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[2021] ACTSC 115
Supreme Court of the ACT
2021-06-04
Elkaim J
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: R v UM (No 2)
Citation: [2021] ACTSC 115
Hearing Dates: 4 June 2021
Decision Date: 4 June 2021
Before: Elkaim J
Decision: See [37]
Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Sentence – assault – domestic violence – sexual offences – after separation from wife
Legislation Cited: Crimes (Sentencing) Act 2005 (ACT), ss 6, 7, 10 and 33
Cases Cited: R v NO (No 2) [2018] ACTSC 37 R v Wyper [2017] ACTSC 50 The Queen v UG [2020] ACTCA 8
Parties: The Queen (Crown) UM (Offender)
Representation: Counsel S Naidu (Crown) J Sabharwal (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number: SCC 143 of 2020
ELKAIM J:
(a) One count of causing grievous bodily harm. The maximum penalty is 5 years’ imprisonment.
(b) One count of assault occasioning actual bodily harm. The maximum penalty is 5 years’ imprisonment.
(c) Three counts of engaging in sexual intercourse without consent. The maximum penalty for each offence is 12 years’ imprisonment.
At the commencement of the trial, upon arraignment, the offender pleaded guilty to Counts 1 and 2, but not guilty to Counts 3, 4 and 5. The hearing then began in relation to the three counts of sexual intercourse without consent. By the end of the first day the evidence in chief of the complainant was almost completed.
On the following day, 30 March 2021, the offender requested to be arraigned again, but only on Count 3. He pleaded guilty. The Crown informed me that this plea was accepted in full satisfaction of Counts 3, 4 and 5. It had effectively become a ‘rolled up’ charge encompassing the three acts of sexual intercourse.
The pleas of guilty were, consequently, at the last moment. They do not entitle the offender to a significant discount. They did however have some utilitarian value. The overall length of the trial was reduced and some expert witnesses were not required to attend. The latter include a general practitioner who would have had to delay consultations with patients. I intend to allow a discount of approximately 5%. At this level of discount I do not see any basis to distinguish between the pleas on the first day and that on the second day. The discount will be factored into the orders I make below.
Following the plea to Count 3, the parties requested that I order a Pre-Sentence Report. I then set the matter down for the sentence hearing today. The offender was remanded in custody. He has been in custody since 9 February 2020.
There is a detailed Statement of Facts. This is a summary: The offender and the complainant were married in 1996. They have eight children. Their current age range is from 7 to 26.
In 2019 the complainant had an affair with another man. The marriage however continued but the offender would allude to the affair from time to time. In October 2019 the complainant was living in an apartment away from the family home. The home is in Wanniassa.
On 27 October 2019 one of the children told the complainant that there was no food in the house. The next morning the complainant went to the home to attend to the apparent lack of sustenance for the children.
When the complainant arrived, she found the offender asleep in the matrimonial bedroom. She woke him to discuss various family issues. She was angry. He was drunk.
The offender asked the complainant to stay at the house. She said that she needed to go to work. The offender then attacked the complainant. He punched her to the face and to the side of her body. The latter strike caused a sound like a “crack”. The complainant found it difficult to breathe and was in instant pain.
The complainant went to Canberra Hospital. She was admitted following complaints of chest pain. She gave a history of having slipped and pulled muscles. She was discharged the following day.
Two days later the complainant attended upon her general practitioner with continuing pain to the chest area. She was told to go to the Canberra Hospital where she was once again admitted. On this occasion she remained in hospital until 5 November 2019. The diagnosis was “musculoskeletal chest wall pain”.
Because of continuing discomfort, the complainant saw a general practitioner on 18 November 2019. Scanning revealed fractures of two of her ribs. This is the basis for Count 1, causing grievous bodily harm.
The complainant saw the same general practitioner on 3 December 2019. On this occasion, after prompting by the doctor, she told the doctor that she had had a “fight” with the offender. When interviewed by the police the complainant admitted that she had previously lied to medical staff about the cause of her injuries. They had not arisen from a slip.
The balance of the criminal conduct occurred in the night between 8 and 9 February 2020. The complainant came to the family home. She was in the bedroom with the offender. He told the complainant that he wished to engage in sexual intercourse with her. She did not share this wish.
The offender locked the door and pushed the complainant onto the bed. He ripped off her underwear and attempted to perform oral sex upon her. She pushed him away. He assaulted her by slapping her face and back on a number of occasions. These assaults make up Count 2.
The three acts of sexual intercourse without consent, together comprising Count 3, were made up of digital penetration, followed by penile-vaginal penetration and then oral penetration. The complainant, in her police record of interview, gave this description:
Q 373 So when you say, “What he is doing,” are you able to explain what he is doing? So how you all bodies positioned, how his body’s positioned, what ….. A Oh. Q 374 ….. Exactly what is happening. A On that night, um, when he told me want to fuck me and I say, “No, I don’t want to. And I don’t feel like”- and then he tried to, um, take my top off. And then when I was naked, he pushed me on the - on the bed and he tried to - to make my legs apart and tried to suck me. And then, um, I tried to pull - push him. And then I cannot - he is strong. I am weak. I cannot, you know, do it. And then, um, I was crying and he is doing whatever he was doing. And then, um, he’s just hop under - on me and he start, you know, fuck me. And then he told me,” You have to suck my thing.” And then I was doing that. The reason why I did that because I am scared. Like I said, I – I’m weak, I cannot fight him. And when I - when - when he finish all what he’s doing, he fuck me and - and then I was lying, crying on the bed. And then, um, he started to, you know, have a rest. And then maybe ten, five, twenty minute and start all over again. Just question me the same questions and punch me and, you know, slap me and all that. So maybe half an hour since we have sex. And then he told me again he wants to fuck me again. And then that’s how I pretend to have a stomach ache.
In later answers the complainant confirmed that penile-vaginal intercourse had taken place and that the offender had not used a condom. He ejaculated while his penis was in her vagina.
Two matters pervaded the facts; first, notwithstanding the end of the extramarital affair, the offender continued to resent what had occurred and his asserted ‘forgiveness’ was far from genuine.
Second, the offender harboured a dated and unfounded attitude that said a wife should succumb to the sexual desires of a husband at his whim. There was a time when a husband could not be prosecuted for raping his wife. But that time is long past, the law having changed in the ACT in 1985. Marriage, be it formal or de facto, is an equal partnership in which the participants have equal rights and obligations.
In addition to the above two factors, the crimes committed by the offender must be viewed as acts of domestic violence. This is notwithstanding that at the time of the sexual attacks the offender and the complainant had effectively separated.
However, while legislative amendment may be imminent, at the present time, the fact that an act is one of domestic violence does not, without more, amount to an aggravating consideration. In The Queen v UG [2020] ACTCA 8, the Court of Appeal stated, at [47]:
We disagree with the contention impliedly advanced by the Crown. Absent any statutory provision to the contrary, in a criminal justice system based on individualised justice, there is no place for a separate sentencing regime that applies to offenders who commit “family violence offences” (or any other general category of offences), whether it be a more lenient or a more severe sentencing regime. We note the terms of s 6 of the Sentencing Act (see [80] below), and that s 8 of the Human Rights Act 2004 (ACT) expressly recognises that everyone is equal before the law.
When sentencing a particular offender for a “family violence offence”, the usual sentencing principles apply. This means that, when relevant to the particular case and subject to the De Simoni principle (R v De Simoni (1981) 147 CLR 383), the sentencing court will take into account matters that are frequently associated with “family violence offences”. These matters include: (a) whether the offence forms part of a course of conduct (Sentencing Act s 33(1)(c)); (b) whether and how a weapon was used; (c) whether the offence was associated with actual or threatened violence; (d) the impact on victims (Sentencing Act s 33(1)(f)); and (e) whether the offender was in a position of trust or authority vis-à-vis the victim (Sentencing Act s 33(1)(u)), which is usually—perhaps even “necessarily”—the case in relation to domestic violence offences: see R v Kilic [2016] HCA 48; 259 CLR 256 at [28]. However, such factors are not taken into account because the offence can be labelled a “family violence offence”, but because they attach to the particular offending conduct.
The offender was born in 1974 in Samoa where he completed Year 12 of high school. In Australia the offender was employed in a warehouse distribution centre. In 2018 he started attending a Bible College which involved a good deal of studying and placed a financial imposition on his family.
The offender clearly has a problem with alcohol. I understand he is willing to participate in alcohol and domestic violence counselling. The offender is a keen attendee of his church. It is difficult to reconcile the actions of this offender with those of a true follower of the Bible.
The offender, based on the Pre-Sentence Report, does not seem to have much remorse for his actions. He does not think that he caused much harm to his wife or there were consequential effects of his actions upon the rest of the family. He is wrong.
The complainant read out a Victim Impact Statement in which she expressed her distress about the ending of a long relationship and the changes that have resulted in her life from the offending. She talked about the effects on her children, her work and her social life. She described the pain that she still suffers from her injuries. The effects of the crimes could well remain with her for the rest of her life.
Family violence and rape within the family are extremely serious. In my view the actions of this offender, looked at globally, are objectively around the medium level of objective seriousness for offences of this type. This conclusion is mostly influenced by the domestic violence nature of the offences and the imposition of the offender’s sexual desires upon the victim without her consent.
The offender has a criminal record dating back to 2012. In that year he was convicted of common assault in the Magistrates Court. He received a Good Behaviour Order. He was again convicted of common assault in June 2013 and again was dealt with by way of a Good Behaviour Order, but together with a Community Service Order.
He breached the latter order and came back to the Magistrates Court in November 2013 when he was sentenced to 4 months’ imprisonment, but this was suspended after six weeks.
The offender’s last conviction was again for common assault, this time in November 2015. He was sentenced to 9 months’ imprisonment, 5 months of which was to be served in periodic detention and the remainder was suspended upon him entering yet another Good Behaviour Order.
I have taken into account ss 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT) and also the relevant parts of s 33. Section 10 is not applicable because imprisonment is inevitable.
In respect of sentencing practice I was directed, by the Crown, to a number of cases. The Crown suggested that R v Wyper [2017] ACTSC 50 and R v NO (No 2) [2018] ACTSC 37 were perhaps more comparable than the others. The Crown did however point out some distinguishing features in these cases and recognised that every case must be decided on its own facts.
It is important for me to keep in mind the principles of totality to avoid an overly harsh sentence. I also take into account that the three acts of sexual intercourse are rolled up into the single count, and the second assault, were part of the same episode of criminal conduct.
As far as rehabilitation is concerned, I do not hold out much hope for the offender as long as he continues to minimise his culpability. Hopefully however his continued devotion to the Bible will enable him to live a more productive life in the future.
I have considered all of the references tended on his behalf. He is obviously capable of being a contributing member of society but he will only achieve that status again once he comes to terms with his alcohol use and anger management.
I make the following orders:
(a) For the offence of assault causing grievous bodily harm the offender is sentenced to 1 year and 10 months’ imprisonment (reduced from 2 years) to commence on 9 February 2020 and end on 8 December 2021.
(b) For the offence of assault occasioning actual bodily harm the offender is sentenced to 9 months’ imprisonment to commence on 4 June 2021 and end on 3 March 2022.
(c) For the offence of engaging in sexual intercourse without consent the offender is sentenced to two years and 10 months’ imprisonment (reduced from 3 years) to commence on 4 June 2021 and end on 3 April 2024.
(d) The total period of imprisonment is 4 years, 1 month and 26 days.
(e) I set a non-parole period of 2 years and 9 months to commence on 9 February 2020 and end on 8 November 2022.
I certify that the preceding thirty-seven [37] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim
Associate:
Date: 4 June 2021
R
UM
(1981) 147 CLR 383