Mr M Fernandez v Ms S Saikal

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Robinson AJ:
• Judgment Date: 25 September 2015
• Docket Number: File Number(s): SCC 286 of 2014
• Date: 25 September 2015

[2015] ACTSC 289

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Robinson AJ

File Number(s): SCC 286 of 2014

Mr M Fernandez

(Crown)

and

Ms S Saikal

(Offender)

Representation:

Counsel

Mr M Fernandez (Crown)

Ms S Saikal (Offender)

Cases Cited:

Ibbs v The Queen (1987) 163 CLR 447

Pearce v The Queen (1998) 194 CLR 610

R v Hibberd (2009) 194 A Crim R 1

Legislation Cited:

Crimes Act 1900 (ACT) ss 24, 50, 54, 61(2)

Crimes Act 1900 (NSW) s 61H(1)

CRIMINAL LAW — Sentence — particular offences — offences against the person — engage in sexual intercourse without consent — assault occasioning actual bodily harm

Decision:

See [36].

Robinson AJ:

1 The offender, Kenneth Hill, stands for sentence in relation to the following offences:

(a) That on 13 August 2014 he engaged in sexual intercourse with Ms HA without consent, being reckless as to consent, in contravention of s 54 of the Crimes Act 1900 (ACT).

(b) That on 13 August 2014 he assaulted Ms HA and thereby occasioned to her actual bodily harm, in contravention of s 24 of the Crimes Act 1900 (ACT).

2 He pleaded guilty on arraignment to these two counts. The maximum penalties for these two offences are 12 years and five years imprisonment respectively.

Pleas of guilty

3 It is common ground that the offender pleaded guilty at the first reasonable opportunity to the counts, as currently framed, and that he should receive a discount of approximately 25% on his sentence for those pleas.

The Offences

4 At approximately 7.22pm on 13 August 2014 the offender initiated contact with Ms HA by text message. Ms HA worked as an escort at that time. In his initial text messages the offender enquired as to the price of her services and her location.

5 During the course of these communications the offender's text messages to Ms HA became obscene, detailing in explicit terms the sexual acts he wished to engage in with her. This made Ms HA uncomfortable, causing her to cease responding to the offender's text messages and mark his telephone number on her phone as one not to be answered.

6 At approximately 8.40pm on 13 August 2014 the offender telephoned Ms HA. The offender had manipulated his mobile phone so that his telephone number was not visible to the recipient of the call. Accordingly, Ms HA was not aware that she was speaking to the person she had exchanged text messages with earlier in the evening. During this telephone conversation, Ms HA provided the accused with the address of her unit complex and told him to telephone her again when he arrived.

7 The offender telephoned Ms HA again at approximately 9.10pm, advising that he had arrived at her unit complex. Ms HA then provided him with her unit number. The offender was granted entry to the unit complex by Ms HA's companion, Ms Z, through an intercom system. Ms HA asked Ms Z to provide sexual services to the offender.

8 Upon entering Ms HA's apartment the offender went to a bedroom with Ms Z. The offender protested to Ms Z that she was not the person he had seen in a newspaper advertisement. Ms Z communicated this to Ms HA who came to the bedroom to speak to the offender.

9 The offender and Ms HA then had a conversation concerning the cost of the services to be provided, leading Ms HA to state ‘You've forgotten money? You can call me later. Bring me money later and call me again.’ Ms HA and the offender then walked from the bedroom to the front door of the apartment.

10 Ms HA opened the door for the offender to enable him to leave the apartment, at which point he struck her in the face, causing her nose to bleed. The offender then forcefully pushed Ms HA, causing her to fall and strike the kitchen table, before coming to rest on the floor. The offender then placed himself on top of Ms HA and used his hand to reach around between her legs, he moved her clothing to the side and inserted a finger into her vagina. The offender then moved his finger in an out of Ms HA's vagina while saying ‘Fuck you, fuck you, fuck you’.

11 Ms Z then struck the offender in the head. The offender stood up and ran from the unit and the apartment complex, covering his head with clothing as he did so in an attempt to conceal his identity.

12 At the time of these offences the offender was on conditional liberty due to a bail undertaking in relation to the offence of committing an act of indecency on a person under 16-year-old referred to at [34] below.

13 The offender's counsel submitted to me, on instructions from the bar table, that at the time of the offending he was under the influence of a drug, possibly methylamphetamine, having accepted from an acquaintance what he later concluded was a spiked drink. I will deal with this topic below.

Seriousness of the Offences

14 The definition of sexual intercourse under the Crimes Act 1900 (ACT) s 50 includes penetration of the genitalia, anus or any part of another person, penetration by any object, the introduction of any part of the penis of a person into the mouth of another, fellatio and cunnilingus. There is an analogous definition in many other jurisdictions, see, for example, the definition in NSW at s 61H(1) of the Crimes Act 1900.

15 There is assistance to be derived from Ibbs v The Queen (1987) 163 CLR 447 and R v Hibberd (2009) 194 A Crim R 1 (where a number of other cases are collected and discussed) in evaluating the offender's conduct. I consider the offender's conduct in accordance with the approach taken in Hibberd at [57] per Price J with whom Tobias JA and James J agreed:

Relevant considerations in determining where on the scale of seriousness an offence contrary to s61I of the Crimes Act lies include ‘the degree of violence, the physical hurt inflicted, the form of forced intercourse and the circumstances of humiliation’. See R v Gebrail (unreported, Court of Criminal Appeal, NSW, Nos 60277 and 60289 of 1994, 18 November 1994) at 10–11 per Mahoney JA. To those matters I would add the duration of the offence. Non-consensual sexual intercourse by digital penetration has generally been considered to be less serious than an offence of penile penetration: see, for example, R v Da Silva (unreported, Court of Criminal Appeal, NSW, No 60389 of 1995, 30 November 1995) at 3 per Grove J, but each case will depend on its own facts. There is no canon of law which mandates a finding that digital penetration must be considered less serious than other non-consensual acts of sexual intercourse. Whilst the form of forced intercourse is an important factor it is not to be regarded as the sole consideration.

16 I find that the offence is a serious one, committed with gratuitous violence and apparently in response to the not unsurprising requirement, that the offender have money to pay for services he requested. The assault was brought to an end only by the intervention of Ms Z hitting the offender.

Impact of Offences

17 Ms HA provided a victim impact statement which was tendered by the Crown Prosecutor. In that statement, Ms HA wrote of the blood from her face and her panic on the night, her fearfulness now when working late at night and her consequent need to curtail her business hours. This has led to a reduction in her income. She additionally spoke of her increased anxiety when in public or when travelling, and of the significant amounts of money she has had to spend on increasing security measures at her premises following the offending. The impact statement also recorded the fact that HA declined to go out in public when her face was swollen and bruised.

18 I accept that the offending has had a significant impact on Ms HA's emotional functioning and on her capacity to conduct her business.

Subjective Matters

19 The offender was raised by his mother and step father in a strict household. His step-father used physical violence to discipline him and he told the author of his Pre-Sentence Report that this contributed to his decision to leave the family home at age 16. He left school after completing year 10.

20 The offender has six siblings. When he was 23 his younger...