R v Okwechime
[2022] ACTSC 233
•30 August 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Okwechime |
Citation: | [2022] ACTSC 233 |
Hearing Date: | 23 August 2022 |
DecisionDate: | 30 August 2022 |
Before: | Norrish AJ |
Decision: | (a) In respect of each of the offences for which the offender was found guilty, that is Counts 2, 4 and 5, the offender is convicted. (b) In respect of Count 2, sexual intercourse without consent, the offender is sentenced to 2 years and 6 months' imprisonment to commence on 21 June 2022, expiring on 20 December 2024. (c) In respect of Count 5, act endangering health (choke), the offender is sentenced to 1 year and 3 months' imprisonment, commencing on 21 June 2023, expiring on 20 September 2024. (d) In respect of Count 4, sexual intercourse without consent, the offender is sentenced to 4 years' imprisonment to commence on 21 September 2023, expiring on 20 September 2027. (e) The total sentence is 5 years and 3 months' imprisonment, commencing on 21 June 2022 and expiring on 20 September 2027. (f) I fix a non-parole period of 3 years' imprisonment commencing on 21 June 2022 and expiring on 20 June 2025. (g) I find the offender not guilty of the transfer charge of common assault. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –transferred offence- assault –verdict of not guilty- Judgment and Punishment – Sentence – sexual intercourse without consent – unlawful choking –– where substantial criminal history of a different character to subject offending – where no evidence of contrition-totality-purposes of sentencing-offences committed whilst on conditional liberty- comparative sentencing- purposes of sentencing-inconsistent verdicts |
Legislation Cited: | Crimes Act 1900 (ACT) ss 28, 54 Crimes (Sentencing) Act 2005 (ACT) ss 7, 33, 47, 49, 52, 53 Supreme Court Act 1933 (ACT) s 68E |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41 |
Parties: | The Queen ( Crown) Chidi Chike Okwechime ( Offender) |
Representation: | Counsel S Saikal-Skea and K Marson ( Crown) S Whybrow ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Hugo Law Group ( Offender) | |
File Numbers: | SCC 231 of 2021 SCC 232 of 2021 |
Norrish AJ:
Introduction
Mr Okwechime, the offender, appears today for sentence, having been found guilty by a jury on three out of five counts after a trial of some eight days, concluding on 23 June 2022.
The guilty verdicts relate to Counts 2, 4, and 5 on the indictment. Counts 2 and 4, being allegations shortly described as 'sexual intercourse without consent'. Count 5 is an allegation of what could be shortly described as 'unlawful choking'.
The offender was found not guilty by the jury of Counts 1 and 3 which were allegations of sexual intercourse without consent, again shortly described, allegedly committed at the time of the other three offences.
The five counts on the indictment related to events that occurred over a period of some time, now difficult to estimate but in my view probably no more than 10 to 15 minutes, that may be described, by reference to all five allegations, as a 'continuous course of conduct' by the offender.
The counts in the indictment reflect the chronology of events in general terms as they were described by the victim in her evidence-in-chief. Counts 1 and 3 were allegations of digital penetration of the vagina, in respect of count 1 , and digital penetration of the anus, in respect of count 3 . Count 2 was an allegation of cunnilingus, Count 4 an allegation of penile penetration of the victim's vagina and, as I said, Count 5 was an allegation of choking the victim, at the time of the commission of Count 4.
The maximum penalty for the offences of sexual intercourse without consent is 12 years' imprisonment (s 54(1) of the Crimes Act 1900 (ACT) (Crimes Act)). The maximum penalty for the offence of endangering health by choking (as the offence was shortly described by the Crown) is five years' imprisonment (s 28(2)(a) of the Crimes Act).
The offender was remanded in custody on revocation of his bail with the guilty verdicts. On my calculation, contrary to a submission of the Crown, the offender spent two days in custody, not one, on arrest. He was in custody, it would appear, on both 18 and 19 May. .He spent 61 days in custody before evidence on sentence and submissions on sentence were presented to this Court last Tuesday, 23 August 2022. The sentences I impose thus will date from 21 June 2022.
Transfer charge of common assault
At this time, I am not only required to sentence the offender in relation to the matters for which he was found guilty, but I am required to determine whether he be guilty or not of a 'transferred offence' from the Magistrates Court. This is an offence of common assault, allegedly occurring at the time of the commission of the offence disclosed in Count 4. I will deliver a judgment on the issues relating to the transferred offence firstly, then turn my attention to dealing with the sentence matter.
The transferred summary charge is required to be dealt with in accordance with s 68E of the Supreme Court Act1933 (ACT), referred to at [5] of the Crown's written submissions. There is no dispute that this Court has jurisdiction to deal with the matter as if it was before the Magistrates Court.
The offence that has been transferred of common assault is particularised in an information provided to the Court that was dated 19 May 2021. In short terms, the allegation is that the accused 'assaulted (the victim) on 16 May 2021' in the ACT. The prosecution in its written submissions said that, by reference to the Crown case statement, the particulars of this offence are that the accused assaulted the complainant by 'pushing down on the complainant's ribs and abdomen, not allowing her to get up'. The accused has pleaded ‘not guilty’ to this offence.
The evidence the Crown relies upon is the evidence of the complainant at trial relevant to this matter, set out at [7] of the Crown's written submissions. This reference includes identification of the evidence contained within questions and answers 56, 57, 500–501, 540–541, and 577–578. In conjunction with this evidence, the Crown refers the Court to the evidence-in-chief of Dr Virginia French, who medically examined the victim subsequent to her admission to hospital, which appears at page 193 of the transcript and is summarised at [7] of the Crown's written submissions.
The accused, as I would understand it, relies upon the evidence he gave in respect of his interaction with the complainant at relevant times that he had in what was described as 'the laundry room' ,or the spare room of the apartment, where the sexual assaults occurred.
The Crown relies upon the description of the conduct of the accused as alleged by the victim in the history she gave to the doctor. The physical evidence the Crown points to as supporting an application of force by the accused to the body of the complainant is set out in photographs numbered 17, 18 and 19 of Exhibit D1. These are three photographs of the same injury depicting a bruise on the complainant's left upper abdomen. The doctor in her evidence was specifically commenting upon the bruise shown in photograph 17.
Regrettably, and this is absolutely no criticism of the parties nor of the victim in terms of the evidence she gave, notwithstanding the fact that the victim gave evidence in the terms summarised by the Crown, little or no attention was directed by either party to the issue of the cause of the injury shown on photograph 17 in circumstances outside of those said to have arisen from the alleged commission of the offences for consideration by the jury. In other words, the concentration of the parties in the examination and cross-examination of the evidence for good reason was directed at the events relevant to Counts 3, 4 and 5 as they were alleged to have occurred in the so‑called laundry room and not the circumstances specifically pleaded as constituting the transferred offence.
The Crown also relies upon the video recording of the victim's evidence and the way in which the victim described the way she was held down, for example in answers 500–501 of the transcript of her police interview and the answers to questions 540–541.
The Crown fairly conceded by reference to the summary of the material provided that the mechanism for causing the particular injury identified by the Crown as it was explained by the doctor was not consistent with the account given by the victim to her. The victim's account of itself identifies injuries said to be relevant to pressure upon her body by the accused not consistent with the injury identified by the doctor. The accused had given evidence of lying on top of the victim and having sexual intercourse with her for a very brief period of time, which must have caused some pressure, even briefly, to the victim's abdomen.
The mechanism identified by the doctor is one, in my view, that is inconsistent with the verdict of the jury finding the accused not guilty of Count 3, the allegation of sexual intercourse by penetration of the complainant's anus by the use of the accused's fingers while the complainant was lying face down on the floor. The accused in his evidence denied any penetration of the complainant's anus or at any time pushing her face forward on the floor.
An assault is an act committed either intentionally or recklessly by the application of force, or by the threat of application of force, to another without a person's consent and without lawful excuse. Recklessness requires proof that the accused realised that the victim, or complainant, may be subject to immediate and unlawful violence and yet took the risk that it might happen. It requires proof in this matter of an act of the accused applying force to the complainant to her abdomen that was either intentional or reckless.
In the context of the account given by the complainant and the inconsistent history given by her to the doctor relied upon to explain the injury said to evidence the count, this Court cannot be satisfied beyond reasonable doubt of the particular mechanism by which the injury occurred, nor can it be satisfied beyond reasonable doubt that one mechanism identified by the doctor to explain the injury actually occurred in any event.
As is shown in the extract of the evidence of the victim, she was unable to explain the injury with confidence, qualifying her account by saying, apropos of any pressure upon her body, that he 'might have' been pushing down with his arms as demonstrated by her in the interview for example at questions 500–501, and:
So, he wasn't holding me necessarily. He had me like this, so kind of like on my arms here and here and I'm guessing they must have been here and here as well because I've got bruises on both my ribs.
These qualifications do not support a basis for making a finding of guilt beyond reasonable doubt. I appreciate, of course, for the victim in relation to this particular charge that the events within the room were dynamic and traumatic and, thus, remembering with particularity some specific bodily contact would be very difficult.
As counsel for the accused on this particular charge pointed out, the description by the complainant of an injury to her ribs or abdomen as given to and related by the doctor is, in its terms, a 'speculative assumption' on her part. Bearing in mind there are other acts of the accused clearly described by the complainant, for example the holding of the wrists, that are not the subject of a specific allegation of assault separate from what is specifically pleaded in the indictment, it is not open to the Court to be satisfied beyond reasonable doubt that the pressure upon the abdomen causing the particular bruise in photograph 17, described by the doctor as 'blunt force trauma' was, in fact, the result of an intentional or reckless act of the accused.
In passing, I had my attention drawn to the decision of Mossop J in R v Booth (No 2) [2021] ACTSC 255, currently the subject of appeal. The subject of the appeal is the appropriateness of determining transferred offences in circumstances contrary to the effect of a verdict of acquittal. His Honour's judgment and the issues that, as I am informed, rose in relation to the appeal would appear to have no relevance to the situation with which I am concerned.
This matter is decided on the basis of fact-finding required having regard to the evidence available in relation to the particular charge, not based upon reaching a conclusion that may or may not be consistent with the verdicts of the jury in relation to other counts. I should also point out that this matter is not determined on the basis of any view thought to be held by the Court in relation to any perceived inconsistency in the verdicts, or the credibility of the victim, or complainant, generally or specifically in relation to particular counts in the indictment.
Facts on sentence
Coming back now to the sentencing of the offending in relation to the counts in the indictment, the offences for which the offender is to be sentenced occurred time after 4.30 am on Sunday 16 May 2021 in an apartment in Coombs, a suburb of Canberra. The victim attended this apartment in company with the offender, a friend of the offender, Mr Robb, and Ms Anthony who, at the time, was apparently a girlfriend or friend of Mr Robb.
Earlier the night before the victim had been out in the Civic area of Canberra, attending her cousin's birthday party and then going on later , using a general expression, 'clubbing' at two nightclubs, one called Kokomo's and the other called Fiction. At the cousin's birthday party the victim gave evidence of consuming alcohol and also administering to herself MDMA. From the cousin's birthday party, after midnight, she went to a local nightclub called Kokomo's in company with a friend, who gave evidence at the trial, and ultimately met up with the offender and a number of his friends after she and her friend had parted company. He apparently left the club sometime before 1.00 am.
The victim and the offender and his friends left Kokomo's at about 2.10 am to go to a nearby nightclub called Fiction. The evidence establishes that at Kokomo's the victim consumed alcohol and cocaine, the consumption of the cocaine occurring in a toilet when she was in company with the offender and a number of his friends. Mr Robb was the supplier of the cocaine. The offender did not consume any cocaine at all during the morning hours when he was in company with the victim.
Having regard to her evidence of the events of the night and the statement she made out of court about her consumption of cocaine, as well as the CCTV footage of which there was a great deal of coverage of her movements within Kokomo's and Fiction, and also having regard to some mobile phone video recording of her conduct in the men's toilets, I accept that she consumed more than one line of cocaine. But apparently did not consume any more cocaine after leaving Kokomo's. She did attempt to obtain cocaine at Fiction. She also consumed a quantity of alcohol at both nightclubs.
After entering Fiction the victim was shown to be in company with the offender and his friends for approximately two hours by regard to the extensive CCTV footage shown to the jury. Most of the time she either sat or stood with or relatively close to the offender. The two of them, at various times, can be seen talking to one another or talking to people that were in close proximity. As occurred at Kokomo's, the victim at Fiction, on more than one occasion, entered toilets. On one occasion she entered a male toilet in company with people other than the offender to obtain cocaine but was asked to leave and was ushered out.She did so in the hope of obtaining more cocaine.
There is no suggestion that at any time while she was in the toilet area of either nightclub that she was the subject of any threat of violence, sexual or otherwise, from the various people that were there. These were people either that she did not know or she must have barely known. An issue that arose in the trial relevant to the truthfulness and the reliability of the victim, having regard to the evidence she gave about her conversations with the offender and other people, was the issue of whether she had claimed to be a journalist with WIN News, a local regional television network.
As I said earlier, a video was produced at the trial taken by a mobile phone camera. While she was in the toilet with the group of men that video that shows the victim snorting a line of cocaine in the presence of at least five men, some of whom were dancing around and shouting the words 'WIN News', indicating quite clearly, in the context of other evidence in the trial, that they understood that they were in the presence of someone who claimed to work with WIN News. I accept Mr Robb's evidence, he being the man that supplied the cocaine and filmed the episode, that he had recorded the event on his mobile phone as some form of protection from disclosure.
Another issue that arose in the trial was the issue of the victim's association with a prominent Australian sportsman at Fiction who was there for a period of time whilst the victim was there. CCTV footage from that location clearly shows her trying to get his attention at particular times or reflecting a keenness to communicate with him. On one occasion she followed him and another man into one of the toilets. It would appear as though she was ushered away, consistent with evidence available that that person had been told that she was a journalist and that he, the sportsman, had a distrust of her because she was a journalist. In her evidence at the trial she denied that she had ever claimed that she was a journalist.
While at Fiction, the offender and the victim sat close to one another for extended periods of time, sometimes she danced in his presence, sometimes she placed her hands upon him. On at least one occasion he did likewise. The offender gave evidence at the trial that when he left Fiction he was inebriated and he thought the victim was likewise inebriated. There is no doubt from watching her body movements and having regard to her evidence of her alcohol and drug consumption that she was affected by the combination of alcohol and unlawful drugs on leaving Fiction and for some time beforehand.
She said in her evidence at trial that her mental state that night was 'chaotic' hence her consumption of MDMA and cocaine. She had recently broken up with her fiancé that brought an end to their engagement some weeks before. Her fiancé was a person to whom she made an early complaint after she left the company of the offender some hours later.
Evidence was produced to me after the victim had finished giving evidence, which I would not permit to be admitted in the trial because it did not relate to a fact in issue that had been raised with the victim in cross-examination, that showed that the victim had been, within the months before the commission of these offences, hospitalised or treated in respect of matters relating to her mental health. The detail of this was only expressed in general terms and, as I said, having regard to the cross-examination of the victim, the material within itself did not raise any matter relevant to a fact in issue. There was no application made for the victim to be recalled to be cross-examined upon the material contained within the documents that were shown to me.
Whilst at Fiction the victim was, on occasions, clearly unsteady on her feet and, as I said, on a number of occasions demonstrated her attempts to enter toilets to obtain, as I would understand it, more cocaine. She and the offender left Fiction together at about 4.15 am in company with Mr Robb. She was anxious to recharge her mobile phone which she had either thrown into a toilet, in the presence of the men to whom I have earlier referred, to demonstrate that she was 'out of control' so to speak, or dropped in a toilet whilst at Kokomo's.
She said in her evidence that she believed she was going to a party at Mr Robb's place. She knew she was travelling to his residence in company with the offender and she also knew that Mr Robb was the person with the cocaine. After leaving the nightclub with the two men, they met up at a car park with Ms Anthony, Mr Robb's then girlfriend. This was sometime after 4.15 am.
Ms Anthony drove herself and the other three to Mr Robb's apartment which was apparently a 15 to 16 minutes’ drive away. The victim said she slept during this car trip but Ms Anthony gave an account of the victim talking to her for most of the trip and talking a great deal about herself during these conversations. There are a number of reasons to accept Ms Anthony's account of this travel as more reliable than the victim's.
Firstly, it is quite clear that Ms Anthony was far less intoxicated than the victim. She had not ingested any drugs and apparently had stopped drinking alcohol some time before she met up with Mr Robb. She clearly was able to describe her car as a black motor vehicle whereas the victim was adamant it was a white car. Ms Anthony's description of her own car must be accepted as the reliable description. Ms Anthony heard no discussion about a party occurring at Mr Robb's place and, in fact, must have known that there would be no party because as far as she was concerned only the four of them were returning to the premises.
Upon arrival at the apartment, she and Mr Robb almost immediately went straight to the main bedroom where they remained until the victim left sometime later. Ms Anthony said in evidence that she was in the bedroom for a ‘couple of hours’ between the time she arrived until the time the victim left the apartment. This clearly can't be correct. Independent evidence establishes that the offender's telephone number is registered, if I could use that expression, or detected, as having left the Civic area at 4.20 am and his mobile phone was used to organise an Uber to pick up the victim after the alleged sexual assaults at 5.19 am.
Allowing for the time to travel to Coombs, walk to the apartment, small talk within the apartment and the like, the victim could not have been inside the apartment longer than 45 minutes and probably for a shorter period of time and, of course, only part of this time would the sexual assaults have occurred.
The victim's account of what happened in the apartment is significantly different from that of the offender's but there are some common events they describe. The jury's verdicts clearly show that the jury did not accept everything that the victim described as occurring within the unit so far as the conduct of the offender is concerned.
The victim said that on arrival she realised there was not going to be a party so she asked if she could charge her phone and then go home. Initial arrangements were made on the part of the offender to organise an Uber and this is supported by evidence that the victim's address was entered by her into the offender's phone, he not knowing her address to do so himself . Whilst inside the apartment, she and the offender sat on a couch for a period of time. The door to the bedroom was open. The victim and the accused spoke for a period of time.
Ultimately the victim went to the doorway of the bedroom and said to Mr Robb “I thought we were having a party”. But he replied, “get the hell out of the room.”
She observed there was a Versace bedspread on the bed and this is shown in photographs subsequently taken by the police, which confirms a fact that is of no dispute, that she was inside the apartment and, in fact, went into the bedroom. Mr Robb and Ms Anthony confirmed that the victim had come to the door and spoken to them. Although there was some difference in respective accounts of that interaction, little turns upon that dispute. The victim went back to the couch in the lounge room, which was only a short distance away from the open doorway to the bedroom, probably no more than 3 or 4 metres judging from photographs taken by investigating police.
Whilst sitting on the couch with the offender she told the offender that she wanted to go home. She also said she wanted to eat something .She asked him, “Do you have any 2 minute noodles? I'm really hungry”.
She said he started kissing her and she told him to stop, that she did not want him to do it. She said he got on top of her and she told him to 'get off' and to 'stop' and that she wanted to go home. She said the offender starting 'gnawing at her neck' and then went 'down on her'. She said he 'fingered' her vagina before he performed cunnilingus on the couch. He then shoved his fingers inside her vagina she said, 'very aggressively', and that he had 'scratchy nails'. This was the allegation in relation to Count 1 of which the offender was acquitted notwithstanding the fact that he admitted digital penetration of her whilst sitting on the couch.
The jury properly directed in relation to these matters obviously had a reasonable doubt that the complainant did not consent to that act. She said she started crying and that after this he used his teeth to 'eat me out'. She said he said to her “I want to eat you. I want to eat you out” and that she tried to 'wriggle away'. This is the allegation in relation to Count 2. On this count, the offender was found guilty. She said after at least one possibly two acts of cunnilingus she was dragged into a room which she described as the laundry room. There she was undressed except for her shoes and the offender placed two or three fingers into her anus and started “violently fingering my bottom really violently. The whole thing was really, really violent. He was – violently put his fingers into my bum”.
This is the essence of Count 3 of which the offender was acquitted. The offender denied any anal penetration. The jury must have had a reasonable doubt that any anal penetration occurred at all. The victim said during this incident she was pushed face down and then subsequently pulled down his pants and told her to make him hard. She saw his penis and he put his penis inside her and kept biting her neck. She was trying to get up but he was pushed her down. She said the offender 'slapped her' at one point .But then later in her police interview said “In hindsight I actually don't remember that actually happening”. In the circumstances, I cannot be satisfied beyond reasonable doubt that the offender slapped her.
She said he penetrated her with his penis. She started crying saying: “Please stop this. I want to go home. I want to go to my dad”. She said that he said to her, “I hate it when you say that. Stop telling me to stop”. At which point he grabbed her neck and started choking her. She said her vision went blurry and she felt nauseous and sick. She said he was holding her for about 15 seconds in this way and the offender thrusted his penis into her about '40 times'.
On her account, it would seem that penile penetration finished when the accused stopped choking her. He stopped choking her when she told him that she 'couldn't breathe'. She said afterwards she tried to crawl towards her clothes that were in the room but the offender grabbed her leg and 'pulled her back'. She said she was 'bawling (her) eyes out'. She said she grabbed her skirt and her shirt and her underwear. She stood up and the offender said, ‘let me get you an Uber”. He, in fact, contacted Uber and ordered a car for her. She told him to “get the fuck away from me”.
When she left the apartment the offender followed her and filmed her with the use of his mobile phone. The reason for that explained in evidence that he gave to which I will come to in a moment.
The offender's account is that after initially indicating she wanted to go home, as I said, and looking on his Uber account typing her own address, which must have occurred in the way in which the offender described it and she accepted in her evidence, he said the victim decided to stay and that she kissed the offender upon which she performed a number of consensual sexual acts on the couch including digital penetration and cunnilingus.
He said the two of them then walked to the spare bedroom or laundry room. She had previously removed her underwear on the couch, he said. In the room he assisted her to take off her blouse. She removed her skirt but kept her shoes on. In the room, described as the laundry room, he performed digital penetration and cunnilingus he believed, he said, with her consent. He said she was not protesting or crying and then he said that he asked her if she 'wanted to fuck'. He said that she said 'yes'. He removed his clothing and had penile penetration of her vagina .But after ‘two thrusts,’ or 'two seconds', she said, 'You raped me.' This statement brought an end to the sexual activity on his account. He then got dressed, as did she, and ordered the Uber, in the manner in which I described, at 5.19 am.
He admitted that he followed her out of the apartment and filmed her as she left because she had said to him that she had been 'raped'. He said he was shocked and bewildered at what she had said and he went back to the flat to talk to Mr Robb about it. There was evidence from Mr Robb that the offender came to his bedroom and told him that a false allegation of rape had been made and he was upset about that. Later the offender went home and later that same day, that is, on the Sunday, sent a Instagram message to the victim asking how she was but the message was blocked by her. In fact, at that stage she was in hospital.
She had said in her evidence that when she left the apartment she was carrying her underwear and she was only partially dressed. She was carrying her bra and panties in her hand and she hadn't tucked her shirt, nor wrapped her jacket around her. The film of her leaving shows her wearing a skirt with a jacket tied around her waist. There was apparently no damage to her clothing, including her underwear, which was produced to the jury.
She was certainly carrying her underpants and bra in her hand when she made complaint of sexual assault to a neighbor living in a dwelling separate and apart from the block of units, who gave evidence at the trial. That man observed the victim to have a shirt or blouse buttoned up but he couldn’t say whether the buttons were in alignment with the corresponding holes.
The victim was wearing clothing to imitate the appearance of Uma Thurman in the movie Pulp Fiction, and in fact part of the material presented to me , but not admitted was a photograph of her in character of the character played by Uma Thurman in the movie. A document shown to me showed the victim wearing fake blood dropping down from her nose. In fairness, this photograph was taken before the victim had commenced to ingest alcohol and drugs and was obviously taken for the benefit of her Instagram ‘followers’ as a 'fun' depiction of her character that night. The victim agreed with counsel for the accused that she could be described as an ‘influencer’ with a number of ‘Instagram followers’.
She was seen by the first person she complained to as ‘highly distressed’, as she was when speaking to the first police officer who spoke to her and subsequent people who saw her as she was taken to hospital. There were in her account some inconsistent claims as to the character of the anal penetration. She was subject to a forensic examination and a number of bruises were located. One bruise on her neck was consistent with either a sucking or what might be described as a 'lovebite', but there were other small bruises on the neck consistent with finger pressure.
Her physical injuries were relatively minor. There were five areas of bruising described by the doctor, some involving multiple small bruises within the same area. There were also marks on her leg, including a bruise on her ankle that could be consistent with what she said was the grabbing of her ankle at one point. There was said to be a photograph of a bruise on her face taken after she had been admitted to hospital, but in the circumstances I cannot be satisfied that the bruise was caused by the offender or was caused by an event inside the apartment, having regard to evidence relating to other events in the hospital after the victim was admitted.
She was released from hospital after 24 hours but subsequently readmitted for reasons which aren’t altogether clear and may not be directly related to the events of this night. She, as I said, had a number of medical issues predating the events relevant to the counts in the indictment.
The offender was arrested a few days after the events of 16 May, that is, on 18 May. He declined to be interviewed but provided relevant samples for testing. There were no injuries to his hands and subsequent DNA and other scientific examination revealed no material that specifically supported the allegations of the victim.
The victim had some item of material within her vaginal area that was not consistent with the carpet upon which she was sexually assaulted, a sample of which had been taken by police. She had no physical injuries to her vaginal area or her anus.
Victim impact statements
Three victim impact statements were tendered without objection, one from the victim and a statement each from her parents. The Crimes (Sentencing) Act 2005 (ACT) (the Act), permits the tender of victim impact statements in writing and for them to be read out in open court where an offender has been found guilty of a relevant offence (s 52 of the Act).
The Court must consider any victim impact statement given in the Court (s 53 of the Act). The defence may cross-examine a person who makes a victim impact statement. That did not occur here. Although no application was made to cross-examine the makers of the statement, specific submissions were made about the limits that may be reached upon conclusions from the material having regard to other evidence in the trial.
Victim impact statements of course can be given by a person who suffers harm or claims to have suffered harm because of a relevant offence. It also can be made by a person who has parental responsibility or a close family member of a victim of particular offences (ss 47 and 49 of the Act). The weight to be given to such statements is obviously a matter for the Court, but any circumstance of aggravation said to have arisen from the detail of the statement must be proven beyond reasonable doubt in the context of all the relevant evidence. The fact that there has been no cross-examination upon a victim impact statement does not mean that issue cannot be taken with the contents of the statement.
One bears in mind of course that the statutory scheme for such documents permits their tender in the proceedings and the defence may put arguments as to why particular parts of particular statements may not be accepted (R v Tuala [2015] NSWCCA 8; 248 A Crim R 502, particularly at [77]–[78] (Tuala). There were no specific submissions made by the Crown that some particular circumstance of aggravation may be determined from the detail of the statements (Culbert v The Queen [2021] NSWCCA 38 at [120]).
Of course there would be little difficulty in accepting the contents of a victim impact statement where details confirming harm of the kind claimed could be reasonably expected in a particular instance or confirmed by evidence. Considerable caution must be exercised before a statement can be used to establish some aggravating factor where the victim's credibility on material matters is in question having regard to the verdicts of the jury and the evidence in the trial (Tuala [77], [80]–[81]), and also where the harm asserted goes beyond that which might reasonably be expected having regard to the evidence consistent with the jury's verdict (RP v R [2013] NSWCCA 192; 234 A Crim R 272).
Significant psychological damage must be established by appropriate evidence, particularly having regard to evidence suggesting that a psychological damage claim may be multifactorial (RO v R [2013] NSWCCA 162, [90]–[92]) and where the evidence particularly also is not open for a qualitative or quantitative assessment.
The victim's statement was read by her mother who also read her own statement. Her mother was very distressed. The victim's father read his statement. The victim in her statement spoke of the trauma of the events and the effect upon her continuing until the present time. At face value the statement is a powerful document, although somewhat repetitive. The Court accepts that in respect of the matters proven against the offender the experience of the victim was a traumatic one, evidenced particularly in the observation of her state by people to whom she first complained and the examining doctor over the subsequent 24 hours. A sexual assault of course must be regarded as an horrific experience, with the potential for long-term consequences. I accept the victim was also physically injured, as I outlined, in the course of the sexual assaults and the choking events that were proven.
A number of assertions, however, were made by the complainant concerning the long-term effect upon her of the prisoner's conduct. which cannot be accepted. References made by the victim and her parents to purported diagnoses of her are not the subject of independent evidence. The Court is unable to measure the true effect of the conduct of the offender in a psychological sense, bearing in mind the evidence of the complainant before the assaults of her mental state already being in a chaotic state and other medical records produced to the Court.
A matter I point out in the context of considering the victim's claims of the effect upon her of the prisoner's proven conduct is that the victim impact statement in its terms does not make clear the extent to which some of the assertions of the victim are based upon events in respect of which the offender was acquitted, particularly the very violent anal penetration which was not proven. That is, the jury were not satisfied beyond reasonable doubt that it occurred, notwithstanding accepting part of what the complainant complained.
The assertions of the victim in the victim impact statement are also at odds, in my view, with evidence that emerged in the trial of the contact she had had in recent times before the trial with a television current affairs program in an effort to promote her version of events. The detail of text messages sent by her to a person working for that program reveal a state of mind, or an attitude, not consistent with the extent of damage that the victim asserted in her victim impact statement. In her communications with the television program representatives she positively asserted a desire that her story be told, but suggested playing down or even eliminating in the telling of her story the extent of her drug taking and the effect upon her during the evening, which the CCTV footage clearly demonstrated.
The fact is also that the jury's verdict demonstrated the complainant was not an entirely credible witness in respect of particular facts in issue and was also contradicted by matters produced in film form, such as the circumstances of her ingesting drugs that I earlier outlined and in respect of the circumstances of her travel to the unit at Coombs.
Obviously, the secondary victims, if I may call them that, the parents, have been greatly distressed by the distress observed in their daughter. But the extent of their distress and the effect upon them is very much captive to the extent that they have been informed of the events leading up to the proven assaults by her. I accept her parents have been distressed by what they know of their daughter's experience. The offender cannot be held responsible for any trauma suffered by the sister of the victim, given that the victim chose her to be her support person in the conduct of the interview that was conducted. Of course, the victim had every right to choose who she wished to support her. That is a good thing. But there were other options apart from her family members to provide support in the context of the police interview which happens commonly in such matters
One last matter concerning the victim impact statements is regular reference by the makers to fears the victim has, as do her parents, of retribution from the offender. There is absolutely no evidence of any attempt by the offender, other than in the unsuccessful enquiry of the victim the following day by Instagram to contact the victim, nor any evidence before me of any attempt to intimidate the victim by the offender or any members of his family or his associates. I appreciate, of course, that the victim and her parents would have a feeling that their security has been violated by the commission of the offences per se, but that feeling of insecurity arising from the conduct for which the offender is to be sentenced does not support a finding that the offender continues to be a threat to the victim or her family in the future.
Subjective features
Turning to other material in the Crown's case on sentence, from the pre‑sentence report and the criminal history I understand the offender was born on 22 March 1988. He was, thus, 33 at the time of the offending and now 34 years of age. He has a substantial criminal history in the ACT and New South Wales dating back to appearances in the Children's Court in the ACT in 2005. So far as his criminal history as an adult is concerned, he has findings of guilt in 2007 for drink driving and driving whilst disqualified, for which offences he was given suspended terms of imprisonment. He also has convictions in the same year for possessing drugs of dependence, possessing prohibited substances, and possessing or using a firearm when not authorised to do so.
In 2008 he had further driving offences for which, again, he was sentenced to a term of imprisonment, suspended, this time for a period of nine months' imprisonment. In 2009 he had convictions for driving offences and possessing a drug of dependence. The following years through to 2013 he had a number of further driving and motor vehicle usage offences, ultimately with a conviction for driving whilst disqualified in 2014 for which he served six months' imprisonment. In September 2013 he had been sentenced to terms of imprisonment in respect of breaches of court orders, with a non-parole period fixed expiring in January 2014.
In 2015 he was sentenced to various short terms of imprisonment for a number of offences relating to possession of prohibited weapons, possession of a knife, possession of a drug of dependence, and other offences. He had further convictions in 2017 and 2018 for misuse of motor vehicles, including driving with a prescribed drug in oral fluid or blood, and driving whilst disqualified. These offences resulted in terms of imprisonment suspended, however, taking into account 71 days spent in custody beforehand.
Most importantly, in New South Wales he was sentenced at the Campbelltown District Court in 2019 for various offences said to have been committed in June 2018, these offences including an offence of demand property with menaces with intent to steal, possessing an unauthorised pistol and possessing a prohibited weapon without permit. He was ultimately sentenced to an aggregate sentence of four years three months commencing on 21 June 2018, with a non-parole period of two years and nine months, expiring on 20 March 2021. Thus, the offender was on parole in New South Wales at the time of this offending, occurring as it did within seven weeks of his release from prison in New South Wales. When sentenced in New South Wales he had other minor convictions dealt with then.
The commission of the offences with which I am concerned whilst on parole – that is, subject to conditional liberty – is a substantial aggravating factor (see s 33 of the Act). I have the report from ACT Corrective Services (Community Corrections) dated 8 August 2022. This notes that the offender has been subject to various community-based orders, including parole orders, since 2007 and has previously been subject to breach action for failing to attend either community service work or periodic detention. His parole in New South Wales was transferred to the ACT and his engagement with the service was deemed to be 'satisfactory'.
The background of the offender I am informed is that he was born in Perth. He has claimed Aboriginal and Chinese ancestry through his mother's side. His father was Nigerian. He moved to Canberra when he was five years of age, and his parents separated when he was 14 years of age. He said that he witnessed some domestic violence within the party before that separation. He has a supportive relationship with his parents and siblings and half siblings. He has an eight-year-old daughter born from a relationship that ended in 2015 and has had regular access to her when at large in the community. He would expect to return to his father's residence in Canberra on his release from custody.
Before coming into custody in June 2022 he reported that he was employed as a carpenter, and that is confirmed in a reference that has been provided to the Court. By reference to a previous report from July 2021, which is not provided to me, there is a history of drug use, which is self-evident from his criminal history, but drug use plays no part in the circumstances of the offending with which I am now concerned.
He has no history of mental illness or any other mental disorder. There was no evidence of any major mental illness on his induction to custody on the 23 June this year. The report notes continuing concerns of the victim about protection from the offender but as I have said there is no evidence of any contact between the offender and the victim since his charging, or any evidence of any threats made by him towards her since they separated.
The Community Corrections service assesses the offender to be at ‘medium to low risk’ of general re-offending with some protective factors in place. He is regarded, however, as being at ‘well above average risk’ of sexual re-offending by reference to the actuarial incident Static-99R. This is a predictive instrument based upon current and past factors.
No doubt one significant relevant matter of course that is relevant to that assessment is the denial by the offender of the truth of the allegations made by the victim. Various matters were referred to as recommended sentencing options but many of them are concerned with community-based orders which would not be practical, having regard to the character of the offending with which I am concerned.
The evidence in the defence case comprised four references tendered without objection from the Crown. The prisoner’s mother noted that the offender had been ‘led astray’ in his late teenage years and that ‘drug usage’ was a major factor in prior offending. She said that he had complied with his conditions on release from parole, including not taking any drugs.
The victim never asserted that she saw the offender consume any drugs. His mother said that he made progress in his rehabilitation before being found guilty at trial. He had been industrious since his release from prison last year, had a positive relationship with his daughter and was a good father to her. He had taken full responsibility for the care of his daughter on weekends, even turning down opportunities to work on Saturdays to fulfil those obligations.
The offender’s ex-partner stated that they had been in a relationship for seven years that when they separated they had a ‘healthy relationship’ with regard to co-parenting the daughter. She described the offender who she met in 2009 as being ‘kind, gentle and nurturing’ in his treatment of her. The co-parenting arrangements were being disrupted of course by his terms of imprisonment. Since his release from custody in March 2021 he had been an ‘exemplary father’ to his daughter. She said that he was able to live a ‘positive’ life by maintaining full employment and staying clean by not using drugs.
The employer of the offender confirms that the offender commenced work as a carpenter in his business on the 12 August 2021 and had been ‘an exceptionally hard worker’. He was competent, reliable and had a good relationship with his co-workers. His attitude to workplace safety was exemplified by an attachment to the reference relating to work done in February 2022. He had recently been offered a promotion but was unable to take it because of this trial. The employer had never had any issues with the offender. A work colleague said he was aware of the commitment the offender had to his daughter. He described the offender as trustworthy with a strong work ethic, well respected by his peers and was a ‘top performing employee’. He said he found him to be ‘kind, quiet, polite and respectful’. Of course, that assessment is to be seen in the context of the detail of the allegations of the complainant.
In relation to his absence from drugs it should be noted the offender clearly had associations with people that were drug users. He also produced a reference from a friend who spoke positively of his work ethic and his relationship with his family.
Submissions and consideration
So far as the submissions on sentence were concerned, the submissions of both parties need to be seen in the context of the detail of the written submissions of the Crown. Counsel for the accused indicated that he largely accepted the Crown’s analysis of the law and the various matters identified by the Crown with some exceptions.
In the context of the consideration of the maximum penalties the Crown relied upon the analysis of Mossop J in R v Palmer [2017] ACTSC 357 concerning factors that may inform the objective seriousness of an offence of sexual intercourse without consent. These matters appear at [22] of the judgment and include a range of matters – obviously not exclusive. The particular matters arising by the Crown from his Honour’s analysis were with respect to particularly Count 4, that there was penile vaginal penetration, that a condom was not used, raising the risk of pregnancy and transmission of disease, although there is no evidence of a particular transmitted disease or pregnancy occurring.
The period of time over which the offending occurred is a relevant matter, thus the penetration was not of an occurrence over ‘a very short time’. There is a degree of force as described by the victim consistent with the verdict of the jury, such as holding the victim down and ,of course ,there is the finding of guilt in relation to the choking which is an offence related to the execution of the offence described in Count 4.
There are injuries suffered and bruising to the neck, arm, abdomen and legs. The offender ignored protests by the victim to stop. These are all matters identified from the judgment of Justice Mossop by the Crown as relevant.
She pointed out in her submissions that the offence occurred in the home of the friend of the offenders’ and without a working telephone and that thus the victim may be seen in a ‘somewhat vulnerable’ position. The Crown also points to the fact that the prisoner was subject to conditional liberty at the time, a matter to which I have referred to, although it is not a matter necessarily relevant to the assessment of the objective gravity of the offending, particularly in the absence of any evidence that the offender has been guilty of any prior sexual assaults.
I should also bear in mind by reference to the criteria of Mossop J that this offending clearly must be seen as ‘opportunistic’. It was neither planned nor premeditated as was conceded by the Crown. Further, the offender did not act in company but acted alone. The sexual assaults occurred within a very short period of time. There was not present the aggravating factor of overt humiliation and degradation beyond of course the implicit humiliation and degradation of sexual assault. The victim’s vulnerability has to be assessed in the context of the fact that there were other people in the unit that were not aware of a sexual assault occurring and who, on the basis of the evidence of Ms Anthony, would have gone to the aid of the victim had they known that she was being sexually assaulted. They said that they heard nothing of any cries for help from the victim.
In the context of the assessment of the objective gravity of the offending, bearing in mind the sequence of events outlined by the victim and the accused in their respective accounts, it is to be noted that Count 1, concerning an allegation of digital penetration when the complainant was on the lounge chair, before the offence was described in Counts 2 and 4 occurred, which the offender admitted. But the jury acquitted him of this count. This is consistent, in my view, with the jury not being satisfied that she did not consent to that act or that particular act of intercourse
The subsequent conduct of the offender, the subject of Counts 2 and 4 have to be seen in this context. Further, consistent with the jury’s verdict, the detail that the victim gave of the use of force against her, particularly in the spare bedroom, cannot be accepted beyond reasonable doubt, particularly bearing in mind the accused’s acquittal of Count 3—the allegation of digital penetration of the anus—said to have occurred when she was in that room.
In this context, bearing in mind the supremacy of the jury’s verdict informing fact finding it is to be remembered that the Crown found the accused guilty of Count 2, an act of cunnilingus performed without the complainant’s consent, the offender having admitted to performing such an act, in the loungeroom.
The jury's verdict of guilty in relation to this count emphasises the significance of the acquittal of the offender in respect of the act that he admitted performing, that is the digital penetration, denying that it was done without the consent of the victim but believing that she was consenting.
With regard to the choking offence particularised in Count 5, this occurred at the time of the act of sexual intercourse the subject of Count 4 and in the course of the performance of that act. It occurred over a period of 15 seconds and the victim said that she could not breathe or that his conduct was 'killing her', upon which he immediately stopped.
The Crown referred the Court to two judgments relating to choking offences that may provide some guidance for sentencing purposes. They are R v Cowling [2019] ACTSC 138 per Loukas-Karlsson J (particularly at [6], [7], and [19]) (Cowling) and R v Payne [2021] ACTSC 221 per Mossop J (particularly at [13], [14], [49], and [59]) (Payne).
The Crown conceded that the two judgments revealed choking incidents of greater gravity than here when seen in isolation.
In Cowling, the choking occurred by the offender gripping the victim's neck for over a minute. When the victim told the offender she was leaving him, he choked her again, and then threatened to kill her. Later that day, or that night, the offender pulled the victim into a bedroom and choked her with both hands for about 20 minutes, intermittently releasing his hands and threatening to kill her. All this offending was rolled up in one charge for which he received a sentence of 2 years and 6 months' imprisonment, partly concurrent with a sentence for unlawful confinement.
In Payne, the offender stopped the victim from leaving his unit or apartment by holding her throat with both arms and headbutting her in the face, then using both hands to pull the victim around by her throat, throwing her to the ground. This event lasted for less than a minute. At a later time, the offender grabbed the victim by her throat again and headbutted her again and threw her to the ground. Again, this conduct lasted for 'less than a minute'. The victim's nose was bleeding from the headbutts occasioned during the choking incidents. The victim was held captive for a further hour. The offender was sentenced to 12 months and 15 days' imprisonment for the choking offence, reduced from 14 months' imprisonment to make allowance for the discount for the plea of guilty.
The Crown submitted that the events had had a profound effect on the victim, the matters arising from the victim impact statement of the victim, 'reflecting psychological injury including anxiety, panic attacks, low self‑esteem, loss of confidence, difficulty remaining focused, disruption to employment, relationships, social life, fears about being in Canberra and becoming financially reliant on others.' These matters are asserted in the victim impact statement have already been the subject of comment by me earlier.
It is submitted that causing bodily harm to the victim after her protests and requests to stop and committing the offence or offences whilst on conditional liberty were factors that 'significantly' increased the objective seriousness of the offending and that only a sentence of full-time imprisonment was appropriate in the circumstances.
I accept that bodily harm was committed but it was not significant and much of it was incidental. In fact, all of it was incidental to the commission of the offences for which the offender was found guilty.
The submission of the Crown was that the offending in Count 4 was more serious than Count 2. which is accepted by the defence. Count 4 is an offence that is categorised within the middle range of objective seriousness (which is not necessarily a narrow band. The offence in Count 2, having regard to the Crown's submissions, is slightly less objectively serious.
The Crown pointed to other factors in her oral submissions, such as the significance of the choking offence, as relevant to the assessment of the seriousness of Count 4. Having regard to the submission of Mr Whybrow and the Crown in relation to the choking offence and its relationship to Count 4, I note that I must be careful not to ‘double dip’, so to speak, on this issue insofar as I take into account the use of force in the course of the commission of Count 4, bearing in mind the force primarily identified in the evidence is identified as the offence in Count 5 for which the offender must be separately sentenced.
The Crown said in its submissions, by reference to a schedule of cases it provided which I read (some of the cases I have taken the liberty of reading in full), that the decision of R v Finau [2020] ACTSC 193 (Finau) was 'similar' insofar as it set out a sentence for penile/vaginal penetration with accompanying surrounding circumstances such as lack of premeditation or planning, being in a residence together consensually, the failure to use a condom, the use of some force, and offending occurring over a period of less than 15 minutes.
Of course, in this matter there are other counts to be taken into account that increases the totality of the criminality. Finau was sentenced on the basis that he was of prior good character with no prior criminal convictions. This was a case that Mr Whybrow also embraced as relevant to the assessment of count 4.
Mr Whybrow, in his submissions, accepted, as I said, the substance of the Crown's analysis of the principles to be applied and the general categorisation of the offending, although he said there was a 'difficulty' making sense of the verdicts in the context of the evidence in the trial. By that, I would understand him to be saying that one might have thought the jury either was satisfied beyond reasonable doubt of all the counts on the indictment rather than selective counts as transpired, and if it acquitted the accused of some counts, should have acquitted him of all counts. This is a matter for an appeal court to consider .The conundrum is no doubt a matter for higher authority in due course.
He made the submission that each of the counts with which I am concerned now are closely connected in time, Counts 4 and 5 of course occurring at the same time. It would seem to me, from what I understood of the complainant's account, that the act of sexual intercourse concluded at the conclusion of the choking, although the evidence is not entirely clear on that matter.
Counsel's submission on behalf of the offender reminded me of my responsibility to pay heed to principles relevant to the totality of criminality. By that, I take it he was reminding me to have regard to the principles set out in cases such as Pearce v The Queen [1998] HCA 57; 198 CLR 610, particularly at [45] (in the judgment of the majority), Mill v The Queen [1988] HCA 70; 166 CLR 59 (Mill), and a New South Wales judgment of R v Holder & Anor (1983) 3 NSWLR 245 (Holder). This I do.
It is proper to fix an appropriate sentence for each offence and then turn one's attention to issues of concurrency and accumulation in order to reflect the totality of the criminality involved in the matter discussed in Mill. That is reviewing the aggregate sentence by regard to the totality of the criminal behaviour and to determine whether the aggregate sentence is ‘just and appropriate’ for the offences (see Mill at 63).
The key issues here are of course the temporal relationship of all the offences one to the other and whether the offending can be seen as part of a connected series of events or 'one transaction'. To give effect to a total sentence that adequately reflects the totality of criminality, one may be required to consider producing an ultimate aggregate sentence which is less than that which would be arrived at by straightforward adding up the terms of imprisonment appropriate for each of the offences if they were viewed alone. This requires consideration of the extent of any downward adjustment that is necessary whether by 'telescoping' or otherwise (see Holder at 260).
One must avoid the perception that there is no difference between a person who commits one or two offences and the commission of a greater number of offences even arising out of the same set of circumstances. I must avoid any suggestion that there is a discount for multiple offending: R vWheeler [2000] NSWCCA 34 at [36]: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at [19]. Where offences are not separate and distinct but part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both in which case the sentences should be concurrent or at least partly concurrent (Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41, particularly at [27]).
Counsel for the offender noted the issue of determining the factual matters having regard to the accused being acquitted of Counts 1 and 3, noting that clearly in respect of Count 1 the jury verdicts reflected upon an act that was, to use his words, “not non-consensual’. That is, 'consensual'.
He referred to the schedule of cases provided by the Crown in relation to sentencing for sexual intercourse without consent in the ACT. He agreed with the Crown that the cases provided guidance as to how the ACT courts appropriately sentence for such offences. As I said earlier, he particularly submitted that Finau that had been referred to by the Crown provided the best yardstick for comparison. I have already pointed out some distinctions between Finau and the current case. He also submitted that the sentences imposed in R vVunilagi [2020] ACTSC 303 (Vunilagi), that is after trial by judge alone, for acts of sexual intercourse, indicated a total sentence greater than that required here. This was so that given the number of offences committed by the offender were greater than here and in particular circumstances of aggravation here absent. Such as that the offences committed by Mr Vunilagi were committed in company in what was described as a 'pack rape'.
I bear in mind, having read Finau, Vunilagi and another case of R v Stevens (No 3) [2017] ACTSC 297 (Stevens) to which Mr Whybrow referred, that there are a number of distinctions in the circumstances of each of the offenders. Vunilagi was a person with prior good character and was not subject to conditional liberty at the time of the offending. The individual sentences imposed upon him for various acts of sexual intercourse range from 12 months to 3 years 6 months but the aggregate sentence was in excess of 5 years.
The decision of Stevens was a case of four counts of sexual intercourse without consent. It was submitted this may provide some guidance but, again, it was submitted that the sentence in aggregate in that matter was 'substantially' greater than required here. In that matter, the offender was sentenced to a total sentence of 5 years and 8 months’ imprisonment with a non‑parole period of 3 years and 4 months.
Of course, comparative sentences relied upon by the parties, even if embraced by the parties, provide some guidance but comparisons are sometimes difficult to make given the many different competing circumstances both objective and subjective that are to be taken into account (see Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [51]). It was submitted by Mr Whybrow that looking at the various judgments, that the pattern of sentencing without regard to discounts of guilty was for sentences of between 2 years and 6 months and 32 months or 36 months for individual acts of sexual intercourse without consent, not taking into account, of course, the varying subjective circumstances.
With regard to these matters raised by Mr Whybrow and the Crown in relation to comparative sentences, I took the liberty, as I may have already said, to read Vunilagi, Stevens and Finau. The differences between those cases and this case requires some consideration.
Stevens is a case in point. He was sentenced by Mossop J after being convicted of four counts of sexual intercourse without consent. These offences, however, arose out of a series of incidents over an extended period of time. Whilst the victim and the offender had an ongoing sexual relationship, there was separate sexual assaults committed on 29 May 2015, 31 May 2015 and two offences committed on 15 June 2015.
These offences occurred in circumstances where the offender and the victim had an ongoing sexual relationship, where many consensual sexual acts were performed. The victim had pre-existing medical issues in her bowel which caused considerable pain when subject to anal penetration. To this act she objected particularly These offences were opportunistic , but not in the same way as the offending here. The acts of sexual intercourse in Stevens included penile/vaginal penetration, forced fellatio and digital vaginal and anal penetration.
That offender had a substantial criminal history for motor vehicle and dishonesty offences with one previous term of imprisonment for drink driving and thus while he was not a person of good character he was not subject to parole and there was thus absent in sentencing him the substantial aggravating factor that exists here. He was convicted after trial as was this offender. The individual sentences imposed by the judge, taking into account the fact that his Honour had to apply the issue of totality in a different way than I must, include an individual sentences of 2 years’ imprisonment for the first offence, 2 years and 2 months’ imprisonment for the second offence and 3 years’ imprisonment for the third and fourth offences.
The sentences for the third and fourth offences in time were entirely concurrent. The total sentences represented partial accumulation, reflecting the totality of criminality. This totality of criminality required consideration of the time that had elapsed between each offending episode. In other words, the totality of the criminality reflected in the sentence reflected the extent of time over which the offending occurred which was not one series of events. Thus, can be seen a myriad of similarities and dissimilarities of varying significance, each to be individually weighed in the fixing of the ultimate sentences. The individual sentences imposed roughly reflected what Mr Whybrow suggested was the range of 'tariff' for offences of this type in the ACT.
It is to be remembered, however, when referring to ‘tariff’ that maximum penalties are the proper yardstick for measuring the appropriate sentence for a particular offence at least by regard to the objective circumstances, subject to any relevant discounts or subjective matters in mitigation, with the maximum penalty reflecting the appropriate sentence for the worst type of offending by a person who might be described as 'the worst offender'. Whilst this last category is not closed, this would include offenders with prior convictions for similar offending and perhaps offending whilst on parole for having committed similar offences to the case at bar.
Mr Whybrow also drew the Court's attention to an extract of statistics, which is Exhibit 5, in respect of offences the subject of sentence contrary to s 54 of the Crimes Act. The statistics, provided for sentences imposed between July 2012 and April 2022 in single cases of sexual intercourse without consent where the offender had prior convictions but of a different type, were concerned a relatively small sample of 19. Forty-two per cent of sentences were six years or greater for individual offences, 58 per cent of sentences were for four years or less, with 31 per cent of sentences for three years' imprisonment and approximately 11 per cent of sentences for sentences between three years six months and four years' imprisonment.
There are, of course, in these statistics no details as to whether the sentences arise out of pleas of guilty or not guilty, no information as to whether the relevant offenders were subject to parole or other conditional liberty at the time of offending, or what the character of the specific offending was. Further, there was no information as to whether the sentences imposed related to an offence committed on a singular occasion or committed as part of a course of conduct over an extended period of time, and the t samples are small. The statistics provide some assistance but not great assistance in determining an appropriate sentence for this offender.
Mr Whybrow submitted the Court should not act upon some of the claims made by the victim in relation to individual safety, and I have already commented upon that matter. He pointed to the fact that his client was on bail for 13 months before trial and there was no evidence of any breach of his bail. It was submitted that, notwithstanding his criminal history, he should not be denied consideration of a finding of positive prospects of rehabilitation, evidenced by his employment and his family commitments.
It was submitted that his criminal history, whilst substantial, did not have any evidence of offences of sexual assault, nor any convictions for domestic violence matters. His criminality before this offending was, it was submitted, of a very different character and, thus, his risk of further offending and constituting any risk to the community was limited. Counsel for the offender submitted that the Court should fix a non-parole period to assist in his rehabilitation. I have taken these matters into account.
In sentencing the offender, I am required to have regard to the specific provisions of the Act. Importantly, I have regard to s 7 of the Act setting out the purposes of sentencing. In this matter, in my view, all the purposes of sentencing have some role to play, although the protection of the community from the offender is not a significant matter in this particular exercise. In that regard it is noted that the offender, as I said earlier, does not have a prior history of sexual offending or violence against women, domestic partners or otherwise. It is the case that had the offender a similar offending history to the character of the offences with which I am concerned, much greater weight would need to be given to personal deterrence and a more significant penalty imposed in relation to each offence.
The offender has to be adequately punished for the offences in a way that is 'just and appropriate'. He and others must be deterred from committing the same or similar offences by the orders I make. He is to be made accountable for his actions and his conduct is to be denounced. I must recognise the harm done to the victim of the crime. It is to be remembered of course in this context that, apart from the harm done to the victim and her family, there are other people affected by the prisoner's conduct, such as those to whom the victim made complaint. I am also, however, required, as his counsel properly pointed out, to promote the rehabilitation of the offender, and I propose to do this in fixing the non-parole period that I have calculated.
I am required also to have regard to s 33 of the Act, which I have done, and that includes, as is self-evident from my earlier remarks, the nature and circumstances of the offending, whether the offending was part of a course of conduct, the injuries caused by the offending, the effect on the victim and her family, the cultural background, character, antecedents, age, physical and mental condition of the offender, the extent to which the offender was affected by alcohol. Although there is no suggestion that the offender, having regard to his state of intoxication, took advantage of what could be called the state of intoxication of the victim. There is no evidence that the prisoner lured the victim into an intoxicated state to take advantage of her. The victim does not assert this herself. She quite voluntarily ingested alcohol and drugs during the course of the evening and was fully aware of what she was taking.
So far as the offender's background is concerned, no submission was made that there was something about the offender's background circumstances or upbringing that suggests disadvantage or dysfunction as was discussed, for example, in the decision of Bugmy v The Queen [2013] HCA 37; 249 CLR 571, particularly at [39]–[44]. Thus, there has nothing been put that lesser weight should be given to general or personal deterrence by way of the background of the offender. In fact, no particular submission was made about the significance or relevance of the offender's family background.
I am prepared to conclude, however, that the offender's background has the potential to create for him circumstances of disadvantage to some extent through no fault of his. This is relevant as part of his makeup, so to speak, but it is not a significant issue, as the lack of attention in submission makes clear.
The offender does not claim any mental disability or psychological condition is relevant to this sentencing exercise, maintaining his innocence. On the other hand, there is no evidence of contrition. But the matter of absence of contrition is not one that makes objectively more serious the offending. As earlier pointed out, this offending cannot be regarded as planned or premeditated, although on his own admission the offender was hopeful in participating in sexual activity, albeit consensually, with the victim.
Whilst I note the close relationship of the offender with his daughter, he is not the primary carer of the child. I accept there may be some effect a term of imprisonment will have upon the relationship and it certainly will cause a disruption to that relationship. However disruption has already occurred to that relationship by reason of the recent term of imprisonment served in New South Wales. The issue of his relationship with his daughter is not a significant matter in this case, as the submissions of counsel for the accused reflect.
Thus, I now turn to the orders of the Court:
(i)In respect of each of the offences for which the offender was found guilty, that is Counts 2, 4 and 5, the offender is convicted.
(ii)In respect of Count 2, sexual intercourse without consent, the offender is sentenced to 2 years and 6 months' imprisonment to commence on 21 June 2022, expiring on 20 December 2024.
(iii)In respect of Count 5, act endangering health (choke), the offender is sentenced to 1 year and 3 months' imprisonment, commencing on 21 June 2023, expiring on 20 September 2024.
(iv)In respect of Count 4, sexual intercourse without consent, the offender is sentenced to 4 years' imprisonment to commence on 21 September 2023, expiring on 20 September 2027.
(v)The total sentence is 5 years and 3 months' imprisonment, commencing on 21 June 2022 and expiring on 20 September 2027.
(vi)I fix a non-parole period of 3 years' imprisonment commencing on 21 June 2022 and expiring on 20 June 2025.
(vii)I find the offender not guilty of the transfer charge of common assault.
| I certify that the preceding one hundred and forty-two [142] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Norrish. Associate: Date: |
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