R v Livas [2015] ACTSC 50

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

[2015] ACTSC 50

See [38] to [41] below.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - offender pleaded guilty to sexual intercourse without consent - consent obtained by fraudulent representation that envelope given to sex worker before sexual intercourse contained payment as agreed - envelope contained only folded paper bag - early plea of guilty not adhered to - challenge to charge of sexual intercourse without consent - offender absent from territory for two years - Supreme Court trial listed - plea of guilty entered 5 days before listed trial - small plea of guilty discount available - victim impact statement - no force or violence used - relatively minor criminal history of traffic offending and dishonesty offences - difficulty in maintaining interpersonal relationships - good history of employment - supportive family - limited remorse and insight displayed by offender - serious sexual offences to be taken seriously - some full-time custody necessary.

Crimes Act 1900 (ACT), s 54(1)

Crimes (Sentence Administration) Act 2005 (ACT)

Steve Onnis v The Queen [2013] VSCA 271

1. Akis Livas has pleaded guilty to one offence of sexual intercourse without consent, the apparent consent of the complainant, having been obtained by fraud. The offence arises under s 54(1) of the Crimes Act 1900 (ACT) and carries a maximum penalty of imprisonment for 12 years.

2. The incident from which this charge arose took place in October 2010. The complainant worked as a self-employed sex worker from her home in a Canberra suburb. Mr Livas made an appointment with her for a one-hour session, including sexual intercourse, which the complainant said would cost $250. In dealing with the complainant Mr Livas called himself "Peter".

3. Mr Livas kept that appointment. Sexual intercourse took place and he gave the complainant $200. When the complainant reminded him that the cost was $250 he stated that he had made a mistake and would go and get $50 and put it in her letterbox.

4. Several days later the complainant sent Mr Livas a text message which said "Hi peter. Hope you haven't forgotten the $50. Xxx". He sent a reply text message which said "No when can I meet you again". A short time later Mr Livas made a further appointment with the complainant for sexual services, the appointment being for four hours on 21 October 2010. The complainant told him the cost of $800 plus the $50 he owed her, which he agreed to.

5. Mr Livas arrived at the complainant's house. He went into the bedroom with the complainant and put a manila folder he was carrying on the television and gave the complainant a sealed white envelope by placing it on a nearby tallboy dresser. He stated that the envelope had the money in it. In fact the envelope contained a card and a piece of paper folded up many times to give the appearance of money but there was no money.

6. The complainant went to open the envelope to check the money however Mr Livas said, "No, no, no, don't open it now, it's - you have to trust me on this, it's part of my fantasy that it's all about the romance and I need you to trust me". The complainant did not open the envelope.

7. At some point she told Mr Livas that he needed to have a shower. He said that he would only have a shower if she showered with him, to which she agreed. Afterwards, the complainant got out of the shower while Mr Livas was still in the shower and she got the envelope.

8. She stated that she was going to open the envelope to make sure the money was there. However, Mr Livas said "No, no, no, you have to trust me on this ... I wouldn't rip you off because it's really important we know each other for a long time". The complainant put the envelope back on the dresser.

9. A short time later they both got into bed. The complainant placed a condom on Mr Livas's penis and they had penile-vaginal sexual intercourse. During this the complainant had become increasingly uncomfortable about whether there was money in the envelope. When they stopped having sex, she told Mr Livas that she needed to open the envelope so she could trust him. She opened the envelope and discovered there was no money.

10. The complainant grabbed the telephone that was above Mr Livas. He grabbed it from her and they wrestled with the telephone. The complainant let go of the telephone and ran across the room and grabbed Mr Livas's manila folder and put it under the bed so he couldn't get it easily and so she had something of his.

11. The complainant was shaking and crying and stated that he had betrayed her trust. Mr Livas said "...I'm sorry, I always intended to pay you, I was going to get the money out of the bank, the money goes in at 1pm today".

12. At some point the complainant noticed the telephone was off the hook. She stated that security would be coming because the phone was off the hook during the booking. Mr Livas stood up and walked out of the house. As he was leaving he told the complainant not to read the papers in the manila folder. She stated that she didn't want the papers but did want her money.

13. Afterwards, the complainant called a security guard and told him what happened. He came to the house a short time later and saw that she was distressed. The complainant also called the Sex Workers Outreach Program and told a staff member what had happened.

14. She looked at documents in the manila folder and saw documents in Mr Livas's name. The next day the complainant reported the incident to police.

15. Several days later police arrested Mr Livas and took him to the City Police Station. He agreed to participate in an interview where he admitted to having sexual intercourse with the complainant at the house. He said that he put a folded paper bag inside the envelope to make it look as if it had money in it, that he didn't have the money at the time but he had intended to pay the complainant, and that he had told her there was money in the envelope because he didn't want her to be disappointed. Mr Livas also said that he didn't know if the complainant would have consented to sexual intercourse with him had she known there was no money.

16. Mr Livas entered an early plea of guilty in the Magistrates Court, when he was not legally represented, and was committed to the Supreme Court for sentence. Subsequently, he obtained a lawyer who advised the Supreme Court that Mr Livas did not adhere to his plea of guilty. The appropriateness of the charge was then challenged unsuccessfully.

17. Mr Livas was, again, committed to the Supreme Court for trial around April 2014. His trial was set down for 24 November 2014 and on 19 November a plea of guilty was indicated.

18. Apart from the delay caused by the challenge to the appropriateness of the charge, much of the delay in bringing this matter to finality was caused by the fact that Mr Livas, in breach of bail, left the ACT and remained away for two years. When he returned he was arrested and remanded in custody where he spent 17 days before being bailed. This plea of guilty cannot be characterised as an early plea.

19. As well as the statement of facts, the following material is in evidence before me:

(a) the Victim Impact Statement which was read by the complainant in court;

(b) Mr Livas's criminal history;

(c) a Pre-Sentence Report; and

(d) several character references given by Mr Livas's relatives and his current and previous employers.

20. In considering the objective seriousness of the offence, I note first that Mr Livas was on conditional liberty when the offence was committed, in that he was still subject to an 18-month good behaviour order that had been made earlier in 2010.

21. Secondly, it must be clearly understood that something that looks like a consent to sexual intercourse, if obtained by fraudulent activity as this one clearly was, is not a consent. The offence of having sexual intercourse with a person, without her consent, is clearly made out.

22. The impact on the complainant in this case was eloquently explained by her in her Victim Impact Statement, as follows.

My retrospective regret focused mainly upon my naivety. In my work, I do not simply allow clients access to my body. For a short time I give them the opportunity to feel loved. In a world that values romantic fantasy, I offer a commercialised version. The care and affection that I showed Mr Livas during what I thought to be an honest service was completely devalued when I realised that I had been deceived. The tenderness of the act of lovemaking was shared by the man who called himself "Peter", and was incongruent with the violation that was really happening. My desire to give clients a service that I think they deserve was used to goad me into not checking the payment. Nevertheless, I made several attempts to check the payment, but was physically blocked by Mr Livas as he used his body to herd me into the shower and onto the bed. He was not aggressive per se in these manoeuvres, but I did have a sense of powerlessness after being thwarted in my attempts. In the days following the incident, I was unable to think clearly, eat or sleep properly and I felt continuously tired. I was confused and hurt in a deeply emotional way, feeling shame about my gullibility.

23. The offence was clearly premeditated and the statement of facts makes it clear that Mr Livas abused the trust that the complainant had placed in him. On the other hand, I accept, as was indeed noted by the complainant in her Victim Impact Statement, that there was no force or violence used to achieve sexual intercourse.

24. The Pre-Sentence Report author described Mr Livas's attitude to the offence:

Mr Livas stated that while he accepted his behaviour was inappropriate he did not consider the consequences of his behaviour or the impacts of this at the time of the offence.

Although currently Mr Livas was able to articulate the seriousness of this offence and was able to identify the harmful impacts of his actions, he minimised any personal responsibility, maintaining it was not his intention to dishonour the payment. This contradicts his admission that his behaviour was intentionally dishonest to meet his own needs as outlined in the agreed statement of facts.

...

Although he is able to articulate the seriousness of the offence that is before the Court, it appears that he has limited ability to accept personal responsibility or to demonstrate a full understanding of consent.

25. It seems that Mr Livas is still focused on the event as a commercial transaction that he says he always intended to make good. While he may be genuinely regretful that he was not able to pay the money, it is hard to see this as remorse for the deliberate deception, and the violation of the complainant's personal integrity that he achieved by it.

26. Mr Livas's counsel reported an offer to pay reparation to the complainant but the prosecutor made it clear that reparation was not sought in this case.

27. Mr Livas, who is now 52, has a lengthy criminal record, although much of it consists of traffic offences. However, in 2010 he was dealt with for 10 offences of making off without payment, committed in 2008 and arising from incidents in which he stayed in local hotels and apartments but left without paying. I am told he was effectively homeless at the time. For these offences he was sentenced to nine weeks in prison. Apart from the breach of bail already mentioned, there has been no offending since the current offence.

28. The Pre-Sentence Report provided information about Mr Livas's background:

Mr Livas reported he is the eldest of three children born to the union of his parents and stated he was raised in a positive and stable family environment. He reported ongoing close and supportive relationships with family members. His father passed away in 1982 and Mr Livas currently resides with his mother, with whom he shares a close bond.

Mr Livas reported that he was married for 12 years and this relationship produced two children. He is now also a grandfather and while he reported irregular contact with his children and grandchild, he claimed these relationships remained positive and supportive. Mr Livas stated that he maintained a positive and pro-social relationship with his cousin, whom he also relies on greatly for his social interactions.

Mr Livas was in a relationship with a partner of eight years prior to the commission of these offences. He told the Pre-Sentence Report author that he is not currently in a relationship and described his previous relationship as dysfunctional, claiming that this had impaired his ability to develop and maintain interpersonal relationships.

Mr Livas completed his education and reported a consistent history of employment, including a period in the Royal Australian Navy. He reported being employed on a full-time casual basis for the past year and that he has recently started new full-time employment. This was confirmed by his employer.

29. It was also confirmed by one of the references that was handed up.

Mr Livas has significant personal debt, as well as significant debts owed to the ACT. While he has payment plans in place, this does account for a large part of his income on a fortnightly basis.

Mr Livas reported that he spent the majority of his time engaged in employment and had few recreational interests. He had few friends and his limited recreational time was usually spent participating in activities with his family.

Mr Livas described several ailments, however, he is not impaired by any medical issue. He reported periods of low mood and anxiety in relation to this appearance before the court. Mr Livas said that his general practitioner has referred him to a psychologist to address his mental health needs.

30. The Pre-Sentence Report author noted that Mr Livas reported difficulties in developing appropriate interpersonal relationships. This may provide an explanation, although of course no justification, for this offence.

31. References from Mr Livas's employers support the Pre-Sentence Report author's assessment that on the basis of stable accommodation, a supportive family, and full-time employment, Mr Livas has a low to moderate risk of general reoffending.

32. The risk of sexual offending has also been assessed as low to moderate, but the Pre-Sentence Report author notes that this assessment does not take account of Mr Livas's attitudes and thought processes that contributed to the offence.

33. It may be that Mr Livas does not require too much in the way of personal deterrence, even given his apparently limited understanding of the significance of his offence, but I am satisfied that general deterrence is important.

34. Sex workers clearly fall into the category of vulnerable workers in general and may be particularly vulnerable to abuse of this kind. Certainly, no one should doubt that fraudulently achieving sexual intercourse by this kind of activity constitutes rape, rather than a dishonesty offence, although of course dishonesty is a major element of this fact situation.

35. As noted earlier, Mr Livas's ultimate plea of guilty did not come early, and it did not come early even discounting the delay caused by his decision on legal advice to challenge the appropriateness of the charge, however, there will be a small plea of guilty discount.

36. I note Mr Livas's lack of offending in the last four years and his employment and other positive factors in his life. It is unfortunate to have to sentence a person in those circumstances to imprisonment, but rape is a serious offence and this rape, although not the worst kind of rape, must be taken seriously.

37. The prosecutor referred me to the case of Steve Onnis v The Queen [2013] VSCA 271, a Victorian case involving procuring sexual intercourse by fraud (that being a Victorian offence carrying a lesser penalty than the current offence). I have had regard to the sentences imposed in that case for what was, clearly, a far more sophisticated and sustained series of offences.

38. Mr Livas, please stand. I record a conviction on the charge of sexual intercourse without consent.

39. I now sentence you to imprisonment for 25 months, reduced from 30 months for your plea of guilty.

40. Although the 17 days you have spent in custody in fact related to breaching a bail undertaking rather than to this offence directly, I propose to backdate the sentence to 20 January this year, to take account of that time in custody.

41. I do not consider that a large part of this sentence needs to be served in full-time custody, so instead of setting a non-parole period, I order that the sentence is suspended with effect from 19 September this year. So that is a total of eight months to be served, and I order that before you are released you sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for 24 months from when you are released, with security in the amount of $500. The good behaviour order is subject to the conditions that:

(a) for such period, not exceeding 24 months, as Corrective Services considers necessary, you accept the supervision of ACT Corrective Services and obey all reasonable directions of the Director-General or delegate; and

(b) that you undertake such counselling, courses, programs or treatments as directed by your supervising officer which may include, in particular, relationships counselling.

42. Now, I note in passing, and this is for counsel really, that there was no recommendation about the Adult Sex Offenders Program so I haven't mentioned that specifically.

43. When the time comes, Mr Livas, you will be given a written copy of that good behaviour order and it will be explained to you, I hope, by the relevant officials. But, in short, what it will mean (and you have had good behaviour orders before so you understand this I am sure) that for 24 months after you are released you need to keep out of trouble, keep in contact with Corrective Services and follow your Corrective Services supervisor's directions. If you commit another offence during that time, or if you otherwise breach the conditions of your good behaviour order, you may find yourself back before this court to be re-sentenced for this offence, as well as possibly losing your $500 security, and any re-sentence could see you being required to serve some or all of the remaining period of your sentence in full-time custody.

44. If you have any detailed questions about those orders, please ask the court officials, or Mr Doig will be happy to talk to you about it.

I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.