The Queen v NQ
[2015] ACTSC 308
•14 October 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | The Queen v NQ |
Citation: | [2015] ACTSC 308 |
Hearing Date(s): | 12 October 2015 |
DecisionDate: | 14 October 2015 |
Before: | Robinson AJ |
Decision: | See [16] - [19] |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence – particular offence – offences against the person – sexual offences – act of indecency – assault with intent to engage in sexual intercourse |
Legislation Cited: | Crimes Act 1900 (ACT) ss 60(1), 53(1) Crimes (Sentencing) Act 2005 (ACT) s 12 |
Parties: | The Queen (Crown) NQ (Offender) |
Representation: | Counsel Ms J Campbell (Crown) Mr A Fraser (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Armstrong Legal (Offender) | |
File Number(s): | SCC 183 of 2015 |
ROBINSON AJ:
This published version has been edited in accordance with s 40(1) of the Evidence (Miscellaneous Provisions) Act 1991. The original text has been de-identified and contains deletions, substitutions and paraphrasing.
NQ, the offender, pleaded guilty in the Magistrates Court to the following:
(a)An act of indecency in contravention of s 60(1) of the Crimes Act 1900.
(b)Unlawful assault with intent to engage in sexual intercourse in contravention of s 53(1) of the Crimes Act 1900.
These offences carry maximum penalties of 7 years and 12 years imprisonment respectively.
Following his pleas of guilty the offender was committed to the Supreme Court for sentence.
It was conceded by the Crown that the offender pleaded guilty at the first reasonable opportunity and that his pleas demonstrated remorse and that he fully cooperated with police in relation to the investigation of the offences.
I intend to allow an approximate 25% discount for the utilitarian value of this plea and the remorse associated with it.
The offender was in custody for 1 day before he obtained bail.
The offences
A short summary of the offences can be taken from the statement of facts tendered at the hearing:
The offender and the complainant WQ are married and live together at [suburban Canberra]. They have been in a relationship for 17 years and have 3 children.
On the evening of Friday 10 July 2015 the offender and the complainant were drinking alcohol and watching television together. Just before 11pm the complainant got up to prepare for bed. The offender said “Don’t go, stay and help out.” The offender indicated to his open fly on his pants and the complainant understood this to be him requesting oral sex.
The complainant said “No I have a busy day tomorrow and I am really tired.” The complainant then left the lounge room and went to bed.
The offender continued to watch television for a further 5 minutes, then walked into the bedroom. The complainant was in bed and the offender walked to the edge of the bed and said “Suck my cock.”
The complainant said “No” and the offender repeated “Suck my cock.”
The complainant continued to refuse and the offender started to get angry and demanded “Do it now and get it over with.”
The complainant began to cry, telling the offender to leave her alone.
The offender said “Do you think you’re crying is going to get what you want? It’s your job to do it.”
The offender took off all his clothes off and climbed on the bed, He positioned himself over the complainant, knees either side of her and pinned her to the bed by placing one hand on each of her shoulders. This caused pain to the complainant’s shoulders. The complainant attempted to push the offender off her, by scratching at his arms and face.
The offender got off the complainant and was sitting on the edge of the bed, continuing to talk to her angrily. The complainant told him that he would wake the kids if he kept yelling.
He grabbed the complainant’s shoulder and dragged the complainant across to the edge of the bed. He grabbed her hair and pushed her head close to his penis and said “Now! Suck my cock.”
The offender tried to slap the complainant twice with his right hand, but was blocked by the complainant’s hands.
The offender said “Your tears are turning me on”
The offender continued his demands for oral sex.
The complainant continued to struggle against the offender and she fell off the bed, with her back and head hitting the floor, whilst her feet remained on the bed. The offender sat on her feet causing pain to the complainant.
After a short time, the offender stood up, and pulled the complainant by her hair onto the bed. He again pinned her down on the bed with her arm stuck behind her causing her pain. The complainant continued to cry and asked him to let go of her arm.
The offender placed his head next to the complainant’s ear and shouted “You need to suck me off, it’s not about love or intimacy.”
The complainant was pleading for him to let go. The offender said “What can you do about it?” The offender then became upset, started talking about their children and started to cry. He let the complainant get up, telling her “Go and sleep with the children”. This incident lasted about 1 hour.
The complainant left the room and called the police. The police attended at about 12.40am and spoke to the complainant who was clearly distressed. The offender was arrested. He had visible scratch wounds on his arms, neck, face and torso.
Objective Seriousness
There can be no doubt that these offences are serious. The assault lasted almost an hour. It included both physical and mental abuse. I take into account the fact that prior sexual relationship is relevant in assessing the seriousness of sexual assault. Here it is not a sexual assault by an unknown stranger which would give rise to extreme terror in the mind of the complainant. I have no more specific evidence before me on the harm caused by the assault.
Subjective Circumstances
The offender gave evidence before me. He was born in New Zealand and is [in his mid forties]. He has been in a relationship with his wife, [occupation], for 17 years. They have three children aged [under 10] years. They live in their own home and have done so for 11 years. He has no prior criminal history.
The offender has been employed full time by [ ] in the IT industry for more than 10 years. He and his wife have recently purchased an investment property.
A matter of significance is that the offender had his bail conditions changed on 28 July 2015, and as a result of this has been residing in the family home since that time. It is possible to infer there is a measure of reconciliation. The offender told me he has been working to “rebuild the relationship”.
The authors of the Pre- Sentence Report records the offender as acknowledging that he has a difficulty with alcoholic spirit drinks as opposed to beer and that has an adverse affect on his behaviour. The offender has begun alcohol counselling sessions with Directions ACT.
The opinion of the authors of the Pre-Sentence Report set out their opinion as follows-
NQ is assessed as presenting a low risk of re-offending as he has stable employment which offers financial security and he utilises his free time in a constructive manner. He has also demonstrated a willingness to engage with support services.
It is noted the index offence was committed within a domestic context and according to NQ; it is not an isolated incident of abuse within his marriage. A number of risk factors have been identified relating to NQ’s attitudes and the justifications he offered for his behaviour.
Whilst it is acknowledged that NQ has made efforts to avail of services to address his use of alcohol and his current emotional challenges, there are ongoing concerns for the safety of this wife and the potential impact domestic abuse could have upon his children. NQ indicated a willingness to participate in assessments for interventions which will aim to promote his ability to exercise respectful and effective communication skills within his relationship.
The offender again acknowledged in evidence before me that the events of 10 July 2015 were not an isolated incident of abuse. To an extent, that mitigates against the leniency which could otherwise be shown in this case. On the other hand the offender has promptly taken up opportunities to assist himself and taken responsibility for his offending.
Disposition
I have come to the view that only a sentence of imprisonment is appropriate to the level offending in this case. There is a need to punish this offending and to send a clear message by way of general deterrence to others that participation in sexual behaviour is a matter of choice not subjugation. I have also determined to deal with the offending as if it were only one transaction and impose concurrent sentences.
Order
For the offence of unlawful assault with intent to engage in sexual intercourse you are convicted and sentenced to imprisonment for 1 year and nine months. That sentence has been reduced by a factor of 25% from 2 years 4 months. The sentence is to commence on 14 October 2015.
For the offence of an act of indecency you are convicted and sentenced to imprisonment for 7 months. That sentence has been reduced by a factor of approximately 25% from 9 months. That sentence is to commence on 14 October 2015.
Pursuant to s 12 Crimes (Sentencing) Act I order that the sentences are to be wholly suspended upon the offender entering into a good behaviour order for a period of three years and include a condition that the offender submit to the supervision of ACT Corrective Services and undertake programs directed to the offending behaviour as directed by that Service, for such period as ACT Corrective Services deems necessary.
The offender is to report to Eclipse House within 48 hours of entering into the Good Behaviour Order.
| I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Robinson. Associate: D.Hoitink Date: 14 October 2015 |