R v MZ

[2019] ACTSC 341

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v MZ

Citation:

[2019] ACTSC 341

Hearing Date:

3 December 2019

DecisionDate:

6 December 2019

Before:

Mossop J

Decision:

See [43]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – sexual intercourse without consent – administer a declared substance without authority – offending in the lower range of objective seriousness for the offences – no criminal history – positive character references – no remorse – offender suffering from depression and anxiety – full-time imprisonment more onerous upon the offender – partially suspended sentence imposed

Legislation Cited:

Crimes Act 1900 (ACT), s 54(1)

Crimes (Sentence Administration) Act 2005 (ACT)

Medicines, Poisons and Therapeutic Goods Act 2008 (ACT), s 37(1)

Cases Cited:

DPP v Jurj & Miftode [2016] VSCA 57

Kirby v MZ [2019] ACTSC 327
R v Aroub [2017] ACTSC 187
R v LQT [2018] ACTSC 246
R v MT [2014] ACTSC 162
R v McCarthy (Unreported, ACT Supreme Court, Refshauge J, 24 October 2013)
R v Schrattenholz [2017] ACTSC 247
R v UG [2018] ACTCA 64
R v UG [2018] ACTSC 243
R v Wyper (No 2) [2017] ACTSC 103
Sirohi v The Queen [2016] ACTCA 29

Wyper v The Queen; R v Wyper [2017] ACTCA 59

Parties:

The Queen (Crown)

MZ (Offender)

Representation:

Counsel

S Jerome (Crown)

M Jones (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Kamy Saeedi Law (Offender)

File Numbers:

SCC 318 & 319 of 2018

MOSSOP J:

Introduction

1. The offender, who, in order not to identify the victim of the offending I will refer to as MZ, was found guilty by a jury of one count of sexual intercourse without consent contrary to s 54(1) of the Crimes Act 1900 (ACT). That offence is punishable by imprisonment for 12 years.

1. I also found the offender guilty of a related charge, being one count of administering a declared substance to someone else without authorisation to administer the substance, contrary to s 37(1) of the Medicines, Poisons and Therapeutic Goods Act 2008 (ACT): see Kirby v MZ [2019] ACTSC 327. The maximum penalty for that offence is 100 penalty units, imprisonment for one year or both.

Facts

1. I described the facts of the offence in Kirby v MZ. They are as follows:

10.    The complainant and the accused were married.  They were separated but living under one roof.  On the evening of 16 August 2018, the complainant was sharing a bed with her three-year-old daughter.  After the complainant had gone to bed, on a number of occasions during the evening the accused went into the bedroom where the complainant was sleeping to discuss issues relating to their financial affairs and their divorce.  After he had come in a number of times the complainant commenced an audio recording on her mobile phone sometime after midnight. 

11.    About an hour into the recording, the accused engaged in sexual intercourse with the complainant.  This was a fact which he admitted.  The…