R v Brown

[2021] ACTSC 274

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Brown

Citation:

[2021] ACTSC 274

Hearing Dates:

15 October 2021

DecisionDate:

15 October 2021

Before:

Elkaim J

Decision:

See [10]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – application to adjourn – adjournment granted

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT) s 10

Cases Cited:

R v DU (No 4) [2020] ACTSC 174

Parties:

The Queen (Crown)

John Ronald Brown (Offender)

Representation:

Counsel

T Hickey (Crown)

J Purnell SC (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Aulich Criminal Law (Offender)

File Number:

SCC 84 of 2021

ELKAIM J:

1. This matter was listed for a sentence hearing today. The offender was charged with, and has pleaded guilty to, one count of engaging in a sexual relationship with a boy who had just turned 15 years of age.

1. It is almost inconceivable that a full-time custodial sentence will not be imposed on the facts of this case. The assault on the child was inexcusable and it is difficult to find any mitigating factor associated with the offending. Nevertheless, the Court in sentencing a criminal must take into account all sides of the case.

1. Mr Purnell SC, who appears for the offender, has provided me with written submissions, in which it is clear that his intent, while acknowledging a term of imprisonment is necessary, is to have that term of imprisonment served by way of Intensive Correction Order (ICO). To that end he has provided me with some authorities, including one in which such an order was made (R v DU (No 4) [2020] ACTSC 174). The Crown has pointed out in written submissions why that authority is distinguishable. At this preliminary point, I tend to agree with the Crown.

1. However, Mr Purnell has indicated that there is medical material which will substantiate the course that he suggests I take. That medical material, at the present time, is made up of a report by a Dr Boer, who is a forensic psychologist. I have read the report and again, at this stage tend to agree with the Crown that there are some deficiencies in the report if it is to be the basis for an ICO. Unfortunately, due to late notice being given by the Crown, Dr Boer is not available for cross-examination.

1. A Pre-Sentence Report has not been prepared for this matter. It is generally standard practice that when a person is to be sentenced, and there is a realistic chance of that person going to prison, that there will be a such a report. In this case, through no fault of either side, there is no report. It was envisaged on behalf of the defence that the report of Dr Boer would suffice. Obviously if Dr Boer’s report is not accepted then I am in the position where I do not have the benefit of alternative material, and in particular a Pre-Sentence Report.

1. The other benefit of a Pre-Sentence Report is that, at the present time (during the COVID-19 pandemic), when a report is prepared the authors also indicate whether the offender is suitable for an ICO.

1. I wish to stress however, in the strongest possible terms, that the offender should not conclude that just because I am allowing an adjournment and ordering a Pre-Sentence Report that I think at this stage that an ICO will be made.

1. An additional factor is that a General Practitioner has apparently told the offender that he needs to have some further medical examination including a brain scan in order to exclude the possibility of certain conditions which, if existing at the time of offending, might be taken into account. Again, I have doubts about whether that will prove to be the case because it is clear from other material that at the time of this offending the offender was running an IT consultancy busines, in particular in association with a travel agency.

1. In summary I think it almost certain that this offender will receive a full-time custodial sentence but s 10 of the Crimes (Sentencing) Act 2005 (ACT) says that custody is a last resort. I am bound to give the offender the opportunity to see if there is some basis upon which my mind might be changed.

1. I make the following orders:

1.       The matter is adjourned to be listed for sentence on 25 February 2022 at 10:00am.

2.       A Pre-Sentence Report is to be ordered including an ICO assessment.

3.       Bail is to continue.

I certify that the preceding ten [10] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim

Associate:

Date: 19 October 2021