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[2025] NSWDC 453
General information, not legal advice.
District Court of NSW
2025-10-03
Haesler SC DCJ
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: R v Mikhaiel [2025] NSWDC 453
Hearing dates: 3 October 2025
Date of orders: 3 October 2025
Decision date: 03 October 2025
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision: Aggregate sentence of imprisonment of 5 years 6 months with a non-parole period of 3 years
Catchwords: CRIME — Sexual offences — Aggravated sexual assault — Victim <16 years — Victim under authority — Sexually touch without consent
SENTENCING — Penalties —Sentencing after trial — Imprisonment
SENTENCING — Relevant factors on sentence — Deterrence — Moral culpability — Multiple offences — Aggregate sentences — Objective seriousness — Proportionality — Extra-curial punishment considered
SENTENCING — Subjective considerations on sentence — Age of offender — Good character — First time in custody — Impact of custody on physical or mental health — Protective custody — Mental disorders and trauma — Pro-social family support — Unlikely to re-offend
Legislation Cited: Bail Act 2013 (NSW)
Child Protection (Offender Registration) Act 2000 (NSW)
Children (Criminal Proceedings) Act 1987 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Blackman and Walters [2001] NSWCCA 121
BT v R [2010] NSWCCA 267
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Cowling v R [2015] NSWCCA 213
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Engert v The Queen (1995) 84 A Crim R 67
Hogan v Hinch [2011] HCA 4
LB v R [2019] NSWCCA 151
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
R v Daetz [2003] NSWCCA 316
R v Geddes (1936) 36 SR (NSW) 554
R v Herring (1956) 73 WN (NSW) 203
R v Holyoak (1995) 82 A Crim R 502
R v NJK [2011] NSWCCA 151
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Windle [2012] NSWCCA 222
Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Yardley and Betts (1979) 22 SASR 108
Category: Sentence
Parties: Magda Fawzi Mikhaiel (the offender)
Director of Public Prosecutions (NSW) (Crown)
Representation: Counsel:
P Coady SC with D Pace (for the offender)
G Steedman (for the Crown)
Solicitors:
Oxford Lawyers (for the offender)
Director of Public Prosecutions (NSW) (Crown)
File Number(s): 2022/381345
Publication restriction: Pseudonyms have been used for the name of the child complainant. Pursuant to s 15A Children (Criminal Proceedings) Act 1987 (NSW), there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child. Identifying information has been removed from this version of the judgment to comply with the statute.
On 23 May 2025, after a ten day trial, a jury found Magda Mikhaiel guilty of four counts relating to the sexual touching and sexual assault of Helen (a pseudonym), a 15 year old girl in her care. Mikhaiel, then aged 28, was a support worker who had no prior convictions. She went into custody immediately on the jury verdict: Bail Act 2013 (NSW), s 22B. She is for sentence today.
The charges all arose from an incident in 2022 at supported accommodation where Helen had been sent for temporary emergency care. Helen’s mother had died shortly before. She had been placed in temporary care while more permanent accommodation was arranged for her.
At the residence, Mikhaiel and Helen drank alcohol together. They then sat on a bed where Mikhaiel touched Helen sexually. She then offered her a massage and during the course of the massage put her finger into Helen’s vagina, licked her vagina and put her mouth on Helen’s breasts.
Those acts resulted in two counts of intentionally sexually touch without consent knowing the complainant was not consenting: Crimes Act 1900 (NSW), s 61KD(1)(a). And two counts of sexual intercourse without consent knowing the complainant was not consenting: Crimes Act, s 61J(1).
Each count was committed under circumstances of aggravation, being that the complainant was under Mikhaiel’s authority.
The intentionally touch, in circumstances of aggravation, offences carry a maximum penalty of 7 years imprisonment. The sexual intercourse counts carry maximum penalties of 20 years imprisonment. For both offences Parliament has said that for an offence taking into account only objective factors there is a standard non-parole period; 5 years for a s 61KD offence and for a 61J(1) offence, 10 years.
Those maximums and the applicable standard non-parole period are important guides to the exercise of my sentencing discretion. They convey Parliament’s view of the relative seriousness of the offences.
Content must be given to the standard non-parole period. It is a sentencing measure to be balanced with all other relevant factors. It invites a comparison between this case and other cases. That said, it is not appropriate just to look to either the standard non-parole period or the maximum and then proceed by way of making proportional deductions: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [30] and [31].
So far as the s 61KD offence is concerned Parliament, by fixing a 7 year maximum penalty and a 5 year standard non-parole period have, by clear implication, not taken into account a judicial criticism of a similar ratio in the now repealed s 61M(2) Crimes Act. The ratio there was described by judges of the Supreme Court as “absurd” or “curious”: BT v R [2010] NSWCCA 267; LB v R [2019] NSWCCA 151. However, another court noted that where such a high standard of non-parole period “has been prescribed by the legislature … the courts must give effect to it”: R v NJK [2011] NSWCCA 151 at [40].
As was her right, Mikhaiel said she was not guilty. She put the prosecution to proof, she gave evidence at trial denying the offences, denying she had given Helen alcohol. She said the touching on the bed was accidental and no massage had taken place at all. She was not believed.
Mikhaiel is not to be punished for exercising her rights, but she cannot get the benefit of a reduction in sentence often given to those who admit their guilt who facilitate the administration of justice or express remorse.
She, as is her right, maintains her innocence. She denies the offending and thus maintains her assertion that the allegations were invented. She has displayed no remorse or empathy for the complainant, but that cannot be an aggravating factor on sentence.
The jury obviously did not accept her denials, just as obviously they found Helen to be a witness of truth. Helen’s testimony was supported by video and forensic evidence and almost immediate complaint, but also by evidence led at trial going to the accused’s state of mind.
Mikhaiel was a regular user of online pornography. There is nothing unlawful in this. The majority of the sites that she accessed were generalised pornography, but a number of sites, accessed shortly before and after the incident, related to young females and massage based porn. In evidence she said she did have an interest in massage porn but had not suggested a massage to Helen.
I must determine the facts for sentence consistent with the jury verdict. I have no hesitation in sentencing on the basis of the complainant’s account of events.
The Crown provided, as part of their submissions, a lengthy summary of the evidence at trial. Not all of the Crown’s assertions were accepted by the defence: MFI 2 and 3. I do not intend to, and have no obligation to, resolve every contested fact, and today neither counsel asked me to do so. Their focus, and the focus of their oral and written submissions, was on matters critical to determining the appropriate sentence.
Helen was the only resident of a supported home in Wollongong. She had been there only a day when Mikhaiel took over her care. She was not home when Mikhaiel started her shift but returned with some friends later that evening. Helen and her friends had been drinking. They continued to drink until the friends were asked to leave by Mikhaiel.
The next day Mikhaiel and Helen had breakfast. Helen wanted to go out with friends, Mikhaiel said – no. In the afternoon, Helen says she drank some alcohol left over from the previous evening and Mikhaiel got some vodka from her car which they mixed with an energy drink and drank. Helen said she felt intoxicated, although I find that her recall of how much alcohol she drank was inaccurate.
They then went to Helen’s room. They sat on a bed. Helen said, “at some point she [referring to Mikhaiel] started to get touchy”. The offences occurred between 6.25pm and 7.03pm.
When undergoing a sexual assault examination, the following day or night Helen told the nurse administering swabs to her breast that Mikhaiel had put her mouth on them. A submission was made at trial this incident was only revealed during the sexual assault procedure at the hospital and its probative value was diminished. I reject that submission which was not repeated today.
DNA tests returned positive matches to Mikhaiel’s DNA profile at the locations where Helen said she was touched. Presumptive tests for saliva were positive at the locations that matched Helen’s account. That Helen directed the nurse to areas of her body she said were kissed, and that a presumptive test for saliva and DNA matching the offender’s profile was discovered, adds verisimilitude to her account and the genuineness of it. I do not believe she was inventing this story.
After the events Helen dressed and offered Mikhaiel a “bong” of cannabis. Both then smoked some cannabis. Helen took two photographs of Mikhaiel using the bong. About an hour later when Mikhaiel had gone to her room, Helen took a video of a vodka bottle. Soon after she contacted a friend and then spoke to her friend’s mother. Police were called. They met Helen and the friend’s mother outside the house.
Mikhaiel was arrested the following day. She agreed to be interviewed, and she denied the offending. A number of things she said in the police interview were later conceded to be lies.
A sentence must be proportionate to what was done. An assessment of objective seriousness of an offence is essential to setting the parameters and appropriate sentencing outcome.
There is an absolute prohibition on any sexual activity with a child. Although close to 16, Helen was only 15, a child at law. The law is strictly enforced. It is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity. It follows that every act that involves the sexual exploitation of a child is serious and is treated seriously by the courts. The guidance offered by the maximum penalties makes that clear. Although there are no circumstances of aggravation relating to the age of the child in the counts before the Court, it is still a matter of relevance.
Mikhaiel committed the offences while exercising authority over the child, an element of the offences. She put her desire for sexual gratification over her professional obligations and over her obligations to the child in her care.
Helen was a few days short of her 16th birthday. She was in some respects more worldly than Mikhaiel. But Mikhaiel was the adult and about ten years her senior. Helen had been entrusted to Mikhaiel’s care. Mikhaiel had authority over her, and while she relaxed some rules, Mikhaiel was still exercising that authority, again an element of the offence, when the events occurred.
The offender gave the child alcohol, adding to her vulnerability. No physical injury was caused, no threats were made, no consent was sought except to the massage. Consent was given to a non-sexual massage, but it was given by a child to an adult who had authority over her, and after the adult had given the child alcohol to drink. The sexual assault offences were committed by the act of penetration or oral contact with the genitals.
The time period over which the events occurred is not a measure of liability but “in every case what matters is the context in which the assault occurs”: Cowling v R [2015] NSWCCA 213 at [16] and [17]. Accordingly, while each offence was committed, the duration of shortness of the offence must have some impact on my assessment of objective seriousness.
In making that assessment all aspects of the offending will be taken into account; context, degree of physical interaction, in the intercourse offences what was actually involved in the act of penetration. Even though each of the incidents was brief, short duration does not allow me to underestimate the potential psychological impact of the act of sexual touching or sexual intercourse.
For Counts 2 and 4, an element of trickery was involved. The child was induced to participate in an apparently innocent massage. Helen found these actions “odd” and “disturbing”. She was not used to such familiar behaviour from a carer. The fact the child was given alcohol has obviously increased her vulnerability and thus the seriousness of the offence.
The event was apparently spontaneous. Helen was not used to such familiar behaviour from a carer. The touching was over her clothes and occurred over a relatively brief period. I cannot accept the Crown’s submission, MFI 1, at par 20 that this offending was objectively very serious. In my opinion, the offence fell well towards the lower end of any scale of seriousness. It may never have been reported but for the other matters.
However, nor can I accept the defence submission that a penalty other than imprisonment is appropriate: Crimes (Sentencing Procedure) Act 1999 (NSW), s 5(1). In other contexts, such as between two same age children, the acts would not have attracted a gaol sentence. But the acts themselves are only one part of the facts making up the offence and are not determinative. Here context is critical. This was an aggravated form of the offence, and while the acts themselves were relatively innocuous, their context makes them serious enough to justify a custodial penalty.
Mikhaiel has no criminal history. She has never been in trouble with the police. She was, until the commission of this offence, a person of good character. She kept to her bail conditions during the long remand.
Ms Steedman, Crown Prosecutor, took me in her written submissions to the various, and often conflicting, purposes of sentencing. She did not press any particular s 21A(2) aggravating features. She submitted however that prior good character could not be taken into account. Section 21A(5A) Crimes (Sentencing Procedure) Act 1999 states:
“In determining the appropriate sentence for a child sexual offence, the good character or lack of previous convictions of an offender is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence.”
Here the offender’s prior good character enabled her to gain a job where she exercised authority over children and be alone with them. There is no evidence she had ever before exploited those opportunities. She committed these offences while exercising that authority, an element of the offence. As I noted earlier, she put her own sexual gratification over her professional obligations. She did not obtain the job or use it to commit the offences. But s 21A(5A) applies in its terms, and they require some precision.
Mikhaiel’s good character gave her the opportunity to commit offences that I accept were relatively spontaneous. In that respect her good character was of assistance in the commission of the offence. She made situational use of her good character. She did not make active use of her good character for the purpose of getting access to children.
I cannot take her prior good character into account as a matter of mitigation of sentence, that much is clear. It does however, obviously, have some relevance when I come to consider her future prospects of risk of reoffending.
Mikhaiel did not give evidence on sentence. She wrote a letter to the Court that set out her personal history and the impact of custody on her. She did not, in that letter, canvass matters going to the objective seriousness of her offending.
Her sister-in-law provided an affidavit confirming her personal history. Her sister-in-law was not required for cross-examination. There is nothing controversial about that history, and although Mikhaiel lied to police and to the jury at trial, I will proceed on the basis of that history.
In her letter to me, supported by her sister-in-law, she noted that she was born overseas in 1996, the youngest child in a large family. Her mother died when she was quite young. Her father was very ill for a long period with cancer and passed away and she was not able to return to see him before he died. I do not underestimate the loss of a mother while young.
She reports being sexually assaulted on multiple occasions when young. Her family were subject to persecution and victimisation in their home country. Her eldest brother, who had come to Australia, made provision to bring her to this country so he could live with her when she was 16. She has lived and worked with him throughout.
She has never previously been before the Court. She has never previously been, or I am sure, contemplated, that she could spend a period of her life in gaol. She describes her incarceration is a “living nightmare” where she is “lost and helpless”. She reports being “threatened by other inmates” and this escalated when inmates found out the nature of the charges she was awaiting sentence for.
She had been placed in A2 classification as a remand prisoner. There she had access to many privileges and utilised every opportunity to participate in programs and gaol activities. Corrections, aware that she was at threat, moved her from general discipline to the Behavioural Intervention Unit (‘BIU’), at their instigation. There she has little access to programs and what programs she was allowed access to she has completed. She is regularly locked in her cell, and she does not have any of the modest privileges that were accorded to her prior to that transfer.
Those assertions are borne out by the material presently before the Court. She asks that I take it and her background into account; I will do so.
I have received reports from a treating psychiatrist, Dr Boyd, who works with Mind Oasis, and a forensic report from Dr Chu. Although Dr Boyd saw no current symptoms of Post-Traumatic Stress Disorder (‘PTSD’) in November 2024 he noted that Mikhaiel did have high scores on most Attention Deficit Hyperactivity Disorder (‘ADHD’) symptoms. She was, and remained, medicated for that condition.
Dr Chu, who saw her in August this year concluded that PTSD and Major Depressive Disorder (‘MDD’) were present. He noted that Ms Mikhaiel “presents with significant intrusive, avoidance, alterations and arousal and associated negative alterations in cognition and mood in the context of significant trauma and abuse”. He noted in particular:
“She has severe disturbances of mood and arousal. These disturbances are clinically significant for clinical diagnostic purposes and impairs her emotional wellbeing with likely impacts of her judgment and behaviour”: Exhibit 1, pp 8-9.
He addressed her risk of reoffending; noting that given her prosocial history and her family’s support, that the risk of reoffending is low, particularly if she engages in treatment.
I accept that when Dr Boyd saw her he did not record any PTSD symptoms. This does not mean that she was not suffering from PTSD. Given her history of multiple traumas, it is highly likely that PTSD symptoms were in remission and reappeared when she was incarcerated. I note that Dr Chu saw her before the transfer to the BIU. I cannot find however, that her underlying conditions were operating or significant at the time of offending, and no such submission was made. They remain very relevant to her subjective case.
Dr Chu also gives details of the negative impact of custody on her; and this was before her transfer.
I have the benefit of extracts from Justice Health and custodial records. They confirm what Mikhaiel told me in her letter about the significant difference between serving her sentence with access to programs and facilities as an A2 prisoner as opposed to being a Special Management Area Protection (‘SMAP’), prisoner in the BIU.
The reports indicate the significant deterioration in her appearance and impact upon her of that move. For example, the move has been very difficult for her. She is reported as saying “it’s a different world”, and that is a different world in the BIU compared to A2 discipline at Dillwynia. She struggled to being locked in a cell as opposed to her previous living conditions in the low needs unit. She does not want to be in the SMAP, she did not request it. It would appear that apart from being offered a Certificate 3 laundry traineeship which she took up, the best they could manage to help her cope was giving her pencils and colouring sheets: Exhibit 1, p 63. As late as 22 September 2025 she was reported as “passive”.
While offenders generally cannot escape punishment because of the impact of custody on their physical or mental health, the realities of prison life should not be overlooked. Prisons are nasty and violent places. Prisoners are regularly assaulted and threatened by other inmates, as the evidence here provides. Gaol authorities place people in isolation in order to protect them. If placed in protection or isolation they may not get access to necessary, or as here, any programs, and their rehabilitation and health can be impacted negatively. So much was borne out by the evidence provided today.
Dr Chu at page 8 notes her depression and trauma symptoms have worsened in custody.
Exhibit C indicates that she cannot, and Corrections are aware that she cannot, remain in the BIU. She will be subject to classification review once the length of her sentence is known. Mention is made of the possibility of moving her to Silverwater Women’s Prison. I can only sentence on what is known, I can only recommend that Corrections provide all assistance and programs to her. But the evidence to date is that her imprisonment has been more burdensome than for the average prisoner and this must be taken into account. Generally, that is done by fixing a long period on parole by a finding of special circumstances. Although, all relevant matters must be synthesised in fixing the whole sentence and its non-parole period.
There are a number of ways in which courts can take into account a person’s personal history to help understand their moral culpability for the crime. Here, I have evidence of the effects of childhood deprivation, poverty, exposure to violence and religious persecution: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.
There is evidence of childhood trauma, sexual assault and the loss of her mother. There are also the mental health issues and PTSD, ADHD and MDD attracting the principles set out by the Chief Judge at Common Law in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194.
These principles here are inextricably interrelated. As the plurality of the High Court acknowledged, there is evidence that all of these factors may have impacted on her capacity to make behavioural decisions and consequential thinking. They may have, as the Court found in Bugmy, compromised her capacity to mature and learn from experience. Dr Chu at page 9, put it this way, that they have had a “likely impact on her judgment and behaviour”.
They must be considered. They have already made her time in custody more onerous than the hypothetical prisoner without her underlying conditions. That will continue. Those matters do not mean she is a totally inappropriate vehicle for general deterrence and punishment principles, those principles still have relevance here, but they must be taken into account: De La Rosa at [177].
In any sentencing exercise specific deterrence is an important factor. Here the impact of her time in custody would have achieved that purpose of sentencing.
The evidence I have referred to and set out in full, summarised comprehensibly in the submissions, in relation to; the impact of prison on her; her mental health conditions; the fact she will need assistance adjusting to normal community life; the fact that Dr Chu has a treatment plan which is unlikely to be put in place until she is released to custody; the unlikelihood that she will reoffend again; the existence of strong prosocial support; the need to encourage motivation, which she has demonstrated, to cooperate with gaol authorities; all allow for a substantial finding of special circumstances.
In doing so, I am mindful that judges have been cautioned against double counting such matters. And there is also a requirement, as the Crown remind me, that the minimum period for which she should be imprisoned must properly reflect the gravity of her offences and the purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].
I am indebted to Mr Coady, of senior counsel, and Mr Pace for their comprehensive written and oral submissions. The Crown’s written submissions were equally comprehensive and both counsel confined their arguments to matters in dispute. I have sought to resolve those significant disputes in the course of this judgment.
As I indicated earlier, judges do not have to resolve every minor matter. What I am required to do is assess objective facts and synthesise all relevant matters. In doing so, and because much of the submissions related to the assessment of objective circumstances, I note what fell from McHugh J in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [54]; that judges should be particularly careful when synthesising all relevant matters as by concentrating too much on objective circumstances of a crime greater weight might be given to the retributive or deterrence theory of sentencing as opposed to other equally applicable matters. A judge has to apply and synthesise all relevant matters.
Mr Coady asked for a lenient non-parole period. He put appropriate emphasis on Mikhaiel’s trauma history, prior good character (conceding it was a not a mitigating factor), strong family support and generally prosocial values. He noted that the offence was out of character and not part of any course of offending.
Madam Crown put appropriate emphasis on the seriousness of each of the offences which has to bear some relativity to the maximum penalties and standard non-parole periods.
I have to identify, as I have tried to do, all relevant factors. I have to make a value judgment about the appropriate sentence. Some of those matters aggravate the sentence, particularly the seriousness of what was done, some mitigate. There are no golden rules: R v Geddes (1936) 36 SR (NSW) 554 at [555]-[556]. Giving weight to the conflicting purposes of sentencing is what makes the exercise of its discretion so difficult: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at [476]
Here appropriate weight must be given to the deterrence of others, and ultimately protection of the community is of great importance: Engert v The Queen (1995) 84 A Crim R 67 at [68].
A proper sentence should mark the Court’s view of the seriousness of the crime and let others know the retribution that will fall on them if they commit similar offences: R v Herring (1956) 73 WN (NSW) 203 at [205]; Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222.
Where a child has been sexually interfered with retributive or deterrence sentences are often required. However, rehabilitation is also an important consideration and if it can be achieved, is the most durable guarantor of community protection: Hogan v Hinch [2011] HCA 4 at [32] (French CJ).
All the material before me indicates that Mikhaiel has very good prospects of rehabilitation. Too long a period in gaol may undermine those prospects, and protection of the community is contributed to by the successful rehabilitation of offenders, and this aspect of sentencing should never be lost sight of. It assumes particular importance in the case of first offenders and others who, as here, have not developed settled criminal habits: Yardley and Betts (1979) 22 SASR 108 applied in Blackman and Walters [2001] NSWCCA 121.
Sentencing courts also however have an obligation to vindicate the dignity of the victim of crime and express the community’s disapproval for offending. For those reasons, particularly in matters such as this, a sentence has to ensure that the punishment bears some proportion to the seriousness of the crimes committed.
As a consequence, an aggregate sentence of 5 years and 6 months will be imposed. The impact of those sentences will be moderated by a significant finding of special circumstances; for transparency purposes, in a ratio of 55%.
I have to indicate each individual sentence. The sentence will commence on 22 May 2025 to take into account the one day in custody on arrest and the period since bail was refused.
It is not my practice to put non-parole periods in periods of days. I sought to approximate in each of the matters. The sentences I indicate the ratio of the ultimate sentence, but each has to have a non-parole period specified.
For Count 1, I indicate a sentence of 1 year, and 6 months non-parole period, that is the first s 61K matter. For each of the s 61J matters, I indicate sentences of 4 years and 2 years, 2 months non-parole period. For the other s 61KD matter, I indicate a sentence of 1 year and 6 months with a 10 months non-parole period.
The aggregate term is 5 years and 6 months, the non-parole period is 3 years and will commence on 22 May 2025, making the offender eligible for consideration for release to parole on 21 May 2028. The balance of the term of 2 years and 6 months will commence on 22 May 2028 and expire on 21 November 2030.
**********
R
Mikhaiel [2025] NSWDC 453
(2013) 249 CLR 571
(2010) 79 NSWLR 1
(2005) 228 CLR 357
(1988) 164 CLR 465
(2001) 206 CLR 267
(1979) 22 SASR 108
Written submissions and oral submissions addressed the matter, and they are set out in full. I have considered them today.
One of the few difficult issues left in dispute after submissions were exchanged was whether the Crown had proved beyond reasonable doubt that Mikhaiel knew that the complainant did not consent to the sexual intercourse. In some cases, a finding of actual knowledge as opposed to recklessness as to consent can have a significant impact on assessment of objective seriousness. In almost every case, it would have some impact. The dispute falls, in my view, into that latter category.
So far as Count 1 is concerned, Mikhaiel was obviously aware that what she was doing was inappropriate. But the boundaries had been relaxed, and she was sitting and engaging with the complainant on the bed. Given the nature of the act, it is possible, and thus not proved beyond reasonable doubt, that she was reckless as to the question of consent. In saying that, she was obviously pushing the boundaries.
So far as the other three matters are concerned, she was aware of the relative position so far as both of them were concerned. She had created a situation where the complainant consented to the massage and consented to being naked. There is no indication in any of the evidence from the complainant which I accept, and given the offender denies there was a massage, there is nothing from her from which I could conclude anything other than that she knew there was no consent to what she was doing.
There was nothing at all, so far as the complainant is concerned, to give any hint that she would and did consent to this action, and Mikhaiel must have known that. She may have been hoping for later consent, but it was not given.
It is presumed that Justice Health and Community Corrections will provide all necessary assistance to her.