SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: R v NL Citation: [2018] ACTSC 22 Hearing Date: 20 February 2018 Decision Date: 20 February 2018 Before: Elkaim J Decision: See [18] Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse without consent – assault – guilty pleas – no prior criminal record Legislation Cited: Crimes Act 1900 (ACT) ss 26 and 54(1) Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10 and 17 Crimes (Sentence Administration) Act 2005 (ACT) Cases Cited: R v FI [2017] ACTSC 190 Parties: The Queen (Crown) NL (Offender) Representation: Counsel Mr D Swan (Crown) Mr K Archer (Offender) Solicitors ACT Director of Public Prosecutions (Crown) Darryl Perkins Solicitors (Offender) File Numbers: SCC 308 of 2017; SCC 309 of 2017

ELKAIM J:

1. On 31 October 2017, the offender pleaded guilty to sexual intercourse without consent, contrary s 54(1) of the Crimes Act 1900 (ACT). The maximum penalty for that offence is 12 years’ imprisonment. The offender also pleaded guilty to common assault, contrary to s 26 of the Crimes Act 1900 (ACT). The maximum penalty for that offence is two years’ imprisonment.

2. The offender was born in 1998. He had a stable upbringing, although his parents separated before he was born. He left school at 18 years of age, before completing Year 12. He did, however, complete a Certificate II in Building and Construction. He is currently employed in this industry and has commenced a carpentry apprenticeship. He is apparently doing well at work. The offender probably drinks too much alcohol, but not in dangerous quantities. He also used cannabis, which has played a part in these offences.

3. The offender has no criminal record. He is entitled to significant leniency for that reason. He is also entitled to a discount on his sentence arising from his pleas of guilty. I note that the offender has also expressed remorse and attended courses to ensure that he does not reoffend.

4. The facts behind the offending are quite unusual. The offender had been dating the complainant, Ms X, for five years. On 17 June 2017, he was at the complainant’s family residence. As the Statement of Facts notes:

Following an argument [Ms X] grabbed the offender forcefully by the hair a number of times whilst in the kitchen and then an upstairs bedroom. The offender then commenced packing his belongings, which included cannabis which the couple had intended to share. [Ms X] again grabbed the offender which led to a struggle between the two. During the course of that struggle the offender wrestled with [Ms X], grabbed [Ms X] by the neck and placed a pillow over her head. [Ms X] also bit the offender on his neck and pulled on the offender’s penis several times with significant force causing him pain. On the last occasion of being grabbed by the penis the offender then pulled [Ms X] onto the ground before forcibly placing a finger inside her vagina for approximately 10 seconds.

5. It is the last mentioned action that constitutes the offence of sexual intercourse without consent.

6. Upon reading the Statement of Facts in more detail, it is obvious that, for most of the altercation, ultimate ascendancy could have gone either way. Paragraph [11] of the Statement of Facts provides that:

[Ms X] agreed that, physically speaking, she and the offender were relatively even matched ‘for him being a male’. She said they were of roughly the same height and that he may have weighed around 10 kg more than she.

The offender agreed that he and [Ms X] were about ‘the same size’ and physically speaking were relatively evenly matched and that he believed she ‘gives it more than she gets’ in terms of physical fights between the two.

7. The photographs of the respective protagonists also reflect an overall impression of equality of injury.

8. Another unusual element in this case is that, notwithstanding the charges, the offender and Ms X still “enjoy a supportive, positive relationship”. The Pre-Sentence Report states that the offender and Ms X “have been working on improving their communication and interaction since the commission of the offences”.

9. The maximum penalty for the offence of sexual intercourse without consent indicates the seriousness with which this offence is to be taken. In this case, however, the offence should be regarded as being of minor objective seriousness.

10. Almost inevitably, a person who commits an offence of sexual intercourse without consent will go to prison, often for a very long time. This is, however, subject to the particular circumstances of the case. The circumstances here include unusual facts, the continuing relationship between the offender and the victim, the offender’s age, his lack of a criminal record, his remorse and the efforts he has taken to ensure that he will not reoffend. The Pre-Sentence Report indicates that there is a low risk of reoffending.

11. In addition, s 10 of the Crimes (Sentencing) Act 2005 (ACT) clearly provides that a sentence of imprisonment is a last resort. It is also necessary to consider the objects and purposes of sentencing, as described in ss 6 and 7 of that Act.

12. Mr Archer submitted that I should deal with the offender pursuant to s 17 of the Crimes (Sentencing) Act 2005 (ACT), noting that a person at his stage in life would be significantly impeded by the conviction. He relied on a decision of Mossop J in R v FI [2017] ACTSC 190 (‘FI’) to illustrate that, notwithstanding the apparent seriousness of the offence, it could be dealt with in this way. There is an important distinction between this case and FI, highlighted at [22] of the judgment. The offender in that case would have been placed on the Sex Offenders Register if a conviction was recorded. That is not the case here.

13. There is another reason why I have not adopted the approach suggested by Mr Archer. It would necessarily involve elevating the common assault charge to a more serious level than the sexual assault charge, which I think would be a wrong and inconsistent decision.

14. I asked the parties whether Ms X had also been charged. I was informed that, ultimately, the only charge she faced was one of common assault. That is understandable, however, I was somewhat taken aback by the sentence imposed upon her by a magistrate, namely a term of imprisonment of three months immediately suspended upon her entering into a Good Behaviour Order. I was informed that there has not been any appeal from that decision.

15. I do not know what evidence was before the Magistrate and it would be entirely inappropriate of me to criticise the decision. Nevertheless, it does raise a difficulty for me in sentencing this offender because of the natural grievance Ms X would feel if this offender received a lesser punishment for a more serious offence. The community might also be somewhat surprised by such a result.

16. The Crown has submitted that the nature of the primary offence is such that it demands a sentence of imprisonment. I disagree with that statement but do agree that there must be some form of overt punishment.

17. As I have already mentioned, the real difficulty in this case arises from the sentence imposed on Ms X in the Magistrates Court. I have decided that, while it should be taken into account, that decision should not dictate what I consider to be the appropriate punishment for this offender. The principles of parity do not justify an overly severe sentence.

18. I make the following orders:

(a) In respect of the offence of sexual intercourse without consent (CC 10813/17), the offender is to sign an undertaking to comply with good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of twenty-four months and on condition that he attend such educational, vocational, psychological, psychiatric or other programs or counselling as directed by the Director-General.

(b) In respect of the offence of common assault (CC 6799/17), the offender is to sign an undertaking to comply with good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of twelve months and on condition that he attend such educational, vocational, psychological, psychiatric or other programs or counselling as directed by the Director-General.