CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offender found guilty after trial by jury – choke strangle or suffocate – sexual intercourse without consent – acts of indecency – sexual assault with intent to have sexual intercourse and commit act of indecency – offences committed in a family violence context – offences committed whilst on conditional liberty – totality – mental illness at time of sentence – youthful offender – rehabilitation relevant to fixing non-parole period – transfer offences of common assault related to indictable offences
T Hickey (23 June, 7 July 2023) & S Jerome (3 October 2023) ( DPP)
T Jackson ( Offender)
Solicitors
ACT Director of Public Prosecutions
Rachel Bird & Co ( Offender)
File Numbers:
SCC 225, 226, 301 of 2022
Norrish AJ:
Introduction
1․The offender appears for sentence in relation to 19 offences for which he was found guilty by a jury in April 2023 after a trial continuing for over two weeks. I will refer to these matters generally as “the indictable offences”. Further, the prosecution desires that seven transfer offences be dealt with at this time. Six of those matters are offences of common assault directly connected to the indictable offences and were subject of evidence in the trial.
2․The offender has pleaded guilty to one of the transfer offences, an offence of stalking the victim of the indictable offences in the period between 22 March and 29 April 2022. He has pleaded not guilty to the six common assault offences. The chart below sets out each of…
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.
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Details
AGLC
DPP v Deighan (No 2) [2023] ACTSC 295
Case
[2023] ACTSC 295
Decision Date
CaseChat Overview and Summary
In the matter of the Director of Public Prosecutions v Deighan, the respondent was convicted of multiple serious offences related to sexual assault and acts of indecency, occurring in a family violence context. The respondent, who was on conditional liberty at the time, was found guilty after a trial by jury. The court was tasked with determining the appropriate sentence, taking into account the totality of the offences and the respondent's circumstances, including their mental illness at the time of the offence and their status as a youthful offender.
The primary legal issues the court needed to address were the appropriate sentence for the respondent and the determination of the non-parole period. The court had to consider the severity of the offences, the context in which they were committed, and the respondent's background. Additionally, the court had to balance the need for punishment and deterrence with the potential for rehabilitation.
In delivering the judgment, the court meticulously examined the totality of the offences, the role of mental illness, and the respondent's age. The court also considered the transfer offences of common assault, which were related to the indictable offences. After weighing all the relevant factors, the court determined the appropriate sentence and set a non-parole period, taking into account the principles of rehabilitation and the protection of the community. The final orders were made at [103].