R v NX (No 2)
[2019] ACTSC 131
•24 May 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v NX (No 2) |
Citation: | [2019] ACTSC 131 |
Hearing Date: | 22 May 2019 |
DecisionDate: | 24 May 2019 |
Before: | Mossop J |
Decision: | See [39] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – offender on conditional liberty at the time of offending – typical features of domestic violence – victim vulnerable due to presence of child – extensive criminal history – history of domestic violence offences – medium to high risk of general reoffending – high risk of sexual reoffending – plea of guilty entered during trial |
Legislation Cited: | Crimes Act 1900 (ACT), ss 24, 26, 53(1), 54(1), 61B, 116(3) Crimes (Sentencing Administration) Act 2005 (ACT), s 108(2)(a) |
Cases Cited: | R v KD [2019] ACTSC 62 R v NO (No 2) [2018] ACTSC 37 R v Wyper (No 2) [2017] ACTSC 103 |
Parties: | The Queen (Crown) NX (Offender) |
Representation: | Counsel K Lee (Crown) R Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 212 of 2018 SCC 216 of 2018 SCC 217 of 2018 |
MOSSOP J:
Introduction
The offender, who I will refer to as NX, has pleaded guilty to the following offences:
(a) sexual assault in the third degree on 10 April 2018 (CC2018/5847) contrary to s 53(1) of the Crimes Act 1900 (ACT), the maximum penalty being imprisonment for 12 years;
(b) sexual intercourse without consent on 10 April 2018 (CC2018/5208) contrary to s 54(1) of the Crimes Act, the maximum penalty being imprisonment for 12 years; and
(c) three counts of assault occasioning actual bodily harm on 13 April 2018 (CC2018/5211, CC2018/5212 and CC2018/5214) contrary to s 24 of the Crimes Act, the maximum penalty being imprisonment for five years.
The offender has also been charged with a number of related offences to which he has pleaded guilty:
(a) two counts of common assault on 11 and 13 April 2018 (CC2018/5843 and CC2018/5852) contrary to s 26 of the Crimes Act, the maximum penalty being imprisonment for two years;
(b) one count of capturing visual data in circumstances where the capture is an invasion of privacy and indecent on 11 April 2018 (CC2018/5850) contrary to s 61B of the Crimes Act, the maximum penalty being 200 penalty units or imprisonment for two years or both; and
(c) three counts of causing damage to property on 11 and 13 April 2018 (CC2018/5207, CC2018/5851 and CC2018/5213) contrary to s 116(3) of the Crimes Act, the maximum penalty being 50 penalty units or imprisonment for two years or both.
Additional related offences were dismissed on the last day of the trial.
Facts
The offender and the victim had been in a relationship since 2017. The offences took place over three days in April 2018. For a number of days, the victim and her two-year-old son had been staying at the house where the offender lived with his father.
On the afternoon of Wednesday 11 April 2018, the victim was driving her car with the offender in the passenger seat. During the course of the trip, the offender took the victim’s mobile phone, snapped it in half and threw the pieces out of the car window. This gives rise to a charge of property damage (CC2018/5851). That afternoon while they were at the offender’s house the victim and the offender had an argument. The offender walked up to her and headbutted her in the middle of the forehead causing her pain. This gives rise to the charge of common assault (CC2018/5843). He told her to “get the fuck out” of the house. The victim collected her son and left the residence on foot as the offender had taken her car keys.
The car remained parked at the offender’s house. While she was gone the offender slashed two of the car’s tyres with a knife. This gives rise to another charge of damaging property (CC2018/5207).
Approximately an hour later the victim returned to the house in order to retrieve her belongings from the car. She observed that the tyres had been deflated. The offender told her that he had lost her keys and that somebody had popped the tyres of her car. He told her to go inside the house otherwise he would “start shit” with the victim’s flatmate.
Later that night the offender and the victim were inside the residence. The offender picked up a Stanley knife and held it with the blade out to the victim’s throat and near her face. He directed her to “suck [his] dick”. This gives rise to the Count 1 on the indictment, sexual assault in the third degree.
The victim did not wish to perform oral sex on the offender but felt forced to do so. She performed oral sex on him in this gives rise to Count 2 on the indictment, sexual intercourse without consent. While the victim was performing oral sex the offender took out his mobile phone and filmed it. This gives rise to the offence of capturing visual data (CC2018/5850).
On Friday 13 April 2018, the victim and the offender were in bed in the offender’s bedroom. The victim son was sleeping on a mattress in the corner of the room. The offender attempted to cuddle the victim but she did not wish to cuddle and did not reciprocate. The offender became angry and began yelling. He said that he should not have to beg for a cuddle and asked why the victim had to make him angry all the time and make him hurt her at his father’s house. He punched the victim in the back of the head a number of times. This gives rise to the charge of common assault (CC2018/5852). The offender pushed the victim into the mattress and held her head down on the pillow and struck her with a torch a number of times on the arm, back and shoulder. This caused red marks and abrasions and gives rise to Count 3 on the indictment, assault occasioning actual bodily harm. The offender then bit the victim on the thigh causing bruising. This gives rise to Count 4 on the indictment, assault occasioning actual bodily harm.
The victim stood up from the mattress and began to put on a black dress with white stripes. The offender grabbed the dress, ripped it down the middle and dropped it on the floor. This gives rise to a charge of damaging property (CC2018/5213). The offender then grabbed her left breast and twisted and squeezed it causing pain and bruising to the breast. This gives rise to Count 6 on the indictment, assault occasioning actual bodily harm.
The victim then grabbed another dress, picked up her son and ran out of the house. The offender came out ranting and raving. The victim ran to a neighbour’s house and sought assistance. She was crying and shaking.
Objective seriousness
The offender was on conditional liberty at the time of the offending as he was subject to good behaviour orders imposed on 5 February 2018 in relation to driving offences.
The offending occurred on two days over a three‑day period. The offending had some of the typical features of domestic violence in that it involved attempts to control the victim’s behaviour and sought to place responsibility for the offender’s unlawful conduct upon the victim. It occurred in circumstances where the victim was particularly vulnerable by reason of the need to care for and protect her small child.
My assessment of the objective seriousness of each of the offences is as follows:
(a)Damaging property (CC2018/5851) (mobile phone): this is in the low to mid range of objective seriousness for this offence.
(b)Common assault (CC2018/5843) (headbutt): this is in the low to mid range of objective seriousness for a common assault.
(c)Damaging property (CC2018/5207) (tyre slashing): this is in the mid range of objective seriousness for this offence. It is in the mid range rather than the low to mid range because of the domestic violence context in which it occurs, being a means by which the movement and autonomy of the victim may be controlled.
(d)Count 1 on the indictment (knife to throat): the holding of the knife to the throat is best characterised as an implied threat to inflict actual or grievous bodily harm. The evidence about what was said apart from the demand for oral sex was limited. In those circumstances, it is an offence in the mid range of objective seriousness for an offence against s 53(1) of the Crimes Act.
(e)Count 2 on the indictment (sexual intercourse without consent): the sexual intercourse without consent involved oral sex. It is an offence in the mid range of objective seriousness occurring in a domestic violence context. The use of the knife and the filming of the incident are both addressed by separate charges.
(f)Capturing visual data (CC2018/5850) (filming oral sex): s 61B of the Crimes Act requires that the capturing of such visual data be an invasion of privacy and indecent. The objective seriousness is significantly influenced by the nature of the activity which is being filmed. In the present case, the activity was oral sex. There is no clear evidence as to the purpose for which it was captured, although the offender told the author of the pre-sentence report that it was for personal use. The offence in the present case is in the mid range of objective seriousness for this offence.
(g)Common assault (CC2018/5852) (punches to the back of the head): whilst the assault was to a vulnerable part of the victim’s body, the evidence does not disclose any significant risk of a head injury. Having regard to the part of the body assaulted and the domestic violence context in which it occurred, I treat it as being in the mid range of objective seriousness for a common assault.
(h)Count 3 on the indictment (assault occasioning actual bodily harm – striking with torch): the actual bodily harm caused by the striking with the torch was the red marks and abrasions to the arm, back and shoulder of the victim. The offence is in the low range of objective seriousness for this offence.
(i)Count 4 on the indictment (assault occasioning actual bodily harm – biting thigh): the actual bodily harm inflicted was a bruise. The offence is in the low range of objective seriousness for this offence.
(j)Damaging property (CC2018/5213) (ripping of the dress): notwithstanding that the ripping of the dress took place in a domestic violence context, I characterise this as being in the low range of objective seriousness for this offence.
(k)Count 6 on the indictment (assault occasioning actual bodily harm – twisting breast): the actual bodily harm inflicted was bruising to the breast. I characterise it as being in the low range of objective seriousness for this offence.
Subjective circumstances
The subjective circumstances of the offender are outlined in a pre-sentence report dated 17 May 2019. The offender is 35 years old. He was born in rural New South Wales (NSW). His parents’ relationship ended when he was eight years old. The relationship was marred by his father’s violence and mental health issues. His mother’s subsequent relationship was marred by her partner’s violence and criminal behaviour. The offender was witness to and victim of the violence of both his father and his mother’s subsequent partner. From the age of 12, his relationship with his mother was interrupted by his interactions with the juvenile justice system. He retains a good relationship with his mother and with her current partner. He has only a distant relationship with his biological father due to his father’s mental health.
The offender is the father of three children now aged between 12 and 17. All the children are in the care of the state due to their parents’ drug use and antisocial behaviour.
After being incarcerated it appears that the offender’s relationship with the victim of the offences continued for some time but has now ended.
Apart from selected family members, the offender acknowledged he had few prosocial influences in his life.
He completed Year 9 in the formal education system. He was expelled from school due to fighting, not coping and absenteeism.
When not in custody he is in receipt of a disability support pension due to a developmental disorder of his spine, namely Scheuermann’s disease, which rendered him incapable of most forms of employment.
He has in the past had a history of binge drinking although that pattern of use has subsided.
He commenced using cannabis at age 12 and progressed to daily use by the age of 15 when he was using 1g of the substance per day. His cannabis use continued up until his arrest on the current matters. He also used methamphetamine from about the age of 29, using about 0.1g every three days. He has not had treatment in relation to his drug use.
The pre-sentence report refers to evidence that he has Cluster B personality disorders. Cluster B personality disorders are characterized by dramatic, overly emotional and unpredictable thinking or behaviour in interactions with others. They include antisocial personality disorder, borderline personality disorder, histrionic personality disorder and narcissistic personality disorder. Further detail of his mental health condition was not available. The report describes that he is prescribed medication for his mental health. Counsel indicated that the medication that he takes is Zyprexa. He has a pattern of discontinuing prescribed mental health medication and re-engagement with illicit drugs.
In relation to the offence of capturing intimate images, he reported to the author of the pre‑sentence report that he believed he had consent and said that the recording was for personal use. The author said that the accused appeared to struggle with victim empathy.
He was assessed as being at a medium to high risk of general reoffending and a high risk of sexual reoffending. The author describes that his antisocial peers may present a further risk for the offender.
Criminal history
The offender has a substantial criminal history. As an adult his criminal history arises in NSW up until about 2008. It then continues in the Australian Capital Territory (ACT) from 2009. From 2002, the offender has convictions as an adult which include a number of sentences of imprisonment. They include taking and driving a conveyance without the consent of the owner (2002), contravening an apprehended domestic violence order (2002), common assault (2002), common assault (2003), contravene apprehended domestic violence order (2003), assault occasioning actual bodily harm (2006), destroy or damage property (2006) and break and enter with intent (2006). In the ACT he also has a number of convictions for offences in relation to which he was sentenced to periods of imprisonment: destroy or damage property (2008), burglary (2009), attempted burglary (2009), common assault (2010), contravene protection order (2010), common assault (2010), contravene protection order (2010), common assault (2010) contravene protection order (2010), contravene protection order (2015), common assault (2015), contravene protection order (2015) and destroy or damage Commonwealth property (2015). As is apparent, it is a feature of the offending conduct that involves assaults and contravention of protection orders or equivalent.
Plea of guilty
The pleas of guilty were entered at various times. They fall into three categories:
(a)Offences in relation to which there was a plea of guilty in the Magistrates Court prior to committal, those are the charges of damage property (CC2018/5207 tyre slashing, CC2018/5213 ripping of dress).
(b)Offences in relation to which there was a plea of guilty at the commencement of the trial, those are the charges of common assault (CC2018/5843) (headbutt), damaging property (CC2018/5851) (mobile phone), Count 3 (assault occasioning actual bodily harm – striking with torch), Count 4 (assault occasioning actual bodily harm – biting thigh), Count 6 (assault occasioning actual bodily harm – twisting breast).
(c)Offences to which there was a plea of guilty on day two of the trial after the victim had given evidence and was cross-examined, those are the charges of Count 1 on the indictment (knife to throat), Count 2 on the indictment (sexual intercourse without consent), capturing visual data (CC2018/5850) (filming oral sex), common assault (CC2018/5852) (punches to the back of the head).
The early pleas in the Magistrates Court will attract a discount of 25% on the sentence that I would otherwise have imposed. The pleas at the commencement of the trial will attract a discount of 10%. The balance of the pleas, although occurring after the victim had been cross-examined, will attract discount of 5%. That is because there was still some utilitarian value in the shortening of the trial and the plea of guilty reflects an acceptance of responsibility for the conduct which occurred.
Time in custody
The offender has spent 406 days in custody prior to today. That is one year, one month and 11 days.
Consideration
The offending in the present case includes very serious offending occurring in a context having features of domestic violence. Those include that the offending was directed to maintaining control over the victim by destroying her property and means of transport and blaming her for the offender’s unlawful conduct. The victim was more vulnerable by reason of her need to care for and protect her young child. Her young child was present during some of the offences.
The offender’s upbringing was clearly less than satisfactory. His exposure to domestic violence and criminal behaviour as a child is likely to have had long-term effects upon him and his behaviour.
The offender has a very poor criminal history in relation to offences indicative of domestic violence, namely contravention of protection orders and assaults. Counsel for the offender submitted that the offender would benefit from a longer period on parole because that would assist him in maintaining himself free from illicit drug use.
The Crown helpfully provided a summary of comparable cases so as to inform the court as to current sentencing practice in relation to offences of sexual intercourse without consent. The table was as follows:
| Authority | Overview | Sentencing factors | Sentence imposed |
| R v KD [2019] ACTSC 62 Loukas-Karlsson J One count of attempted sexual intercourse without consent Maximum penalty being 12 years | The offender and the victim were in a relationship. They were at home. The offender pinned the victim down and repeatedly placed a pillow over her face. The offender pulled down the victim's clothing and attempted to have sexual intercourse with her without consent. | · Plea of guilty following negotiations before trial · Young child of the victim nearby · Offender 24 years of age with limited criminal history | Two years and four months imprisonment Non-parole period of one year and two months |
| R v NO (No 2) [2018] ACTSC 37 Penfold J One count of sexual assault in second degree, one count of sexual intercourse without consent, one count of act of indecency, one count of stalking | The offender and the victim were in an intimate relationship. The offender went to the victim's house and held her against the wall with his around her throat. He had non-consensual penile-vaginal intercourse with the victim. On a later occasion, the offender masturbated and ejaculated on the victim's back without consent. | · Guilty verdict · Limited criminal history, with breach of good behaviour order | Sentenced on sexual intercourse without consent to three years, nine months imprisonment Total sentence of five years, three months imprisonment Non-parole period of three years |
| R v Wyper (No 2) [2017] ACTSC 103 R v Wyper [2017] ACTSC 50 Refshauge J One count of sexual intercourse without consent | The offender and the victim were in a relationship. They had an argument about the victim leaving. The offender was on top of the victim and he digitally penetrated her vagina. | · Guilty verdict · Assessed as suitable for intensive corrections order · No substance abuse issues · No criminal history | Total sentence of two years and six months to be served by way of an intensive correction order |
| R v Stanley [2015] ACTSC 322 Refshauge ACJ Two counts of assault occasioning actual bodily harm, one count of damaging property, two counts of sexual intercourse without consent | The offender and victim were living together. The offender was intoxicated and became angry with the victim. The offender assaulted the victim by stomping on her face and chest and starting to strangle her. The offender snapped the victim's phone in half. The offender then used a mug to assault the victim. The offender performed an act of fellatio on the victim, followed by an act of penile‑vaginal intercourse. | · Plea of guilty, following substituted indictment · Sexual offending committed in family violence context · Protracted incident of physical and sexual offences, with “brutal and sustained attack” (at [24]) · Admissions made to physical offending, with initial denial that sexual offending was non‑consensual · Some criminal history, with a previous family violence assault conviction | On one count of sexual intercourse without consent sentenced to three years imprisonment, on the other sentenced to three years and six months imprisonment Total sentence of six years imprisonment Non-parole period of three years and three months |
Clearly, general and specific deterrence are significant sentencing considerations as is recognition of harm done to the victim, denunciation of the offender’s conduct and the protection of the community.
Having regard to the gravity of the offending and the subjective circumstances of the offender and the available sentencing alternatives, I consider that only custodial sentences involving a substantial period of full-time detention are appropriate. I will explain in general terms the sentences that I will impose on each offence before pronouncing the orders:
(a)Count 2 on the indictment (sexual intercourse without consent), imprisonment for 37 months reduced from 39 months on account of the plea of guilty.
(b)Count 1 on the indictment (knife to the throat), imprisonment for 23 months reduced from 24 months on account of the plea of guilty, six months of the sentence is to be cumulative upon the previous sentence.
(c)Capturing visual data (CC2018/5850) (filming oral sex), imprisonment for three months and 24 days reduced from four months on account of the plea of guilty. One month of the sentence is to be cumulative upon the previous sentence.
(d)Damaging property (CC2018/5851) (mobile phone), imprisonment for one month and 24 days reduced from two months on account of the plea of guilty. One month of the sentence is to be cumulative upon the previous sentence.
(e)Common assault (CC2018/5843) (headbutt), imprisonment for two months and 21 days reduced from three months on account of the plea of guilty. One month of the sentence is to be cumulative upon the previous sentence.
(f)Damaging property (CC2018/5207) (tyre slashing), imprisonment for three months and 21 days reduced from five months on account of the plea of guilty. Two months of the sentence is to be cumulative upon the previous sentence.
(g)Common assault (CC2018/5852) (punches to the back of the head), imprisonment for two months and 25 days reduced from three months on account of the plea of guilty. One month of the sentence is to be cumulative upon the previous sentence.
(h)Count 3 on the indictment, assault occasioning actual bodily harm (striking with torch), imprisonment for three months and 18 days reduced from four months on account of the plea of guilty. Two months of the sentence is to be cumulative upon the previous sentence.
(i)Count 4 on the indictment, assault occasioning actual bodily harm (biting thigh), imprisonment for three months and 18 days reduced from four months on account of the plea of guilty. Two months of the sentence is to be cumulative upon the previous sentence.
(j)Damaging property (CC2018/5213) (ripping of dress), imprisonment for three months reduced from four months on account of the plea of guilty. One month of the sentence is to be cumulative upon the previous sentence.
(k)Count 6 on the indictment, assault occasioning actual bodily harm (twisting breast), imprisonment for three months and 18 days reduced from four months on account of the plea of guilty. Two months of the sentence is to be cumulative upon the previous sentence.
This gives an aggregate sentence of four years and eight months. I will set a non-parole period of three years. This represents 64% of the aggregate sentence and allows the offender the possibility of a substantial period of his sentence to be served on parole. The sentence will be backdated to take into account the period spent in custody already. This gives a backdate date of 13 April 2018.
The commission of the present offences puts the offender in breach of good behaviour orders entered into in relation to driving charges (CC2017/12423, CC2017/12422). Having regard to the nature of those offences and the significant penalties imposed in relation to the present offences, it is appropriate to take no further action in relation to the breach of those good behaviour orders. That is a course available under s 108(2)(a) of the Crimes (Sentence Administration) Act 2005 (ACT).
Orders
The orders of the Court are:
1. On Count 2 (sexual intercourse without consent), the offender is convicted and sentenced to imprisonment for 37 months starting on 13 April 2018 and ending on 12 May 2021.
2. On Count 1 (knife to throat), the offender is convicted and sentenced to imprisonment for 23 months starting on 13 December 2019 and ending on 12 November 2021.
3. On CC2018/5850, capturing visual data (filming oral sex), the offender is convicted and sentenced to imprisonment for three months and 24 days starting on 19 August 2021 and ending on 12 December 2021.
4. On CC2018/5851, damaging property (mobile phone), the offender is convicted and sentenced to imprisonment for one month and 24 days starting on 20 November 2021 and ending on 12 January 2022.
5. On CC2018/5843, common assault (headbutt), the offender is convicted and sentenced to imprisonment for two months and 21 days starting on 23 November 2021 and ending on 12 February 2022.
6. On CC2018/5207 (tyre slashing), the offender is convicted and sentenced to imprisonment for three months and 21 days starting on 23 December 2021 ending on 12 April 2022.
7. On CC2018/5852 common assault (punches to the back of the head), the offender is convicted and sentenced to imprisonment for two months and 25 days starting on 18 February 2022 ending on 12 May 2022.
8. On Count 3, assault occasioning actual bodily harm (striking with torch), the offender is convicted and sentenced to imprisonment for three months and 18 days starting on 25 March 2022 and ending on 12 July 2022.
9. On Count 4, assault occasioning actual bodily harm (biting thigh), the offender is convicted and sentenced to imprisonment for three months and 18 days starting on 26 May 2022 and ending on 12 September 2022.
10. On CC2018/5213 (ripping of dress), the offender is convicted and sentenced to imprisonment for three months starting on 13 July 2022 and ending on 12 October 2022.
11. On Count 6, assault occasioning actual bodily harm (twisting breast), the offender is convicted and sentenced to imprisonment for three months and 18 days starting on 25 August 2022 ending on 12 December 2022.
12. In relation to the breach of the good behaviour orders entered into on charges CC2017/12422 and CC2017/12423 the court takes no further action.
13. The non-parole period commences on 13 April 2018 and ends on 12 April 2021.
14. Each of the offences is referred for restorative justice under the Crimes (Restorative Justice) Act 2004 (ACT).
| I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 25 July 2019 |
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Amendments
25 July 2019 At Case Title replace “R v NX” with “R v NX (No 2)” Case Title
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