R v Alas (No 3) - [2018] ACTSC 38

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Alas (No 3)
Citation:	[2018] ACTSC 38
Hearing Date:	6 February 2018
DecisionDate:	7 February 2018
Before:	Mossop J
Decision:	See [39]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – sexual intercourse with a person under the age of 16 years – long-term relationship between offender and victim – substantial age difference – subjective circumstances – mental health condition – post-traumatic stress disorder – sentencing patterns at the time of the offending – general deterrence – prisoner at risk – sentenced to a period of imprisonment
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT), s 33(1)(za)
Cases Cited:	Director of Public Prosecutions (Vic) v Dalgliesh (Pseudonym) [2017] HCA 41; 91 ALJR 1063 Millard v The Queen [2016] ACTCA 14 R v Al-Harazi (No 7) [2017] ACTSC 350 R v Gavel [2014] NSWCCA 56 R v JD (Unreported, ACT Supreme Court, Madgwick J, 12 June 2001) R v Kilic [2016] HCA 48; 259 CLR 256 R v Nona [2015] ACTSC 136
Parties:	The Queen (Crown) Baltazar Leiva Alas (Offender)
Representation:	Counsel M Lucero (Crown) K Musgrove (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number:	SCC 290 of 2016

MOSSOP J:

Introduction

The offender was charged with two counts of an act of indecency on a person under the age of 16 (counts 1 and 2) and five counts of sexual intercourse with a person under the age of 16 years (counts 3 to 7). On 1 December 2017, the jury returned verdicts of not guilty on counts 1 to 5 on the indictment and verdicts of guilty on counts 6 and 7.

Count 6 related to sexual intercourse which led to a pregnancy which ended in a miscarriage. The pregnancy and miscarriage were documented in medical and other contemporaneous records which were in evidence.

Count 7 related to the sexual intercourse which led to the conception of a child who the offender admitted was his. Having regard to the date of birth of the child at term, the sexual intercourse had occurred prior to the 16^th birthday of the complainant.

At the time of count 6, the offender was aged 40 or 41 and the complainant 15 years and one or two months. As at the time of count 7, the offender was aged 41 and the complainant 15 years and 10 or 11 months.

The offender and victim lived in the same housing complex. The victim lived with her mother. The offender sought out the victim complimenting her on her looks, saying that he wanted to look after her and that he wanted a relationship with her. She was vulnerable to such entreaties being a naïve and shy teenager whose parents were separated.

The verdicts of not guilty on counts 1 to 5 are, in the light of the verdict of guilty on counts 6 and 7, consistent with the jury having a…

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 Alas (No 3)

Details

AGLC: R v Alas (No 3) [2018] ACTSC 38
Case: [2018] ACTSC 38
Decision Date: 7 February 2018

CaseChat Overview and Summary

The case of R v Alas (No 3) involved the defendant, Alas, who was convicted of engaging in sexual intercourse with a person under the age of 16. The matter was heard and determined in the relevant court. The primary issue before the court was the appropriate sentence to be imposed on Alas, considering the unique circumstances surrounding the offence, including the long-term relationship between the offender and the victim, the substantial age difference, and Alas's mental health condition, specifically post-traumatic stress disorder. The court also had to weigh the broader objectives of sentencing, such as general deterrence and the protection of the community, against the mitigating factors presented by the defence.

The court carefully considered the sentencing patterns at the time of the offence and the circumstances that may have influenced Alas's actions. The judge acknowledged the subjective circumstances of the case, including the relationship between the offender and the victim and Alas's mental health condition. The court recognised the need for a sentence that appropriately balanced the objectives of general deterrence, retribution, and rehabilitation, while also taking into account the specific circumstances of Alas as an individual. The court ultimately determined that a period of imprisonment was the most suitable sentence, given the seriousness of the offence and the need to protect the community.

In reaching its decision, the court placed significant weight on the need to deter similar offences in the future while also considering Alas's potential for rehabilitation. The judge noted that Alas's mental health condition and the circumstances of the offence warranted a sentence that took these factors into account, but also emphasised the importance of ensuring that the sentence reflected the gravity of the crime committed. The court concluded that a period of imprisonment, as determined, was necessary to achieve the objectives of sentencing in this particular case.

The final orders of the court, as noted in paragraph [39], reflect the court's decision to sentence Alas to a period of imprisonment, taking into account all the relevant factors and considerations discussed during the proceedings.

Orders

Orders of the court

See [39]

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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