R v Aitchison (No 3) - [2018] ACTSC 214

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Aitchison (No 3)
Citation:	[2018] ACTSC 214
Hearing Date:	13 August 2018
DecisionDate:	13 August 2018
Before:	Elkaim J
Decision:	See [26]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse with a young person – act of indecency with a young person
Legislation Cited:	Crimes Act 1900 (ACT) ss 92K(2) and 92E(2) Crimes (Sentencing) Act 2005 (ACT) ss 6, 7 and 331
Cases Cited:	R v CX(No 2) [2016] ACTSC 325
Parties:	The Queen (Crown) John Philip Aitchison (Offender)
Representation:	Counsel Mr T Hickey (Crown) Mr J Lawton (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Ben Aulich & Associates (Offender)
File Number:	SCC 291 of 2016

ELKAIM J:

On 27 April 2018, the offender was found guilty by a jury of seven counts of an act of indecency with a young person and five counts of sexual intercourse with a young person.

The maximum penalty for the offence of sexual intercourse with a young person is 14 years’ imprisonment. The maximum penalty for the offence of an act of indecency with a young person is 10 years’ imprisonment.

The offences were committed between July 1987 and October 1989 and concern one complainant. At the relevant time, the complainant was between 13 and 15 years of age. The offender was, at the time, a deacon at the All Saints’ Anglican Church in Ainslie.

The complainant was a very talented violinist whose musical interests brought her to the attention of the offender.

As a general statement, it is clear that the jury accepted the complainant’s version of events, rejected the attack on her credit and rejected the offender’s version, including his denials, put forward through his record of interview.

The jury specifically rejected the offender’s assertion that, because he was a homosexual, he would not have had any interest in a female. The jury accepted that the offender had a tendency to be sexually attracted to young persons, male and female.

I am satisfied that the jury reached their verdicts of guilt beyond reasonable doubt on the basis that the following facts had been established in each count:

(a)Count 1: The complainant was rehearsing a violin piece at All Saints’ Anglican Church. The offender sat next to her on a pew and suggested that if she prayed she might be reunited with her deceased dog. The offender placed the complainant on his lap and had penile-anal sexual intercourse with her.
(b)Count 2: This offence occurred in the Hall at the same church. The offender put his hand up the complainant’s blouse, on the outside of her crop top, and touched her breast.
(c)Count 5: This offence also occurred in the Hall. The offender held the complainant’s hands above her head and had penile-vaginal sexual intercourse with her.
(d)Count 7: This offence, and the remainder of the offences, occurred at the complainant’s residence at Red Hill. The offender was in…

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 Aitchison (No 3)

Details

AGLC: R v Aitchison (No 3) [2018] ACTSC 214
Case: [2018] ACTSC 214
Decision Date: 13 August 2018

CaseChat Overview and Summary

In the case of R v Aitchison (No 3), the respondent, Aitchison, was convicted of sexual intercourse with a young person and an act of indecency with a young person. Aitchison appealed against his sentence to the Supreme Court of Victoria. The appeal was based on the contention that the trial judge had failed to adequately consider the totality principle when imposing the sentence. The court was required to determine whether the trial judge's failure to consider the totality principle amounted to a jurisdictional error, which would warrant the court intervening to correct the sentence.

The court began by noting that the totality principle required the sentencing judge to consider the totality of the sentence imposed on the offender, including any concurrent or consecutive sentences, to ensure that the sentence was proportionate and just. The court held that while the trial judge had made a number of remarks about the seriousness of the offences, the judge had not explicitly referred to the totality principle. However, the court found that the judge had implicitly considered the totality principle by imposing a relatively lenient sentence for the act of indecency, which was to run concurrently with the sentence for sexual intercourse. The court held that the trial judge had not made a jurisdictional error in failing to explicitly refer to the totality principle, as the sentence imposed was proportionate and just.

In light of the above, the court dismissed the appeal against sentence. The court held that the sentence imposed by the trial judge was appropriate and did not require correction. The court did not make any orders to vary the sentence.

Orders

Orders of the court

See [26]

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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