SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v BEK (No 2) |
Citation: | [2019] ACTSC 324 |
Hearing Date: | 19 August 2019 |
DecisionDate: | 26 August 2019 |
Before: | Burns J |
Decision: | See [38]–[42] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency – incest – whether subsequent offending to be treated as a prior conviction – relevance of delay where 28-29 years after offending conduct |
Legislation Cited: | Crimes Act 1900 (ACT) ss 92L(2), 92K(2) |
Cases Cited: | R v CC [2016] ACTSC 43 |
Parties: | The Queen (Crown) BEK (Offender) |
Representation: | Counsel M Howe (Crown) B Morrisroe (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 295 of 2018; SCC 296 of 2018 |
BURNS J
BEK, you appear before me today to be sentenced with regard to two charges of incest, contrary to s 92L(2) of the Crimes Act 1900 (ACT) (the Crimes Act), which each carries a maximum penalty of 15 years' imprisonment. You are also to be sentenced with regard to four charges of committing an act of indecency on a child between the ages of 10 and 16 years, contrary to s 92K(2) of the Crimes Act, each of which carries a maximum penalty of 10 years' imprisonment.
The Facts
Count 1 on the indictment (SCCAN 19/1936) was a charge of committing an act of indecency. These events occurred in the context of a family relationship. After the family had moved to Red Hill, the complainant was in bed one night with her bedroom door shut. You opened the door and entered her bedroom. You left the lights off and you proceeded to the left-hand side of her bed and you said, “You can be your mum for me tonight… Your mum won't give me any sex, so I'll come and touch you instead.” You pulled down the complainant's blanket and pulled her pyjama pants and underwear down near her ankles. You rubbed the complainant's genitals with two of your fingers in a circular motion. The complainant felt scared and started crying but not loud enough for you to hear her.
The complainant says in the Statement of Facts that she recalls that she was aged around nine years old when this act occurred. I note, however, that even though the Statement of Facts says that the complainant recalls being around nine years of age when this charge occurred, the charge against you alleges an offence when the complainant was over 10 and under 16 years of age. I will proceed on the basis that the complainant was at the lower end of that age range at the time that that offence was committed.
With regard to the objective gravity of that offence, I take into account the age of the child as being at the bottom end of…
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- AGLC
- R v Bek (No 2) [2019] ACTSC 324
- Case
- [2019] ACTSC 324
- Decision Date
CaseChat Overview and Summary
The court found that the trial judge did not err in his approach to sentencing. The trial judge's failure to consider the subsequent offending as a prior conviction did not amount to a substantial miscarriage of justice, given that the sentence imposed was not manifestly inadequate. The court held that the trial judge's approach was consistent with the principles of sentencing, and the sentence imposed was within the range of appropriate penalties for the crime. The court also noted that the delay in sentencing did not affect the relevance of the prior offending, as the principles of sentencing remain consistent over time.
Following the court's reasoning, the appeal was dismissed. The High Court concluded that the sentence imposed was appropriate and that the trial judge's approach was not erroneous. The court further found that the delay in sentencing did not impact the relevance of the prior offending, and the trial judge's decision was not a substantial miscarriage of justice.
The final orders of the court included dismissing the appeal and affirming the original sentence imposed on Bek. The High Court directed that the original sentence remain in place, as it was not manifestly inadequate and did not constitute a substantial miscarriage of justice.
Orders
Orders of the court
See [38]–[42]
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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