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[2017] ACTSC 357
Supreme Court of the ACT
2017-11-06
Mossop J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentencing - sexual intercourse without consent - guilty plea - young offender - factors taken into account in assessing the gravity of offences - violence - explicit lack of consent - mid range of objective seriousness - partially suspended sentence
DPP v Jurj & Miftode [2016] VSCA 57
R v Livas [2015] ACTSC 50
R v Simon [2010] VSCA 66
1. Cody Palmer has pleaded guilty to one count of sexual intercourse without consent. That involves a contravention of s 54(1) of the Crimes Act 1900 (ACT) and carries a maximum penalty of 12 years' imprisonment.
2. The facts were agreed and in summary are as follows.
3. Tuesday 1 November 2016, was Melbourne Cup Day. The offender consumed alcohol throughout the day at the Canberra racecourse and various licensed premises in Civic until 1:00 am on 2 November. At that time he and three male acquaintances attended the Diamond Companions escort agency in Gladstone Street, Fyshwick.
4. The victim was a woman employed at the Diamond Companions as a manager as well as a sex worker. The victim separated the group into two groups and she and another sex worker introduced themselves. The victim asked him what he wanted and he responded "I'll take you". The victim explained that "full service", namely penile-vaginal sexual intercourse, would be $190. The offender went to an automatic teller machine located inside the premises but was unable to withdraw sufficient funds. He and another male left for approximately 5 minutes and when he returned he asked what $115 would get him. He was told that he would get a massage with "happy ending oral relief", namely oral sex. He paid an amount of $110 and was directed to one of the rooms and told to have a shower. A short time later the victim came into the room and removed all of her clothes except for her bra. The offender asked her to join him in the shower and she declined. The offender exited the shower and attempted to hug and kiss the victim. She said no and explained to him that that was not part of the service. The offender lay on the bed naked. The victim placed a condom on his penis. The victim then sat on the offender's stomach and began massaging him. The offender told the victim to sit on him and ride him to which the victim said no. The offender told the victim to "fuck" him and the victim replied no, explaining that he had "only paid for a massage with happy ending". The offender then used his open right hand to strike the left-hand side of the victim's face, grabbed her hair and pulled her down onto the bed. He maintained hold of the victim's hair and rolled on top of her. He placed his erect penis between her legs and began thrusting. He penetrated her vagina with his penis. She told him to stop and that it hurt but he continued to have intercourse with her. He let go of the victim's hair and placed his hands on the bed above the victim's shoulders. The victim managed to push the offender sideways and got out from underneath him. She said she needed a drink of water but quickly dressed and left the room. She told the cashier that the offender needed to leave because he had hit her. The cashier escorted the offender from the premises. She reported the incident to her colleagues.
5. The incident was subsequently reported to police.
6. On 4 November 2016 images from the closed circuit television ('CCTV') footage were disseminated to police and the offender was identified.
7. Police obtained bank records which correlated with the CCTV. On 5 December 2016 the offender attended the Winchester Police Centre and participated in an interview. The offender indicated that he was intoxicated on the evening of the incident, that he vaguely recalled attending Diamond Companions, that he vaguely recalled using the ATM but that he could not remember what services he obtained nor how much money he paid. He identified himself in a number of stills taken from the CCTV. He returned for a further interview on 6 December 2016 saying that he remembered not being able to withdraw funds from the ATM and that he didn't remember getting money or paying for the service. He said that he engaged in consensual sex with the victim and that someone knocked on the door and told him that time was up so that he left.
8. The proceedings were first before the Magistrates Court on 15 December 2016. On that occasion he was charged with the present offence as well as a charge of sexual assault in the third degree contrary to s 53 of the Crimes Act. The offender indicated that a plea of not guilty was likely. On 23 February 2017 pleas of not guilty were entered. On 6 April 2017 a plea of guilty was entered to the charge of sexual intercourse without consent and the other charge was withdrawn. He was at that time committed for sentence to this court.
9. The offence occurred when the offender was 18 years' old. He is now 19 years' old.
10. He is the youngest of four siblings and resides with his parents in Queanbeyan. He reported an unremarkable yet privileged upbringing.
11. He completed schooling to Year 10 at Marist College, Canberra. Upon leaving school he commenced employment within the family business working as an audiovisual technician installer under an apprenticeship scheme. He works full-time, attending tertiary study in Sydney as a requirement of his apprenticeship.
12. He has no criminal history in New South Wales ('NSW') or the Australian Capital Territory.
13. A NSW Pre-Sentence Report that was tendered by the offender noted that he was placed in the moderatetohigh risk category relative to other male sexual offenders by the Static 99R assessment. This aspect of the report was the result of an assessment by a psychologist at Corrective Services NSW, based on file information only. The reasons for the elevated risk was his age, the fact that he had never lived with a partner for two years or more and that he was unrelated to the victim. This placed him in the "moderate-high risk category relative to other male offenders" (emphasis in original). It was because of this assessment and the nature of the offending conduct that the proposed low risk of reoffending in the Pre-Sentence Report was overridden and the higher identified risk included in the final version of that report.
14. The author of the Pre-Sentence Report doubted that he understood the seriousness of his sexually-aggressive behaviour. This view appears to be contributed to by the fact that although he can recall having sex with the victim, a service for which he had not paid, he claimed not to remember sexually assaulting her.
15. Using the LSI revised assessment tool the offender was assessed as at a "medium/high" risk of reoffending. The criminogenic factors identified were "alcohol/drug problems", his attitude and his sexually-aggressive behaviour.
16. The author recorded concerns about his level of alcohol intake and his understanding in relation to the level of his sexually-violent behaviour.
17. A victim impact statement was tendered. It described the emotional impact of the offending conduct and the reporting of the conduct to police. It indicated that the victim has subsequently suffered from panic attacks and nightmares and that certain smells would trigger a panic episode. It also disclosed that the victim changed jobs and suffered financially as a result of the offence.
18. The offender tendered a report of Dr John Roberts, psychiatrist. That report disclosed that the offender did not suffer from any psychiatric condition on the night in question and that his behaviour was "substantially determined by alcohol ingestion resulting in poor impulse control secondary to such ingestion".
19. The offender gave oral evidence and was cross-examined. He completely accepted the facts. He had read and understood the victim impact statement and he understood the significant effect on the victim. He gave evidence that he was undertaking an apprenticeship and that the academic component of that took place in Sydney and could not be completed by distance if he was incarcerated. He gave evidence of the circumstances which led up to the offence. He gave evidence of his shame and embarrassment at what had occurred. He gave evidence of his generally modest drinking habits. In cross-examination he did give evidence that on occasions he would drink to the point of vomiting.
20. The mother of one of the offender's best friends gave evidence. It is to her that the offender had confided that he was being investigated by police for the offending conduct. She gave evidence of her observations of his generally modest drinking behaviour, that he was generally a helpful, polite, honest and friendly person and that he was now more withdrawn than he had been previously.
21. There was some evidence that the offender would suffer some consequences for his chosen career in the security industry because of a serious conviction. Having regard to the terms of the evidence I accept that there is a significant prospect that as a result of the conviction he will be precluded from his chosen area of employment or his opportunities for advancement will be restricted. Further, in the short term, a period of imprisonment will interfere with the tertiary studies associated with his apprenticeship.
22. The offence of sexual intercourse without consent covers a wide spectrum of criminal culpability: see R v Simon [2010] VSCA 66 at [60]. In DPP v Jurj & Miftode [2016] VSCA 57 at [80] the court reviewed decisions of that court on sentencing for rape and noted they revealed the following features which are typically taken into account in assessing the gravity of a particular offence:
(a) whether the offence was premeditated;
(b) whether the offender acted alone or in company;
(c) how long the attack lasted and whether the victim was raped more than once;
(d) whether the offending involved violence or threats of violence;
(e) whether a weapon was used;
(f) whether the victim was injured in the course of the rape;
(g) whether the victim was humiliated or degraded;
(h) whether the offender used a condom;
(i) whether the victim was particularly vulnerable; and
(j) whether the offender ignored warnings or protests by the victim.
23. The sexual assault was relatively brief and occurred when the offender was alone with the victim. There is no evidence of premeditation. It involved violence. Sex workers are particularly vulnerable to abuse: R v Livas [2015] ACTSC 50 at [34]. A condom was used. The offender used his superior physical size to assault and force his will on her. His goal was self-gratification. The assault caused the victim pain but nothing other than transient physical injury. It has, as commonly occurs with such conduct, an ongoing psychological consequences: R v Wyper [2017] ACTSC 50 at [2]. The impact upon the victim is described above. The offender ignored her repeated protests before and during the sexual assault. After he had penile sexual-intercourse with her she managed to push him away and leave the room where she requested assistance. I consider that the offending conduct is in the mid range of objective seriousness as it was accompanied by violence and explicit lack of consent.
24. Because of the seriousness of the offence and the aggravating feature that it involved a degree of physical violence, I do not consider that any sentence other than a custodial sentence is appropriate.
25. The offender was 18 at the time of the offence. He is now 19 years' old. He does not have any criminal history. Both of these factors permit the Court to allow him a degree of leniency.
26. Because of his youth and the fact that he has not spent any time in custody other than on remand in relation to this offence the impact of prison is likely to be greater than for someone older or with previous experience of prison.
27. However both specific and general deterrence are significant sentencing considerations. Specific deterrence must be significant for a young male who is engaged in a serious sexual assault like this. However, I do not place great weight on the risk assessments in the Pre-Sentence Report when assessing the need for specific deterrence. There appear to me to be social factors which reduce the risk of further offending by the offender, and it is not clear how these were considered in the assessment that was carried out.
28. HIs intoxication provides the context in which his offending conduct occurred. It is not a mitigating factor. He gave evidence that he has since moderated his drinking behaviour. It is difficult to know how long he will remain committed to avoiding drinking to the kind of excess that was associated with the offending conduct.
29. General deterrence is clearly important because sexual assault by young intoxicated men is not uncommon and is extremely serious. Furthermore, the conduct must be denounced. Violent sexual assaults against women is conduct which the law treats very seriously and is socially unacceptable. That includes such assaults as those against women working as sex workers.
30. I have had regard to the offender's expressions of remorse. There is no doubt that he is ashamed of his conduct. He expressed some understanding of the impact of his conduct upon the victim. Notwithstanding that he was relatively inarticulate about how he felt about the offence and the extent to which he appreciated the consequences of his actions I consider that his expressions of remorse were genuine.
31. I have had regard to the range of sentences imposed for this offence which were usefully summarised in tabular form in the written submissions of counsel for the Crown. I have taken into account his relatively early plea of guilty and have reduced the sentence that I would otherwise have imposed by approximately 20%.
32. I consider that the appropriate starting point is a sentence of imprisonment of 30 months reduced to 24 months on account of plea of guilty.
33. The next issue is how it should be served. I do not consider that an intensive corrections order would be appropriate having regard to the fact that the offender resides in Queanbeyan and because of the seriousness of the offence. I consider that a fully suspended sentence, even if combined with a Good Behaviour Order requiring community service would not be sufficient to reflect the gravity of the offending conduct and the need for both specific and general deterrence. Having said that, because this will be the offender's first custodial sentence a short period of imprisonment prior to suspension is appropriate. In the present case I consider a short period of imprisonment of five months prior to suspension will be sufficient. That is likely to be sufficient to reflect the gravity of the offending conduct to the offender and indicate to him what he faces if he fails to be of good behaviour during the period of his Good Behaviour Order.
I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.
R
Palmer [2017] ACTSC 357