R v AD - [2014] ACTSC 222

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v AD
Citation:	[2014] ACTSC 222
Hearing Dates:	25 July 2014
DecisionDate:	14 August 2014
Before:	Penfold J
Decision:	See [32] to [36] below
Category:	Sentence
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – offender to be sentenced for incest with person under 16 but over 10 years, using a carriage service to groom person under 16, and three offences of using a carriage service to transmit an indecent communication to a person under 16 – offender 20 years old – victim was offender’s 12-year-old half-sister – offender and victim had met for first time shortly before offences – offender’s difficult childhood and adolescence – offender’s mother left offender’s father to escape domestic violence – offender met half-sister when he re-established relationship with father more than 15 years later – offender immature and socially isolated – victim willing participant in offences as indicated diary entries – offender demonstrated remorse and insight into effect of offences on victim – sentence of imprisonment required – no need for sentence to be served in full-time custody – total sentence of imprisonment for three years and six months – ACT sentence fully suspended subject to good behaviour order with community service order – Commonwealth sentence subject to recognizance release order.
Legislation Cited:	Crimes Act (Cth), s 20AA Crimes Act 1900 (ACT), s 62(2) Crimes (Sentence Administration) Act 2005 (ACT) Criminal Code 1995 (Cth), ss 474.27, 474.27A
Cases Cited:	The Queen v CV [2013] ACTCA 22
Parties:	The Queen (Crown) AD (Offender)
Representation:	Counsel Mr T Hickey (Crown) Mr S Gill (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number:	SCC 176 of 2013
Publication Restriction:	Name of victim and any identifying details, including name of offender

AD has pleaded guilty to five offences, being one of incest with a person aged under 16 but at least 10 years of age, one of using a carriage service to groom a person under 16 and three of using a carriage service to transmit an indecent communication to a person under 16. Those offences arise respectively under s 62(2) of the Crimes Act 1900 (ACT) and ss 474.27 and 474.27A of the Criminal Code 1995 of the Commonwealth, and carry penalties respectively of 15 years, 12 years and seven years.

AD is the complainant's half brother. They have the same father, who was living in Canberra and who also has other children to other different partners. AD and the complainant, who did not live with her father, met when AD came to Canberra to visit his father whom he had not seen for 15 years. Several weeks later, in June 2013, AD returned to Canberra to live with his father, and re-established contact with the complainant. He stayed one night at the complainant's home. Several nights later, the complainant stayed at her father's house, where AD was staying. They were to stay in the same bed,…

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 R v AD

Details

AGLC: R v AD [2014] ACTSC 222
Case: [2014] ACTSC 222
Decision Date: 14 August 2014

CaseChat Overview and Summary

The defendant in the case of R v AD was sentenced by the Supreme Court of the Australian Capital Territory for a series of offences including incest with a person under 16 but over 10 years, using a carriage service to groom a person under 16, and three counts of using a carriage service to transmit an indecent communication to a person under 16. The victim in this case was the defendant's 12-year-old half-sister, whom he had met for the first time shortly before the offences occurred. The defendant was 20 years old at the time of sentencing.

The court was required to determine the appropriate sentence for the defendant given the nature and circumstances of the offences. The legal issues included the necessity for a sentence of imprisonment, the need for that sentence to be served in full-time custody, and the appropriate length and conditions of the sentence. The court took into account the offender's difficult childhood, social isolation, and the victim's willingness to participate, as well as the offender's demonstrated remorse and insight into the effect of the offences on the victim.

The court found that a sentence of imprisonment was necessary, but did not need to be served in full-time custody. It determined that a total sentence of imprisonment for three years and six months was appropriate. The sentence imposed by the ACT was fully suspended subject to a good behaviour order and a community service order. The Commonwealth sentence was subject to a recognizance release order. The court considered that the sentence should reflect the seriousness of the offences and provide for the rehabilitation of the offender.

Orders

Orders of the court

See [32] to [36] below

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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