Milner v A W - [2014] ACTSC 231

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Milner v A W
Citation:	[2014] ACTSC 231
Hearing Date(s):	2 July 2014
DecisionDate:	2 July 2014
Before:	Murrell CJ
Decision:	Appeal dismissed with costs
Category:	Principal Judgment
Catchwords:	CRIMINAL LAW – appeal against sentence – whether sentence manifestly inadequacy – non-conviction order – young person – registration as sex offender
Legislation Cited:	Crimes (Child Sex Offenders) Act 2005 (ACT) Crimes (Sentencing Act) 2005 (ACT) ss 17, 133C, 133D, 133G Crimes Act1900 (ACT) s 55
Cases Cited:	R v CV [2013] ACTCA 22 R v KNL (2005) 154 A Crim R 268
Parties:	Giuliana Milner (Appellant) A W (Respondent)
Representation:	Counsel: Mr J White ( Appellant) Mr K Archer ( Respondent)
Solicitors: ACT Director of Public Prosecutions ( Appellant) Kamy Saeedi Lawyers ( Respondent)
File Number(s):	SCA 12 of 2014
Decision under appeal:	Court: Children’s Court of the ACT Before: Magistrate Morrison Date of Decision: 30 January 2014 Case Title: Milner v AW Court File Number(s): CH 516 of 2013

MURRELL CJ:

Introduction

The Crown appeals against sentences imposed by the Magistrates Court in relation to two matters. On 30 January 2014, the Magistrates Court sentenced the respondent for an offence of committing an act of indecency on a girl under 16 and an offence of having sexual intercourse with a girl aged between 10 and 16 years contrary to s 55 of the Crimes Act1900 (ACT) (Crimes Act). In doing so, the Magistrates Court took into account an additional offence of sending pornographic material to a young person via the internet.

In the Supreme Court, the maximum available penalty for the offence of act of indecency is 10 years’ imprisonment and for the offence of having sexual intercourse with a person aged between 10 and 16 years the maximum available penalty is 14 years’ imprisonment.

The Magistrates Court proceeded under s 17 of the Crimes Act, imposing a non-conviction order and a good behaviour order of two years which subjected the respondent to the supervision of Youth Justice and required him to undertake appropriate education and counselling.

The grounds of the appeal are:

(a)The sentences were manifestly inadequate. Somewhat inappropriately, this ground referred to matters of weight, asserting that:
(i)the Magistrate erred in failing to give sufficient weight to the objective seriousness of the offences;
(ii)the Magistrate erred in failing to give adequate weight to the aggravating feature of lack of consent of the victim;
(iii)the Magistrate erred in failing to give adequate weight to the premeditated nature of the offences and the respondent’s course of conduct;
(iv)the Magistrate erred in giving too much weight to the fact that, if convicted, the respondent would become a registrable offender under the Crimes (Child Sex Offenders) Act 2005 (ACT) (Child Sex Offenders Act).

(b)The Magistrate erred in law by, in effect, reasoning backwards from a position that, as a good behaviour order was the appropriate outcome, a conviction was not required.

Background facts

The…

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 Milner v A W

Details

AGLC: Milner v A W [2014] ACTSC 231
Case: [2014] ACTSC 231
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the case of Milner v A W was heard, where the Crown appealed against sentences imposed by the Magistrates Court on A W, a young person convicted of committing an act of indecency on a girl under 16 and having sexual intercourse with a girl aged between 10 and 16 years. The Crown contended that the sentences were manifestly inadequate, arguing that the Magistrate failed to give sufficient weight to the seriousness of the offences, the lack of consent, the premeditated nature of the offences, and the potential consequences of registration as a sex offender. The appeal also argued that the Magistrate erred in law by reasoning from a position that a conviction was not required if a good behaviour order was appropriate. The central issues before the court were whether the sentences imposed by the Magistrates Court were manifestly inadequate and whether the Magistrate erred in his reasoning regarding the imposition of a conviction.

The court found that the Magistrate had given careful consideration to the relevant matters in imposing the non-conviction order and good behaviour order, balancing the seriousness of the offences, the age and background of the offender, and the impact on the victim. The Magistrate explicitly considered the purposes of sentencing, particularly the need for rehabilitation given the offender's young age. The court noted that while the Magistrate's reasoning could have been more articulate, his overall decision did not engage in the backward reasoning suggested by the Crown. The court held that the Magistrate was entitled to consider the consequences of registration as a sex offender and that the weight given to various factors was within the Magistrate's discretion. Consequently, the appeal was dismissed with the appellant to pay the respondent's costs.

The court's decision underscored the importance of considering rehabilitation and individualised justice when sentencing young offenders, while also acknowledging the seriousness of the offences committed. The reasoning of the Magistrate, though not perfectly articulated, was found to be within the bounds of acceptable judicial discretion, and the sentences imposed were deemed to be within the appropriate sentencing range.

Orders