R v UG [2018] ACTCA 64

R v UG [2018] ACTCA 64 | Case summary | Zoe

The respondent was engaged to the victim’s sister. On the evening of 2 March 2018, the victim, the respondent, her sister and their children attended a family dinner at the home of the victim’s stepmother. The respondent consumed alcohol. In the course of the evening, the victim invited the respondent and his immediate family to “come over to my house, the kitchen door is open”, suggesting that they may prefer to stay at her house rather than remain overnight at her stepmother’s house. This was not an invitation to enter the victim’s premises at any time and for any purpose.
At about 1:00 am, the victim left her stepmother’s home, returned to her own home, went to bed and fell asleep. The respondent, his fiancée and their three children stayed overnight at the home of the victim’s stepmother.
At about 3:15 am, the respondent felt a desire to have sex with the victim. He drove to the victim’s home and entered via the unlocked kitchen door. He went to the victim’s bedroom. While the victim was asleep, he engaged in sexual activity with her, including cunnilingus.
At about 3:32 am, the victim awoke to find a man on top of her, kissing her neck and holding her wrists in front of her. The man started to kiss the victim’s cheek and suck on her neck. At first, the victim thought the man was her partner. When she realised that he was an intruder and challenged him, the man desisted. As he left her house, the victim recognised the man as the respondent.
Immediately, the victim complained to her stepmother and other family members. She felt physically sick and vomited several times. She went to her stepmother’s home and confronted the respondent, who denied that he knew what she was talking about.
At about 6:12 am, the victim participated in a family violence evidence-in-chief interview. Later, she underwent a forensic medical examination.
Police located the respondent, who stated “I have fucked up”. He was arrested. Commencing at 8:27 am, the respondent participated in a police interview in which he made full admissions. He stated that he had engaged in cunnilingus, admitted that the victim had been asleep during most of the sexual activity. He said that, when the victim had started to wake up, he had realised that she did not know who he was.
Swabs taken from the victim’s labia matched the respondent’s DNA.

Because we consider that there were specific errors, we do not need to decide this ground. We observe that the sentences were very lenient, but the sentencing judge gave a considered decision in which her Honour discussed the relevant objective and subjective features and the other relevant sentencing considerations.
The Crown submitted that, as the effective sentence comprised a period of full-time imprisonment followed by a long suspended sentence, it both failed to reflect the sentencing considerations in ss 7 and 33 of the Sentencing Act and failed to provide an appropriate relationship between the head sentence and the minimum term. The Crown submitted that the sentencing judge should have fixed a non-parole period (perhaps a relatively short non-parole period of about 50 per cent) rather than suspending the sentence after the respondent had served only a short period of the sentence.
Having identified the overall sentence and rejected the sentencing options of an intensive corrections order and fully suspended sentence, at [53] the sentencing judge continued: 53. … Having said that, because this will be the offender’s first custodial sentence, a short period of imprisonment prior to suspension is appropriate, taking into account the offenders remorse, previous good character, early plea of guilty, disclosure of unknown guilt and good prospects for rehabilitation. In the present case I consider a short period of imprisonment of five months prior to suspension is called for. This will 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.
The combination of a short period of full-time imprisonment with a long suspended sentence (as opposed to the imposition of a non-parole period) is relatively uncommon. However, having regard to the matters identified by the sentencing judge, in this case it was not necessarily inappropriate.
In some circumstances, a very strong prospect of rehabilitation and the desirability (from the offender’s perspective) of identifying a certain release date (rather than leaving it to the parole authority to determine that date) may result in the imposition of a partially suspended sentence rather than a non-parole period. Further, a sentencing court may wish to ensure that any breach is considered by the court, not the parole authority.

(1) This section applies if— (a) an offender is convicted or found guilty of an offence; and (b) the offender assisted, or undertook to assist, law enforcement authorities in— (i) preventing, detecting or investigating the offence or any other offence; or (ii) a proceeding in relation to the offence or any other offence. (2) A court may impose a lesser penalty (including a shorter nonparole period) on the offender than it would otherwise have imposed having regard to the degree of assistance provided, or undertaken to be provided, to law enforcement authorities. (3) In deciding whether to impose a lesser penalty for the offence, and the nature and extent of the penalty to be imposed, the court must consider the following matters: (a) the effect of the offence on the victims of the offence, the victims’ families and anyone else who may make a victim impact statement; (b) the significance and usefulness of the offender’s assistance to law enforcement authorities, taking into account any evaluation by the authorities of the assistance provided or undertaken to be provided; (c) the truthfulness, completeness and reliability of any information or evidence provided by the offender; (d) the nature and extent of the offender’s assistance or promised assistance; (e) the timeliness of the assistance or undertaking to assist; (f) any benefits that the offender has gained or may gain because of the assistance or undertaking to assist; (g) whether the offender will suffer harsher custodial conditions because of the assistance or undertaking to assist; (h) any injury suffered by the offender or the offender’s family, or any danger or risk of injury to the offender or the offender’s family, because of the assistance or undertaking to assist; (i) whether the assistance or promised assistance is in relation to the offence for which the offender is being sentenced or an unrelated offence; (j) if the offender is to serve a sentence of imprisonment—the likelihood that the offender will commit further offences after release from imprisonment. (4) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.

The sentencing judge did not comply with s 37(2)(a) of the Sentencing Act in that her Honour failed to specify the penalty that her Honour would otherwise have imposed for the sexual offence, which was the only offence in relation to which s 36 assistance was relevant.
The requirement to specify the discount for assistance to law enforcement authorities is informed by important public policy considerations.
In R v Cranfield [2018] ACTCA 3 at [38], when referring to the s 35 discount for pleas of guilty, this Court spoke of the benefits to victims, witnesses and court resources that flow from early pleas of guilty, noting the need for offenders to be encouraged to plead guilty by giving them a reasonable expectation that their plea of guilty will result in a sentence reduction that is meaningful and reliable. The benefits to the community and victims of assistance to law enforcement authorities were discussed in AB v The Queen [1999] HCA 46; 198 CLR 111 (AB) at [52] (Gummow and Callinan JJ), [98]– [100] (Kirby J) and in Ryan at [92]–[95] (Kirby J). The benefits flowing from such assistance may be just as great—or greater—than those that flow from the entry of early pleas of guilty. In addition to sparing trauma to victims and witnesses, and promoting the efficiency of court processes, such assistance may save the costs of police investigation, reveal crimes that would otherwise have remained undiscovered, identify perpetrators whose identities would otherwise have been unknown and secure convictions that might otherwise have been difficult or impossible to secure because of evidentiary shortcomings.
Usually, the benefits that flow from the provision of assistance to authorities differ from, and are additional to, those that flow from the entry of an early plea of guilty. The clear identification of an additional discount supports the public policy of encouraging confessions for the purpose of achieving these outcomes. Greater clarity about the extent of sentencing discounts also supports public confidence in the sentencing process. Of its nature, sentencing is opaque; to the extent that it is possible, transparency is desirable.
The failure to comply with s 37(2) is a specific error of significance.

At [14], the sentencing judge said:
The extent of the impact upon the victim was made clear by victim impact statement … The statement demonstrates the profound impact of the offending conduct. The victim in her victim impact statement spoke of the psychological impact that the commission of the offences has had on her. She also spoke of her isolation from friends and family, not feeling safe in her own house, and the financial consequences. She does not talk to her sister. She also spoke in her statement of the breach of trust. The Court acknowledges the very significant impact that the offences have had and continue to have on the victim.
At [43], the sentencing judge said that recognition of harm to the victim was an important sentencing consideration under s 7 of the Sentencing Act. At [45], her Honour repeated that a relevant sentencing purpose was the recognition of harm to the victim, and added:
… It is important for the Court to send a message that offences of sexual violence against women will not be tolerated.
The Crown submitted that the sentencing judge failed to accord adequate weight to the severe and far-reaching effects of the offences on the victim and failed to consider victim impact, other than in the context of offender remorse. Consideration
Section 53 of the Sentencing Act provides that, in deciding how an offender should be sentenced, the sentencing court must consider any victim impact statement: s 53(1)(a). This requirement is reinforced by s 33(1)(f) of the Sentencing Act, which requires a sentencing court to consider the effect of an offence on the victim, their family and anyone else who may make a victim impact statement.
In the case of some offences, victim impact is an element of the offence. For example, where an element of an offence is the causing of grievous bodily harm, as part of the sentencing exercise it is relevant for the court to assess the degree of grievous bodily harm that was caused to the particular victim.
Beyond that, there is no doubt that, in any sentencing exercise, it is relevant to consider the objective impact of an offence on the victim. The sentencing purpose of recognising the harm done to the victim of the crime is expressly recognised in s 7(1)(g) of the Sentencing Act. The requirement to consider victim impact (the objective loss or damage suffered by the victim of an offence) has its origins in the common law: Porter v The Queen [2008] NSWCCA 145 at [54] (Johnson J); Miller v The Queen [2014] NSWCCA 34 at [155] (Johnson J).
However, in the case of offences (such as those in the present case) where victim impact is not an element of the charge, the manner in which the subjective impact on the particular victim (as described in a victim impact statement) should be taken into account is problematic.
First, the extent of the claimed victim impact may not be conceded by an offender. An offender has a right to cross-examine the victim, but it is most undesirable that offenders be encouraged to do so, as the process causes victims to be re-traumatised.
Second, it would be unfair if an offender whose offence has caused greater psychological impact on a victim was to receive a higher sentence than an offender who has committed an identical offence on a more resilient victim. Conversely, it would be unfair if one offender could rely upon the forgiveness of a victim to support a lower sentence, whereas another could not. In Toumo’ua, in a different context, this Court observed at [65] that the attitude of the victim cannot be allowed to interfere with the proper exercise of the sentencing discretion, regardless of whether the attitude is one of vengeance or forgiveness; sentencing is designed to reinforce general community standards, not compensate or impose retribution on behalf of particular victims: R v Palu [2002] NSWCCA 381; 134 A Crim R 174 at [37]; R v Burton [2008] NSWCCA 128 at [102].
These conundrums remain unresolved, and not only in this jurisdiction. In R v Tuala [2015] NSWCCA 8; 248 A Crim R 502 (Tuala) at [51], Simpson J (with whom Ward JA and Wilson J agreed) observed that the NSW Court of Criminal Appeal had yet to reach a consensus on the use to which a victim impact statement could be put. At [57] and [80]–[81], Tuala reminds us that, where it is asserted that an offence has caused injury or loss beyond what would ordinarily be expected of such an offence and the extent of the injury or loss is disputed, it must be proved beyond reasonable doubt and it may be difficult to reach that level of proof on the basis of an unsworn and untested victim impact statement.
For the purpose of determining this ground of appeal, is not necessary to resolve these difficulties. The sentencing judge was aware of the sentencing purpose of recognising the harm done to the victim. Her Honour considered and accepted that the victim had suffered the harm identified in the victim impact statement. We infer that her Honour accepted that the victim had suffered very significant impacts and took those impacts into account when determining the appropriate sentences. There can be no doubt that any victim of offences such as the present, committed in a familial context, would suffer substantial psychological injury.
This ground is not made out.

Neither party wished to adduce further evidence or make additional submissions in relation to any re-sentence.
We agree with the sentencing judge’s assessment of the objective seriousness of the offences; for the reasons stated by her Honour at [15]–[18], these were very serious offences.
The respondent was a 28-year-old man with no criminal history, who was of otherwise excellent character. He was remorseful. He advanced strong subjective circumstances, which are set out in the sentencing judge’s reasons at [19]–[21] and above at [22]–[27].
As would be expected for such offences, these offences had a severe impact on the victim. The impact was a combination of the conduct itself, the environment in which it occurred (in the victim’s own home when she was asleep in bed) and the betrayal of trust associated with the familial relationship between the offender and the victim.
Relevant sentencing purposes under s 7 of the Sentencing Act include the imposition of adequate punishment, accountability, denunciation and the recognition of harm to the victim. Rehabilitation is important and will be recognised primarily by a suspension of the sentence after the respondent has served a relatively brief period in full-time imprisonment.
We have considered s 33 of the Sentencing Act; the relevant matters are referred to above.
The sentencing judge summarised a number of comparable cases, which we have also considered.
We agree with the sentencing judge that, for the early pleas of guilty, there should be a 25 per cent discount on the sentences that would otherwise have been imposed.
The respondent’s confession to the act of cunnilingus was of considerable assistance and usefulness to the authorities. It was an admission against interest that was timely, complete and reliable (it was consistent with the findings on forensic analysis). Although the forensic evidence suggested that cunnilingus may have occurred, without the respondent’s admission the prosecution may have had considerable difficulty establishing beyond reasonable doubt that any form of sexual intercourse had occurred. In relation to the relevant charge, sexual intercourse without consent, we consider that the combined discount for the early plea and assistance should be one third of the sentence that would otherwise have been imposed.
The appropriate starting point for the sentence for burglary is 30 months’ imprisonment, reduced by approximately 25 per cent for the plea of guilty to 22 months’ imprisonment.
The appropriate starting point for the sentence for sexual intercourse without consent is 33 months’ imprisonment, reduced by one third to 22 months’ imprisonment for the combined discount for assistance to the authorities and plea of guilty (absent assistance to the authorities, the discount would have been 25 per cent for the plea of guilty).
The appropriate starting point for the sentence for act of indecency without consent is eight months’ imprisonment, reduced by 25 per cent for the plea of guilty to six months’ imprisonment.
The sentences should be accumulated to reflect the fact that they were part of the same course of conduct but each involved separate criminality.

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