Szabo v Ms
[2018] ACTMC 9
•4 June 2018
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Szabo v MS |
Citation: | [2018] ACTMC 9 |
DecisionDate: | 4 June 2018 |
Before: | Magistrate Theakston |
Decision: | See paragraph 28 |
Catchwords: | CRIMINAL LAW – Judgment and Punishment – Sentence – Act of indecency without consent |
Legislation Cited: | Crimes Act 1900 (ACT) s 60 (1) Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 33 |
Cases Cited: | Russell v Forshaw [2017] ACTMC 17 |
Parties: | Allora Szabo (Informant) MS (Defendant) |
Representation: | Counsel Ms S Janackovic (Informant) Mr A Fraser (Defendant) |
| Solicitors Director of Public Prosecutions (Informant) Armstrong Legal (Defendant) | |
File Number: | CC 3251 of 2018 |
MAGISTRATE THEAKSTON:
Background
The defendant is before the court for sentence, having pleaded guilty to the charge committing an act of indecency on AA, without her consent and while being reckless as to whether she had consented to the act. The defendant consented to being sentenced by this court.
The maximum penalty for the offence is 7 years. In Russell v Forshaw [2017] ACTMC 17 at [4], I noted the following with respect to the court’s jurisdictional sentencing limit:
I note my jurisdictional sentencing limit of $15,000 and or 5 year’s imprisonment for the offence … : s 375(15) Crimes Act 1900. I also note that notwithstanding that jurisdictional limit, I should impose a sentence reflecting the objective seriousness of the offence tempered, if appropriate, by the subjective circumstances of the defendant taking care not to exceed the jurisdictional limit. I should not regard my jurisdictional sentencing limit as being reserved for a worst case. Put another way, I should not impose a lesser sentence simply because the charge is before this court rather than the Supreme Court: Beniamini v Craig [2017] ACTSC 30 (23 February 2017) at [101] – [103]. If I form the view that I have insufficient sentencing powers to impose an appropriate sentence, I should then not dispose of the matter summarily and instead commit the defendant for sentence to the Supreme Court: s 375(12)(c) Crimes Act 1900.
Earlier in the proceedings, and notwithstanding the defendant having consented to the jurisdiction of this court, the prosecution applied for the matter to be committed to the Supreme Court for sentence. However, the prosecution ultimately conceded that my sentencing powers were not insufficient, and I consequently refused the application.
The Circumstances of the Offences
The defendant, the complainant and others drank heavily at the defendant’s 24th birthday party, which was located in an apartment where the defendant lived with his parents and younger brother. The complainant had known the defendant for approximately two years through her boyfriend, who was in Sydney that night.
During the evening the complainant went to sleep in a single bed located in an unoccupied bedroom. The room belonged to the defendant’s younger brother who was sleeping elsewhere. Another couple were already asleep in the defendant’s bedroom. Later that evening, the defendant entered his brother’s bedroom and asked the complainant to move to a second and smaller single bed located within the room. The complainant moved as requested and fell back to sleep. The defendant laid down on the larger bed.
At about 5:00am the complainant awoke to the feeling of something moving in her underwear. The defendant’s hand was in her underwear with his index and ring finger on her vulva and his middle finger on her clitoris area, moving in an up and down motion. The defendant’s other hand was holding the complainant’s right hand.
As the complainant started to move, the defendant froze and slowly removed his hand from her underwear. The complainant saw the defendant sitting on the edge of the larger bed facing her. As he pulled his hand away, he then laid down on the larger bed and pretended to be asleep.
The complainant realised that three buttons on the front of her shorts were undone. They had been done up when she fell asleep.
The complainant became upset and collected her belongings to leave. The defendant repeatedly apologised and sat in front of the closed bedroom door preventing the complainant from leaving. After the complainant threatened to scream, the defendant moved and the complainant left the room and apartment, and walked to her vehicle. The defendant followed her outside while repeatedly apologising to her for what had occurred. At one point the defendant attempted to enter the complainant’s car before the complainant drove away.
Some of the material before me suggested that the defendant had, due to his level of intoxication, mistakenly believed that the person he was touching was his girlfriend. However, it was expressly conceded on behalf of the defendant, that the defendant was aware of the identity of the complainant at the relevant time.
The Defendant’s Subjective Circumstances
The defendant comes before the court without a criminal history.
I have had the benefit of receiving a Pre-Sentence Report, a large number of references and a letter from the defendant. The defendant is 24 years of age. He was born in The Philippines, immigrated to Australia at the age of 13 years and has been living in Canberra with his family since 2010. As suggested above, he still resides with his parents and younger brother.
Last year he completed a Bachelor’s Degree in Information Technology. He is now employed full time on a non-ongoing basis as a computer programmer with a Commonwealth agency. I understand that this is his first job after completing university and he is performing well. He has a significant HECS debt.
The defendant remains in a relationship with his girlfriend and continues to have her support, notwithstanding her knowledge of the offence.
The material describes a concerning history of binge drinking, but with no suggestion of any previous adverse incidents. Since the night of the offence the defendant has not consumed any alcohol. His observations and comments impress upon me that he is now very much cognisant of the dangers of intoxication and is unlikely to drink to any significant degree for the foreseeable future.
The numerous references paint a consistent and persuasive picture of the defendant. He is described as respectful, polite and caring. He is generous with his time, takes responsibility for his family and has a strong work ethic. I accept those characterisations. He is clearly otherwise of good character.
The references, the defendant’s letter and the Pre-Sentence Report describe the palpable effect that the offence has had on the defendant. It can be summarised as shock, disbelief, concern for the complainant, shame and the full acceptance of responsibility. He has taken tangible action consistent with those sentiments, including entering a plea of guilty at the very first court appearance, abstaining from alcohol consumption and participating in psychological treatment. He is clearly affected by the event and concerned about how his inappropriate behaviour will impact upon himself and others in the future.
The defendant has been assessed as suitable for community service.
Consideration of Sentence
During the submissions I was not taken to any comparable sentencing decisions.
I take into account the various purposes of, and relevant considerations for, sentencing as provided at ss 7 and 33 of the Crimes (Sentencing) Act 2005. The offence was serious in that it involved the breach of the complainant’s personal integrity in the most intimate of ways. It also involved a breach of the trust put in the defendant by the complainant when she decided to stay overnight at the defendant’s home. I note that there was no struggle or physical force used during the offence, which may have otherwise increased the trauma experienced by the complainant. I also note that the defendant was significantly intoxicated at the time he committed the offence, and the offending appears to be opportunistic in nature.
While there was no Victim Impact Statement before the Court, the agreed facts described the complainant being very upset by the incident. That is not surprising. Waking up in such circumstances would have clearly been very shocking for the complainant. However, there is no evidence indicating that the complainant may suffer ongoing psychological consequences.
I take into account the defendant’s plea of guilty at the very earliest of available opportunities. It evidences his remorse and acceptance of responsibility and provides the court and others, in particular the complainant, with the utilitarian benefit that no hearing was necessary.
I take into account the defendant’s background and his otherwise good character. I accept that what occurred on the night in question was aberrant behaviour.
I take into account the defendant’s remorse, the significant degree to which he has accepted responsibility for his actions, and the steps he has taken to reduce the likelihood the behaviour could occurring again.
Clearly there is a need to denounce the inappropriate conduct of the defendant and to make him accountable for his actions. There is a need to recognise the harm done to the complainant. I am persuaded that the defendant has the capacity and intent not to reoffend, and therefore specific deterrence need not feature so highly. However, there remains the need to deter others from offending, who may find themselves in similar circumstances.
The sentence that I do impose must be of some significance to ensure that the defendant is adequately punished for the offence in a way that is just, appropriate and not unreasonably disproportionate to the nature circumstances of the offence.
When I consider the available sentencing options, I am satisfied that no penalty other than a period of imprisonment is appropriate. However, the defendant is still relatively young and appears to have very good prospects for rehabilitation. Accordingly, I will suspend that imprisonment.
Sentence
In relation to the charge, I record a conviction. The defendant is sentenced to 3 months, 3 week’s imprisonment, fully suspended upon entering into a good behaviour order for 18 months with the condition that the defendant is to undertake 128 hours of community service within 12 months.
But for the plea of guilty I would have imposed 5 months imprisonment.
| I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Magistrate Theakston. Associate: Sam Lynch Date: 4 June 2018 |