R v Bek (No 2) - [2019] ACTSC 324

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 R v Djenadija [2015] ACTSC 207 R v KS [2018] ACTSC 220 R v Scheeren [2014] ACTSC 272 R v Trezise [2018] ACTSC 135
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…

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 Bek (No 2)

Details

AGLC: R v Bek (No 2) [2019] ACTSC 324
Case: [2019] ACTSC 324
Decision Date: 26 August 2019

CaseChat Overview and Summary

The respondents, the Crown and the Director of Public Prosecutions, appealed against a decision to reduce the sentence of the applicant, Bek, who had been convicted of incestuous acts with his daughter. The case was heard in the High Court of Australia. The central issue before the court was whether the trial judge erred in failing to consider that Bek's subsequent offending should be treated as a prior conviction, and if this omission constituted a substantial miscarriage of justice. Additionally, the court had to determine the relevance of the 28-29 year delay between the offending conduct and the sentence.

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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