Riley, J
File No. SCC 20103408
Sentence - unlawful sexual intercourse
Darwin, 9 January 2002 (sentence)
#DATE 09:01:2002
HIS HONOUR: Mr Miler, you have pleaded guilty to having had sexual
intercourse with your victim without her consent. The maximum penalty for that
offence is imprisonment for life. The offence occurred in March 2001.
On 3 March 2001 you were with a group of people on the back track between the
Daly River Community and the Daly River pub. You had consumed a large quantity
of beer and bourbon whiskey and you had smoked several cigarettes containing
cannabis. By 9 pm on that evening you had become heavily intoxicated.
You walked back to the Daly River Community and went to your mother's house
where you cooked yourself some food.
After eating the food you saw a person near another house nearby. You went to
that house to ask that person for a cigarette. The person ran off. You then
walked around house on the verandah and near the main bedroom you tripped over
a person lying asleep on the ground. You fell over. The person turned out to
be a relative of yours lying on her side asleep on the verandah. That relative
is a 35 year old woman who is married with children.
You tried to wake her by talking to her and shaking her but she did not wake.
She stirred a little but remained asleep. You then removed your pants and put
them on the ground. You took hold of your victim's shorts and underpants and
pulled them down to her ankles. You then positioned yourself on top of your
victim. She remained asleep. You then forced your erect penis into her vagina
and commenced to have sexual intercourse with her.
After a couple of minutes you lost your erection and you withdrew from the
victim. A short time later you recommenced trying to have sexual intercourse
with her, however, you were having trouble getting your flaccid penis into her
vagina. I am told and I accept that at no time did you ejaculate.
At this point your victim awoke and she put her hand on your head. She
realised it was not her husband and she told you to get off. She then kicked
with her legs in an effort to get you to move from on top of her.
In the process of getting to your feet, you put your hands on her which
resulted in her being held down for a very short time. You then stood up. You
picked up your shorts from the ground. You left the scene leaving the victim
where she lay. You went home and went to sleep.
On the following day, Sunday 4 March 2001, you were walking back from the Daly
River pub along the back track when you came across the victim and her husband.
She yelled at you: 'Come up here and try and pull my pants down now you're
sober.'
You apologised to her for what you had done and you offered to go and get $50
to give to her so that she would forget about it and not tell the police. You
also offered to subject yourself to a violent response from her husband.
Neither of those offers was accepted.
On 7 March 2001 you were arrested and conveyed to the Daly River Police
Station. A short time later you were conveyed to the Berrimah Police Centre
where you participated in a video and audio record of interview in the presence
of your uncle.
You made full and frank admissions to the offence and when asked if you had
permission to have sexual intercourse with the victim you stated: 'I didn't
have permission.'
The committal proceedings in this matter were conducted over two days. The
first day was 15 August 2001 at the Court of Summary Jurisdiction sitting at
Daly River. On that day the victim gave evidence in chief and was
cross-examined. The second day was 29 August 2001 in Darwin when the remainder
of the evidence was presented and you were committed to stand trial.
After the committal, you indicated that you would plead guilty and you have
now done so. Regrettably, your victim had to relive the events when she gave
evidence at the committal. Your late plea of guilty has saved her the need to
do that once more.
You are entitled to credit for your plea of guilty. Although it did not come
at the earliest available opportunity, it has saved the community the cost of a
trial. It has saved your victim from having to once more tell her story. It
comes in circumstances where you had advice that defending the prosecution may
deliver some prospects for an acquittal. It shows an acceptance of
responsibility by you for your conduct. That is a positive sign for your
rehabilitation.
I have been provided with your prior criminal history. It is not a bad history
and it does not include offences of this kind. The offences all seem to have
occurred in the space of about two years. You have been in prison before. You
have had the benefit of supervised release before. You have been in custody in
respect of this matter effectively since 8 June 2001, and your sentence will be
backdated to commence on that day.
I have been provided with a victim impact statement. Your victim required
counselling. She felt fear of you, she felt shame. Your actions have affected
relations between your respective families.
Mr Gibson has carefully taken me through your reaction to your conduct on this
night. I accept that you are extremely sorry for what you did. You have
suffered shame. The depth of your reaction is evidenced by the fact that you
made an attempt on your own life as a consequence of your conduct. I
understand that type of feeling is now behind you.
Offences of this kind are always unpleasant and a source of great distress and
concern for the victim. They are also of significant concern to the wider
community. Such offences are serious instances of criminal conduct.
In this case, the seriousness of your offending is not as great as is often
seen in such matters. Although the offence was, by definition, a form of
violence on the victim, it was not accompanied by any gratuitous additional
violence or force. It was not accompanied by further acts of degradation
against your victim. When your victim recognised that something was wrong,
that you were not her husband, she demanded you stop. You obeyed her command
and you left.
The circumstances demonstrate that this was a spontaneous act on your part.
You had literally fallen over your victim. It was not pre-planned or
premeditated. It was entirely opportunistic. These matters do not in any way
excuse your conduct, which remains serious. However, they do suggest that the
offence is less serious than many of a similar kind that come before the
courts.
You are aged 20 years. You left school at year 9. You have had some work of a
labouring kind in your community. You were unemployed at the time of the
offence. You are a fully initiated man.
Doctor Walton, a psychiatrist, says that you suffer from some depression and
that you have a history of alcohol and cannabis abuse. He suggests alcohol and
drug rehabilitation are desirable, and I endorse that observation. Doctor
Walton noted that sexual offending is quite out of character for you. That,
coupled with the remorse you have shown, indicates that you are unlikely to
offend in this way again.
Personal deterrence is therefore not as significant a factor in the sentencing
process as it may otherwise have been. General deterrence, however, remains
important.
I turn to sentence you.
You are convicted. But for your plea of guilty and your co-operation with
authorities, I would have sentenced you to imprisonment for six years. In view
of these matters, I sentence you to imprisonment for four years and six months.
In view of your youth, your remorse, your good prospects for rehabilitation, I
propose to suspend a significant part of that sentence.
The sentence will be suspended after you have served 18 months' imprisonment.
The sentence and the pre-release period will date from 8 June 2001 to reflect
time spent in custody in respect of this matter. The period during which you
are not to commit an offence punishable by imprisonment for the purposes of
section 40 and section 43 of the Sentencing Act is four years from today.