R v Sila

[2015] ACTSC 64

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Sila

Citation:

[2015] ACTSC 64

Hearing Date:

6 February 2015

DecisionDate:

5 March 2015

Before:

Burns J

Decision:

See [16] – [19]

Category:

Sentence

Catchwords:

CRIMINAL LAW – Sentence – Particular Offences – offences against the person – sexual intercourse without consent –burglary.

Legislation Cited:

Crimes Act 1900 (ACT) s 54

Criminal Code 2002 (ACT) s 311

Cases Cited:

R v Do [2005] NSWCCA 258

R v Pham [2005] NSWCCA 94
R v Verdins [2005] VSC 479

Parties:

The Queen (Crown)

Omega Paul Sila (Offender)

Representation:

Counsel

Mr T Hickey (Crown)

Ms T Warwick (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Wilson Phillips Lawyers (Offender)

File Number:

SCC 32 of 2014

Burns J:

Background

1. I note we have an interpreter here for Mr Sila.  I will try to speak slowly and I ask that she does her best to interpret what I say to the prisoner as I proceed.

1. Omega Paul Sila, you have entered pleas of guilty to two counts of sexual intercourse without consent contrary to s 54 (1) of the Crimes Act 1900 (ACT) (CC14/1678; CC14/1679). The maximum penalty for each of these offences is 12 years' imprisonment. You have also entered a plea of guilty to one count of burglary contrary to s 311 of the Criminal Code 2002 (ACT), consisting of remaining in a building as a trespasser with an intent to commit an offence that involves causing harm to someone in the building (CC14/1680). The maximum penalty for that offence is one of 14 years' imprisonment.

1. I will not recite the statement of facts here.  It is sufficient to state that you broke into your estranged wife’s home and, whilst there, formed an intention to sexually assault her.  You pinned her to the bed and performed cunnilingus as she struggled to fight you off.  You then forced your penis into her vagina and engaged in sexual intercourse while she tried to call the police. 

Consideration

1. Your pleas of guilty were entered in the Magistrates Court on
   21 February 2014 so that they are to be regarded as early pleas of guilty.  I accept that your pleas have significant utilitarian value and mean that the victim will not be required to give evidence but, for reasons which I will give in a moment, I do not accept that your pleas demonstrate any significant remorse.  I will reduce the sentences that would otherwise be appropriate by 20 percent to mark your pleas of guilty. 

1. I note that you have a very limited criminal history, having been convicted of an offence of common assault on 18 February 2014 in the Magistrates Court.  I do not have before me the full details of the incident that led to that conviction but I understand that it was one that occurred in the then family home.  As I understand it, you were on bail with respect to that offence at the time that you committed the present offences.  You are entitled to some leniency because of your limited prior criminal history but that leniency must be slight, bearing in mind the seriousness of these offences. 

1. I note that you are 37 years old and of Samoan heritage.  You came to Australia in 2011 from New Zealand.  Before you were remanded in custody, you were employed by a garden maintenance business. 

1. You told the author of the Pre-Sentence Report that you do not accept that you did anything wrong when you assaulted your wife, voicing a disregard for laws and court orders and saying that the only law you recognised was God’s law.  The Pre-Sentence Report notes that, on your entry to the Alexander Maconochie Centre, your mental health was assessed and you complained of depression and thoughts of self-harm.  At that time, you were diagnosed with an adjustment disorder relating to being in custody.  The author of the Report assessed you as being at high risk of reoffending.  I agree with that assessment based on your lack of remorse and failure to accept true responsibility for your actions.  In particular, your disregard for temporal laws and court orders makes you an ongoing threat to your victim and I can have little confidence that you will obey prohibitions on contacting her.

1. Whilst you have been in custody, you have apparently attempted self-harm on two occasions and in June last year you suffered your first episode of psychosis.  This led to a diagnosis of schizophrenia.  A report was obtained from a psychiatrist, Dr Kasinathan, directed towards your fitness to plead.  In finding you fit to plead, Dr Kasinathan noted that your psychotic symptoms resolved after treatment and that, as at 30 October last year, you had not had any significant symptoms for at least two months. 

1. Dr Kasinathan addressed the principles in the case of R v Verdins [2005] VSC 479 and expressed the opinion, on the information available, that at the time of these offences you were not suffering from any mental health symptoms and that there was no real connection between your offending and your subsequent diagnosis of schizophrenia. He said that you were not suffering any significant psychotic symptoms at the time he saw you.

1. Based on Dr Kasinathan’s report, I am satisfied that you were not suffering from any symptoms of mental illness at the time of these offences.  I am further satisfied that your mental health in custody is likely to remain stable so long as you are appropriately treated with medication.  I can find nothing in the report, or in any of the evidence, which would allow me to find that your moral culpability for these offences is reduced by reason of mental illness.  I have seen nothing to suggest that your mental illness, now in remission, will make a prison sentence more difficult for you or that it makes you an inappropriate vehicle for specific or general deterrence. 

1. Offences of this nature are always serious but these offences are clearly very serious examples of this type of offending.  I have no doubt that these offences were borne not out of grief for the ending of your relationship with your wife, but from anger that she was defying you.  By committing these offences you were demonstrating to your wife your power over her with a view to instilling fear in her and maintaining control over her.  This was not about sexual gratification, but about power and control.  As part of that process, I have no doubt you sought to humiliate your victim.  The victim of these offences was in her own home, a place where she is entitled to feel safe.  You were on bail conditions at the time which prohibited you from attending her home, and you abused that conditional liberty to commit these serious offences. 

1. I note that this is the first occasion that you have been in prison, a circumstance that frequently calls for moderation of sentence.  In my opinion, that circumstance should be given less weight on this occasion due to the gravity of your offences and your limited prospects for rehabilitation. 

1. Your counsel told me that you expect to be deported from Australia after you are released from prison.  If such a decision is made by the appropriate authorities, it is one which I would support.  Your counsel, however, submitted that I should reduce the appropriate sentences for these offences as deportation would constitute a form of additional punishment.  I reject that submission.  I agree with the decisions of the New South Wales Court of Criminal Appeal in R v Do [2005] NSWCCA 258 and R v Pham [2005] NSWCCA 94, which provide that the prospect of deportation is usually immaterial to sentencing where, as here, no evidence is placed before the court on that question.

1. I am satisfied that these offences call for terms of immediate imprisonment and that nothing less would be adequate to appropriately punish you to demonstrate the community’s disapproval of your actions, to deter you from further offending and to deter others who may be minded to commit similar offences.  I accept that a high degree of concurrency is appropriate with respect to the sentences I will impose as all offences occurred as part of a continuous series of events and all involve the same victim, however some accumulation is inevitable.

Sentence

1. On the charge of burglary (CC14/1680), I record a conviction and you are sentenced to 4 years and 10 months’ imprisonment, which I have reduced from six years for your plea of guilty.  That sentence will commence on 4 February 2014 and expire on 3 December 2018. 

1. On the first charge of sexual intercourse without consent involving an act of cunnilingus on the victim (CC14/1678), I record a conviction and impose a sentence of four years’ imprisonment, which I have reduced from five years by reason of your plea of guilty.  That sentence will begin on 4 December 2015 and expire on 3 December 2019. 

1. On the second charge of sexual intercourse without consent involving unprotected penile vaginal intercourse (CC14/1679), I record a conviction and you are sentenced to five years and two months’ imprisonment, which I have reduced from six years and
   six months because of your plea of guilty.  That sentence will commence on
   4 December 2016 and expire on 3 February 2022.

1. The effect of the sentences that I have imposed is that you are liable to serve a term of imprisonment of eight years commencing on 4 February 2014 and expiring on 3 February 2022.  I set a non-parole period of five years and two months commencing on 4 February 2014 and expiring on 3 April 2019.

I certify that the preceding nineteen [18] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Burns.

Associate:

Date: