R v LQT [2018] ACTSC 246

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - individualised justice - sentencing purposes - general deterrence - denunciation

Crimes Act 1900 (ACT) s 54(1)

Crimes (Sentencing) Act 2005 (ACT) s 35

Wyper v The Queen [2017] ACTCA 59

R v Aroub [2017] ACTSC 187

R v NL [2018] ACTSC 22

1. The offender is to be sentenced on one count of having sexual intercourse without consent contrary to s 54(1) of the Crimes Act 1900 (ACT).

3. The offender spent 37 days in custody before he was released on bail on 19 July 2017.

4. Three days prior to the scheduled trial date, discussions between the parties resulted in the offender agreeing to plead guilty to one count of sexual intercourse in full satisfaction of the indictment containing two counts of sexual intercourse without consent and two counts of act of indecency. There was no suggestion of an earlier offer to plead guilty on that basis. The offender gained the benefit of the discussions, although the prosecution case on the other charges was relatively weak. The lateness of the plea limited its utilitarian value, but the nature of the offence and the relationship between the parties meant that the plea still had significant utilitarian value.

5. In my view, the appropriate discount under s 35 of the Crimes (Sentencing) Act 2005 (ACT) is about 10 per cent.

6. The offender and the complainant are of Nepalese background. They were married for about 10 years. They have six-year-old son.

7. As at June 2017, their relationship was strained and they were sleeping in separate bedrooms.

8. On the morning of 13 June 2017, the offender accused the complainant of having an affair. He led the complainant to her bedroom. The offender and the complainant lay on the complainant's bed and discussed their relationship issues. They moved to the living area and then back to the complainant's bedroom, where they again lay down and discussed their relationship.

9. As they were lying face-to-face, the offender placed a hand in the complainant's genital area. He took her hand and tried to place it down his pants. The complainant asked the offender to desist. Eventually, she agreed to engage in sexual touching in order to placate the offender. The offender removed his clothes and those of the complainant. He repeatedly asked her to engage in sexual intercourse but she refused. She stated that she only wanted to talk. However, the offender proceeded to have penile/vaginal intercourse. After some time, the complainant told the offender to stop and he did so. He left the bedroom.

10. The complainant contacted a friend and informed him that she was in trouble. She also contacted her mother. She left the apartment in her pyjamas and met her friend nearby.

11. The offender located the complainant and her friend. The police were contacted. They attended the location and arrested the offender.

12. That afternoon, the offender participated in a record of interview in which he stated that the complainant had verbally refused to engage in physical relations and also stated that he had not forced her to do so. I take this to be an assertion that he did not physically force her to do so which, based on the agreed facts, is correct.

13. A victim impact statement confirms that the victim was very scared at the time of the incident. Thereafter, it affected her concentration at work. It created special difficulties in relation to how she should handle their six-year-old son. The offence precipitated an immediate separation. However, in the best interests of her son, the complainant wishes for the offender to maintain a close and continuing relationship with the son and help to care for him.

14. The offence occurred in the complainant's home where she was entitled to feel safe. The sexual intercourse was penile/vaginal intercourse of not insignificant duration. These factors tend to increase the objective seriousness of the offence.

15. On the other hand, the fact that the offence occurred in a highly charged emotional situation involving a relationship breakdown that undoubtedly impaired the offender's judgment somewhat mitigates the offender's moral culpability.

16. I also note the context of cultural differences concerning the marital relationship that may exist between Nepal and mainstream Australia. Although that provides no excuse, it may, to some extent, explain the situation.

17. The offender is 39 years old. He has no prior criminal history.

18. The offender enjoyed a supportive upbringing in Nepal and India. In 2008, he migrated to Australia.

19. The offender has a good work history. He holds a Masters Degree in Economics and a Certificate IV in Commercial Cooking. Currently, he is employed as a restaurant store manager. The offender provides considerable financial support to his son and possibly also to the complainant.

20. The offender is separated from the complainant and has no contact with her. The offender lives with a friend. He maintains an excellent relationship with his son.

21. The offender is fortunate to enjoy a reasonably good relationship with his in-laws, despite the offence. His motherinlaw facilitates extensive weekly contact between the offender and his son which, at the moment, means that the offender has responsibility for his son all weekend. The complainant is very concerned that the offender should maintain significant ongoing care of her son.

22. I bear in mind the impact that incarceration would have on the offender's son who is very much coparented by the offender. Having regard to the son's tender age, it is my view that an extended period of separation could be quite damaging to him.

23. The offender provided character references showing that he is ordinarily an honest and responsible person and that the offence was very much out of character.

24. The offender is involved in the local Nepalese community. In the past and - probably to some extent on an ongoing basis - he has experienced problems with social isolation and dislocation from his homeland.

25. To his credit, the offender is very interested in personal development. He has embraced recent counselling opportunities and is concerned to learn and grow as an individual through counselling and other avenues. He has expressed regret for his behaviour. He has accepted responsibility and demonstrated insight into the impact of his behaviour on the complainant.

26. It is not surprising that the risk of re-offending has been assessed as low. I would say that it is very low indeed.

27. I was taken to some comparable cases, including the Court of Appeal decision in Wyper v The Queen [2017] ACTCA 59 (Wyper). I have read the single judge decisions in R v Aroub [2017] ACTSC 187 and R v NL [2018] ACTSC 22, where offences of this type did not result in significant sentences of fulltime imprisonment and the offenders were dealt with leniently because of the circumstances of the offences and, more importantly, their personal circumstances.

28. Perpetrators of family violence must expect stern sentences. Sentencing purposes such as the need to protect the community, general deterrence, accountability, and denunciation mean that this is important.

29. However, as was pointed out in Wyper at [98], individualised justice is at the core of our justice system and, in particular circumstances, it may be appropriate to diverge from the general approach. This is such a case.

30. In sentencing the offender I bear in mind that he has spent 37 days in custody which, in my view, is sufficient to reflect sentencing purposes such as adequate punishment and general deterrence. In addition, I will impose a sentence of imprisonment, which also addresses those purposes.

31. The offender is convicted. I would have sentenced him to two years' imprisonment but I will discount that sentence by 10 per cent to a sentence of approximately 22 months' imprisonment. The sentence will commence on 24 June 2018. That takes into account the period spent in custody. I make an order suspending the sentence from today, 31 July 2018. I also make a good behaviour order for the remaining period of the sentence, noting that the sentence will expire on 23 April 2020. The good behaviour order is subject to the conditions that:

(a) the offender accepts the supervision of Community Corrections; and

(b) reports to Community Corrections by 4:00pm tomorrow, 1 August 2018.

I certify that the preceding thirty - one [31] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.