Calatzis v Jones - [2023] ACTMC 33

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Calatzis v Jones
Citation:	[2023] ACTMC 33
Hearing Date:	14 August 2023
Decision Date:	31 August 2023
Before:	Chief Magistrate Walker
Decision:	Bond to be of good behaviour and supervised for 3 years.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Act of indecency without consent – Objective seriousness - Totality
Legislation Cited:	Crimes Act 1900 ss 60(1), 375(15)(a) Crimes (Sentencing) Act 2005 (ACT) ss 7(2), 10 Crimes (Sentence Administration) Act 2005 (ACT) s 86
Cases Cited:	DPP v Jones [2023] ACTSC 99 DPP v Earle [2023] ACTSC 93 Jurj v The Queen [2016] VSCA 57 R v Palmer [2017] ACTSC 357 R v Toumo’ua [2017] ACTCA 9 R v Ali (no 4) [2020] ACTSC 350 Szabo v MS [2018] ACTMC 9 R v Miller [2019] ACTCA 25 Markarian v the Queen [2005] HCA 25; 228 CLR 357
Parties:	P Calatzis (Informant) L Jones ( Defendant)
Representation:	Counsel S Pitney ( Informant) J Maher ( Defendant)
Solicitors ACT Director of Public Prosecutions (Informant) Armstrong Legal ( Defendant)
File Number:	CC 10730 of 2022

CHIEF MAGISTRATE WALKER:

1․The offender Liam Jones pleaded guilty to a single act of indecency without consent contrary to s 60(1) of the Crimes Act 1900 (ACT) (Crimes Act). On conviction, the offence carries a maximum penalty of 7 years imprisonment. Mr Jones consented to the jurisdiction of this court; s 375(15)(a) of the Crimes Act sets a jurisdictional limit of 5 years imprisonment.
2․The offence occurred against a background of friendship with the victim through their previous employment. That friendship extended to an earlier occasion of consensual touching, including cuddling and kissing in early 2020.
3․On 18 April 2021, after an evening with friends, the victim found herself alone in Civic. She checked her Instagram account and discovered that Mr Jones was also in the city. She messaged him and they agreed to meet. Both were intoxicated. They walked around the city talking and kissing consensually. It was cold; they agreed to go to the victim’s home. She told him “you can come over but we are not having sex”. He responded “yep, that’s ok”.
4․They travelled in an Uber hire car to her home in Campbell. The victim had a housemate; in order to avoid waking that person, they went to the victim’s bedroom. The victim removed her clothing including a bra and stockings but left her underpants on. Mr Jones also removed his clothing leaving his underpants on. They got into bed together side by side. Mr Jones consensually “spooned” the victim, that is cuddled her from behind. She said goodnight to him.
5․Mr Jones then slid his hand inside the victim’s underpants and rubbed her clitoris in a circular motion for about 10-20 seconds. The victim sat up and said “you can’t handle being here”. Mr Jones replied “I know”.
6․The victim got out of bed and ordered Mr Jones an Uber hire car.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Calatzis v Jones

Details

AGLC: Calatzis v Jones [2023] ACTMC 33
Case: [2023] ACTMC 33
Decision Date: 31 August 2023

CaseChat Overview and Summary

The matter before the court involved the defendant, Mr Jones, who was charged with an act of indecency without consent against the complainant, Ms Calatzis. The case was heard in the relevant Australian court, where the focus was on the severity of the offence and the appropriate sentence to be imposed. The crux of the dispute was whether the court should impose a custodial sentence or an alternative punishment that would be more rehabilitative for the offender.

The legal issues at the heart of the case centred on the objective seriousness of the offence and the need to balance it with the principles of proportionality and rehabilitation in sentencing. The court had to determine the appropriate punishment that would adequately address the breach of the law while also considering the potential for rehabilitation of the offender. The court was required to weigh the gravity of the offence against the likelihood of Mr Jones reoffending and the benefits of a non-custodial sentence.

In delivering its judgment, the court emphasised the objective seriousness of the act of indecency without consent. However, the court also considered the totality principle, which requires a comprehensive assessment of the offender's circumstances, including their background, character, and the likelihood of rehabilitation. The court acknowledged the need for a sentence that would not only punish the offender but also deter future offences and promote the rehabilitation of Mr Jones. Ultimately, the court decided that a bond to be of good behaviour and supervised for three years would be the most appropriate sentence. This decision balanced the need for punishment and deterrence with the potential for rehabilitation and reflected the totality of the circumstances of the case.

Orders

Orders of the court

Bond to be of good behaviour and supervised for 3 years.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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