Case Title:	R v BC (No 4)
Citation:	[2021] ACTSC 119
Hearing Date(s):	27 April 2021
DecisionDate:	11 June 2021
Before:	Loukas-Karlsson J
Decision:	See [160]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offences against children – act of indecency with person under the age of 10 years – indecency offence committed when offender a child – sexual intercourse with a person under the age of 16 years – offending resulted in pregnancy – rehabilitation – remorse – hardship and effect on offender’s family and dependants
Legislation Cited:	Children and Young People Act 2008 (ACT) Crimes (Sentencing Procedure) Act 1999 (NSW) s 22 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33, 34, 35, 133C, 133D Crimes Act 1900 (ACT) ss 55(2), 61(1), 342(1)(j) (repealed) Crimes Act 1914 (Cth) s 16A
Cases Cited:	Barbaro v The Queen; Zirilli v The Queen [2012] VSCA 288; 226 A Crim R 354 Blundell v The Queen [2019] ACTCA 34 Bugmy v The Queen (1990) 169 CLR 525 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Butters v The Queen [2010] NSWCCA 1 Carter v R [2018] NSWCCA 138 Craft v Diebert [2004] ACTCA 15 Deakin v The Queen [1984] HCA 31 Director of Public Prosecutions (Cth) v Ip [2005] ACTCA 24 Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 Director of Public Prosecutions v STU [2012] TASCCA 7; 21 Tas R 322 DPP v (Cth) v Pratten (No 2) [2017] NSWCCA 42 Elsaj v R [2017] NSWCCA 124 Elshani v R [2015] NSWCCA 254; 255 A Crim R 488 Elshani v The Queen [2015] NSWCCA 254 Fisher v The Queen (1989) 40 A Crim R 442 Henry v The Queen [2019] ACTCA 5 Hili v The Queen [2010] HCA 45; 242 CLR 520 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Imbornone v The Queen [2017] NSWCCA 144 Lee v R [2019] NSWCCA 15 Linden v R [2017] NSWCCA 321 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Mun v The Queen [2015] NSWCCA 234 Ngata v The Queen [2020] ACTCA 18 O’Brien v The Queen [2015] ACTCA 47 Power v The Queen (1974) 131 CLR 623 R v Adami (1989) 51 SASR 229 R v Ajelara [2015] QCA 56 R v Ashman [2010] ACTSC 45 R v BJW [2000] NSWCCA 60; 112 A Crim R 1 R v Cornell [2015] NSWCCA 258 R v Cramp [2004] NSWCCA 264 R v Deer [2014] NSWDC 24 R v Dent (Unreported, NSWCCA, 14 March 1991) R v Edwards (1996) 90 A Crim R 510 R v Eisenach [2011] ACTCA 2 R v Gavel [2014] NSWCCA 56

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 BC (No 4)

Details

AGLC: R v BC (No 4) [2021] ACTSC 119
Case: [2021] ACTSC 119
Decision Date

CaseChat Overview and Summary

In R v BC (No 4), the offender, BC, was sentenced for multiple offences of sexual abuse of a child. BC pleaded guilty to one act of indecency with a person under 10 years of age, and three acts of sexual intercourse with a person under 16 years of age. The offences were committed against his cousin, LC, when she was aged between 9 and 15 years, and BC was between 15 and 21 years of age. The court considered the objective seriousness of the offences, the impact on the victim, and the offender's subjective circumstances, including rehabilitation. The court also took into account the probable effect of the sentence on the offender's family and dependents. The court sentenced BC to a total of four years and six months' imprisonment, with a non-parole period of 18 months. The sentence for the act of indecency was a two-year good behaviour order, while the sentences for the sexual intercourse offences were reduced due to the offender's pleas of guilty.

Orders