R v Agresti [2016] ACTSC 9

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - sexual intercourse without consent and being reckless as to consent - guilty verdict following trial by jury - ADFA cadet - intoxication - sentencing purposes - low risk of reoffending

R v Ballantyne (Unreported, Australian Capital Territory Supreme Court, Murrell CJ, 1 April 2014)

_R v Buckley (_Unreported, Australian Capital Territory Supreme Court, Nield AJ, 30 August 2013)

R v MT [2014] ACTSC 162

R v Taylor [2015] ACTSC 43

1. On 10 September 2015, the offender was found guilty of the offence that on 22 or 23 June 2013 in Canberra he engaged in sexual intercourse with the victim without her consent and was reckless as to whether she was consenting.

2. This is an offence against s 54(1) of the Crimes Act 1900 (ACT). It carries a maximum available penalty of 12 years' imprisonment. The maximum available penalty is reserved for the worst class of case and it provides a yardstick against which to consider the objective seriousness of this particular offence.

3. The offender and the victim were fellow cadets at the Australian Defence Force Academy (ADFA).

4. On the night of Saturday, 22 June 2013, they socialised with other cadets at the ADFA cadet quarters. With other cadets, they went to the Civic area of Canberra, where all the cadets were drinking. At some stages during the night, the victim and offender were drinking at separate locations. The victim consumed a significant quantity of alcohol and became very intoxicated.

5. Later in the evening, the offender and the victim met up, and the offender offered to assist the victim back to the ADFA cadet quarters. Together they took a taxi back to ADFA. The offender assisted the victim into the cadet quarters and guided her to her room. She staggered towards her room with considerable assistance from the offender. En route, she vomited, providing an indication of the degree of her intoxication.

6. On reaching her room, the victim lay on her bed. The offender closed the door, which was against regulation. The victim was passing in and out of consciousness. At one stage she awoke to find the offender engaging in penile-vaginal sexual intercourse. The victim does not recall how the intercourse commenced or all the details. After the intercourse, the offender told the victim that it should be their "little secret". The offender left the victim's room. When the victim awoke the next morning, she observed that her stockings and underwear had been removed. The offender and the victim exchanged text messages concerning the degree of their intoxication on the previous night.

7. At the trial, the offender said that, at the time, he believed the sexual intercourse was consensual. In evidence, he suggested that the victim not only agreed to the intercourse, but initiated it and persisted in the face of the offender's reservations. In written submissions, the offender's legal representative conceded that the jury must have rejected the offender's version of events. It follows that the jury must have rejected the offender's attempt to shift responsibility to the victim. That attempt does not assist the offender in the sentencing proceedings.

8. The Court did not receive a victim impact statement, but I have no doubt that the offence had a very significant impact on the victim's psychological wellbeing. The fact that the victim was conscious for only part of the time would not necessarily have ameliorated the impact upon her; it may have made the offence more frightening.

9. Because of the victim's state of intoxication, she was not in a position to give informed consent to sexual intercourse, nor was she in a position to clearly resist it. This factor does not assist the offender, as the victim's condition was obvious to him. He took advantage of her vulnerable condition.

10. On the other hand, the objective seriousness of the offence was not aggravated by violence or the threat of violence. Of course, any offence of sexual intercourse without consent, especially one involving penile-vaginal intercourse without consent, is a very serious form of violence involving the most personal violation.

11. Both the offender and the victim were about 19 years of age. They were both ADFA cadets. In that sense, there was no power imbalance. The fact that the offence occurred in the victim's room (in effect, in her home) contributes to the seriousness of the offence. Further, the offender did not use a condom. To my mind, that does not significantly aggravate the offence, but it is a factor to be considered.

12. The offender ejaculated several times on the victim's bed, and he removed and inserted his penis several times. This was not a fleeting incident. On the other hand, (primarily because the victim was passing in and out of consciousness) there is no evidence that the offence was other than, as defence counsel put it, "fairly brief". I accept that the offence was opportunistic; it was not premeditated. I am not satisfied that, prior to entering the victim's room, the offender had formed an intention to take advantage of her condition.

13. In referring to the victim's vulnerable condition, I do not mean to suggest that her vulnerability was an additional aggravating feature. It was the means by which the offence itself occurred; the fact of the victim's vulnerability is caught up in proof of the elements of the offence. The victim's vulnerability, her high-level of intoxication, was the reason that she was in no position to give informed consent to sexual intercourse. I accept that the offender's conduct amounted to a breach of trust in the sense that the victim trusted him to assist her home in her vulnerable condition.

14. The prosecution noted that, as a trainee member of the defence forces the offender must have appreciated the desirability of trust between colleagues. However, I do not find that there was an aggravating feature of breach of trust arising per se from the fact that the offender and the victim were both ADFA cadets.

15. The offender was 18 years and seven months' old at the time of the offence. He is now 21-years-old. As he is a young adult offender, considerations of rehabilitation may assume greater significance, depending on all the circumstances. Important factors that entitle the offender to some leniency are that he has no prior criminal convictions and he provided evidence of otherwise excellent character.

16. The offender is one of two children. He was raised in a stable, supportive family environment. His parents and sister have strong community connections. The offender has enjoyed strong friendships. In other words, he has had and continues to enjoy a strong support network, which will be an important feature in relation to his rehabilitation.

17. Prior to the offence, the offender was a confident and ambitious young man. He has been described as a person of honesty and integrity, polite, respectful, compassionate, and someone with a very promising future. The offender had demonstrated his leadership abilities. For example, he was school captain and in other ways he had been publicly acknowledged as a leader. He was a high achiever. He was a talented sportsperson. He had good social skills.

18. His choice of a career as an officer cadet in the army was an obvious choice. It provided the offender with an opportunity to exercise and develop his leadership skills, and potentially play an important role in the future of this country. He was justly proud of his acceptance into ADFA, and he appeared to have selected an ideal career. He commenced at ADFA in January 2013.

19. As a result of being charged and the consequent proceedings, the offender became very distressed. He was personally overwhelmed and extremely ashamed by the public humiliation associated with the proceedings. Soon after he was charged, the offender's mental health declined dramatically and he began to behave somewhat irrationally. Fortunately, the offender has since received significant treatment and psychological support.

20. The offender has been counselled by a mental health social worker, Mr Dunn, at least 16 times over the past 12 months. He has also received psychiatric treatment. However, he continues to suffer from relatively high levels of anxiety and a pervasive depression. Initially, he was agoraphobic and very withdrawn socially. He continues to be somewhat withdrawn, tending to isolate himself at his parents' residence. However, he has gradually become more socially gregarious, probably as a result of the counselling and treatment that he has received.

21. Mr Dunn identified that the offender assesses his achievements (and, I infer, gains his self-worth) by reference to public achievements rather than by reference to internal standards. Hence, the public loss of face associated with the commission of this offence is particularly devastating for him.

22. Dr Nielssen, a psychiatrist, diagnosed the offender as suffering from a depressive illness in partial remission. The reference to "partial remission" acknowledges that, while the offender is still moderately depressed, the position has improved from one of severe depression.

23. It is Dr Nielssen's view that the offender has a low risk of further offending. The pre-sentence report refers to a low to moderate risk of reoffending. In assessing the prospects of reoffending, both Dr Nielssen and the Corrective Services reporter, applied the Static-99R test, but in addition, Dr Nielssen, applied a clinical assessment. Some of the matters that Dr Nielssen noted were the lack of a history of antisocial conduct or substance abuse and the absence of antisocial attitudes. He also noted the beneficial effect of removal from the heavy-drinking ADFA culture in which high-risk behaviour may be more likely to occur. In my view, Dr Nielssen's assessment of the offender as at a low risk of offending is the more reliable assessment, and I accept it.

24. An offender's mental health may be relevant to sentencing in that it may reflect upon an offender's moral culpability in connection with the offence, or it may inform a sentencing purpose such as general deterrence (a mentally unwell offender may be a less inappropriate vehicle for a message of general deterrence), rehabilitation (a mental condition may mean that an offender is less likely to rehabilitate) or punishment (incarceration may be more challenging for a mentally ill offender).

25. In this case, the offender's mental health does not directly reflect on his moral culpability for the offence, or on the sentencing purposes to which I have referred, but it nevertheless remains a significant factor to be taken into account when considering the offender's overall subjective circumstances.

26. As a result of being charged, the offender was suspended from ADFA, and he has not returned. He has held casual employment, most recently as a cook. He is enrolled in a diploma course. After being charged, the offender relocated from Canberra to NSW, where he has resided with his family. He will serve his sentence in the ACT, which is some distance from his parents, but I do not consider that that is a relevant hardship. At the time that the offence was committed, he was living in the ACT, independently from his parents.

27. The offender has been on relatively onerous bail conditions for a significant period of time.

28. Having regard to the offender's youth, lack of prior criminal history, otherwise excellent behaviour and the support that he has and will continue to receive from family, friends and expert healthcare professionals, I am satisfied that the offender has excellent prospects of rehabilitation.

29. In sentencing the offender the Court is required to consider the sentencing purposes in s 7 of the Crimes (Sentencing) Act 2005 (ACT). Most of those purposes are of some relevance, including the sentencing purpose of punishment. General deterrence is also relevant, particularly in relation to the fact that heavy drinking appears to have been a factor closely associated with the commission of the offence. The propensity of young men to drink heavily and then engage in a variety of serious antisocial behaviours is a matter about which the community is increasingly aware and concerned.

30. Factors such as accountability and denunciation are very important in relation to the personal violation associated with offences of this type. Rehabilitation is an important sentencing objective, given the age of the offender and his apparent capacity to rehabilitate.

31. As defence counsel submitted, this event was a tragedy not only for the victim, but also for the offender, for whom it means that he has lost the opportunity to serve as a leader in the defence forces. On the other hand, I also agree with defence counsel's submission that the offender retains the potential to make a significant positive contribution to the community.

32. I was referred to a number of cases, which to a greater or lesser degree were comparable to the present case. Of course, each case is different. However comparable a case may be, particularly where it is a decision of a single judge, it cannot dictate the outcome of another case. However, the numerous cases to which I was referred do provide some assistance as to the manner in which courts have dealt with cases of this type.

33. My decision in R v Ballantyne (Unreported, Australian Capital Territory Supreme Court, Murrell CJ, 1 April 2014), concerned a situation in which an offender and a victim were present at a birthday party. The victim went to sleep and awoke to find the offender digitally penetrating her. The victim was 17-years-old and the offender was 19-years-old. He was immature. He had no relevant criminal history. I sentenced him to 18 months' imprisonment, with six months to be served by periodic detention and the balance suspended.

34. R v MT [2014] ACTSC 162 was a decision of Refshauge J. The offender and the victim had been drinking with other people. Later, at the premises where both were staying, the victim fell asleep and the offender engaged in penile-vaginal sexual intercourse. The offender was sentenced to two years' imprisonment, with a nine-month non-parole period. It was recommended that, upon release to parole, he participate in an adult sex offenders' program.

35. R v Taylor [2015] ACTSC 43 was also a decision of Refshauge J. The offender and the victim had been present at a party. The offender made sexual overtures to the victim, who rejected them. The victim became more intoxicated and the offender gave her amphetamines. The victim fell asleep naked and the offender engaged in digital penetration while he was intoxicated and under the influence of an illicit substance. Refshauge J imposed a sentence of two years' imprisonment, suspended after six months.

36. In R v Buckley (Unreported, Australian Capital Territory Supreme Court, Nield AJ, 30 August 2013) (R v Buckley), the offender, who was intoxicated, broke into the home of a woman he knew at 2:00 am in the morning, expecting her to be alone. She was asleep. He engaged in cunnilingus and digital penetration, commencing when she was asleep. The offender was 23-years-old and had no prior convictions. He was remorseful and was assessed as having good prospects of rehabilitation. Nield AJ imposed sentences of five years' imprisonment in relation to each of the offences of sexual intercourse without consent, and a three-year sentence for the offence of burglary. His Honour directed that the sentences be served concurrently and imposed a non-parole period of two years and six months.

37. I have also been referred to the ACT Sentencing Database statistics for matters of this type. With regard to those statistics, and looking at other cases, it would seem that the sentence imposed in R v Buckley was towards the upper end of the range of the sentences that have been imposed, but nevertheless it is another matter to be considered.

38. This event was a tragedy for both parties. It was completely out of character for the offender. So why did it occur? To my mind, it is a reflection of the level of the offender's intoxication and his immaturity. Some of the referees described him as mature, but any 18-year-old man must be somewhat immature, somewhat lacking in the insight, self-control and judgment that one expects of an older adult. Finally, and regretfully, it reflects what must, at least at the time, have been the offender's inappropriate attitude to women. The offender's disrespect for the victim was apparent when, shortly after committing the offence, he mentioned his 'conquest' to other cadets.

39. The offender is convicted of the offence and sentenced to two years and four months' imprisonment from 3 February 2016 to 2 June 2018. The first 10 months is to be served by way of full-time imprisonment from 3 February to 2 December 2016. The remainder of the sentence will be suspended upon the offender entering into a good behaviour order. The good behaviour order is subject to the following conditions:

(a) the offender is to report to ACT Corrective Services within two working days of release; and

(b) the offender is to submit to the supervision of ACT Corrective Services or such other person or body as they may direct, for as long as they consider appropriate, but for no longer than the 18-month good behaviour order.

I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell