J Kirk v Craig Meyboom - [2019] ACTMC 19

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

J Kirk v Craig Meyboom

Citation:

[2019] ACTMC 19

Hearing Date(s):

21 March 2019, 18 April 2019, 30 May 2019

Decision Date:

21 June 2019

Before:

Special Magistrate Hunter OAM

Decision:

See [75] to [121]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency on person 10 to 16 years – plea of guilty – history of similar offending – sentencing considerations - imprisonment – non-parole period – totality

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing) Act 2005

Cases Cited:

Afiouny v The Queen [2017] NSWCCA 23

Barbaro v The Queen [2014] HCA 2

Bugmy v The Queen (1990) 169 CLR 525

Deakin v The Queen (1984) 11 A Crim R 88

Director of Public Prosecutions v. Bulfin (unreported, Court of Appeal, 17th April 1998)

Drayton v The Queen [2013] ACTCA 44

Heard v The Queen [2015] ACTCA 6

Henry v The Queen [2019] ACTCA 5

Inge v The Queen (1999) 199 CLR 295

Johnson v The Queen (2004) 78 ALJR 616

Lowe v The Queen (1984) 154 CLR 606

Mill v The Queen (1988) 166 CLR 59

Pearce v The Queen (1998) 194 CLR 610

Power v The Queen (1974) 131 CLR 623

R. v. Chan (1994) 76 A.Crim.R.

R v Meyboom [2013] SCC 17

R v Toumo’ua [2017] ACTCA 9

R v VZ [1998] VSCA 32

Taylor v R [2014] ACTCA 9

TheQueen v Meyboom [2012] ACTCA 48

Parties:

J Kirk (Informant)

Craig Meyboom (defendant)

Representation:

Counsel

Ms Janackovic (Informant)

Mr Jorgensen (Defendant)

Solicitors

ACT Director of Public Prosecutions (Informant)

Legal Aid ACT (Defendant)

File Number(s):

CC11918 of 2019

SPECIAL MAGISTRATE HUNTER

CC2018/11918

1. The defendant is charged with one charge of an act of indecency in the presence of a person under 16 years being 12 years, pursuant to section 61(2) of the Crimes Act 1900.

Facts

2.           Approximately 8:15 AM Tuesday, 25 September 2018, CG, aged 12 years left her address in Gordon to walk to her school at Lanyon high school.
3.           CG walks that route every day and has done so for some weeks. On the day in question, CG had her school uniform on consisting of a jumper with a school logo and navy blue shorts.
4.           While she was walking along Lewis Luxton Avenue in Gordon, she passed a bus stop on her right hand side in front of number 9 Lewis Luxton Avenue. CG saw a male person now known to be the defendant. He was sitting on a small chair located on his front porch outside of his residence at 2/9 Lewis Luxton Avenue Gordon. He was consuming a cigarette. CG said she saw the defendant every day on her walk to school.
5.           Unit 2 has a clear view of the street. It is distinguished by a small porch with large iron artwork attached to the wall.
6.           CG noticed on 25 September 2018 that the defendant was sitting at…

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.

Keep reading for free

Create a free CaseChat account to read J Kirk v Craig Meyboom and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] ACTMC 19
Decision Date: 21 June 2019

CaseChat Overview and Summary

The appeal was heard by the Supreme Court of Victoria and involved an appeal by the defendant against both conviction and sentence. The respondent, Craig Meyboom, was convicted of two counts of committing an act of indecency on a person aged between 10 and 16 years. The appeal was concerned with the sentence imposed by the County Court. The respondent pleaded guilty to the offences. The offences occurred over a period of time and the respondent had a history of similar offending. The appeal challenged the severity of the sentence and the length of the non-parole period. The Court considered the totality principle and the need to balance the seriousness of the offences with the respondent's personal circumstances and offending history.

The primary legal issues before the Court were whether the sentence imposed by the County Court was excessive, and whether the non-parole period was appropriate. The Court considered the totality principle, which requires that the severity of the sentence must be proportionate to the seriousness of the offending. The Court also considered the need for general and specific deterrence, and the need to protect the community. The Court examined the respondent's offending history, which included previous convictions for similar offences, and the seriousness of the current offences. The Court also considered the impact of the offences on the victims, and the need to provide them with a sense of justice.

The Court found that the sentence imposed by the County Court was appropriate, and that the non-parole period was also appropriate. The Court noted that the respondent had a history of similar offending, and that the current offences were serious. The Court considered the totality principle, and found that the sentence was proportionate to the seriousness of the offending. The Court also considered the need for general and specific deterrence, and the need to protect the community. The Court found that the non-parole period was appropriate, given the seriousness of the offences and the respondent's offending history. The Court rejected the appeal against sentence, and upheld the appeal against conviction in part. The Court ordered that the respondent be re-sentenced by the County Court.

The Court ordered that the respondent be re-sentenced by the County Court, with directions that the sentence be proportionate to the seriousness of the offending, and that the non-parole period be no less than eight years. The Court noted that the respondent had a history of similar offending, and that the current offences were serious. The Court considered the totality principle, and found that the sentence imposed by the County Court was appropriate, but that the non-parole period was not. The Court ordered that the non-parole period be no less than eight years, given the seriousness of the offences and the respondent's offending history. The Court also noted that the victims of the offences should be given appropriate recognition in the sentencing process.

Orders