R v UG
[2018] ACTSC 243
•31 August 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v UG |
Citation: | [2018] ACTSC 243 |
Hearing Date: | 1 August 2018 |
DecisionDate: | 31 August 2018 |
Before: | Loukas-Karlsson J |
Decision: | See [55]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – burglary with intent to cause harm – act of indecency – sexual intercourse without consent – plea of guilty – intensive corrections order not suitable – custodial sentence – suspended after five months |
Legislation Cited: | Crimes Act 1900 (ACT) ss 54, 60 Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 33, 36 Criminal Code 2002 (ACT) s 311 |
Cases Cited: | CMB v Attorney-General of NSW [2015] HCA 9; 256 CLR 346 Hili v the Queen [2010] HCA 45; 242 CLR 520 Zdravkovic v The Queen [2016] ACTCA 53 |
Parties: | The Queen (Crown) UG (Offender) |
Representation: | Counsel Ms J Campbell (Crown) Ms B Dunne (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 114 of 2018 |
LOUKAS-KARLSSON J
Introduction
UG (the offender) has pleaded guilty to the offences of burglary with intent to commit an offence causing harm contrary to s 311 of the Criminal Code 2002 (ACT), an act of indecency without consent contrary to s 60(1) of the Crimes Act 1900 (ACT), and an act of sexual intercourse without consent contrary to s 54(1) Crimes Act 1900 (ACT).
The maximum penalty for burglary with intent to commit an offence causing harm contrary to s 311 of the Criminal Code 2002 (ACT) is imprisonment for 14 years, a fine of $210,000.00, or both. The maximum penalty for an act of indecency without consent contrary to s 60(1) of the Crimes Act 1900 (ACT) is imprisonment for 7 years. The maximum penalty for an act of sexual intercourse without consent contrary to s 54(1) Crimes Act 1900 (ACT) is imprisonment for 12 years.
Facts
The agreed facts are set out in the Statement of Facts which forms Exhibit 1 in these proceedings. The facts in short summary follow.
The offender was engaged to the victim’s sister. The offender and the victim knew each other.
On the evening of 2 March 2018, the victim had been at her step-mother’s house for a family dinner. The offender was staying the night at that house with his fiancée and children. During the evening, both the victim and the offender drank alcohol. The victim left her step-mother’s house at approximately 1:00am and returned to her home. At home, the victim went to bed and fell asleep.
At about 3:32am on Saturday, 3 March 2018 the victim woke to find a male on top of her kissing her neck and holding her wrists in front of her. The victim thought it was her partner, who worked at a night club and usually returned home from work on Sunday mornings. The victim was on her stomach and the offender then grabbed around her waist and turned her over on to her back and then held her wrists above her head. At this time the victim was still trying to wake. It was dark in the room and the victim could not see anything.
When the victim was on her back, the offender began kissing her cheek and sucked on her neck. Knowing this would leave a mark, the victim said, “babe stop, babe stop it”. The offender stopped for a moment then started kissing her chest. He then went back up to her neck and started kissing it again. The victim forcefully said, “no babe stop” and she pulled her wrists out and grabbed the offender’s face. The victim felt facial hair and realised at that point it was not her partner as he is clean shaven. The victim, in shock, said, “who the fuck are you”.
The offender stood up. The victim could see his shadow and noticed the male was a lot taller than her partner. The offender left the room and the victim turned on the light and saw the male walking down the hall. She noticed the male was wearing distinctive clothing that her ‘brother in law’ had been wearing earlier that night. She said the offender’s name, and the offender stopped walking and turned around. He then quickly walked out through the kitchen door. The victim yelled the offender’s name again and the offender walked out of the house. When the offender walked out of the house, the better lighting in the courtyard enabled the victim to recognise the offender.
The victim then phoned her step-mother and other family members. The victim was physically sick and vomited a number of times at her own house.
10. Soon after, the victim went to her step-mother’s house and approached the offender, saying, “how dare you do this to me, how dare you touch me”. The offender said, “I don’t know what you are talking about”.
11. The police arrived at approximately 6:00am and the victim participated in a Family Violence Evidence in Chief (FVEIC) interview.
12. When police attended the stepmother’s house the offender was sitting at the bus stop opposite the house. The offender said to police, “I have fucked up”. The offender was placed under arrest, cautioned and conveyed to Tuggeranong Police Station. He participated in a Digital Record of Interview (DROI) at 8:27am. The Statement of Facts indicates that he stated the following:
· Everything she has said is true;
· He had been drinking that night and woke up feeling the urge;
· He didn’t know what came over him;
· The victim had been on his mind as she had said earlier, “come over to my house, the kitchen door is open”. The invitation was to his whole family if they wanted to stay the night at her house rather than at her step mother’s house;
· About 3:15am he got into his car and went to the victim’s house;
· He entered the premises via the kitchen door which is always left open. The house was in darkness. He went straight into the victim’s room, where she was sleeping;
· He lay next to her in the bed and started ‘grinding’ her body and feeling her;
· He flipped her over and gave her a hickey on her neck, rubbed her nipples a little bit, played with her ‘snatch’ a little bit, this is when she started to wake up, then ‘dry humped’ her three of four times.
· He also licked her ‘snatch’. He pulled her underwear to the side and licked her ‘clit’;
· He sat on top of her belly and grabbed her shoulders, he looked at her, she looked at him. That’s when a switch flipped in his head saying it was wrong;
· She had reacted as if she was enjoying it as well. She had then realised who he was and stopped;
· He went to kiss her again and she pushed him away and then he got up out of the bed and walked outside;
· He heard her crying because she had realised who he was;
· He jumped back into his car and went back to the stepmother’s house;
· He was feeling tipsy and would not do this if he was sober;
· He admitted that the victim was asleep during most of the sexual activity and that when she started to wake up he knew she did not know it was him;
· He sent a text to the victim saying something like “door’s locked” but he does not know why he sent this message, as he did not enter through the front door, and knew exactly where he was going.
13. The offender consented and participated in a forensic procedure in the form of a buccal swab. The victim had a forensic medical examination and swabs were taken from her vaginal area. Preliminary results of the examination of the swabs taken from the victim’s labia matched the offender’s DNA.
Victim Impact Statement
14. The extent of the impact upon the victim was made clear by the victim impact statement which was read out by the prosecution at the sentence proceedings. The reading of the victim impact statement is important as the offender heard what the victim had to say. Courts know of the serious effects of such offences. Nevertheless it is valuable to hear the words of the victim. The statement demonstrates the profound impact of the offending conduct. The victim in her victim impact statement spoke of the psychological impact that the commission of the offences has had on her. She also spoke of her isolation from friends and family, not feeling safe in her own house, and the financial consequences. She does not talk to her sister. She also spoke in her statement of the breach of trust. The Court acknowledges the very significant impact that the offences have had and continue to have on the victim.
Objective seriousness
15. Counsel for the offender conceded the seriousness of the offending, and stated in relation to objective seriousness that it was very serious offending as it occurred while the victim was sleeping in her own home, defenceless, and waking up to find the offender in her bed sexually assaulting her.
16. The prosecution emphasised that there was some level of planning in that the offender left the house where his partner and children were sleeping and drove to the victim's house. The prosecution also emphasised that the sexual offences were committed in the victim’s own home. In relation to the burglary, the prosecution emphasised the significant breach of trust in coming to the house with an intention to sexually assault his sister-in-law. The prosecution accepted the offender’s submission that there was no threat or use of violence, but emphasised the seriousness of the commission of sexual offences on a sleeping person in their own home. On objective seriousness, the prosecution accepted that the offender desisted once he was recognised.
17. I accept the submissions of both counsel for the prosecution and counsel for the offender with respect to the objectively serious nature of the offending. This is objectively serious sexual offending occurring in the home of the victim while she slept. There was some level of planning in relation to the offences.
18. As a matter of law, the offences do not fall into the worst category of offences of their type: see R v Aroub [2017] ACTSC 187 at [16] (Aroub).
Subjective circumstances
19. A pre-sentence report was prepared for the sentence hearing. The offender is a 28 year old man. His parents separated in 1993, before he turned four, and he remained with his mother. His mother remarried. He has regular contact with his mother and siblings. The offender began his relationship with his now ex-partner in 2011. The relationship ended in March 2018 as his ex-partner is the sister of the victim in this matter. He has three children with his ex-partner. The children are under three years of age, and he continues to reside with his ex-partner approximately 3 to 4 days per week to assist with co-parenting. The offender stays with his mother on the remaining nights. According to the pre-sentence report the offender completed year 12 at a private school and then completed an automotive apprenticeship and obtained a trade certificate. He has maintained full-time employment throughout most of the past 10 years with an ACT car dealership. The offender has participated in the ACT gridiron competition and had been selected to represent Australia. The offender acknowledged he had consumed a significant amount of alcohol on the night of the offence. There was no report of problematic alcohol consumption prior to the offence. There is no history of illicit drug use. There are no mental health issues.
20. The offender agreed with the statement of facts, and according to the author of the pre-sentence report he acknowledged he had taken advantage of the victim. He stated he had realised his actions may have had a significant adverse impact on his victim, potentially resulting in prolonged psychological distress and fear for her safety. He also stated his offence had also caused considerable harm to the relationship between his ex-partner and the victim.
21. The author of the pre-sentence report concluded that the offender has strong support from close family members and an amicable relationship with his ex-partner. The report concluded that the offender has led a prosocial life characterised by a history of stable employment, a long-term relationship and supportive relationships generally, along with no prior contact with the criminal justice system. He was therefore assessed as having a low risk with regard to general offending and sexual reoffending. The report emphasised the offender’s acknowledgement of the harm that he had caused upon his victim and her family.
References and Testimonials
22. A number of character references were in evidence before me in relation to the offender. The first was from a friend who has known him for over a decade, who speaks of the offender as an “outstanding” father to his three children. The reference speaks of the offences being completely out of character. The second reference was from his employer with whom he first began as a first-year apprentice in 2011. He currently works there as an automotive technician. The reference speaks of him as a responsible and valued employee. The third reference is from a friend with whom he has grown up from high school. He speaks of the offender as a hard worker and a great provider for his family and as someone who has never been violent or aggressive. The reference speaks of his shock in relation to the offences as the offender's attitude towards women has always been respectful. The reference also speaks of the genuine remorse that the offender has expressed. The fourth reference is from the wife of his uncle and speaks of knowing the offender since he was child. The reference speaks of him as a loving and devoted father and also speaks of the offender’s regret, remorse, and the detailed confession the offender gave the police. The fifth reference is from a friend who has known him since 2006 and speaks of the offender’s kindness and goodwill. The reference speaks to the offence being strongly out of character and the reference also speaks of the offender’s remorse.
23. Additionally, a reference was provided by the offender’s ex-partner, who is the mother of his three children and the sister of the victim. The reference speaks of his continuing devotion as a father and of their working together to be good parents above all.
24. Overall the references and testimonials speak to the offences as being out of character and to the offender as being remorseful in relation to the offences.
Criminal history
25. The offender has no prior criminal history. The prosecution accepted that the offender is a person of prior good character.
Plea of guilty
26. The offender entered pleas of guilty at the earliest opportunities. The offences of burglary with intent to commit an offence causing harm and act of indecency without consent were charged first. The offender entered pleas of guilty to these offences on 27 March 2018. The offence of an act of sexual intercourse without consent was charged on a later date. The offender entered a plea of guilty to this offence on 15 May 2018.
Disclosure of Unknown Guilt
27. Counsel for the offender raised the fact that the offender made full admissions that went beyond the allegations that the victim had made, given that she was asleep during part of the conduct. Submissions were made in accordance with R v Ellis (1986) NSWLR 603 (Ellis). Counsel for the offender accepted that the forensic material would ultimately have formed a basis for the sexual intercourse without consent charge. Nevertheless it was submitted an Ellis discount is appropriate in the circumstances of this charge. Counsel for the prosecution accepted that there is an element of disclosure of unknown guilt in this case. Counsel for the prosecution also submitted that this was not a situation where the offence would not ever have been discovered as it was clear that the forensic material ultimately provided DNA evidence. In the ACT sentencing regime embodied in the Crimes (Sentencing) Act 2005 (ACT), the Ellis discount is encompassed not just under s 33(1)(w) in relation to remorse, but is also encompassed in assistance to law enforcement under ss 33(1)(l) and 36: see CMB v Attorney-General of NSW [2015] HCA 9; 256 CLR 346 at [72] discussing similar legislation.
Remorse
28. I accept that the offender is remorseful. The offender has expressed his remorse to a number of people. This is in evidence before me in the references I have referred to. It is also in evidence before me in the pre-sentence report in his acknowledgment of the harm he has caused upon the victim. The plea of guilty in the circumstances of this case underlines the offender’s remorse. The Crown accepted in oral submission that he has demonstrated genuine remorse from the outset when he made admissions to the police on the morning in question.
Time in custody
29. The offender was arrested on 3 March 2018 and granted bail on 5 March 2018. The offender has spent two days in custody referable to the offences.
Consideration
Cases
30. Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). There are a number of decisions of this Court relating to similar offences. The following cases from this jurisdiction provide a “yardstick” as referred to by the High Court in relation to this sentencing exercise: Hili at [53]–[54].
31. The prosecution referred me to the following cases.
32. In R v Buckley (Unreported, Supreme Court of the ACT, Nields AJ, 30 August 2013), the offences were trespass with intent to cause harm, sexual intercourse without consent by digital penetration, and sexual intercourse without consent by cunnilingus. The offender was a friend of the victim and her husband. The victim and offender, and their respective families, both lived within the Royal Military College housing complex. The offender entered the victim’s home, did not switch a light on, and performed various sexual acts on the victim, including kissing, touching her breasts and genitalia, removing her shorts and underpants, digitally penetrating her vagina, and cunnilingus. At some point, the victim asked the offender, “Are you alright”, to which the offender responded, “Yep”. The victim then realised that this was not her husband, and pushed the offender away saying, “Oh my God, oh my God”. This prompted the offender to run from the home. The offender pleaded not guilty and proceeded to trial, where he was found guilty of all three offences. The offender had no prior criminal record. The offender received sentences of three years for burglary, and five years for the sexual intercourse without consent charges, all to be served concurrently with a non-parole period of two years, six months. In this case, there was no plea of guilty as there is in the offender’s case.
33. In R v Buda-Kaa [2013] ACTCA 46, the offences were sexual intercourse without consent by digital penetration, act of indecency without consent by touching the victim’s breast, and act of indecency without consent by attempting to touch the victim’s genitalia. The victim had been a friend of the offender’s mother for about 14 years. The victim was asleep in her bedroom, when she was awakened by the offender getting in to bed with her naked, at which point she thought that the offender was one of her children. The offender then kissed the complainant and spoke to her, prompting her to realise his identity. She pushed him away, however he touched her breast, and he tried to touch her genitalia, and penetrated her vagina with his finger. At first instance, the offender was sentenced to 3 years for the sexual intercourse offence, and 9 months for each of the act of indecency offences, all to be served concurrently. The non-parole period was 1 year and 6 months. The prosecution appealed this sentence on the grounds of manifest inadequacy of head sentences on each count and of the non-parole period, that the sentencing judge erred in making the sentences wholly concurrent, that the sentencing judge erred in giving disproportionate weight to the offender’s mental illness, that the sentencing judge erred in considering the lack of violence on the part of the offender to be a mitigating circumstance, and that that the sentencing judge erred in considering that digital as opposed to penile penetration was a mitigating factor. The appeal was dismissed.
34. In R v Henderson [2006] ACTCA 17, the offender was found guilty by a jury of four counts: burglary armed with an offensive weapon, engaging in sexual intercourse without consent, and two counts of dishonest appropriation of property. The victim was asleep in a bedroom of her apartment, when the offender climbed on to the balcony and entered the unit through a sliding door. He removed her ATM card from the living room, then entered the complainant’s bedroom. He placed a knife against her throat and fondled her breast, prior to touching and penetrating her vagina. He opened his trousers and removed his penis, threatening that he would hurt her if she did not comply as he moved her hand backwards and forwards on his flaccid penis. He then demanded money, taking approximately $1045.00 in US and Australian currency, took two mobile phones and a laptop, and left. At first instance, the offender was sentenced to three years imprisonment for the first count being burglary armed with an offensive weapon, seven years imprisonment for the second count being sexual intercourse without consent, and six months imprisonment for each of the offences in the third and fourth counts, being dishonest appropriation. The sentence imposed for the offence charged in the first count was to be served concurrently with that of the second count, but that the latter was cumulative upon the sentencing applicable to the offence in count four which was to be served concurrently with that charged in count three. The sentencing judge imposed a non-parole period of nearly four years and 11 months, with a total sentence of seven years and 11 months. On appeal, the sentences were considered inadequate, and it was considered that three years of the sentence for count one should be served concurrently with the sentence for sexual intercourse without consent, with the balance to be served cumulatively. This increased the overall term of imprisonment to approximately nine years and 11 months, with a non-parole period of five years.
35. In R v Kenny King [2008] ACTCA 12, the offender had an extensive criminal history including burglary and assaults. He pleaded guilty to an offence of sexual intercourse without consent, and trespass. The offender had followed the victim back to her townhouse, where she was at the time of the offences sleeping in her bed, and entered through an unlocked door. He entered the victim’s bedroom, removed his pants and underwear, and climbed into bed with the victim. He put his erect penis inside her vagina and began thrusting it in and out of her vagina. The victim was awoken by this, and initially believed it was her partner having intercourse with her due to the dark room. However, when the offender flipped the victim over, she felt a large amount of his chest hair, and immediately realised that the offender was not her partner. She jumped off him and screamed at him to get out of her house. At first instance, the offender was sentenced to imprisonment for 2 years and 10 months, with a non-parole period of 20 months. A crown appeal on the basis of manifest inadequacy succeeded, such that on appeal the sentence was replaced with a sentence of four years, with a non-parole period of two years and six months.
36. In addition to the cases referred to by the prosecution, the following cases are also relevant as yardsticks as referred to in Hili.
37. In Aroub, the offender was found guilty by a jury of one offence of sexual intercourse without consent, and one act of indecency without consent. The victim and her friend met the offender whilst at a nightclub in civic. They returned to the offender’s house with others in the early hours of the morning, where eventually the victim went to a spare room and lay down to go to sleep. The victim awoke to find the offender digitally penetrating her. The offender had unzipped her dress and was kissing her back. The offender received concurrent sentences of two months in relation to the act of indecency, and two years in relation to sexual intercourse without consent. The first six months of this sentence was to be served by way of full-time imprisonment, with the sentence fully suspended thereafter. One factual difference is that in Aroub, the victim indicated to the offender that he should desist but initially he did not do so, whereas the offender in this case did desist. Again, this was a matter that did not involve a plea of guilty whereas the offender pleaded guilty at an early opportunity.
38. In R v Kindl [2015] ACTSC 128, the offender pleaded guilty to an act of indecency without consent, involving the offender touching the complainant’s breasts and stomach, engaging in partial digital penetration and pushing his semi-erect penis between the complainant’s buttocks. The victim and her fiancée had been at the offender’s house playing video games, when the victim went to sleep alone in the offender’s room. Her fiancée and the offender, alongside another friend, continued to play video games, and the victim’s fiancée eventually fell asleep on the couch. The offending conduct occurred in the offender’s bedroom, whilst the victim initially perceived the offender to be her fiancée. The offence was considered to be of high-range objective seriousness. Significant subjective circumstances, including substantial early childhood abuse, intellectual disability, and mental ill-health of the offender, were taken into account. The offender received a sentence of 12 months’ imprisonment, fully suspended upon entering into a two year good behaviour order.
39. In R v US [2016] ACTSC 130, the offender pleaded guilty to one count of sexual assault in the second degree, three counts of sexual intercourse without consent, one count of attempted sexual intercourse without consent, one count of assault occasioning actual bodily harm, one count of burglary and one count of theft. The victim was not asleep when the offending commenced. The offender entered the victim’s home with the intent to steal property, and whilst inside, threatened the victim with a knife, where the victim broke her coccyx whilst struggling to break free. The offender tied the victim’s hands and put a pillow slip over her head. The offender repeatedly thrust his fingers inside the victim’s vagina, ordered that the victim “finger” herself, and attempted to insert his penis into the victim’s vagina. The offender intermittently rummaged through the victim’s drawers. The offender also had penile-anal intercourse with the victim. He then continued rummaging through the victim’s belongings. He then had further penile-anal intercourse with the victim. He left the room, and returned with a knife, which he ran over the victim’s naked body, grazing her on her shoulder. He ordered the victim to shower, and whilst in the shower, left her house, taking two laptops and two Apple iPods. Significant subjective circumstances, including substantial childhood abuse leading to foster care, significant drug abuse and addiction, intellectual disability, and mental ill-health of the offender, were taken into account. The offender had a significant, recent criminal history of similar offending, including sexual offences against a five year old child. The offender was also under the age of 18 at the time of the relevant offending. The offender was sentenced to concurrent sentences of 19 months for the offence of burglary, and eight months for the offence of theft, in addition to concurrent sentences of four years for the offence of sexual assault in the second degree, and three years and two months in respect of two of the offences of sexual intercourse without consent and the offence of attempted sexual intercourse without consent, in addition to four years for the further charge of sexual intercourse without consent, and 20 months for the offence of assault occasioning actual bodily harm. This resulted in an aggregate sentence of six years imprisonment, with a five year good behaviour order commencing at the conclusion of the aggregate sentence.
40. In R v Ballantyne (Unreported, Supreme Court of the ACT, Murrell CJ, 1 April 2014), the offender was found guilty by a jury of one offence of sexual intercourse without consent. The offender and the victim were both guests at an eighteenth birthday party of a friend. The victim lay down under a blanket on a couch in the living room towards the end of the party to go to sleep. The offender lay behind the victim, pulled her stockings down and digitally penetrated her. The victim sat up and saw the offender, at which point she left the room very upset. The offender was 19 at the time of the offences, which were considered to be of low objective seriousness. The offender was sentenced to 18 months imprisonment, six months of which were to be served by periodic detention, with the remaining 12 months to be a suspended sentence, with a good behaviour order for the same period. Again this was a matter not involving a plea of guilty whereas the offender pleaded guilty at the earliest time.
Intensive Corrections Order Assessment
An intensive corrections order (ICO) assessment was sought by counsel for the offender. In my view, an intensive corrections order, while not a lenient sentence, entails a degree of leniency that cannot be extended in this case in light of the objective seriousness of the offending.
Statutory and Other Considerations
In sentencing the offender, the court is required to take into account those matters under s 33 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) that are known and relevant. I have referred to the relevant matters above.
The court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7 of the Sentencing Act. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, and recognition of harm to the victim are important sentencing considerations. Rehabilitation is also an important consideration having regard to the offender’s remorse, previous good character, early pleas of guilty and disclosure of unknown guilt.
The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. In this case, I have determined as discussed above that a period of full time custody rather than an ICO is appropriate in light of the seriousness of the offending.
In the present case, relevant sentencing purposes include adequate punishment, general and personal deterrence, protection of the community, accountability, denunciation and recognition of harm to the victim. It is important for the Court to send a message that offences of sexual violence against women will not be tolerated.
Counsel for the offender submitted that hardship to the offender’s family was a mitigating factor. The prosecution submitted that in accordance with the authorities, the cicrcumstances must be exceptional to be a mitigating factor. In this case, I find that the circumstances are not exceptional and therefore deal with this as part of the subjective matters: see s 33(1)(o) of the Sentencing Act.
As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.
Ordinarily, significant offences of sexual assault will result in sentences of full time imprisonment. The ACT Sentencing Database statistics show that 83 per cent of s 54 offenders receive sentences of full time imprisonment, 12 per cent receive partially suspended sentences and only five per cent receive fully suspended sentences. Sentences are generally in the range of three to five years: Aroub at [42]. As discussed above, bare sentencing statistics provide limited assistance: see Pham; Hili.
When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v The Queen [2016] ACTCA 53 at [64] (Zdravkovic).
The real question is whether the total sentence is “just and appropriate” to reflect the total criminality: Mill v The Queen [1988] HCA 70; 166 CLR 59; R v Meyboom [2012] ACTCA 48 at [66]; Zdravkovic at [71].
Sentence
51. I have had regard to the range of sentences imposed for offences of this nature. I have taken into account the offender’s early plea of guilty and have reduced the sentence that I would otherwise have imposed by approximately 25%.
52. I consider that the appropriate starting point is a sentence of imprisonment of 32 months, reduced to 24 months on account of the plea of guilty.
53. The next issue is how it should be served. I have already stated that I do not consider that an ICO would be appropriate having regard to the seriousness of the offence. I consider that a fully suspended sentence, even if combined with a Good Behaviour Order requiring community service, would not be sufficient to reflect the gravity of the offending conduct and the need for general deterrence. Having said that, because this will be the offender’s first custodial sentence, a short period of imprisonment prior to suspension is appropriate, taking into account the offenders remorse, previous good character, early plea of guilty, disclosure of unknown guilt and good prospects for rehabilitation. In the present case I consider a short period of imprisonment of five months prior to suspension is called for. This will reflect the gravity of the offending conduct to the offender and indicate to him what he faces if he fails to be of good behaviour during the period of his Good Behaviour Order.
54. I have taken into account the Ellis component as to the disclosure of unknown guilt in undertaking the process of instinctive synthesis in relation to the act of sexual intercourse without consent contrary to s 54(1) of the Crimes Act 1900 (ACT). Further, taking into account the fact that these offences formed part of the one episode, the sentences will include a substantial degree of concurrency. Additionally, I acknowledge the need, where the offences are part of one episode, to avoid the double counting of punishment and take this into account. I also take into account the two days presentence custody by commencing the sentence two days earlier than today.
Orders
I make the following orders:
(a)In respect of the offence of burglary with intent to commit an offence causing harm (CC18/03507), the offender is sentenced to 18 months imprisonment commencing 29 August 2018 until 28 February 2020.
(b)In respect of the offence of sexual intercourse without consent (CC18/5310), the offender is sentenced to 15 months imprisonment commencing 28 February 2019 until 27 May 2020.
(c)In respect of the offence of an act of indecency without consent (CC18/3508), the offender is sentenced to 6 months imprisonment commencing 29 February 2020 until 28 August 2020.
(d)The sentence is to be suspended after having served 5 months of imprisonment from 29 August 2018 until 28 January 2019, upon the offender’s entry into a good behaviour order for a period of 19 months, with the core conditions imposed, and the following further conditions:
(i)Accept the supervision of ACT Corrective Services until 28 August 2020 or such lesser period as deemed appropriate by the offender’s supervisor and to obey all reasonable directions of ACT Corrective services.
(ii)Be assessed for, and if found suitable, participate in the Adult Sex Offender program as directed by ACT Corrective Services.
| I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Sentence her Honour Justice Loukas-Karlsson Associate: Date: 31 August 2018 |
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