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:

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.

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.

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.

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.

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.

The other benefit of a Pre-Sentence…

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 Brown

Details

AGLC: R v Brown [2021] ACTSC 274
Case: [2021] ACTSC 274
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the case of R v Brown was heard by Elkaim J. The offender, John Ronald Brown, had pleaded guilty to engaging in a sexual relationship with a 15-year-old boy. The Crown argued for a custodial sentence, while the defence sought an Intensive Correction Order (ICO) instead. The court was required to decide whether an ICO was appropriate under the circumstances.

Elkaim J noted that while a custodial sentence seemed inevitable, the court had to consider all aspects of the case. The defence had provided a report from a forensic psychologist, Dr Boer, in support of an ICO, but the Crown argued that the report had deficiencies. Additionally, due to late notice from the Crown, Dr Boer was not available for cross-examination, and no Pre-Sentence Report had been prepared. Elkaim J agreed with the Crown's arguments regarding the report's deficiencies but agreed to adjourn the matter to allow for the preparation of a Pre-Sentence Report, which would include an ICO assessment. The court also ordered that bail continue pending the next hearing.

In summary, Elkaim J ordered the case to be adjourned until February 2022, when a Pre-Sentence Report would be prepared, including an ICO assessment. The court emphasised that the adjournment did not imply that an ICO would be granted. The offender's bail was to continue.

Orders