Police v Jewkes - [2024] ACTMC 29

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Police v Jewkes
Citation:	[2024] ACTMC 29
Hearing Date:	20 November 2024
Decision Date:	21 November 2024
Before:	Chief Magistrate Walker
Decision:	The defendant is sentenced to a total of 10 months imprisonment, fully suspended upon entering a good behaviour order.
Catchwords:	CRIMINAL LAW – SENTENCING – indecent assault on a male – attempt buggery – historical offences – Crimes Act 1900 (ACT)
Legislation Cited:	Crimes Act 1900 (ACT), ss 80, 81 Crimes Act 1900 (ACT), s 212 Crimes (Sentencing) Act 2005 (ACT) ss 33, 34A(a), s 34A(b), 35(4) Crimes (Sentence Administration) Act 2005 (ACT), s 86
Cases Cited:	GAS v R [2004] HCA 22; 217 CLR 198 R vDe Simoni [1981] HCA 3; (1981) 147 CLR 383 R v Trezise [2018] ACTSC 135 R v Kisun (No 5) [2018] ACTSC 311 Mill v R [1988] [1988] HCA 70; 166 CLR 59 Beck v R [2024] NSWCCA 201
Parties:	Jayalla Cox (Informant) Peter Jewkes (Defendant)
Representation:	Solicitors ACT Director of Public Prosecutions Uther Webster & Evans Solicitors (Defendant)
File Number:	CC 7345 of 2023 CC 7349 of 2023

CHIEF MAGISTRATE WALKER:

Introduction

1․The offender is charged with one count of indecent assault on a male, contrary to section 81 of the Crimes Act 1900, and one count of attempted buggery, contrary to section 80 of the same Act, as those sections stood at the date of these offences. Whilst the offence provisions are repealed, the limitation period of two years previously in place was also repealed in 2013.
2․Each offence carries on conviction a maximum penalty of five years' imprisonment
3․The matters before the court initially formed part of a broader suite of allegations including a further seven counts of indecent assault on a male. They proceeded by way of summons. The offender was legally represented on the first return date in court on 4 October 2023 and pleas of not guilty were entered in respect to each of the matters.
4․Following numerous adjournments for prehearing mention, the matters were adjourned to a final prehearing mention on 24 July 2024. On that occasion, pleas of guilty were indicated on behalf of the offender to the two matters which now fall to be sentenced. The indecent assault charge was amended to reflect a date range of 1 January 1979 to 31 December 1979. The attempted buggery charge was amended to a date range between 1 January 1978 and 31 December 1979. The offender's consent to the jurisdiction of this court was confirmed on the same occasion. The court was advised that the remaining charges would be withdrawn.
5․Pleas of guilty were confirmed by the offender in person at the sentencing hearing on 20 November 2024. Leave was granted for the remaining matters to be withdrawn with consent of the offender.
6․This sentence involves conduct committed nearly 50 years ago under a legislative regime and, indeed, a misguided morality, which are no longer in place. In particular, the court…

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

Case: [2024] ACTMC 29
Decision Date: 21 November 2024

CaseChat Overview and Summary

The case of Police v Jewkes involved the defendant, Jewkes, who was found guilty of indecent assault on a male and an attempt to commit buggery. The matter was heard in the Magistrates Court of the Australian Capital Territory. The dispute centred on the appropriate sentence for Jewkes, given the historical nature of the offences and the fact that the victim had died. The Crown argued for a custodial sentence, while the defence sought a non-custodial sentence due to the time that had elapsed since the commission of the offences and Jewkes' otherwise unblemished character.

The court was tasked with determining the appropriate sentence, taking into account the nature and circumstances of the offences, the time that had elapsed, Jewkes' background, and the need for deterrence and rehabilitation. The court also considered the principle of proportionality and the impact of the offences on the victim. The defence argued that the delay in prosecution and Jewkes' otherwise good character should be taken into account, while the Crown emphasised the seriousness of the offences and the need for deterrence.

In delivering the sentence, the court found that the offences were of a serious nature but acknowledged the significant delay in prosecution and Jewkes' otherwise good character. The court concluded that a custodial sentence was necessary but could be fully suspended upon Jewkes entering a good behaviour order. The court emphasised the importance of deterrence and rehabilitation, and the need to protect the community. The court also considered the impact of the offences on the victim, who had passed away before the trial.

The court ordered that Jewkes be sentenced to a total of 10 months imprisonment, fully suspended upon entering a good behaviour order for a period of two years. Jewkes was also ordered to pay a fine of $2,000. The court noted that the sentence reflected the seriousness of the offences while taking into account the mitigating factors and the need for deterrence and rehabilitation.

Orders

Orders of the court

The defendant is sentenced to a total of 10 months imprisonment, fully suspended upon entering a good behaviour order.

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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