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[2018] ACTSC 37
Supreme Court of the ACT
2018-02-23
Penfold J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - guilty verdicts in jury trial for sexual assault in the second degree, sexual intercourse without consent, act of indecency -- stalking charge found made out by reference to evidence given at jury trial - hardship to family arising from father's inability due to ill health to maintain family business without offender's help - offender's partner being treated for cancer - significance of hardship to offender's family - act of indecency and stalking breached good behaviour order made by court when suspending sentence of imprisonment for recklessly inflicting grievous bodily - suspended sentence imposed - further custodial sentence to be served.
Crimes (Sentencing) Act 2005 (ACT), ss 11(3), 29
Magistrates Court Act 1930 (ACT), s 90B
Supreme Court Act 1933 (ACT), s 68D
R v Hamid [2006] NSWCCA 302; 164 A Crim R 179
R v Joyce (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 5 February 2014)
R v NO [2018] ACTSC 30
R v Punna-Ophasi (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 5 October 2012)
R v TN (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 10 September 2013)
Valencic v Jordan [2017] ACTSC 120
SCC 31 of 2017; SCC 37 of 2017
1. NO has been found guilty by a jury of three offences as follows:
(a) sexual assault in the second degree, arising under s 51(1) of the Crimes Act 1900 (ACT) and carrying a maximum penalty including imprisonment for 14 years;
(b) sexual intercourse without consent arising under s 54(1) of the Crimes Act and carrying a maximum penalty including imprisonment for 12 years;
(c) an act of indecency without consent arising under s 60(1) of the Crimes Act and carrying a maximum penalty including imprisonment for seven years.
2. Two other charges were transferred to this Court under s 90B of the Magistrates Court Act 1930 (ACT) and s 68D of the Supreme Court Act 1933 (ACT):
(a) stalking contrary to s 35 of the Crimes Act and carrying a maximum penalty including imprisonment for two years; and
(b) common assault contrary to s 26 of the Crimes Act and also carrying a maximum penalty including imprisonment for two years.
3. The treatment of those offences is dealt with in the judgment that I have just handed down (R v NO [2018] ACTSC 30). For reasons set out in that judgment, I must also sentence NO for one offence of stalking, and dismiss the common assault charge.
4. The three incidents from which the four charges arose took place in February 2011 and June and July 2015. The following descriptions reflect evidence given at NO's trial.
5. NO met the victim in early 2010, and soon after, the pair started a sexual relationship. That relationship did not initially have any of the other common incidents of a romantic relationship, such as shared non-sexual activities or introductions to the parties' friends or family. The evidence was that in the early stages of this relationship, NO was also involved in what he says was a serious relationship with another woman.
6. The charges of sexual assault in the second degree, and sexual intercourse without consent, arose out of an event in February 2011. NO had invited the victim to come to his house late one night. The victim gave evidence that when NO answered the door, he appeared intoxicated, was biting his lip, his pupils were dilated, and he was not acting normally; the victim explained that he was usually polite and that there would be conversation.
7. Instead, when NO opened the door, he began kissing the victim, and led her towards his bedroom where he held her up against the wall with his hand around her throat. The victim says that the next thing she remembers, she was on his bed, where she told him she wanted to leave and that she did not want to have sex. He responded, while penetrating her, by saying "You're not going anywhere".
8. NO then continued to kiss the victim, sucked on her breasts, and held her down by her arms. She repeated that she did not want to have sex, and that she wanted him to stop. He ignored her, saying only "You're a dirty slut. Who's my dirty bitch", and proceeded to have penile-vaginal intercourse with her. He then fell asleep, and the victim went home.
9. In the days following, the victim found bruising around her throat, breasts and inner thighs. She took photos of her injuries, and sent them to NO. A screenshot of the text message, tendered at trial, shows that in response to the photos, NO sent a text message apology, being, "I am so sorry you deserve more than that I'm so sorry", but beginning with "Lol", which the victim understood to signify "laughing out loud", and found hurtful.
10. Despite this incident, NO and the victim resumed their relationship after a number of weeks, with the victim explaining that she was "madly in love with him". The relationship progressed to a "more conventional" relationship after the victim fell pregnant to NO; despite his initial misgivings, the victim continued the pregnancy and gave birth to their daughter in late 2012.
11. Following a DNA test, demanded by NO before he would accept the child as his, the victim moved into NO's home in 2013. During the trial, there was evidence:
(a) that the relationship was tumultuous, with accusations of infidelity and significant disagreement about the level of support NO provided the victim in caring for the children and the household;
(b) that the victim found NO to be controlling, to emphasise her home-making responsibilities with comments like "your responsibility lies between these four walls", and to act in ways that reduced the victim's contact with her extended family; and
(c) that the victim was fearful of NO.
12. In spite of these problems in the relationship, in early 2015 a second child was born to the victim and NO.
13. The act of indecency offence occurred in about June 2015. The victim had put the children to sleep and was lying in bed, on her stomach, facing away from NO. He asked her if she wanted to have sex, and when she declined, he asked, in effect, whether she minded if he masturbated. A short time later, NO ejaculated onto the victim's back. She gave evidence that she felt disgusted and embarrassed that he would do that to her.
14. The events giving rise to the stalking offence occurred in July 2015. They are described in the separate judgment (referred to in [3] above) in which I have just set out my reasons for finding NO guilty of the stalking charge.
15. In short, however, as the relationship between NO and the victim was drawing to an end, and after the victim left the family home with her children for the last time, NO over several days sent to the victim an unjustified barrage of unsolicited and unwelcome phone calls and text messages, knowing, or at least being reckless, that these would be likely to harass the victim.
16. NO was first summonsed to appear in the Magistrates Court on 1 December 2016, where he was charged with the offences of sexual assault in the second degree and sexual intercourse without consent, as well as the stalking charge. On 7 February 2017, NO entered pleas of not guilty and the matter was committed to this Court for trial. He was arraigned on the act of indecency offence at the commencement of the trial, with the amended indictment filed with the Court in March 2017.
17. NO had been on bail until, on 29 September last year, the jury delivered verdicts of guilty of the first three offences, after which I revoked NO's bail.
18. As at today (23 February 2018), he has spent 147 days in custody in respect of these charges. He was briefly released on bail shortly before Christmas when his current partner underwent surgery in connection with breast cancer. That date, 29 September last year, will be the original backdating date although, in fact, for reasons that will become apparent, the sentence will be backdated further than that.
19. NO's convictions for the act of indecency and the stalking offence put him in breach of a two-year good behaviour order made by Refshauge J in 2013 in sentencing NO for an offence of recklessly inflicting grievous bodily harm committed in 2010. His Honour imposed a sentence of 2 years imprisonment, with the first 3 months to be served as periodic detention and the remaining 21 months suspended. In conjunction with suspending that term of imprisonment, his Honour made the two-year good behaviour order to take effect on 24 August 2013 and therefore expiring on 23 August 2015. His Honour also required NO to complete 150 hours of community service. I understand that the periodic detention and the community service were completed as required.
20. The offence for which Refshauge J sentenced NO, recklessly inflicting grievous bodily harm, involved NO assaulting an acquaintance after there had been an altercation at a bar on Woden between NO's then partner and the victim's partner. It is notable that the original altercation, and the subsequent incident between NO and that victim that culminated in NO inflicting the grievous bodily harm, both involved NO making crude and disparaging comments about the victim's partner and possibly about another woman present at the bar.
21. As well as the evidence given at trial, the following material is in evidence before me:
(a) NO's updated criminal history;
(b) a pre-sentence reported date 25 October 2017;
(c) a victim impact statement from the victim in this matter, dated 11 October 2017;
(d) a copy of Refshauge J's sentencing remarks when NO was sentenced for recklessly inflicting grievous bodily harm;
(e) an AFP statement from a solicitor with the ACT Government Solicitor dated 25 October 2017 setting out details regarding an outstanding Victims of Crime compensation order made against NO in respect of the 2010 assault;
(a) a report dated 1 December 2017 from clinical psychologist Dr Cristian Torres;
(b) eight references, from nine people, including NO's parents and his two sisters;
(c) a file note from the ACT Government Solicitor of a phone call with NO about his difficulties in paying the Victims of Crime compensation and a further recent email from ACT Government Solicitor;
(d) a further letter from NO's father;
(e) evidence about the ill-health of NO's current partner KX, including material tendered on the December 2017 bail application and a letter from Dr Gaugharn, a Senior Registrar in the Canberra Hospital's Department of Oncology, about the medical treatment required by KX over the next few months;
(f) a journal article about emotional support for cancer patients; and
(g) a large bundle of NO's financial records, also relevant to the payment of the Victims of Crime compensation order.
23. Oral evidence was given by NO's current partner JX and her mother.
24. I shall refer to all this evidence as it becomes relevant.
25. In considering the objective seriousness of the offences, I have regard to the following matters.
26. Sexual assault in the second degree involves inflicting actual bodily harm on another person with intent to engage in sexual intercourse with that other person. As shown by the respective penalties, it is regarded as even more serious than sexual intercourse without consent. Both offences, however, are serious offences.
27. The fact that the victim was in a sexual relationship with NO may distinguish these offences from offences involving sexual assaults on a stranger, but not necessarily to reduce their seriousness, given that NO's actions involved a breach of the trust inherent in a consensual sexual relationship. The sexual assault left the victim with painful injuries, including bruising to her neck, breast and inner thighs. She felt the need to wear scarves, despite it being summer, to conceal the marks on her neck from her family and work colleagues.
28. The act of indecency was an unpleasant offence which the victim found humiliating; in the circumstances, however, of an existing consensual sexual relationship and the evidence that the victim agreed to NO masturbating in their bed in her presence, it seems to me to be somewhat less serious than an equivalent act committed by a stranger - but of course an equivalent act committed by a stranger would, in my view, be a very serious example of the indecency offence.
29. The stalking offence is also relatively serious, even though I did not find that it involved the activation of the victim's location services without consent or any interference with her Gmail account. However, there were many more unwanted calls and messages over the period specified in the charge than would have been necessary to make out the offence.
30. I cannot rule out the possibility that the sexual assault involving the first two charges was premeditated, in the sense that NO intended to treat the victim in that way when he invited her to his home, given that NO began the assault as soon as the victim came into the house and before he had any reason to believe that the victim would not be willing to engage in consensual sexual intercourse as happened regularly in their relationship. However, I cannot make such a finding beyond reasonable doubt, and accordingly do not rely on premeditation in this sentencing.
31. NO has not expressed remorse for the victim, but this is unsurprising given that he continues to deny the jury's findings of guilt. NO has lodged an appeal against his convictions on the three offences dealt with by the jury, which is likely to be heard later this year. The only responsibility NO has taken appears to be for the ordeal he has put his family through, and for the infidelity to a previous partner that was constituted by his relationship with the victim of the current offences.
32. Defence counsel noted the victim's evidence at trial that NO had offered a kind of apology when confronted with the photos of the victim's injuries, although the terms of the "apology", which I have already quoted, seem to be ambivalent at best.
33. NO's failure to show remorse in this case contrasts with his statement to Dr Torres that he feels remorseful about the injuries he inflicted in the 2010 assault, although I note also Refshauge J's comments in his sentencing remarks that NO's expressions of remorse at the time were rather muted and were associated with the regret for the pain and difficulties he has caused his family.
34. The Crown noted that the sexual intercourse took place without a condom, thus exposing the victim to risks of pregnancy and sexually transmitted infections. I do note, however, NO's evidence that unprotected sex was normal in his consensual relationship with the victim.
35. The prosecutor submitted that NO was intoxicated at the time of the first two offences. The victim's evidence of the 2011 assault was that NO "seemed quite intoxicated", although there was no clear evidence of the nature of the intoxication. Certainly, NO conceded that he had been intoxicated in the early hours of 18 July when he began the repeated communications that I have found constituted the stalking.
36. It is clear, however, that intoxication, while it might provide some explanation for NO's actions, would not be a mitigating factor in either case anyway; on the other hand, there is no evidence on which I could find beyond reasonable doubt the possibly aggravating factor that not only was NO intoxicated, but that he knew his intoxication rendered him more likely to commit the offences concerned.
37. The victim impact statement records the victim's feelings after the assault and rape as follows:
After [NO] raped me I sunk into a deep depression. Hiding what had happened to me, to friends, family and colleagues took a massive toll on me. I isolated myself from everyone while I was trying to cope with what had happened. I felt alone, humiliated and violated. My body took a long time to heal leaving constant reminders on my skin from the bruises he left all over me. [NO] was so good with words, he was eventually able to talk me into believing it was never going to happen again.
I wanted to end my life and had planned how I wanted to die. I just wanted it to end. I didn't seek help because I felt I didn't deserve it. I just didn't care about anything, I felt worthless and felt like I had nothing to live for. It was all because of what [NO] was doing to me, and I didn't see a way out.
The things that [NO] did are the most humiliating and degrading things that have ever happened to me.
...
It was like he had no concept of the word no. If I said no, it was like it wasn't comprehended and he would just do whatever he wanted anyway. I felt like my body and space were never respected. He was relentless.
I now realise that he never had any respect for me as a human being.
38. The victim impact statement goes on to describe the victim's anxiety about having to give evidence at the trial, and her concerns, between 2015 when she made her complaints and last year when NO was remanded in custody, about the possibility that she would come across him when she went out, and that he or someone else would hurt her. As a result, she has moved house several times and has felt obliged to change other contact details. The victim now has a new partner who is very understanding, but flashbacks to her relationship with NO can cause serious anxiety attacks, and this affects the relationship with the new partner. She has been diagnosed with Post-Traumatic Stress Disorder, anxiety, and manic depression.
39. Finally, however, the victim notes that the outcome of the trial has made her feel that she is worth something, and that what happened to her has been recognised.
40. Each of these four offences, in my view, approaches mid-range seriousness.
41. I have also had regard in this sentencing to NO's subjective circumstances.
42. NO is 31 years old. His criminal history in the ACT consists of a couple of driving offences and the 2010 offence of recklessly inflicting grievous bodily harm for which NO was, as already noted, sentenced in 2013.
43. NO was born in Canberra, and reports a positive upbringing and good relationships with his parents and his two siblings. NO told the pre-sentence report author that he has a positive relationship with his current partner of two years. However, although he was an active father to his two children with the victim, he seems to have had little or no contact with those children since being remanded in custody.
44. NO does not report any difficulties with schooling or early life, but he did tell the psychologist, Dr Torres, that he was involved in five or six fights at school, while noting that they were "nothing serious". NO completed Year 12 and enrolled in a Bachelor of Business Management in IT; however, he did not pursue tertiary education, and instead obtained various certifications in carpentry, asset management and other areas of building and construction. He was employed in the family construction services business before his remand; he had taken over management of the business eight years ago after his father stepped down due to ill health.
45. To the pre-sentence report author, NO did not disclose any significant drug or alcohol dependencies, but he did describe binge drinking as a teenager and said he now consumed alcohol on odd occasions. To Dr Torres, however, he confirmed continuing to binge drink on rare occasions, and Dr Torres noted that his score on the Alcohol Use Disorders Identification Test indicated a harmful and hazardous drinking behaviour in the year before his remand in custody. Since incarceration, NO has started rolling his own cigarettes and smokes approximately one pouch a week.
46. In discussion with Dr Torres, NO denied a history of hypersexuality, and Dr Torres assessed him as having "a well-developed understanding of consent and sexual boundaries" and said that "he did not endorse attitudes consistent with sexual abuse or violence". NO also denied ever having issues with anger, violence or aggression, which Dr Torres noted was "curious given his prior report of fighting at school and the incident in [2010] leading to his first conviction".
47. As noted, NO has denied the offences and so has offered no explanation for them.
48. The second letter from NO's father referred to several accidents and illnesses he has suffered since 2008, including a car accident, a fall from a roof, and several heart-related incidents. As his father's health deteriorated, NO has had to take on more responsibility for the running of the company, and became Project Manager in 2014. NO's father reports that the company was in a sound position in early 2017, but has been negatively affected by NO's legal proceedings, which have led to a reduction in staff numbers from five full-time and three part-time employees to two full-time and one part-time employee. NO's father says that it is not a commercially viable alternative for the company to replace NO with a person from outside the family. If NO is not available to recommence work shortly, NO's father says that the company will probably reduce commercial activity to nil and potentially close at the end of this year.
49. As already mentioned, NO was granted bail just before Christmas to support his current partner KX during some surgery related to a diagnosis of breast cancer. Since then, I have been provided with further information, including that the cancer also involves her lymph nodes, and advice from KX's doctor, who said:
She has already had some breast surgery but more is likely planned after chemotherapy.
She will have chemotherapy for 24 weeks requiring social support. Her side effects will cause fatigue, arthralgia, numbness, chemo [brain], gastro, nausea/vomiting during this time. Thereafter, she will have five-six weeks of radiotherapy (fatigue, burning pain, rash). After this she will likely have further surgery requiring a further recovery period. During all of this time she will be at risk for infection.
During this hard time it would obviously be better for KX to have support. I think a probation proposal for [KX's] partner would make my treatment safer and easier to administer.
51. She has two children, aged eight and four. The family has lived with NO for about two and a half years.
52. The father of these children currently looks after them every second week, but he is unable to provide any extra care for the children. He is also unable to provide extra support to KX herself. Apart from this, KX's only family in Canberra are her mother, and two grandparents whom she describes as "very elderly" and as having "significant health issues"; however, I note that in NO's application for bail in December, and in the bail conditions, those grandparents were identified as being involved in supervising NO during his day release from the AMC.
53. After KX's sick leave and other entitlements are used up, she expects to have to apply for Centrelink benefits. At that point she will struggle to pay rent to her mother, who owns the property in which she and her children live. She said she would also be unable to fund the same kind of out-of-school care currently used by the children's father during the weeks he looks after them, but conceded that once she was receiving Centrelink benefits she might be eligible for a childcare rebate.
54. KX expressed concern for the quality of life that would be enjoyed by her children while she is being treated, and a wish that NO could be available to help look after the children and provide support more generally.
55. She described a variety of obstacles to maintaining a relationship with NO by regular visits to the AMC, some of them imposed by prison authorities, some potentially by her body's responses to her cancer treatment, and some by the need to share with NO's family and his other friends the limited number of visits permitted.
56. Asked about NO's advice to the pre-sentence report author that after he was released from custody he hoped to return to live in his own home (which he had previously shared with the victim of these offences and their two children), KX said that she understood that the house had now been sold, but that she had not been contacted by Corrective Services in preparing the pre-sentence report. KX said that her mother lived a couple of suburbs away from her, that she saw her mother most days, and that her mother on occasion looked after her children.
57. KX's mother also gave evidence. She has been a registered nurse for many years but at the moment works full-time for ACT Health where she is currently seconded to a project which is completing the operational commissioning of the new University of Canberra Public Hospital due to open in July this year. This is clearly a demanding job. KX's mother explained the family's needs while her daughter is undergoing treatment, including physical support for KX when she is affected by aspects of her treatment, practical support in terms of childcare and managing the household, financial support, and emotional support, especially given that, as a younger woman, her prognosis for this kind of cancer is not particularly good.
58. KX's mother explained her own financial situation, and the difficulty of maintaining her own mortgage as well as the mortgage on the house occupied by her daughter, and the reasons why it would not be convenient or suitable for her daughter and the children to move in with her. These included the fact that she maintains bedrooms for KX's brother and sister who have recently moved out of Canberra but return from time to time for work, and that in her house, she would not be able to offer KX a dedicated bathroom that could be maintained to the very high levels of hygiene required by a person with a suppressed immune system.
59. I note also the journal article put in evidence by the defence, and I do not doubt the propositions set out in the summary as follows:
For many cancer patients and their families the experience of cancer is an intensely stressful one. Emotional support is important for most cancer patients during their illness and can be gained from different people and services. ... The results [of a questionnaire] revealed that the three most important sources of emotional support were senior registrars (73%) and family (73%), followed by consultants (63%).
60. The references provided for NO from four members of his family and from friends and colleagues express surprise and shock at the charges; most of his referees suggest that the offences are out of character. I note, however, that when he was sentenced by Refshauge J in 2013, NO also provided 10 character references (5 from family members) most of which asserted that the grievous bodily harm offence was out of character for NO.
61. Various items of evidence have been put before me in relation to NO's longstanding failure to make any payments in respect of a Victims of Crime compensation order made in favour of the victim of the 2010 assault. In May 2015, the ACT Magistrates Court made a provisional order against NO for restitution to the victim of the 2010 assault in the sum of just over $41,000. In July 2015, NO had contacted the ACT Government Solicitor to say that he had no money because he was going through a divorce, and was told that he was still within time to object to the provisional order. This order was however confirmed in September 2015. In October 2015, NO called the ACT Government Solicitor and said that he was happy to pay the amount ordered but needed some time to complete his last two tax returns and sort out a land tax issue. In December 2017, the ACT Government Solicitor confirmed that two payments had been received from NO totalling just over $33,000. I note this evidence because both parties made considerable efforts to establish whether any restitution had been paid and why it might have been delayed. As the evidence stands, however, I do not see that it has any significance in this sentencing against or in favour of NO.
62. NO does not concede a need for any kind of rehabilitation. However, the nature of the offences suggests that a family violence program of some sort might be relevant.
63. Defence submissions focused on the significance for NO's family and current partner of any further incarceration. Defence counsel directed me to an earlier judgment, Valencic v Jordan [2017] ACTSC 120, in which I considered whether the impact of a sentence on an offender's family could only be considered in exceptional cases, as follows:
58. In Craft v Diebert [2004] ACTCA 15, Crispin P and Connolly J said:
Courts, of course, take account of such matters in a number of ways but are not overwhelmed by them. It is well recognised that very often a prison sentence will result in equal hardship to persons other than the offender. In the case of a male, his wife and children may be the ones who suffer because they lose a father and a person who provides financial support. In the case of a female, it may mean the temporary loss of a mother. It is common that hardship and stress is shared by the family of an offender but that may be an inevitable consequence if the offender is to be adequately punished. An offender cannot shield himself under the hardship he or she creates for others, and courts must not shirk their duty by giving undue weight to personal or sentimental factors. . . .
60. I concluded:
Were it necessary to choose between these two approaches, I would follow the approach of the ACT Court of Appeal [in Ka-Hung Ip], agreeing with the view of that court [at [60]] that "there is ... no warrant for a sentencing court to presume judicially to qualify the clear parliamentary command", but also with the Court's comment [at [61]] that the weight to be given to each factor expressed to be relevant to sentencing is a discretionary matter, and that "In many cases, it will not be possible to give a family's suffering much or any weight".
Consideration
64. The evidence before me is that NO's incarceration for a further period will impose considerable hardship on the family business and its employees, and also on his current partner who will face serious challenges to her health in the coming months and possibly years. I have much sympathy for NO's parents, and especially for his current partner.
65. It is extremely unfortunate that NO has put at risk his chance of being available to his family when they need him, and perhaps particularly unfortunate that he has done so by his unacceptable treatment of a person who was at the time also a member of his family and entitled to his care and protection. This is not a case in which any significant discount to the otherwise appropriate sentence could be made because of the difficulty such a sentence would cause the offender's family.
66. NO has committed serious offences; they are offences that would be serious in any situation, and the fact that they are committed in circumstances that identify them as domestic or family violence offences in no way reduces their significance. The prosecutor referred me to the comments of Johnson J of the New South Wales Court of Criminal Appeal in R v Hamid [2006] NSWCCA 302; 164 A Crim R 179, at [77] to [78] that:
An adequate account of domestic violence should recognise that it typically involves the exercise of power and control over the victim, is commonly recurrent, may escalate over time, may affect a number of people beyond the primary target (including children, other family members and supporters of the victim) and that it contributes to the subordination of women; domestic violence typically involves the violation of trust by someone with whom the victim shares, or has shared, an intimate relationship; the offender may no longer need to resort to violence in order to instil fear and control ...
Although domestic violence is a criminal offence in Australia, it has been reported that many young Australians still evince attitudes that essentially condone it, and many people still believe that it is a private and personal matter rather than a crime.
67. These are offences for which general deterrence is significant, especially to the extent that deterrence may be promoted by public denunciation of examples of the offences concerned in such a way as to emphasise the gravity of those offences in the eyes of the law. Furthermore, given that two of these offences represent a repeat of the kind of violent behaviour committed by NO in 2010 (albeit not in a sexual or domestic context) it seems that personal deterrence also has a significant role in relation to NO.
68. The prosecutor referred me to several possibly comparable sentencing decisions in this Court, being R v TN (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 10 September 2013); R v Joyce (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 5 February 2014) (Joyce), and R v Punna-Ophasi (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 5 October 2012) (Punna-Ophasi). None of those offenders had any criminal history at the time of the offences concerned, although Mr Punna-Ophasi had committed a further offence of violence only a few weeks later.
69. All three sentencing decisions involved sexual intercourse without consent and an associated serious assault, but in Joyce and Punna-Ophasi, the assault was committed in the course of achieving sexual intercourse, and in each of those cases, the two sentences concerned were specified to run concurrently. I propose to adopt the same approach in this case. The indecency offence, and the stalking offence, both committed more than four years after the sexual offences and weeks apart from each other, could appropriately be entirely accumulated on the other sentences, but there will need to be some further concurrence in order to satisfy the totality principle. I shall also have regard to the actual sentences imposed in those three cases.
70. Finally, there is the matter of the good behaviour order made by Refshauge J in conjunction with suspending the outstanding 21 months of the prison sentence imposed in 2013 for the 2010 offence. That good behaviour order was due to expire in late August 2015, but was breached by the two less serious offences committed in June and July 2015. It is unfortunate that His Honour's faith, expressed in 2013, that NO's life would not involve any further court appearances, has not been justified.
71. I propose to cancel the 2013 good behaviour order and to impose the suspended sentence. However, to recognise the facts:
(a) that the breaching offences were not as serious as the 2010 offence;
(b) that they were committed in the last two months of the two-year good behaviour period; and
(c) that NO complied with the good behaviour order condition requiring him to perform 150 hours of community service;
I shall provide what would otherwise be an unjustifiable degree of concurrency (and what is even so a very high degree of concurrency) between that imposed sentence, and the sentences for the new offences.
72. Finally, I note that defence counsel on several occasions submitted that I should consider making an intensive correction order which would permit NO to serve his sentences under intensive supervision in the community. However, I am satisfied that even if the two-year term set for the 2010 offence could have been addressed without further time in custody, and without precluding an intensive correction order under s 29 of the Crimes (Sentencing) Act 2005 (ACT), the sentences required for the four new offences could not properly have totalled only four years imprisonment or less. Furthermore, I could not have been satisfied that an intensive correction order would have been appropriate in this case having regard to the matters mentioned in s 11(3) of the Crimes (Sentencing) Act.
74. First, I dismiss the common assault charge that was transferred from the Magistrates Court.
(a) sexual assault in the second degree;
(b) sexual intercourse without consent;
(c) act of indecency without consent; and
(d) stalking.
76. As noted, those last two convictions put you in breach of a good behaviour order attached to the suspension of a 21-month term of imprisonment from 24 August 2013. Under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT), I cancel the good behaviour order, and impose the suspended sentence, which will be backdated to account for the three months of that sentence that has already been served.
77. I now sentence you, for the new offences, to imprisonment as follows:
(a) for sexual assault in second degree, to imprisonment for four years;
(b) for sexual intercourse without consent, to imprisonment for three years and nine months;
(c) for the act of indecency without consent, to imprisonment for two years; and
(d) for the stalking offence, to imprisonment for six months.
(a) the recklessly inflict grievous bodily harm sentence from 2013 is to be backdated to 29 June 2017, which takes account of the three months that you have served by periodic detention back in 2013, and then runs across the period that you have now been in custody - that sentence will end on 28 June 2019;
(b) for sexual assault in the second degree offence - the four-year sentence will begin on 29 September 2017 when I remanded you in custody, and it will run until 28 September 2021;
(c) for the sexual intercourse without consent - the sentence of three years and nine months, as I have already indicated, will be served concurrently with the four-year sentence, so it will run from 29 September 2017 to 28 June 2021;
(d) for the act of indecency without consent - the sentence of two years will run from 29 June 2020 until 28 June 2022, so that will add nine months to the total sentence; and
(e) the six-month sentence for stalking will run from 29 March 2022 to 28 September 2022, so that adds a further three months to the sentence.
79. That gives a total sentence of five years and three months, including the imposed grievance bodily harm sentence, and I set a non-parole period of three years from 29 June 2017.
80. The effect of the backdating and the non-parole period is that you will be eligible for parole, at the earliest, in about 28 months, namely 28 June 2020.
81. I recommend to the relevant authorities that while you are in custody, you are offered programs or counselling, including, ideally, an Adult Sex Offender Program and a Domestic Abuse Program, to address the areas of dynamic risk identified by the pre-sentence report author, being:
(a) anger issues;
(b) poor attitude to women;
(c) intimacy deficits;
(d) consent;
(e) emotional regulation; and
(f) sexual self-regulation.
82. NO, if you have any particular questions about the orders I have just made, please ask the court officials or Mr Kukulies-Smith.
I certify that the preceding eighty-two [82] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.
R
NO