R v Aroub [2017] ACTSC 187

Sentenced to 2 years' imprisonment, suspended after 6 months upon the offender entering into a good behaviour order for 18 months.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - Jury trial - Offences against the person - Sexual intercourse without consent - Act of indecency - Opportunistic digital penetration of sleeping victim - Significant impact on victim - Offender with disadvantaged background - No prior relevant criminal history - Totally concurrent sentences

Crimes Act 1900 (ACT) ss 50(1), 54(1), 60(1)

Crimes (Sentencing) Act 2005 (ACT) ss 7, 33

Markarian v The Queen [2005] HCA 25; 228 CLR 357

R v Ballantyne (Unreported, Supreme Court of the Australian Capital Territory, Chief Justice Murrell, 1 April 2014)

Legal Aid ACT (Offender)

1. On 15 March 2017, a jury found the offender guilty of two offences committed on 19 April 2015:

(a) Count 1: Engaging in sexual intercourse with the victim without her consent and being reckless as to whether she consented contrary to s 54(1) of the Crimes Act 1900 (ACT) (Crimes Act).

(b) Count 2: Committing an act of indecency on the victim without her consent and being reckless as to whether she was consenting contrary to s 60(1) of the Crimes Act.

2. The offence of engaging in sexual intercourse without consent carries a maximum penalty of 12 years' imprisonment.

3. The offence of committing an act of indecency without consent carries a maximum penalty of seven years' imprisonment.

4. On the night of 18 April 2015, the victim accompanied a friend to Civic. During the evening, the friends consumed alcohol at several nightclubs. They met the offender.

5. The offender consumed alcohol during the evening.

6. In the early hours of 19 April 2015, the victim, her friend, the offender and others went to the offender's home. Eventually, the victim went to a spare room where she lay down and fell asleep.

7. The victim awoke to find the offender digitally penetrating her (Count 1). He had unzipped her dress and was kissing her back between the shoulder blades (Count 2). The victim pushed the offender's hand away. He smiled and told her to "relax". She told the offender that she needed to go to the bathroom. She attempted to do so but was unable to open the door as it had no handle. The offender assisted her to open the door and she left the room. The victim found her friend and told her what had occurred.

8. The victim and her friend telephoned the police and called a taxi. A few hours later, the police spoke to the victim. They obtained a mixed DNA profile from the victim's back that appeared to contain the offender's saliva, corroborating the victim's account of the offender kissing her between the shoulder blades.

9. On 20 April 2015, the offender was arrested. He was granted bail on the following day. Consequently, he has spent one day in custody in relation to these offences.

10. In a police interview, the offender stated that he had "passed out" in the room occupied by the victim, but he denied assaulting her.

11. The Court acknowledges the very significant impact that the offences have had and continue to have upon the victim.

12. The victim made a victim impact statement in which she stated that, immediately after the offences, she had to take a week off work. Because of the criminal proceedings, she has been unable to sit scheduled examinations, has forfeited examination fees and has had to delay her graduation.

13. The offences continue to have a significant impact the victim. She consults a psychologist. She still feels emotional and angry about the offences and harbours irrational feelings of self blame. The victim no longer enjoys dancing and socialising at venues frequented by others of African background, partly because she fears encountering the offender or his friends. On one occasion she encountered the offender's friends and became very anxious and self-conscious.

14. It has been difficult for the victim to disclose the offences to her family and she has only recently disclosed the offences to her mother.

15. In short, the offences have significantly impacted the victim's personal, professional and social lives. Although the incident occurred more than two years ago, she continues to experience significant problems

16. Without detracting from the seriousness of the offences and their significant impact upon the victim, it is nevertheless obvious that the offences do not fall into the worst category of offences of their type.

17. The sexual intercourse involved impulsive, brief, digital penetration. The definition of sexual intercourse in the Crimes Act covers a range of conduct, including digital and penile penetration: Crimes Act s 50(1). It always depends on the particular circumstances, but digital penetration is often less serious than penile penetration.

18. The act of indecency was brief and the nature of the act was not of the worst kind. For example, an act of kissing or touching a genital area or the breasts generally involves a more significant violation than that which occurred in the present case.

19. The matters to which I have referred support the offender's submission that the objective seriousness of each offence was towards the lower end of the range. On the other hand, the offender took advantage of the fact that the victim was vulnerable in the sense that she was asleep and was a guest in his household. Further, the offender did not immediately desist when the victim indicated that his approach was unwelcome.

20. I accept the offender's submission that, although the act of indecency involved separate conduct, it was part of the brief encounter at the core of which was the sexual intercourse. I will take the relatively unusual course of imposing a totally concurrent sentence in relation to the act of indecency.

21. The offender is now 27 years old. At the date of the offences he was 25 years old.

22. The offender was born in Sudan. As a child in Sudan, the offender witnessed very traumatic events including witnessing killings. His father was tortured and has permanent disabilities as a result.

23. When he left Sudan, the offender spent seven years in Egypt, where he attended school. In 2007, at 17 years of age, the offender came to Australia as a refugee.

24. The offender enjoys a good relationship with his mother and siblings. He married at 20 years of age and has a 7-year-old son to his ex-wife. The offender's ex-wife and son reside in Sydney. Currently, the offender has no contact with his son, but that is a situation which he hopes to remedy.

25. After he arrived in Australia, the offender worked for about a year in the construction industry, then returned to school to complete Year 11 and part of Year 12. Since then, he has generally been engaged in unskilled construction work. However, for the past 12 months, the offender has been largely unemployed.

26. The offender suffers from depression, primarily related to his employment status. He is not currently receiving treatment.

27. It is likely that the commission of the present offences was related to the offender's consumption of alcohol and/or drugs on the night in question. A number of other matters in his criminal history appear to be related to alcohol or substance use.

28. In the past, the offender has consumed alcohol to excess. He maintains that he now consumes alcohol only about once a week. In the past, the offender has engaged in interventions to address the alcohol problem.

29. The offender's continuing substance abuse, especially the use of cannabis, represents a moderate problem and would benefit from treatment.

30. The offender's prior criminal history includes convictions for: possessing an offensive weapon with intent which occurred in December 2013 (two months' imprisonment suspended on the offender entering a 15-month good behaviour order from 30 June 2014); affray which occurred in August 2013 (one month's imprisonment suspended on the offender entering a 15-month good behaviour order from 30 June 2014, concurrent with the suspended sentence for possessing an offensive weapon); driving matters; and minor drug matters.

31. On 5 November 2015, the offender was resentenced for a breach of the good behaviour orders for the offences of affray and possess offensive weapon. After he was resentenced, the offender engaged satisfactorily with ACT Corrective Services, resulting in the early termination of supervision.

32. It is relevant that the offender was on conditional liberty at the time the current offences were committed. He has no prior history of committing sexual offences.

33. In relation to the offences before the Court, the offender maintains his innocence. He is neither remorseful nor contrite. His attitude has not assisted with the victim's recovery.

34. The author of the pre-sentence report assessed the offender as at a moderate risk of sexual re-offending. The author of the report considered that he would benefit from supervision that addressed issues of sexual offending, substance abuse and employment.

35. I was referred to several sentencing decisions of this Court for offences of engaging in sexual intercourse without consent. The only case that is comparable is the decision of R v Ballantyne (Unreported, Supreme Court of the Australian Capital Territory, Chief Justice Murrell, 1 April 2014) (Ballantyne). Like this case, Ballantyne involved the opportunistic digital penetration of a sleeping victim after the victim and the offender had been partying at the premises in question. One factual difference is that, in the present case, the victim indicated to the offender that he should desist but initially he did not do so.

36. The main difference between the sentencing exercise in Ballantyne and that in the present case concerns the difference in the subjective features of the offenders. In Ballantyne, the offender was a 19-year-old youth who was immature and naive. Like this offender, he came from a disadvantaged background. He had no relevant prior criminal history. This offender has a previous criminal history and he committed the present offences while subject to good behaviour orders.

37. In Ballantyne, I observed the dominant sentencing purpose was to promote the rehabilitation of the young offender. I imposed an 18 month sentence. I directed that six months be served by way of periodic detention and the remaining 12 months be suspended on the offender entering into a 12-month good behaviour order.

38. In the present case, relevant sentencing purposes include adequate punishment, general and personal deterrence, 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.

39. Rehabilitation is also a significant sentencing consideration. While there is a significant difference between a 19-year-old (who has only just attained his majority, as in Ballantyne) and a 25-year-old (the offender), the offender is still a relatively young man with a limited criminal history who has not previously been imprisoned.

40. I am required to consider the matters in s 33 of the Crimes (Sentencing) Act 2005 (ACT) insofar as they are known and relevant. I have referred to the relevant factors above.

41. 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.

42. 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 5 per cent receive fully suspended sentences. Sentences are generally in the range of three to five years.

43. Having regard to the maximum penalty, although the objective seriousness of the sexual intercourse offence is low to moderate and there are reasonably strong subjective features, the only appropriate penalty is a sentence of imprisonment. Further, the sentencing purposes to which I have referred dictate that a short but significant period should be served by way of full-time imprisonment.

45. For the offence of committing an act of indecency, he is sentenced to two months' imprisonment from 13 July 2017 to 12 September 2017.

46. For the offence of engaging in sexual intercourse without consent, he is sentenced to two years' imprisonment from 13 July 2017 to 12 July 2019. The first six months of that sentence, the period from 13 July 2017 to 12 January 2018, is to be served by way of full-time imprisonment. The remaining period of 18 months is to be suspended upon the offender entering into an 18-month good behaviour order. The good behaviour order is to be subject to the additional condition that, within two working days of being released from

custody, the offender is to report to ACT Corrective Services and thereafter he is to submit to the supervision of the Services for as long as they deem necessary

I certify that the preceding forty-six [46] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.