R v Bourke [2018] ACTSC 5

Office of the ACT Director of Public Prosecutions (Crown)

SCC 148 of 2017; SCC 149 of 2017; SCC 150 of 2017; SCC 151 of 2017

1. The offender is to be sentenced for three offences. There are also a number of scheduled offences to be taken into account in respect of Count 1. The three offences and their maximum penalties are:

(a) attempted sexual intercourse without consent, contrary to s 54 of the Crimes Act 1900 (ACT). The maximum penalty for that offence is 12 years' imprisonment.

(b) assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act 1900 (ACT). The maximum penalty for that offence is 5 years' imprisonment.

(c) recklessly inflict grievous bodily harm, contrary to s 20 of the Crimes Act 1900 (ACT). The maximum penalty for that offence is 13 years' imprisonment.

2. The offender entered pleas of guilty to all offences. He is entitled to a discount arising from his pleas of guilty. The offender was born in 1985. He has a criminal history in New South Wales. He does not have a criminal history in the Australian Capital Territory.

3. The offender was born in Sydney and has lived in various towns in New South Wales. He did not have a supportive upbringing. His parents smoked cannabis and flogged him. Not surprisingly, he left home at the age of 15 and began to live on the streets and at the homes of friends. His parents seem to have reformed their habits and now provide the offender with some support.

4. The offender has a nine-year-old son but has limited contact with him. He does not have a current partner. He has worked in a factory, in labouring positions and on the railways. He currently receives workers' compensation payments following a workplace injury. It is reported that the offender has a long history of drug and alcohol use, although he apparently disagrees with this conclusion.

5. The offender was diagnosed with a bipolar disorder about six years ago. He takes medication for this condition.

6. The offender was stabbed in 2017, resulting in a collapsed lung. He has apparently recovered from this experience. The psychiatric team that examined him thinks that he would benefit from admission to a rehabilitation facility upon his release from custody. Their opinion is that, in respect of the current offences, he acted under a drug induced psychosis.

7. The offender does not actually remember the offences but has taken the attitude that, if he did commit them, he is sorry. No issue arises as to the acceptance of his pleas of guilty. The offender gave evidence before me. He once again apologised and expressed remorse. I felt that his expressions of remorse were genuine. He also told me that he has engaged in an anger management course while in custody and he feels that this has been of benefit to him.

8. On 18 March 2017, the offender was living with two women in rented accommodation. He had met the women in a rehabilitation facility. The offences arise from his treatment of these women and an assault upon a police officer who attended the scene.

9. The facts behind the offences are set out in detail in the statement of facts. The following is a brief summary:

(a) attempted sexual intercourse without consent: the offender tried to insert his penis into the victim's mouth. There is a victim impact statement which was read out in court and which details the extensive effects the experience has had on her. These extend to a constant concern for the welfare of her two daughters.

(b) assault occasioning actual bodily harm: the offender struck the victim on a number of occasions, including when she was lying on a concrete driveway. It is unclear whether she suffered a fracture or a soft tissue injury to head. Whatever the case, her injuries were significant and no doubt the experience was very frightening.

(c) recklessly inflict grievous bodily harm: this offence was committed upon a police officer who attended the scene and in the course of his duties. He suffered a fracture of his eye socket, damage to his nose and an injury to the retina of his left eye. He has recently noticed some hearing loss. He describes his experience in a victim impact statement. Not surprisingly, the experience has caused a loss of confidence as well as significant anxiety. He has consulted a psychologist and continues to suffer "a great deal of emotional distress". His capacity to carry out his duties has been affected.

10. The Crimes (Sentencing) Act 2005 (ACT) sets out the principles and objectives of sentencing. It states that a person should not be sent to prison except as a last resort. In this case, it is accepted on behalf of the offender that there is no alternative to imprisonment.

11. The offender has so far been in custody for 317 days. Accordingly, his sentence will be backdated to 18 March 2017.

12. There are a schedule of offences that are to be taken into account in relation to the offence of attempted sexual intercourse without consent. These charges include a number of assaults, an offence of destroying or damaging property and an offence of trespass.

13. Attempted sexual intercourse without consent is a very serious offence. This is reflected in the maximum penalty of 12 years' imprisonment. I have taken into account that the offence, fortunately, went no further than an attempt. Nevertheless, it has had a significant effect on the victim. While this is not, objectively, the most serious type of this offence, it is serious. The same can be said in respect of the assault on the other victim. It is also important to note that the injuries, even if there was no fracture, had the potential to be very serious. There is also the emotional element that must be taken into account.

14. Assaults on women by drunk or drug affected men must be treated very seriously by the courts. In addition, the two women involved were vulnerable because of their history of drug use. I also note they were assaulted at the place where they lived.

15. The assault on the police officer is also to be regarded as objectively serious. The seriousness stems not only from the nature of the injuries but from the need for society to protect those members of the police force who are themselves engaged in the protection of society. A police officer may voluntarily go into a dangerous situation. That does not mean that he or she should expect to meet violence or in any way accepts that violence might occur.

16. It was submitted by counsel for the offender that there might be some concurrency in respect of the sentences for the sexual assault and the assault. I agree that a degree of concurrency is appropriate having regard to all of the offences taking place within a very short period of time. However, I think that the victims and the community are entitled to expect that specific consideration is given to the offences against each respective victim. The principles of totality also require me to make the sentence in respect of the assault on the police officer partially concurrent, but not to the same degree as the other two offences.

(a) In respect of count 1, attempted sexual intercourse without consent (CC 2017/3631), and taking into account the offences in the Schedule, the offender is sentenced to 24 months' imprisonment commencing on 18 March 2017 and ending on 17 March 2019.

(b) In respect of count 2, assault occasioning actual bodily harm (CC 2017/3635), the offender is sentenced to 18 months' imprisonment commencing on 18 June 2017 and ending on 17 December 2018.

(c) In respect of the offence of recklessly inflicting grievous bodily harm (CC 2017/3320), the offender is sentenced to 24 months' imprisonment commencing on 18 March 2018 and ending on 17 March 2020.

(d) The total period of imprisonment is 3 years.

(e) I set a non-parole period of 24 months commencing on 18 March 2017 and ending on 17 March 2019.

I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.