R v MZ
[2019] ACTSC 341
•6 December 2019
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 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
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.
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
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 jury’s verdict was that this was without the complainant’s consent. That finding is consistent with what can be heard on the audio recorded on the mobile phone and necessarily involves the rejection beyond reasonable doubt of the version of events given by the accused in his interview with police that was to the effect that the complainant invited him to have sexual intercourse with her.
12. The complainant awoke shortly after the intercourse commenced and told the accused to stop. He did stop. He left and she attempted to go back to sleep. Approximately 10 minutes later the accused returned to the bedroom. The complainant gave evidence that she felt his finger in her mouth and that there was a substance on his finger which felt rough and tasted bitter. On the audio recording she says to him in Chinese “What are you doing?” “What did you feed me?”. He denies feeding her anything. She tells him to leave the room.
13. She immediately washed out her mouth using water from the mug next to her bed and spat it back into the mug. She then went to the ensuite bathroom and observed “white dots” or a “wet powder” on her front teeth. The tap in the bathroom can be heard running on the audio recording. She had a bitter taste on her tongue which had woken her up. She went downstairs, woke up her mother and then washed her mouth out again into three different glasses.
14. The jury accepted her evidence that she had not consented to the sexual intercourse. I accept beyond reasonable doubt her evidence that the accused came and put a bitter tasting substance into her mouth using his fingers. I find that she rinsed out her mouth into the mug that was next to her bed, that she then rinsed out her mouth again in the bathroom and then went downstairs and rinsed out her mouth into the three glasses.
I was satisfied that the substances administered were temazepam and zopiclone: Kirby v MZ at [25].
Victim Impact Statement
The victim prepared a victim impact statement which was read aloud by the prosecutor. The victim describes her hypervigilance since the event in question and the loss of trust that she feels in relation to people generally.
The victim impact statement describes that the hospital examination and recorded police interview were difficult experiences for her. She described how she becomes very emotional when she thinks about how the conduct of the offender has “completely shattered” her family and had consequences for their children, who no longer have a father in their lives. She describes that she has been diagnosed by her doctor with Post‑Traumatic Stress Disorder.
The conduct also marked the end of her marriage. The victim no longer trusts the offender’s family who blame her for the situation. She continues to be solely responsible for the support of the children.
Objective seriousness
While the offence of sexual intercourse without consent is a serious offence, it covers a wide spectrum of criminal culpability. The present offending lacked a number of aggravating features. In the present case there was no significant degree of premeditation, the act was not committed in company, it was brief, the offender ceased when told by the victim to desist, violence or threats of violence were not used, a weapon was not used and the victim was not injured, humiliated or degraded in any more explicit way than the conduct itself: cf DPP v Jurj & Miftode [2016] VSCA 57 at [80]. However, the offender did not use a condom and, having regard to the evidence about the couple’s contraceptive practices, the intercourse carried with it the risk of pregnancy.
I do not accept the Crown submissions that the intercourse involved a breach of trust in any meaningful sense because this was not a situation in which the accused owed the victim what might be considered as any specific duty: cf Wyper v The Queen; R v Wyper [2017] ACTCA 59 at [94]. Nor do I consider the presence of a sleeping three-year-old child in the vicinity to be a matter which aggravates the offending. There is no evidence other than that she was fast asleep and had no awareness of what was going on. The case is clearly distinct from a case such as R v Schrattenholz [2017] ACTSC 247 where the children were present and likely to have been traumatised by the offending.
While the offending did occur in a domestic context, the evidence did not establish that it was part of any pattern of oppression of the victim through violence or sexual violence. Nor does it establish that there was a marked inequality of power between husband and wife. While some evidence made reference to past conduct described as having involved violence and non-consensual sexual intercourse, that evidence was non‑specific and given in passing during the course of the trial. Notwithstanding my acceptance of the victim’s evidence generally, I cannot be satisfied beyond reasonable doubt of any particular incident, nor can I be satisfied that it reflected a pattern of behaviour on the part of the offender proximate to the time of the offending.
In the circumstances I consider the sexual intercourse offending to be in the lower range of objective seriousness for this offence.
So far as the offence involving the administration of a declared substance is concerned it involved a somewhat ham-fisted attempt to interfere with the recollection by the victim of what had occurred. It is not possible to find on the evidence that there was an intention to cause harm to the victim other than through interference with her recollection of events. That does not, however, detract from the impact upon the victim who was unaware of what substance had been administered.
Subjective circumstances
Pre-sentence report
The offender is 36-years-old. He was born in China. He has no siblings. He described negative memories of his childhood to the author of the pre-sentence report. Those negative memories included verbal and physical abuse between his parents and occasionally being subjected to physical violence from his parents. He described his upbringing as lonely due to his family regularly relocating. Despite this, his relationship with his parents, who travelled to Australia upon news of his arrest over these charges, is currently very positive.
The offender moved to Canberra when he was 17 years old to undertake university studies. He completed a Diploma and Bachelor of Information Technology and has remained in Canberra since then. Before the offender moved to Canberra he completed the equivalent of Year 12 education in China. Since completing his university study he has held regular employment, including working for several public service departments between 2008 and 2019. He started a construction business in 2016 which is currently overseen by his mother and a family friend.
He married the victim of the current offences in 2012. The relationship ended in 2018 due to these offences. The offender described the relationship in negative terms, stating that trust was an issue between the pair. He told the authors of the pre-sentence report that since early 2019 he has been in a new relationship. The offender and the victim have two children from their relationship. Since being remanded in custody he has not had contact with his children.
The offender has a property loan debt of approximately $ 1 million. His parents currently manage the repayments of that loan.
No history of alcohol or drug abuse was reported by the offender. A friend of the offender was able to verify this to the best of his knowledge.
The offender was in a serious motor vehicle accident in 2005. He has previously engaged in sessions with a psychologist and in 2017 was prescribed sleeping tablets to assist with stress related poor sleep. When the offender was inducted into custody at the Alexander Maconochie Centre (AMC) he had contact with Mental Health Services. No history of mental illness, suicide attempts or self-harm was reported to that service. The offender has been seen regularly by Forensic Mental Health Services and was reviewed by a psychiatrist on 25 October 2019. The view of the psychiatrist was a diagnosis consistent with Dysthymia and Adjustment Disorder.
The offender lodged an appeal against his conviction on 7 November 2019. His attitude towards the offences was therefore not discussed.
The opinion of the author of the pre-sentence report is that:
[MZ] has been assessed as a low risk of general re-offending. His protective factors include stable accommodation, employment and a supportive family… He is extremely frustrated and feels a strong sense of injustice, blaming the victim for his current circumstances.
Psychological report
Counsel for the offender tendered a psychological report prepared by Dr Danielle Clout dated 22 November 2019. Dr Clout assessed the offender as currently suffering symptoms consistent with Major Depressive Disorder (recurrent episode, moderate severity) and Generalised Anxiety Disorder. He identified the onset of his current episode of Major Depressive Disorder as October 2019, following the verdict and his admission into the AMC. Dr Clout suggested that the offender would benefit from individual psychological therapy, such as cognitive behavioural therapy and interpersonal psychotherapy. The offender’s anxiety appeared to Dr Clout to have been consistent since the birth of his first child in 2012. Because his anxiety symptoms are longstanding and he has experienced multiple episodes of Major Depressive Disorder he is likely to require medium to long-term treatment, with a strong emphasis on relapse prevention.
The report records that a sentence of full-time imprisonment would have a significant adverse impact on his mental health. The opinion of Dr Clout is that:
His negative self-evaluation and the sense of guilt and worthlessness associated with his Major Depressive Disorder have escalated since entering AMC, increasing his overall level of symptomatology and risk of harm to self. In addition, [his] primary coping and protective factors are his employment, current partner, and treating psychologist. The removal of these factors has been associated with a worsening of his mood and an increase in his suicidal thoughts.
Dr Clout’s report further states that there is no indication that the offender would have difficulty complying with the conditions of a community-based order.
Character references
A bundle of 12 character references was also tendered by counsel for the offender. The common thread of the references is that the actions of the offender are described as “out of character”. He is described as someone who “always treated his family with respect and love and represents family values”. The references record the offender’s great upset over the charges, the fact that he attends counselling and suffers from depression. They describe the significant stress upon the offender and the victim from not only running multiple businesses and raising a family, but from doing so in a country, culture and language different from their birth country. The offender is described as “hard-working”, “diligent” and “smart” in his professional life, and as someone who enjoys assisting others by sharing his knowledge and skills. He is praised as someone who goes out of his way to support his friends in his personal life.
Criminal history
The offender has no criminal history. This is his first period in custody and that is a matter which must be taken into account.
Plea of guilty
The offender was found guilty after a trial. No reduction in sentence on account of any plea of guilty is available.
Time in custody
The offender has been in custody since 14 October 2019. He has spent 53 days in custody prior to today.
Comparable cases
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 the sentences imposed in Wyper v The Queen; R v Wyper [2017] ACTCA 59; R v Wyper(No 2) [2017] ACTSC 103; R v LQT [2018] ACTSC 246; R v UG [2018] ACTSC 243; R v UG [2018] ACTCA 64, R vAroub [2017] ACTSC 187 and R v McCarthy (Unreported, ACT Supreme Court, Refshauge J, 24 October 2013). I have taken the sentences in those cases into account.
Of these cases the decisions in MT, Wyper, LQT, UG, Aroub and McCarthy were of most assistance.
MT involved an offender who had been out partying with friends. He and the victim got separated from the other friends and ultimately returned to his house. The victim went to sleep and awoke to find the offender having penile-vaginal intercourse with her. She tried to get him off her but he only stopped when his phone rang. He was found guilty by a jury. He had no relevant prior convictions. He was sentenced to two years’ imprisonment with a nine month non-parole period.
The circumstances in Wyper were clearly more objectively serious than the present. They involved an act of aggressive sexual violence involving digital penetration causing pain and fear. The sentence in that case was two and a half years’ imprisonment to be served by way of intensive correction. The Court of Appeal found the sentence to be lenient but not manifestly inadequate.
LQT involved penile-vaginal intercourse between a husband and wife. The offender pleaded guilty. The couple were of Nepalese background. Relations were strained. The offender had no prior criminal history and a good work record. He was sentenced to 22 months’ imprisonment suspended after 37 days. The head sentence reflected a starting point of approximately 24 and a half months.
UG involved an offender who had sexual intercourse without consent with his fiancée’s sister. He pleaded guilty. He had no record and the offending was out of character. The Court of Appeal resentenced him to 22 months’ imprisonment suspended after 9 months. The circumstances in that case were more serious than the present. The starting point was 33 months which was reduced to take account of the plea of guilty and assistance to authorities.
In Aroub the victim and the offender had been out drinking together and, along with others, had returned to the offender’s home. The sexual intercourse was found to be impulsive and only involved brief penetration. A sentence of two years’ imprisonment suspended after six months was imposed.
McCarthy involved a separated couple. The offender engaged in penile-vaginal sexual intercourse with the victim when she was asleep. The offender had a negligible record and a number of references described the offending as out of character. He was sentenced to two years and 10 months’ imprisonment suspended after eight months, reflecting the time he had spent in custody.
These cases reflect a range of sentences for sexual intercourse without consent at the lower end of objective seriousness.
Consideration
Generally speaking a period of full-time imprisonment will usually be necessary to give effect to the sentencing purposes of deterrence, denunciation and recognition of harm to the victim: Wyper v The Queen; R v Wyper [2017] ACTCA 59 at [114]-[115].
I accept that the offender is, outside his relationship with the victim, a person of good character. He is motivated to be a good father to his children. He is motivated to work. He has connections within the community.
He is assessed as being at a low risk of general reoffending. A specific sexual offending risk assessment was not undertaken because of the pending appeal against conviction. He certainly demonstrated some adverse attitudes towards the victim in the interview with police. It is difficult in the circumstances to work out whether the attitudes shown there were specific to the victim and expressed in the difficult circumstances of a police interview or whether they were reflective of his attitudes more generally. He has expressed no remorse. The pre-sentence report author recorded that he continues to blame the victim. However, the character references were extremely positive and Dr Clout assessed him as at a low risk of future sexual violence.
I have taken into account the likely consequences of a sentence of imprisonment upon his children, upon his mother who is supporting him by attempting to manage his business whilst he is in custody and upon his new partner.
I also accept Dr Clout’s evidence that because of his Major Depressive Disorder and Generalised Anxiety Disorder he is likely to find a sentence of full-time imprisonment more onerous than a person without those conditions.
Having regard to the seriousness of the charge of sexual intercourse without consent I consider that a custodial sentence is the only appropriate sentence. In my view the appropriate sentence is 22 months’ imprisonment. Having regard to the nature of the offending and the personal circumstances of the offender I do not consider that a sentence served by way of intensive correction would be appropriate. Rather, I consider that it is appropriate that the sentence be served by way of a partially suspended sentence of full-time imprisonment. On the charge of administering a declared substance, in light of the relationship between the offending and the disposition of the more serious charge I consider that a custodial sentence is the only appropriate sentence. I consider that this may appropriately be disposed of by a suspended sentence of imprisonment of two months, partially concurrent with the sentence on the previous charge. Whilst some concurrency is appropriate because of the close relationship between the offending, some cumulation is necessary to recognise that it involved separate and distinct offending which added to the seriousness of the overall circumstances.
On the sexual intercourse charge the sentence will be 22 months’ imprisonment suspended after four months. On the administering a declared substance charge the sentence will be a sentence of two months’ imprisonment cumulative as to one month on the sentence for the previous charge. The suspension of the sentences will be conditional upon entry into good behaviour orders which will be subject to the core conditions only. The sentences will be backdated to the date when the offender went into custody, namely, 14 October 2019.
Orders
The orders of the Court are:
1. On the charge of sexual intercourse without consent (CC2018/10499) the offender is convicted and sentenced to imprisonment for a term of 22 months commencing on 14 October 2019 and ending on 13 August 2021.
2. The sentence will be suspended after the offender has served four months from 14 October 2019 until 13 February 2020 upon the offender entering into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 19 months.
3. On the charge of administering a declared substance without authorisation (CC2018/12827) the offender is convicted and sentenced to imprisonment for two months commencing on 14 July 2021 and ending on 13 September 2021.
4. The sentence will be suspended forthwith upon the offender entering into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period commencing today and ending on 13 September 2021.
| I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 13 December 2019 |
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