1. BI be convicted of committing an act of indecency on TM between 30 September 1995 and 1 June 1996.
2. BI be sentenced for that offence to 12 months imprisonment to commence on 16 September 2015.
3. BI be convicted of committing an act of indecency in the presence of TM between 30 September 1995 and 1 June 1996.
4. BI be sentenced for that offence to four months imprisonment to commence on 16 August 2016.
5. BI be convicted of committing an act of indecency on BB on or about 5 January 2005.
6. BI be sentenced for that offence to six months imprisonment to commence on 16 December 2016.
7. BI be convicted of committing an act of indecency on OI between 23 January 2009 and 12 February 2012.
8. BI be sentenced for that offence to 10 months imprisonment to commence on 16 June 2017.
9. BI be convicted of committing a further act of indecency on OI between 23 January 2009 and 12 February 2012.
10. BI is sentenced for that offence to 12 months imprisonment to commence on 16 July 2017.
11. BI be convicted of attempting to engage in sexual intercourse with OI, who was, to your knowledge, your lineal descendant.
12. BI be sentenced for that offence to two years imprisonment to commence on 16 September 2017.
13. That is a total sentence of four years imprisonment.
14. A non parole period of two years be set to commence on 16 September 2015 and to end on 15 September 2017.
Catchwords:
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Sentencing – trial by jury – committing an act of indecency upon or in the presence of a person under the age of 16 – showing of pornographic material to a child – attempting to engage in sexual intercourse – attempting to commit a crime – incest – lineal descendant – no mitigation to an offence if a child is approaching the maximum age of the offence – loco parentis – aggravation through breach of trust – concurrency of sentence – general deterrence – sentenced to a period of imprisonment
[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 BI (No 4)
Sign in free to access the full text
Details
AGLC
R v BI (No 4) [2017] ACTSC 71
Case
[2017] ACTSC 71
Decision Date
CaseChat Overview and Summary
In the Supreme Court of Queensland, the defendant BI faced conviction for a series of serious offences against children. The court heard evidence of multiple instances of committing acts of indecency on various minors, as well as an attempt to engage in sexual intercourse with a child who was BI's lineal descendant. The defendant was also charged with showing pornographic material to a child. The nature of the dispute was the appropriate sentencing for these offences, which were committed over a period spanning from 1995 to 2012.
The court was required to consider several legal issues, including the appropriate weight to give to the aggravating factors, such as the breach of trust, the multiple victims, and the persistence of the offending behaviour over many years. The court also had to address the issue of concurrency, determining how the sentences for the various offences should be ordered to run consecutively or concurrently. Another issue was the relevance of the age of the victims at the time of the offences in determining the sentence, particularly in relation to the maximum age of the offence.
The court determined that the offences were of a serious nature, with significant aggravating factors present. The court found that BI had breached the trust inherent in the relationships with the victims, who were in a position of significant vulnerability. In sentencing, the court considered the need for general deterrence and the protection of the community. The court decided that the sentences for the various offences should run concurrently, with a total sentence of four years imprisonment, and a non-parole period of two years.
The final orders of the court were that BI be convicted of the various offences as detailed in the orders, and be sentenced to a total of four years imprisonment, with a non-parole period of two years. The sentences for each offence were to run concurrently, with the earliest starting date being 16 September 2015.
Orders
Orders of the court
1. BI be convicted of committing an act of indecency on TM between 30 September 1995 and 1 June 1996.
2. BI be sentenced for that offence to 12 months imprisonment to commence on 16 September 2015.
3. BI be convicted of committing an act of indecency in the presence of TM between 30 September 1995 and 1 June 1996.
4. BI be sentenced for that offence to four months imprisonment to commence on 16 August 2016.
5. BI be convicted of committing an act of indecency on BB on or about 5 January 2005.
6. BI be sentenced for that offence to six months imprisonment to commence on 16 December 2016.
7. BI be convicted of committing an act of indecency on OI between 23 January 2009 and 12 February 2012.
8. BI be sentenced for that offence to 10 months imprisonment to commence on 16 June 2017.
9. BI be convicted of committing a further act of indecency on OI between 23 January 2009 and 12 February 2012.
10. BI is sentenced for that offence to 12 months imprisonment to commence on 16 July 2017.
11. BI be convicted of attempting to engage in sexual intercourse with OI, who was, to your knowledge, your lineal descendant.
12. BI be sentenced for that offence to two years imprisonment to commence on 16 September 2017.
13. That is a total sentence of four years imprisonment.
14. A non parole period of two years be set to commence on 16 September 2015 and to end on 15 September 2017.