately 2017. Currently, he works at a cleaning business that he owns with his partner, but his primary source of income is said to be Newstart benefits.
The offender has been in a relationship since 2018. “Issues” affecting the relationship are being “worked through” in counselling.
The offender experienced a traumatic incident in 2004, as a result of which a police officer was charged with sexually assaulting the offender but was ultimately acquitted. Following this incident, the offender lost trust in authority and developed feelings of anxiety and depression. He began to abuse drugs and developed mental health problems. In 2005, he was admitted to hospital as a psychiatric patient for a period of six weeks.
The offender began using methylamphetamine. He consumed illicit substances between about 2005 and 2017. From December 2017 to April 2019, he was drug-free. In general, he has been drug-free since late 2017.
In 2018/2019, the offender was treated for addiction and mental health problems. Currently, he is actively engaged with drug rehabilitation. Canberra Recovery Services reported that the offender was engaged in their program from 29 January 2020 until he self-discharged on 2 May 2020. While on the program, he demonstrated a commitment to change and gained insight into underlying behavioural issues. He continues to attend a weekly relapse prevention session.
Ms Hanks (a counsellor from Catholic Care) reported that the offender had completed eight fortnightly counselling sessions and had made significant behavioural changes. In addition, the offender was to complete 10 sessions with a relationship counsellor.
Mr O'Neill from Canberra Recovery Services reported that the offender had participated in the Men's Behaviour Change program but, because of the pandemic, thus far he had undertaken only four of the 10 sessions. The program helps men to build respectful relationships and teaches self-perception and communication skills.
It is clear that the offender is motivated to address his illicit substance use. Unfortunately, the level of his alcohol consumption has increased recently; the author of the pre-sentence report stated that he is now consuming alcohol at a risky or hazardous level.
The offender said that the death of his father a few months before the current offences was a catalyst causing an increase in antisocial behaviour. The offender has been diagnosed with depression, anxiety and post-traumatic stress disorder. Dr Furst reported that the offender's primary mental health problem is a chronic anxiety disorder, most likely post-traumatic stress disorder (PTSD) associated with a pattern of maladaptive behaviour, including chronic use of methylamphetamines. Dr Furst noted that the PTSD and substance use disorder had commenced in about 2004–2005 and that the offender had suffered a setback with his father's death in May 2017. Dr Furst said:
It is likely that he was using sex as a means of boosting his mood and coping with his chronic anxiety and low self-esteem. It is also likely that the drugs he was taking at the time, especially methylamphetamine, made him more disinhibited and increased his libido, contributing to his offending actions.
When he reported in August 2019, Dr Furst stated that if the offender received a custodial sentence, he should be placed under the ACT Mental Health Service and provided with counselling and continued in psychotropic medication for PTSD, anxiety, and depression. He also stated:
In my opinion, a custodial sentence is likely to exacerbate his current levels of depression, anxiety and stress, both related to his PTSD and independent of his PTSD, as custodial environments, including the Alexander Maconochie Centre are harsh and restrictive environments with frequent exposure to violence, threats, intimidation and exploitation. In this respect, I am of the opinion a custodial sentence is likely to weigh more heavily on Mr Mynott than the theoretical “average” inmate.
The offender has shown some remorse. He has accepted responsibility for his actions, although, according to the author of the pre-sentence report, he has tended to focus on the negative impact on himself and his family, rather than the complainants.
I am satisfied that a period of full-time imprisonment will have a significant negative impact on the offender for the reasons explained by Dr Furst. Further, the offender suffers from a medical condition, which means that he has low immunity and is at greater risk of infection within the prison environment. This will be a significant worry for him during the pandemic.
The pandemic will have another impact on him—one that applies to all prisoners in the Alexander Maconochie Centre (AMC). On 22 March 2020, ACT Corrective Services suspended all visits to the AMC. This limitation will apply for an indefinite period. It will have an impact on most prisoners, including the offender, who has a close relationship with family members and is in a de facto relationship; those close to him will be unable to visit him in the prison. Prisoners may also be affected by restrictions on internal movement and the fear of contracting the COVID-19 virus associated with the difficulty of socially distancing within the prison environment.
The considerations that mean that the offender will suffer particularly in prison (both because of his personal mental and physical circumstances and because of restrictions applying to all inmates) will be reflected in the length of the nonparole period that I impose.
The author of the pre-sentence report assessed the offender as at a medium risk of general reoffending, primarily due to his history of substance abuse and mental health problems. He was assessed as at above average risk of sexual reoffending. It is considered that he would benefit from a referral to ACT Corrective Services Programs Unit for further assessment of his suitability for programs designed to address such behaviour.
Comparable cases
In R v Livas [2015] ACTSC 50, the offender entered a late plea of guilty to one offence of sexual intercourse without consent. Pursuant to an arrangement, the offender attended the complainant’s home, where she worked as a sex worker. He owed her money from a previous arrangement but persuaded her to participate in a second engagement. Upon arrival, he produced an envelope which he said contained the agreed fee and an outstanding $50 and asked the complainant to trust him as to the contents. The offender engaged in sexual intercourse with the complainant. The envelope did not contain payment. The offender was on conditional liberty and his criminal record included offences of dishonesty. Penfold J sentenced him to 25 months’ imprisonment, reduced from 30 months for the plea of guilty. The sentence was suspended after eight months on the offender entering into a 24-month good behaviour order. Her Honour observed (at [34]):
Sex workers clearly fall into the category of vulnerable workers in general and may be particularly vulnerable to abuse of this kind. Certainly, no one should doubt that fraudulently achieving sexual intercourse by this kind of activity constitutes rape, rather than a dishonesty offence, although of course dishonesty is a major element of this fact situation.
An appeal against sentence was dismissed: Livas v The Queen [2015] ACTCA 54 (Livas). The Court agreed that the offence was serious, said that a sentence involving full-time custody was “inevitable”, and described the period that the appellant had been ordered to serve as “modest”: at [25].
In R v Abuuh [2017] ACTSC 375, a jury found the offender guilty of several offences, including sexual intercourse without consent in company and attempted sexual intercourse without consent in company (maximum penalty 14 years’ imprisonment). The offender and two other persons were involved in the robbery and rape of two sex workers. In sentencing the offender, Elkaim J noted the “extreme subjective circumstances of the offender’s upbringing”: at [18]. For the offence of sexual intercourse without consent in company, the offender was sentenced to one year, eight months and 12 days’ imprisonment. For the offence of attempted sexual intercourse without consent, he was sentenced to one year, 11 months and 21 days’ imprisonment. Elkaim J imposed a nonparole period of two years and two months on a head sentence of three years and eight months’ imprisonment.
In R v Miller [2019] ACTSC 18, the offender pleaded guilty to engaging in sexual intercourse with a sex worker. Contrary to her repeated and clear statement that she did not consent to anal intercourse, the offender engaged in digital/anal intercourse. The offender was 40 years old and had a significant but dated criminal history. Elkaim J describe the sentencing exercise as difficult, noting that his “initial impression” was that the offender must serve a period of full-time imprisonment. His Honour also noted that, unlike the position in Livas, the offence had been impulsive and brief. His Honour sentenced the offender to two years’ imprisonment, wholly suspended on the offender entering into a supervised two-year good behaviour order.
On the appeal, in the exercise of the Court’s residual discretion and by majority, a Crown appeal was dismissed: R v Miller [2019] ACTCA 25 (Miller). The majority said (at [45]):
In our opinion the sentence imposed by the primary judge was manifestly inadequate insofar as it did not require the respondent to serve any period of full-time imprisonment. When all of the surrounding circumstances are taken into account, the offence committed by the respondent should be assessed as in the mid-range of such offences, albeit towards the lower end of that range. The objective gravity of the offence made a period of full-time imprisonment inevitable, and, in any event, the respondent’s subjective features could not be described as compelling. Accepting that the head sentence of two years’ imprisonment was appropriate, the respondent should have been required to serve a period of at least six months’ full-time imprisonment before being released as part of a suspended sentence order.
Bromwich J disagreed that the appeal should be dismissed in the exercise of the Court's residual discretion and indicated that, in his view, the appropriate sentence was a sentence of two years' imprisonment with the respondent serving a period of 12 months: at [53].
The Crown provided a table of sentences imposed for offences against s 54 of the Crimes Act involving an adult offender and an adult victim.
The ACT Sentencing Database (July 2012 to December 2018) shows that, for offences against s 54(1), offenders charged with multiple offences who had prior offences of a different type (a sample of only 17) all received sentences of full-time imprisonment, often in the range of two and a half to four years’ imprisonment. I am well aware of the limitations of sentencing statistics but note that the statistics appear to be consistent with the sentences imposed in the matters to which I have made particular reference (and vice versa).
Other sentencing considerations
I have taken into account the factors in s 33 of the Crimes (Sentencing) Act 2005 (ACT) insofar as they are known and relevant. I have referred to the relevant matters above.
In this case, relevant s 7 sentencing purposes include appropriate punishment, accountability, denunciation, and recognition of harm to the victims.
I am satisfied that, to recognise the objective seriousness of the offences, a sentence of imprisonment must be imposed.
Further, having regard to the objective seriousness of the offences, and taking into account the decisions of the Court of Appeal in Livas and Miller, I am satisfied that the sentence must be a sentence of full-time imprisonment.
In each case, the starting point for the sentence is 30 months’ imprisonment. I will deduct approximately 12 per cent for the pleas of guilty.
Sentences
I convict the offender and impose the following sentences:
(a)Count 1: two years and two months’ imprisonment (reduced from two years and six months’ imprisonment), from 24 August 2020 to 23 October 2022.
(b)Count 2: two years and two months’ imprisonment (reduced from two years and six months’ imprisonment), from 24 October 2021 to 23 December 2023.
That is a total sentence of three years and four months’ imprisonment.
Because of the factors peculiar to the offender (which mean that any sentence of imprisonment will be more onerous for him) and the matters affecting all inmates, I will reduce the nonparole period significantly below that which would otherwise have been imposed.
I impose a nonparole period of 16 months’ imprisonment, from 24 August 2020 to 23 December 2021, at which stage the offender will be eligible for release to parole.
| I certify that the preceding seventy-seven [77] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
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