Szabo v Ms

[2018] ACTMC 9

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

1. 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.

1. 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.

1. 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

1. 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. 

1. 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…