CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - trial by jury - guilty verdicts - guilty plea - assault occasioning actual bodily harm - sexual intercourse without consent - sexual assault in the third degree - common assault

Crimes Act 1900 (ACT) ss 24, 26, 53, 54 and 287

Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10 and 33

SCC 251A of 2017; SCC 251B of 2017

1. On 10 July 2018, the offender was arraigned on an indictment containing 10 counts. He entered a plea of guilty to Count 5 on the indictment. He entered pleas of not guilty to the remaining nine counts.

2. On 17 July 2018, the jury returned verdicts of not guilty in respect of Counts 1, 8 and 10. On that date I also directed a verdict of not guilty to Count 9, pursuant to s 287 of the Crimes Act 1900 (ACT).

3. The following day, the jury returned verdicts of guilty in respect of Counts 2, 3 and 4 and verdicts of not guilty in respect of Counts 6 and 7.

4. The specific offences in respect of which the offender was convicted or pleaded guilty, and their maximum penalties, are as follows:

(a) An offence of sexual intercourse without consent (CC 2017/4084) (Count 2), contrary to s 54 of the Crimes Act 1900 (ACT), which carries a maximum penalty of 12 years' imprisonment;

(b) Two offences of sexual assault in the third degree (CC 2017/4085; CC 2017/4082) (Counts 3 and 4), contrary to s 53 of the Crimes Act 1900 (ACT), which carries a maximum penalty of 12 years' imprisonment; and

(c) An offence of assault occasioning actual bodily harm (CC 2017/4088) (Count 5), contrary to s 24 of the Crimes Act 1900 (ACT), which carries a maximum penalty of five years' imprisonment.

5. Count 2 relates to the offender forcing the victim to perform oral sex upon him after he had dragged her to a couch in the living room.

6. Count 3 is the offender threatening the complainant with a kitchen knife while she was performing oral sex upon him.

7. Count 4 involves the offender punching the victim on the head and forcing her head against his penis.

8. Count 5 effectively covers all of the injuries suffered by the victim. They include injuries to her head, neck and leg and substantial amounts of bruising.

9. The offender was arraigned on a separate indictment, dated 23 October 2018. He entered a plea of guilty to Count 2 in full satisfaction of the indictment. This relates to an offence of common assault (XO 2018/31442) contrary to s 26 of the Crimes Act 1900 (ACT), which carries a maximum penalty of 2 years' imprisonment.

10. The facts of this offence are that between 1 December 2016 and 10 January 2017 the offender held a knife to the face of his de facto partner, the same victim as in the other offences, and threatened her. He was originally charged with making a threat to kill but the plea to common assault was accepted in full satisfaction of the indictment that had been laid against him. Clearly this offence is part of the ongoing unsatisfactory relationship he had with the victim.

11. The offender was born in 1997. He is of Aboriginal descent. He was born in Wagga Wagga although I understand his heritage is derived from the Tumut area. He has not had much contact with his mother but does have good relationships with his grandmother and aunt.

12. The relationship with the victim of these offences commenced in 2009. It ended with the offences. There are two children of the relationship. They both reside with his grandmother in Tumut. Unfortunately the offender has been mixing with antisocial colleagues. He told the Pre-Sentence Report authors that he has made the decision to move back to the Tumut area when these matters have been finalised.

13. Although the offender has said he does not have a problem with alcohol he does indulge in binge drinking significant amounts of alcohol. He would be well advised to stop this practice. He has apparently stopped using illegal drugs since going into custody. His use of cannabis, however, did play an extensive part in the offending.

14. As is reflected in the pleas of guilty, the offender accepts his guilt in relation to the assault offences. He maintains his innocence for the offences involving a sexual element. He has lodged an appeal against his conviction for the sexual offence matters. Understandably one of the grounds of appeal is that the verdicts seem inconsistent.

15. He has been assessed as having a medium risk of general reoffending.

16. The offender has a criminal record. Although it is not extensive and is varied in the offences that have been committed, he is a relatively young person so that any record might be seen as significant. For purposes of his sentencing today, I think the effect of his record is that it denies him the leniency he might have otherwise expected from the absence of a record.

17. The most important parts of the Crimes (Sentencing) Act 2005 (ACT) are ss 6 and 7 where the objects and principles of sentencing are set out and also s 33 which lists a number of considerations that must be taken into account. Section 10, which says that imprisonment should be a last resort, is not applicable here. These offences demand full-time imprisonment. No suggestion has been made to the contrary.

18. The offender is entitled to a discount for the offences to which he pleaded guilty. However, these discounts, because of concurrency and being related to the lesser charges, will effectively be consumed by the longer sentences. It is also important to ensure that the offender is not subjected to a crushing sentence so that principles of totality must be kept in mind.

19. In addition I take his background into account and must give him every prospect of rehabilitation. He is young but he needs to deal with a number of issues including anger management, domestic violence and alcohol.

20. On the other hand is it is vital for there to be a plain statement of general deterrence. Domestic violence offends many principles of decent life in society. It involves a breach of trust, assaults in the home and the taking advantage of a vulnerable person.

21. The Crown submitted that the offence arising from the separate indictment should be wholly cumulative. I disagree. I think that offence is part of the same course of domestic violence that has been perpetrated upon the victim. I think there is scope for a degree of concurrency.

22. In relation to objective seriousness, I think all of the offences are serious although the use of the kitchen knife in Count 3 might be seen as objectively a little more serious for the type of offence involved. Generally, however, I think the offences are of medium objective seriousness.

23. I think the offender is entitled to some discount for his pleas of guilty, although I note that the Crown cases were very strong. I think the discount should be approximately 15%.

24. The offender has been in custody since 20 March 2017. This must be the starting date for any sentences that I impose.

(a) In relation to Count 2, in the indictment dated 23 October 2018, common assault (XO 2018/31442), the offender is sentenced to 10 months' imprisonment (reduced from 12 months for the plea of guilty) commencing on 20 March 2017 and ending on 19 January 2018.

(b) In relation to Count 2, sexual intercourse without consent (CC 2017/4084), the offender is sentenced to three years' imprisonment commencing on 20 August 2017 and ending on 19 August 2020.

(c) In relation to Count 3, sexual assault in the third degree (CC 2017/4085), the offender is sentenced to two years' imprisonment, commencing on 20 December 2017 and ending on 19 December 2019.

(d) In relation to Count 4, sexual assault in the third degree (CC 2017/4082), the offender is sentenced to two years' imprisonment, commencing on 20 March 2018 and ending on 19 March 2020.

(e) In relation Count 5, assault occasioning actual bodily harm (CC 2017/4088), the offender is sentenced to 20 months' imprisonment (reduced from two years for the plea of guilty) commencing on 20 March 2018 and ending on 19 November 2019.

(f) The total term of imprisonment is 3 years and 5 months commencing on 20 March 2017 and ending on 19 August 2020.

(g) I set a non-parole period of 27 months commencing on 20 March 2017 and ending on 19 June 2019.

I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.

7 February 2020 Replace the Case Title "R v QG" with "R v QG (No 2)"