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R v Carney

R v Carney

Case [2013] ACTSC 266 20 December 2013

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R V THOMAS EARL CARNEY
[2013] ACTSC 266 (20 December 2013)

SENTENCE – disputed sentencing facts – standard of proof – general principles applicable to determining facts in a disputed facts hearing

Crimes Act 1900 (ACT), ss 50, 55(2), 66(1)
Evidence (Miscellaneous Provisions) Act 1991 (ACT), Div 4.2A, s 40F

Cheung v The Queen (2001) 209 CLR 1
Le v The Queen [2007] NSWCCA 330
MWJ v The Queen (2005) 80 ALJR 329
Nash v Haas [1972] Tas SR 1
O’Neil-Shaw v The Queen [2010] NSWCCA 42
R v DF (No 2) (2012) 257 FLR 31
R v DM [2010] ACTSC 137
R v Falls [2004] NSWCCA 335
R v Isaacs (1997) 41 NSWLR 374
R v McPherson [2011] SASCFC 105
R v O’Neill (1979) 2 NSWLR 582
R v Olbrich (1999) 199 CLR 270
R v SWC (2007) 175 A Crim R 71
R v Storey (1996) 9 A Crim R 519
Weininger v The Queen (2003) 212 CLR 629

No. SCC 20 of 2013

Judge: Refshauge J
Supreme Court of the ACT

Date: 20 December 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCC 20 of 2013
AUSTRALIAN CAPITAL TERRITORY           )

R
V
THOMAS EARL CARNEY

ORDER

Judge:  Refshauge J
Date:  20 December 2013
Place:  Canberra

THE COURT ORDERS THAT:

Mr Carney be sentenced for the offences to which he has pleaded guilty on the basis of the facts determined in [179]-[182].

In about mid-2011, Thomas Earl Carney, the accused, met JA, the complainant, at a church run youth group in Wanniassa.

In early July, JA, at Mr Carney’s request, took photographs of her breasts and her vagina with her mobile phone and sent them to Mr Carney. He also sent photos to her of his penis.

On 19 July 2012, JA told her youth group leader that Mr Carney was “pestering” her and “kept asking her for sexual stuff”.

For example, on one occasion, there was an SMS text exchange between them about Mr Carney providing credit for JA’s phone by way of his credit card, which was as follows:

Mr Carney: What do I get if I give u my credit card?

JA: ... How much?

Mr Carney: How much you willing? ... Sex.

JA: Wow. No ...

Mr Carney: Fine blowjob and that’s as low as I’m going.

The youth group leader understood that Mr Carney was asking JA to engage in sexual activity with him. The youth group leader texted Mr Carney telling him to stop having contact with JA and told JA that she should stop texting Mr Carney.

Later, the youth group leader had a conversation with JA and also later with Mr Carney. She told Mr Carney that she had seen a screenshot of his message to her and had talked to her about it. It is not clear which message she saw. She said that he was pestering JA and that he should stop. The youth group leader said that Mr Carney became annoyed and said that it…

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 Carney

Details

AGLC: R v Carney [2013] ACTSC 266
Case: [2013] ACTSC 266
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory heard an appeal regarding sentencing facts in a criminal case. The case involved the defendant, Thomas Earl Carney, who had been found guilty of two offences. The first offence was using electronic means to suggest to a young person, JA, that she take part in an act of a sexual nature. The second offence was engaging in sexual intercourse with JA, a person under the age of 16 years. The court was required to determine the facts of the second charge, specifically whether the sexual intercourse was constituted by penetration of JA's vagina by Mr Carney's penis or by his finger. The court considered the evidence presented by both the prosecution and the defence, including testimonies from JA, her mother, a youth worker, a forensic medical practitioner, and Mr Carney himself. The court found inconsistencies and admitted lies in JA's testimony, leading to a reasonable doubt as to the accuracy of her account of the events on the night in question. Consequently, the court ruled that the sexual intercourse occurred as Mr Carney described it, namely, as digital penetration. The court based its decision on the principles of fact finding in sentencing matters and the need for the prosecution to prove its case beyond reasonable doubt.

Based on the court's findings, the final orders are as follows: Mr Carney be sentenced for the offences to which he has pleaded guilty on the basis of the facts determined in paragraphs 179-182.

Orders