R v SV
[2016] ACTSC 211
•10 August 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v SV |
Citation: | [2016] ACTSC 211 |
Hearing Dates: | 7 March 2016 - 10 March 2016, 14 June 2016 |
DecisionDate: | 10 August 2016 |
Before: | Robinson AJ |
Decision: | See [43]-[46] |
Catchwords: | CRIMINAL LAW – PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – particular offence – offences against the person – sexual offences – act of indecency without consent – guilty verdict following trial by jury CRIMINAL LAW – PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – particular offence – offences against the person – sexual offences – sexual intercourse without consent – guilty verdict following trial by jury |
Legislation Cited: | Crimes Act 1900 (ACT) ss 54(1), 60(1) Crimes (Sentencing) Act 2005 (ACT), ss 33(1)(d), 33(1)(f), 53(1)(a) |
Cases Cited: | Bugmy v The Queen (2013) 249 CLR 571 Markarian v The Queen (2005) 228 CLR 357 The Queen v Pinto-Pedreidrei [2010], Gray J, 27 May 2010 |
Parties: | The Queen (Crown) SV (Offender) |
Representation: | Counsel Ms S McMurray (Crown) Mr J Sabharwal (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal on London (Offender) | |
File Numbers: | SCC 99 of 2015 ; SCC 101 of 2015 |
Publication Restriction: | Name of complainant is suppressed |
ROBINSON AJ:
On 7 March 2016, SV stood trial before a jury on two counts-
(a)That on or about 26 January 2015 at Canberra, SV engaged in sexual intercourse with TV without her consent, being reckless as to whether she was consenting. This is an offence contrary to s 54(1) Crimes Act 1900 (ACT).
(b)That on or about 25 January 2015 at Canberra, SV committed an act of indecency on TV without her consent, being reckless as to whether she was consenting. This is an offence contrary to s 60(1) Crimes Act 1900 (ACT).
On 10 March 2016, the jury found the offender guilty of both counts. I remanded the offender in custody on that day and propose to commence the offender’s sentences from 9 March 2016 giving credit for one day pre-trial custody. As a result of the convictions, I was asked to deal with a transfer charge of common assault pending in the Court below. (CC 2015/1234).
The maximum penalties for the two counts are 12 years and seven years imprisonment respectively. I take account of these maximum penalties in accordance with Markarian v The Queen (2005) 228 CLR 357 at [30-31].
Crown case
The offender and the complainant were husband and wife in January 2015 and at the time of the trial. They have two children. QV, who was aged nine at the time of the incident and BV who was aged three at that time. The offender usually slept in a bedroom with QV and the complainant usually slept in a different bedroom with BV.
On 25 January 2015, the complainant went to bed at about 11:00pm. Shortly thereafter, the offender entered the complainant’s bedroom and lay next to her. He began to hug and kiss her with a view to engaging her in sexual intercourse. The complainant said that she did not wish to have sexual relations with him. Nevertheless, the offender kept trying and the complainant continued to expressly say ‘no’ to his advances. The offender, in the course of this, slapped the complainant across the face causing her to cry. (See Transcript at pp. 20, 43). This is the transfer charge of common assault referred to at par [25] below.)
At another stage of the incident, the complainant called out to her son QV who was in a room across the corridor. QV entered the complainant’s room, turned on the light and then asked what was happening. At trial, QV made observations confirming part of complainant’s evidence. At this point the offender told QV that nothing was happening and he was to go back to his room. QV also gave evidence of an argument between his mother and father. QV retired to his room.
The offender lifted the complainant’s shirt and tried to fondle her breasts. The offender then undid the complainant’s bra and licked her on the breast. At this stage the complainant was trying to push the offender away and she gave evidence that she bit him on the shoulder and scratched his face. It was at this point that the offender made threats towards the complainant concerning the complainant’s family in India. The effect of the threats was that if she told anyone or the police, the complainant’s family would be hurt.
The offender left the complainant’s bedroom at that point but returned about midnight. He asked that the complainant come to another room. She refused. This led to the offender dragging her from the bed onto the floor after which, the offender told the complainant that it will happen “here”. He forced his penis into her vagina, had sexual intercourse and ejaculated. The offender then left the room. He went to work at 8:00am the next morning. The complainant stayed in her bedroom until the offender left. She then telephoned her parents in India and then rang the police.
On the morning of 26 January 2015, the offender sent a text message to the complainant-
“I am feeling very bad and sad so so sorry.”
It is not necessary to detail all the evidence for the purposes of sentence, but the evidence of QV provided some confirmation of material parts of the complainant’s testimony. The medical evidence was somewhat equivocal. It is clear enough that the jury accepted the complainant’s evidence beyond reasonable doubt. I am satisfied beyond reasonable doubt that the offender also made the threats of harm towards the complainant’s family attributed to him by the complainant.
The offender in his record of interview and in his evidence before the jury maintained that, at all times, he had the express consent of his wife to the whole of the sexual transaction. The offender also gave evidence that the text message was not an admission of wrongdoing on his part in relation to the sexual activity but referred to an unrelated argument or discussion (about living separately in the marriage) on the previous night.
Seriousness of offence
I take into consideration in evaluating the offender’s conduct the degree of violence, the threats of harm towards the complainant’s family, the physical hurt inflicted, the form of intercourse, and the circumstances of humiliation as well as the duration of the offence.
I also take into account the fact that the sexual activity occurred between a husband and wife and not, for instance, between the complainant and a complete stranger. Such latter sexual activity, might, of its own force, have produced a reaction of terror. On the other hand, the complainant was in her own house and she was entitled to feel safe in her relationship with her husband.
It is also of concern that this violence took place in the presence of children. First, a 3 year old child was present in the bedroom even though that child was asleep. Second, part of the confrontation was overheard by and took place in the presence of the 9 year old child who observed it.
It must be clear to the offender, and to likeminded offenders, that under Australian law, with which we are presently concerned, engagement in sexual relations is a matter of choice and is not a matter of subjugation.
I record that it was not suggested in submissions that the limited circumstances where cultural background would support a more lenient sentence were operative here. See, for example, Neal v The Queen (1982) 149 CLR 305, 326 approved in Bugmy v The Queen (2013) 249 CLR 571 at [39].
Impact of offences
The complainant read to the Court, without objection, a victim impact statement. Under section 33(1)(f) of the Crimes (Sentencing)Act 2005 (ACT), the Court must consider the effect of the offence on the victim of the offence. By section 53(1)(a) of that Act, the Court, in deciding how the offender should be sentenced for the offence, must consider any victim impact statement given to the Court in relation to the offence. Cross-examination on a statement is permitted but that opportunity was not taken up in this case.
Besides the two statutory commands set out above, there is little other guidance in the Act as to the manner in which the statement is to be taken into account by the Court.
Neither crime, with which we are concerned, has, as an element of the offence, the infliction or suffering of psychological damage. There is a body of case law where Courts have inferred psychological harm from the intrinsic nature of the offence. That inference appears to be limited to the expected harm from the nature of the offending. A difficulty, amongst others, arises when there is a discrepancy between expected harm and where harm has been suffered beyond that expected harm. An example of the different approaches of the working out of this can be taken from RP v The Queen [2013] NSWCCA 192 at [27]-[29] which is based upon the framework under the NSW sentencing statute:
27. It is evident from the judge's discussions with Mr Watts and his sentencing remarks that the judge uncritically accepted LS's statement and considered the harm to be substantial. LS undoubtedly suffered harm, however, the contents of her statement went well beyond what might be regarded as the type of harm expected from the circumstances of the applicant's offending.
28. As the victim impact statement raised harm that was more deleterious than could generally be expected from the circumstances of the offence, the judge was obliged to approach the statement with caution. The harm that LS described was not supported by other evidence: In R v Berg (2004) 41 MVR 399; [2004] NSWCCA 300, Wood CJ at CL said at [48] - [49]:
"...I would sound a note of caution in relation to the proper approach to fact-finding concerning the impact of a crime upon other members of the community or, upon the victim. If that is to be achieved by way of victim impact statements, then an injustice may occur in relation to a person standing for sentence, in so far as the maker of the statement would not normally be available for cross-examination.
I add that caution in support of the general proposition that extreme care needs to be taken by those who prosecute and defend these cases, and also by trial Judges in always ensuring that there is a proper evidentiary basis for any findings of fact which go towards aggravating or mitigating a sentence."
29. Although in the present case LS's victim impact statement was tendered without objection, Mr Watts put to the judge that the objective criminality of the offending was the primary consideration. This was a submission as to the weight that the judge would attribute to the content of the victim impact statement. This was not a case such as Ollis v R [2011] NSWCCA 155, where the victim impact statement was admitted into evidence without objection and no submissions were made that the statement should be limited or that less weight should be attributed to it. Furthermore, in Ollis, the jury had accepted the evidence of the victim and it was open to the sentencing judge to find, by reference to the victim impact statement, that the victim suffered harm that went beyond that which was expected.
It is clear that the events of the night of 25 January 2015 would have had an expected major impact upon the emotional well-being of the complainant from the nature of the offences and the facts under which they were committed.
It is clear from the complainant’s statement that she had, in fact suffered a major impact upon her psychological well-being. She also told the Court that she is still anxious and fearful and related how this situation affects her everyday life.
I am not prepared to find that the psychological impact of the offences on the complainant was greater than would ordinarily be expected from the nature of the offences and the circumstances of those offences. I am not prepared to act upon the statement made by the complainant to the Court on the sentencing hearing to find that the complainant’s current psychological position is solely attributable to the events of 25 January 2015 for which the offender is to be sentenced. However, I find that the psychological effects of the offences of the offending, are such, that in no way, is the objective seriousness of the offences reduced. It is not a case where the effects of the offences have not been long lasting and where there is scope for the mitigation of sentence for that reason.
Currently there is no judicial consensus as to precisely how victim impact statements are to be taken into account by the Court, at least in some jurisdictions. (R v Tuala [2015] NSWCCA 8 at [51]). It is also to be remembered that the statutory sentencing regimes are not the same in different jurisdictions. As far as I can tell, the position in the ACT will also undergo further judicial exegesis. As well as dealing with matters relevant to proof and the quantum of proof for factors which may be classified for the purposes of the Crimes (Sentencing) Act2005 (ACT) as an “aggravating factor” and thus attract the standard of proof applied in R v Olbrich (1999) 199 CLR 270 at [27], it will be necessary to deal with a potentially larger but related question.
Suppose three victims are assaulted with the same force by the same person in the same circumstances. Is the offender to be given the same sentence for each offence? As a matter of law, the objective seriousness of the offence is the same and the same subjective circumstances of the offender must be taken into account on each offence. However, suppose there is a difference in the harm caused to each of the victims from the identical assaults. The different harm caused is psychological harm and is therefore, and importantly, not an actual element of the offence of assault. That different measures of psychological harm are suffered by the three individuals is to be expected in the human population. Suppose those three individuals conform to albeit simplistic profiles, in terms of a continuum of psychological constitution. The first is at the median on that continuum. That person suffers psychological harm as would be expected by the nature of the offence and the circumstances of it. The second is very hardy and shrugs off any additional harm consequent to the assault itself. The third was, even before the assault, an emotionally fragile human being. The consequence of the assault is catastrophic and the person is admitted to a mental institution where that person has been since the assault with a poor prognosis. Of course, the examples can be multiplied and another factor can be substituted for psychological harm, provided it is not an element of the offence. However, the particular substitution of financial loss potentially brings in another variable, that of the ability of the offender to pay compensation. (s 33(1)(h) of the Crimes (Sentencing) Act 2005 (ACT)).
Assuming that the offender does not know anything as to the psychological make-up of any victim (s33(1)(d) Crimes (Sentencing) Act 2005 (ACT)), ruling out the possibility of the actual psychological harm suffered being subjectively foreseeable, does the command in s33(1)(f) of the Crimes (Sentencing) Act 2005 (ACT) mean that, all other things being equal, there will be scope to impose a heavier sentence for the offence on the third person? By analogy with tort law, does the aphorism apply, ‘that the offender must take the victim as they find them?’ Does it mean that there is scope to reduce the sentence for the offence on the second person? Each of these latter sentences being compared to the sentence given for the offence to the first person. I use the word scope consistently with the command “to take into account.”
The impact of the events has had further consequences for both the offender and his family members, as would be expected. After the offender was arrested, he was subject to bail conditions and a Domestic Violence Order. Together they enforced, as a practical reality, a physical separation from the complainant and his children. Whilst on bail and prior to 10 March 2016, the offender paid child support payments. Those payments have now ceased since the offender’s incarceration. Another consequence is that the children have not seen their father since January 2015.
Transfer charge of common assault
I find that the elements of the transfer charge of common assault are proved beyond reasonable doubt.
Subjective matters
It is convenient to first have regard to the Pre-Sentence Report in this respect.
Family/Marital
SV advised he was born in India and reported he and his younger brother were raised by their mother following the death of his father when SV was six years of age. SV reported a conventional style upbringing and denied any domestic violence in the family home.
SV reported he and his wife, who is the victim of the current offences, entered into an arranged marriage in India in 2003. He advised the couple relocated to Australia in 2007 and resided together with their two children aged nine and three years. SV advised he has not had contact with his children and now estranged wife since the time of the offences, however, he expressed his intention to attempt to reunite with his children following the finalisation of his current sentencing.
Service records confirm the victim of the offence currently has a Domestic Violence Order (DVO) in place for both her and her two children. The Order is in place until 18 May 2016.
Employment
SV advised he remains employed by the Indian Embassy and is currently on leave without pay. Given SV did not provide contact details for his employer, this information was not verified.
Alcohol and Other Drugs
SV denied ever using illicit drugs, however, he described his alcohol consumption as recreational. Upon further discussion, SV disclosed that whilst in the community he would consume up to six standard drinks two to three times per week. During the preparation of this report, the AUDIT alcohol screening tool was administered which indicated SV’s alcohol use is at a risky or hazardous level with a moderate risk of harm.
During the interview SV appeared to minimise his drinking behaviour and misreported his alcohol consumption at the time of the offence. Initially SV reported consuming four beers prior to the offence, however, when challenged with contradictory information contained in the SOF he agreed he had up to 12 standard drinks at the time of the offence, however, he denied intoxication at that time.
Attitude to Offences
SV denied responsibility for the offence and advised of his plea of not guilty for his upcoming sentencing. SV claimed the offences did not occur as outlined in the AFP Statement of Facts (SOF) and claimed the victim of the offence had made false allegations against him. During the preparation of this report, the author explored the details contained in the SOF however SV continually denied the offences despite evidence to the contrary.
Opinion
SV has been assessed as low risk of general reoffending and currently he is yet to be assessed as a sex offender. Until such time, SV is assessed as high risk of sexual reoffending. He has no criminal history and no history of illicit substance abuse. SV has claimed he has the protection of stable employment history and the opportunity to return to his place of employment upon his return to the community. SV intends to reside with a friend if released to the community, prior to securing his own private rental accommodation, although this remains unconfirmed.
SV described his alcohol use as recreational, however, it is noted alcohol was involved during the time of the current offences and further to this, the AUDIT alcohol screening tool indicated his use was risky or hazardous.
SV did not accept responsibility for his offending behaviour; rather, he denied involvement in the offences altogether. He claimed the offences did not occur and denied a history of domestic violence in his marriage.
Given the nature of the offending there are some concerns in relation to the victim involved in the current offences. Taking into consideration the seriousness of SV’s offending it is apparent intervention is required, however, given SV’s denial of the offences his willingness to engage in such intervention would be unlikely.
At the trial before the jury, the offender made no attempt to claim that alcohol played any part in the transaction between his wife and himself on the night in question. This may well have been a forensic decision on his part to aid in contesting liability for the offences. Listening to the evidence at the trial, I was unconvinced that alcohol played no part. It is not possible, however, on the way the evidence was led at trial, to come to a sufficiently firm finding on this matter. The offender will have the opportunity to obtain help with any problem drinking during the course of his sentence, should he acknowledge that that help is required and accordingly accept that help.
Remorse/Contrition
The offender does not acknowledge his guilt of the offences to the author of the Pre-Sentence Report nor to his brother, who gave evidence at the sentencing hearing. I do, however, find that his text message, on the morning after the events and before the intervention of the police investigation, in which he texted to his wife, “I am feeling very bad and sad so so sorry”, was a sincere expression of remorse and contrition. This message was, however, also an admission of guilt revealing a consciousness of wrongdoing on the part of the offender and deployed as such by the Crown at trial. I have no doubt the jury used it as such in coming to their verdicts. The explanation for the text given by the offender in his evidence at trial was unconvincing and contradictory.
Genuine remorse usually carries with it an acceptance of responsibility for the offences and also for the consequences of those offences. In this case, there is a later public renunciation of this responsibility. I do not know the reason for this and cannot make any finding on it. What can be said is that the text message demonstrated an insight by the offender into the consequences of his actions. This, in turn, reflects on his prospects of rehabilitation.
Prospects of rehabilitation
The authors of the Pre-Sentence Report state that the offender has a low risk of general offending but is yet to be assessed as a sex offender. He has, in his favour, the fact that he had no previous criminal record to the age of 40 and no signs of drug abuse. He has uncertainty, at best, surrounding his alcohol abuse. There will also be uncertainty over his future employment prospects once he is released. It would seem unlikely he will just simply return to his former employment with the Indian Embassy. His acquired criminal record will not assist his employments prospects elsewhere. On the other hand the offender obtained a science degree and a Master’s degree in information technology in India before coming to Australia, and having observed him under pressure in the witness box, the offender certainly has the English language skills and intelligence to readily acquire and then hold down employment.
There is also uncertainty about how he will react to and engage with his family members in the future. He will not be in control of these interactions. No doubt the Family Court will set those parameters. He will always be the father of the two children and the complainant will always be their mother.
Whilst incarcerated, the offender’s custodial attitude and behaviour is reported to be positive and he has completed two courses there. From this there is some evidence of demonstrated progress towards rehabilitation.
The offender has the support of his mother, who travelled from India for the sentencing hearing and his younger brother, who is in full-time employment with the public service in Melbourne.
The offender has an insight into the consequences of his behaviour and also has the prospect of being reunited with his children.
I find on the whole that the offender has favourable prospects of rehabilitation.
Criminal history
The offender has no criminal history.
Isolated incident
No evidence was led by the offender, on the sentencing hearing, that the events of the evening of 25 January 2015 constituted a single incident of domestic violence in an otherwise violence and abuse-free relationship with his wife.
I interpolate here to record that, contrary to a submission made to me, prior good character and the absence of criminal history are not congruent concepts, although they are related.
I keep firmly in mind that the offender is to be sentenced for the events of the night of 25 January 2015 and not for any other conduct. To the extent that the victim impact statement read to the court infers that the offender engaged in abusive or violent conduct on other occasions, I ignore that part of the statement.
Other cases
I have taken particular note of the decisions in R v TN [2013] ACTSC, Penfold J, 10 September 2013 and The Queen v Pinto-Pedreidrei [2010], Gray J, 27 May 2010, whilst having regard to cases on sexual assault generally.
Pearce v The Queen(1998) 194 CLR 610
I propose to order that the sentences be served concurrently. As a practical matter, it is one transaction involving overlapping violence and threats and the totality of the sentence will ensure that the offender is adequately punished.
Order
I am satisfied that no penalty other than imprisonment is appropriate.
On the count of sexual intercourse without consent, you are convicted and I sentence you to a period of imprisonment for 4 years. The sentence is to commence on 9 March 2016 and to end on 8 March 2020.
On the count of committing an act of indecency, you are convicted and I sentence you to a period of imprisonment for 12 months. The sentence is to commence on 9 March 2016 and end on 8 March 2017.
On the transfer charge of common assault, you are convicted and I sentence you to a period of imprisonment for 3 months. The sentence is to commence on 9 March 2016 and end on 8 June 2016.
I order a non-parole period of 2 years and 2 months. The offender will be eligible for parole on 8 May 2018. That is the earliest date on which the offender may be released.
| I certify that the preceding forty-six [46] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Robinson Associate: Date: 10 August 2016 |
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