R v SP
[2015] ACTSC 121
•12 May 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v SP |
Citation: | [2015] ACTSC 121 |
Hearing Date: | 12 May 2015 |
DecisionDate: | 12 May 2015 |
Before: | Walmsley AJ |
Decision: | See [38]. |
Category: | Sentence |
Catchwords: | CRIMINAL – Sentence – particular offences – sexual intercourse without consent. |
Legislation Cited: | Crimes Act 1900 (ACT) ss 26, 54(1), 60 Crimes (Sentencing) Act 2005 (ACT) Pt 4.3 |
Texts Cited: | Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (2013) (DSM-5) |
Parties: | The Queen (Crown) SP (Offender) |
Representation: | Counsel Mr K Lee (Crown) Mr J Sabharwal (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Darryl Perkins Solicitors (Offender) | |
File Numbers: | SCC 116 of 2014; SCC 117 of 2014 |
Walmsley AJ:
Background
The offender pleaded guilty to one count contrary to the provisions of s 54(1) Crimes Act 1900 (ACT) (Crimes Act), namely sexual intercourse without consent, being reckless as to whether the victim consented. The offence carries a maximum prison term of 12 years.
The offender has also asked me to take into account two additional offences, an act of indecency without consent, contrary to s 60 Crimes Act, carrying a maximum penalty of seven years, and a common assault, contrary to the provisions of s 26 Crimes Act, an offence carrying a maximum penalty of two years imprisonment. All three offences occurred on 25 February 2014 and I shall summarise the facts of the offences from the agreed statement of facts which was in evidence as exhibit 2.
Facts
On 25 February 2014 RS was at the offender's home in Rivett to catch up. In short, while they were in his bedroom, the offender inserted a finger in RS’s vagina and then had penile vaginal intercourse with her and aggressively sucked on her left nipple leaving a small red mark and forcibly kissed her, causing slight swelling to her bottom lip. As will appear, she gave consent to none of that conduct.
They had met in 2013 through the offender's cousin and over the ensuing months they spoke via Facebook and text message and they saw each other occasionally.
On 24 February last year, when the complainant was 18, she agreed to meet the offender the following day at his house in Rivett where the offender lived with his parents. At about 9.15 am on 25 February the complainant drove to the offender's home. The offender showed her into the house and told her that his father was at home. She didn't see anyone in the house but she heard a door slam somewhere.
He led her to his bedroom. They talked about general things. They talked about watching a movie. In the course of the conversation the offender talked about sex and masturbation. The complainant reacted neutrally to what he was saying.
At the time she was sitting on his bed with her back against the headrest of the bed with her legs out in front of her. To her left, against the left side of the bed, was a desk. The offender, who had been sitting at the end of the bed, moved, so that he was lying on the bed on her right-hand side. He leant over towards her, put his right arm around her chest, and kissed her right shoulder. She did not consent to that conduct and rolled over to her left to turn away from him so that she was facing the desk, with the offender behind her. She could not easily get off the bed because the desk was immediately in front of her.
The offender then put his hand on her thigh and moved it up her skirt. She said, "No, don't. I've got to go soon." The offender said: "Yeah, just a little bit" and inserted a finger into her vagina on a number of occasions. She said, "No, don't touch me." The complainant had not consented to that conduct and it is agreed that the offender was reckless as to her consent.
The offender removed her underwear. At this stage she was on her back and crying. He positioned himself, however, so that he was on top of her and inserted his erect penis into her vagina. He was not wearing a condom. She did not consent to the sexual intercourse. She felt immediate pain after penetration. She had tried to push him off but then her body froze.
He continued to have sexual intercourse with her. She told him to stop and said, "No, I really have to go. I have to go to town." He said: "Yeah, I know, just a little bit longer", and continued to thrust his penis into her vagina. She continued to protest, saying: "No. Stop. Stop. You need to control yourself. You need to stop." The offender attempted to kiss her. She moved her head away to avoid being kissed. At one stage he kissed her forcefully on the mouth which later caused slight swelling to her lower lip. It is that contact which constitutes the common assault. The offender continued to have sexual intercourse for another two minutes and then removed his penis. He did not ejaculate. At various stages throughout the intercourse the complainant asked him to stop.
After the offender removed his penis he pulled the complainant's top and bra down, exposing her breasts. He sucked aggressively on her left nipple, causing a small mark on her left breast. That conduct constitutes the act of indecency. The offender pulled her bra back on. She tried to get up quickly and put her underwear back on. He said: "Wait. Hold on", and he put it on for her.
The complainant went out to her car. He followed. The offender then began crying. The complainant said: "You know you just raped me." He said: "Sorry, I have no control." She said, "I didn't realise it was this bad." He said, "Yeah, I told you it's pretty bad. I'm sorry. I should have controlled myself better." The complainant told him that he needed help.
She got into her car and left. She drove to her mother's work and told her she had been raped. She was crying uncontrollably. Her mother demanded to know the offender's address. But the complainant only gave her a phone number. She rang the number and spoke to the offender. The offender apologised and said: "I'm really sorry. I didn't mean to do this. I just lost control. I couldn't help myself."
Later that day the offender sent a text message saying: "I'm really sorry, [RS]. I hope you're okay. I tried to control it." She said, "You rapped [sic] me." He said: "I'm so sorry." She said, "Man, this isn't cool at all." He said, "I know. Please like try and forgive me. I didn't mean to. Please." The final text the complainant sent was: "Please just leave me alone."
She went to the Canberra Hospital later that day. She was examined by a medical practitioner and told him what had happened to her. In the course of the examination the doctor noticed indications of blunt force trauma to the entrance of her vagina and a three millimetre linear area of redness on her left breast and localised swelling on her lower lip. Later that day the complainant went to the Woden Police Station and reported the matter. Police observed, as the doctor had, that her lower lip was blistered and swollen.
Arrest and Admissions
On 26 February the police arrested the offender and he agreed to participate in an interview, where he admitted having had sexual intercourse with the complainant. He admitted to police he had heard the complainant tell him to stop but he said that in relation to consent:
Like I know I didn't get consent but like all of her is kind of like, that's what you like, kind of the signals you look for to, you know, consent because it's kind of weird if you ask if it's okay to have sex, you know. It's kind of spontaneous in the moment.
He later admitted that he should have stopped the first time she asked him to stop. Similarly to what the offender had told the complainant, the offender told police he was a sex addict. He said to police: "That's what I think I am, like I've never been properly diagnosed but I do like, I have a lot of like, a lot of strong sexual urges."
The offender was arrested on 26 February 2014. He spent one night in custody before being released on bail on 27 February 2014 and I understand him to have been at liberty ever since then.
He first appeared in the Magistrates Court on 27 February last year. He was charged with three counts of sexual intercourse without consent, committing an act of indecency, and common assault. The matter was adjourned to 14 March and on the 14th it was adjourned to 20 March. On that day he entered a plea of not guilty to each of the charges and the matter was adjourned to 29 May. On 5 May the Crown provided a brief of evidence. On 29 May he was committed to this court for trial. On 12 June the matter was in for first mention and directions were made about the filing and service of committal documents. On 17 July the matter was again mentioned before the Registrar and adjourned to the next Central Listing callover.
On 1 September 2014 at callover the matter was set down for hearing for a three-day jury trial to start on 8 December 2014. It was also set down for final callover on 3 December. On 3 December, however, the offender pleaded guilty to the first count on the indictment in full satisfaction and he asked the court to take into account two additional offences.
Victim Impact Statements
Both the complainant and her father provided victim impact statements and the Crown Prosecutor read those today in court. They indicate that the offences have had a profound affect on the complainant and her family. She has been obliged to leave Canberra and live in Sydney, away from the comfort of her obviously caring family. Both of the victim impact statements presented a moving account of the sequelae from these offences. I take account of the victim impact statements in accordance with the principles for their use in pt 4.3 of the Crimes (Sentencing) Act 2005 (ACT).
Objective Criminality
Objectively, the principal offence was made more serious by the offender's failure to wear a condom. The lack of a condom, of course, leads to the possibilities of disease and pregnancy. I note, too, from the agreed facts, that it was difficult for the victim to get away once she realised what the offender was proposing for her. It was not put by the Crown, however, that she was in a vulnerable position and I do not find that she was relevantly vulnerable. It is not controversial, however, as I have observed from reading the facts, that the victim asked multiple times that he stop and that she was not consenting.
Discount For Plea of Guilty
The offender’s plea of guilty to the offence was not an early plea. The plea of guilty did not occur until well after the committal for trial and until after the trial date had been set. Fortunately, however, he did eventually admit the offences and that, I am satisfied, will save the complainant and her family having to endure a trial with its attendant publicity and uncertain outcome.
There is, I find, utility in the plea of guilty and I propose to deduct 15 per cent for the plea. A plea may be regarded as a sign of contrition and something which bodes well for rehabilitation. For reasons which I shall give, I am, however, cautious about the element of contrition. The offender has no criminal history. That is a significant matter in his favour as a mitigating factor.
Subjective Matters
I shall say something now about his background. His family is Tongan. He was born in Australia on 12 February 1995 so he is 20. He was 19 at the time of the offence. He was born in Sydney and moved with his family to Canberra in 1999. His father had some mental health and alcohol problems and when he was young the offender was subjected to some emotional abuse from his father. In recent times, fortunately, he and his father have got on a lot better. He attended school to year 11. He did have some mental health problems himself when he was young and he frequently truanted. He is currently unemployed and on Centrelink benefits.
According to the Pre-Sentence Report which was in evidence, the offender tried to put the blame on the victim for his offending and he was unable to accept his responsibility fully. He could not, according to the report, express any insight as to how his offending might have affected the victim. He was focussed instead on what his own problems might be by reason of his offending. He told the author that he had: "Tried to forgive" the victim. The author of the report put forward the view that there was a moderate risk of reoffending, depending on factors including his medical treatment, his employment prospects and his education.
He was found qualified by the Pre-Sentence Report authors to undergo community service and periodic detention but although I have considered those forms of punishment it is clear to me that there is no appropriate punishment other than one of full time custody, something his counsel conceded.
The offender was assessed for a forensic mental health report. Before me was a report from Dr John Kasinathan, a consultant forensic psychiatrist. The report was dated 24 February 2015. The doctor was given a different version of the facts of the offence, suggesting that the victim had initially consented and had later withdrawn her consent and the offender had no idea that he had raped her.
As to his personal history, the offender told the doctor - and this is consistent with what was in the PSR – that he had engaged in acts of self-harm over the years, as recently as the age of 15. He said he had been on anti‑depressant medication ever since being charged for these offences. No severe mental illness or dysfunction was, however, diagnosed. He was assessed by reference to the DSM-5, as having a mild low grade depressive disorder. No mental condition was said to have accounted for his offending.
His solicitors sent him to be assessed by a clinical psychologist, Ms Jenny Howell. She saw him in Canberra on 16 March 2015 for a lengthy consultation. The factual background for the report was not verified by the offender. (Nor was the PSR history.) The offender did not give evidence to verify any of the history. However, according to what he told Ms Howell, he had conventional sexual education and he knew that he should use condoms when having intercourse. He told her, as he told the authors of the Pre-Sentence Report, that he was effectively a non-drinker and that he was a non‑user of drugs.
According to Ms Howell, the offender did not engage in minimisation of his part in the offences. According to her, he told her that he had initially had trouble understanding how his behaviour had harmed the victim but he expressed to her what she described as genuine and appropriate regret.
Having regard for psychological studies of offenders with his history, she said that he falls in a group where out of every 100 offenders only about six will reoffend within five years. Ms Howell saw no evidence of sexual deviance. She thought that he demonstrated some insight.
Ms Howell was called to be cross-examined on her report and she maintained the views expressed in it, despite a very searching cross-examination by the prosecutor.
Another psychologist, one Ninette Schoubye, from an organisation called Headspace, has also seen the offender. Indeed, she has seen him on a number of occasions between mid-2014 and February 2015. These visits were for counselling sessions. She, in her report, said that he had expressed remorse for any distress that he may have caused and that he deeply regretted any transgression, "he may inadvertently have engaged in". That report was tendered by the offender's counsel. On its face the document shows to a degree a lack of insight and a lack of remorse by the offender. But I consider that the offender should not be blamed if the psychologist expressed herself badly, which is a possibility.
I do note that the offender has strong family support. There is before me a letter from his sister which is a very detailed letter and in it (and consistently with what the offender is said to have told Ms Howell), he expressed remorse and regret about these incidents. There were several other supportive references in evidence too but it is not entirely clear to me that all of them were given the complete facts. Nonetheless, they are impressive.
The Pre-Sentence Report is dated 3 March 2015 and the offender saw Ms Howell two weeks later. Given what I see as somewhat contradictory histories to the authors of each of those reports I am cautious about his expressions to Ms Howell of remorse and insight. I do find, however, that he has reasonable prospects of rehabilitation given his youth and his lack of any criminal history.
Counsel have referred me to other decisions of this court where offenders were sentenced for the same offence. There is clearly a breadth of possible outcomes, depending on objective circumstances of each offence and subjective matters. In a matter such as this it seems to me, and I find this to be so, that issues of specific and general deterrence are significant factors.
The Sentence
But for the plea of guilty I would have imposed a sentence of three years and four months' imprisonment but I would deduct six months for the plea of guilty. I impose a sentence of imprisonment of two years and 10 months from 11 May 2015 to 10 March 2018. The offender is to serve 19 months in custody from 11 May 2015 to 10 December 2016, when he is to be released on parole. In forming my view as to that penalty I have taken into account, as requested, the matters on the form.
| I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Walmsley. Associate: Date: |
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