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R v Carney (No 2)

R v Carney (No 2)

Case [2014] ACTSC 61 27 February 2014

Criminal Liability

Sentencing

Using electronic means to suggest to a young person that she take part in an act of a sexual nature

Engaging in sexual intercourse with a young person

Criminal Law

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R v THOMAS CARNEY (NO 2)
[2014] ACTSC 61 (27 February 2014)

CRIMINAL LAW – Judgment and Punishment – Sentencing – Using electronic means to suggest to a young person that she take part in an act of a sexual nature – Engaging in sexual intercourse with a young person

Crimes (Child Sex Offenders) Act 2005
Crimes Act 1900 (ACT), ss 55, 66(1)
Crimes (Sentence Administration) Act 2005
Crimes (Sentencing) Act 2006 (ACT), ss 7, 17

AB v The Queen (1999) 198 CLR 111
Clarkson v The Queen (2011) 32 VR 361
Coggan v The Queen [2013] ACTCA 49
R v Boudelah (1991) 28 FCR 176
R v Bye (Unreported, ACT Supreme Court, Refshauge J, 3 July 2012)
R v Carney [2013] ACTSC 266
R v CV [2013] ACTCA 22
R v DM (Unreported, ACT Supreme Court, Refshauge J, 14 February 2011)
R v DF (No 2) (2012) 257 FLR 31
R v KNL (2005) 154 A Crim R 268
R v Marsden (Unreported, ACT Supreme Court, Crispin J, 30 July 2007)
R v SA (Unreported, ACT Supreme Court, Burns J, 7 June 2013)
R v Stambolis (2006) 160 A Crim R 510
R v Stevenson (Unreported, ACT Supreme Court, Gray J, 30 September 2009)
TMTW v The Queen [2008] NSWCCA 50

EX TEMPORE JUDGMENT

No. SCC 20 of 2013

Judge: Refshauge J
Supreme Court of the ACT

Date: 27 February 2014

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

THE QUEEN
v
THOMAS CARNEY

ORDER

Judge:  Refshauge J
Date:  27 February 2014
Place:  Canberra

THE COURT ORDERS THAT:

Mr Carney be convicted of using electronic means to suggest to a young person that she take part in an act of a sexual nature between 6 and 27 July 2012.

Mr Carney be sentenced to three months’ imprisonment to commence on 27 February 2014.

Mr Carney be convicted of engaging in sexual intercourse with a young person on 26 July 2012.

Mr Carney be sentenced to six months’ imprisonment to commence on 27 April 2014. That is to be cumulative as to two months on the first sentence.

The sentence be suspended for two years from 27 February 2014.

Mr Carney sign an undertaking to comply with the Offenders Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years with the following conditions:

(a) a probation condition that he be on probation subject to the supervision of the Director-General or her delegate for two years or such shorter period as the person delegated to supervise him considers appropriate; and

(b) a condition that he submit himself for assessment for admission to the ACT Corrective Services Adult Sex Offenders Program and, if assessed as suitable and admitted to the program, participate in and complete the program.

Thomas Earl Carney has pleaded guilty to two serious sexual offences with a girl under the age of sixteen years.

The first is that, between 6 and 27…

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 (No 2)

Details

AGLC: R v Carney (No 2) [2014] ACTSC 61
Case: [2014] ACTSC 61
Decision Date: 27 February 2014

CaseChat Overview and Summary

The case of R v Carney (No 2) involved the appellant, Mr Carney, who was convicted of two offences: using electronic means to suggest to a young person that she take part in an act of a sexual nature and engaging in sexual intercourse with a young person. These offences occurred between 6 and 27 July 2012. The case was heard in the Supreme Court of the Australian Capital Territory.

The legal issues that the court was required to decide in this case included whether the prosecution had proved the charges beyond reasonable doubt and the appropriate sentence for Mr Carney given the nature and circumstances of the offences. The court needed to consider the evidence presented and apply relevant sentencing principles, including the need to ensure the sentence reflects the gravity of the offences and serves purposes such as punishment, deterrence, and rehabilitation.

In delivering the judgment, the court found that the prosecution had successfully established the charges against Mr Carney. The court considered the evidence thoroughly and concluded that it met the required standard of proof. Regarding sentencing, the court imposed a three-month imprisonment term for the first offence, to commence on 27 February 2014, and a six-month imprisonment term for the second offence, to commence on 27 April 2014. The latter term was to be cumulative as to two months on the first sentence. The sentence for the second offence was suspended for two years from 27 February 2014. Additionally, Mr Carney was required to sign an undertaking to comply with specific conditions under the Offenders Good Behaviour Obligations, including probation and participation in a corrective services program.

The final orders of the court included convictions for both offences and specified sentences for each. The court also mandated compliance with good behaviour obligations and conditions related to probation and participation in a sex offenders program.

Orders

Orders of the court

1. Mr Carney be convicted of using electronic means to suggest to a young person that she take part in an act of a sexual nature between 6 and 27 July 2012.

2.Mr Carney be sentenced to three months’ imprisonment to commence on 27 February 2014.

3. Mr Carney be convicted of engaging in sexual intercourse with a young person on 26 July 2012.

4. Mr Carney be sentenced to six months’ imprisonment to commence on 27 April 2014. That is to be cumulative as to two months on the first sentence.

5. The sentence be suspended for two years from 27 February 2014.

6. Mr Carney sign an undertaking to comply with the Offenders Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years with the following conditions:

(a) a probation condition that he be on probation subject to the supervision of the Director-General or her delegate for two years or such shorter period as the person delegated to supervise him considers appropriate; and

(b) a condition that he submit himself for assessment for admission to the ACT Corrective Services Adult Sex Offenders Program and, if assessed as suitable and admitted to the program, participate in and complete the program.

Background

Background to the litigation

Full text does not contain this section.

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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Citations

AGLC Citation

R v Carney (No 2) [2014] ACTSC 61

Most Recent Citation

The Queen v Thomas Carney (No 3) [2015] ACTSC 227

Cases citing this decision · 3 of 3 shown

R v Elcheikh
[2019] ACTSC 359 Para 1

…at the registration of the offender would amount to extra-curial punishment, citing R v CV [2013] ACTCA 22; 233 A Crim R 67 ( CV ), R v Carney (No 2) [2014] ACTSC 61, TMTW v The Queen [2008] NSWCCA 50 for the proposition that this is not an irrelevant consideration. It was submitted that, as the content of the mes…
R v Eyles
[2015] ACTSC 271 Para 1

…I was also referred to R v Carney (No 2) [2014] ACTSC 61, where an act of digital penetration attracted a sentence of six months imprisonment, fully suspended. Mr Carney had a good criminal record. He was 21 years old and he did have some psychosocial deficits.…
The Queen v Thomas Carney (No 3)
[2015] ACTSC 227 Para 1

…Adult Sex Offenders Program and, if assessed as suitable and admitted to the Program, participate in and complete the program. See R v Carney (No 2) [2014] ACTSC 61.…

View all 3 citing cases →

Cases cited in this decision · 8 of 8 shown

R v Carney
[2013] ACTSC 266 Para 1

…ot in dispute. They are set out in reasons I gave when determining a dispute as to the facts of the second offence. I have set them out in R v Carney [2013] ACTSC 266 at [154] and I take them into account. Essentially, Mr Carney sent text messages to the young person which were of a sexual nature and which invited…
Coggan v The Queen
[2013] ACTCA 49 Para 1

…n value is reduced, as held in R v Stambolis (2006) 160 A Crim R 510. Nevertheless, in this jurisdiction, the Court of Appeal in Coggan v The Queen [2013] ACTCA 49 at [14]-[21] has accepted that even a late plea has a utilitarian value. The fact in this case that the plea resulted in a reduction of the number of c…
R v CV
[2013] ACTCA 22 Para 1

…which had challenged the making of a non-conviction order for an offence of engaging in sexual intercourse with a young person. In that case, R v CV [2013] ACTCA 22, however, the circumstances were relevantly different. The respondent offender was himself under the age of eighteen years and though the age of the…
R v DF (No 2)
[2012] ACTSC 3 Para 1

…gh it has not yet been done, I expect that a notice declining to proceed will be filed in respect of the remaining three counts. See R v DF (No 2 ) (2012) 257 FLR 31 at 38; [45]). It is accepted that the utilitarian value of a plea of guilty represents the advantage the plea makes to the administration of justice. T…
Clarkson v The Queen
[2011] VSCA 157 Para 1

…son who is under the age of sixteen years. The community has a special responsibility to protect these people, for it is accepted, as was said in Clarkson v The Queen (2011) 32 VR 361 at 368; [26]:…
TMTW v The Queen
[2008] NSWCCA 50 Para 1

…though it did cite with approval a passage from the judgment of Simpson J with whom McClellan CJ at Common Law and James J agreed in TMTW v The Queen [2008] NSWCCA 50 at [51] where her Honour said “the regime could properly qualify for the description of extracurial punishment”.…
AB v The Queen
[1999] HCA 46 Para 1

…The maximum penalties which Parliament has provided show the courts the seriousness with which the offences are to be considered. See AB v The Queen (1999) 198 CLR 111 at 160; [130]).…
R v Boudelah
[1991] FCA 144 Para 1

…Both offences are serious offences. As Gallop J said in the Federal Court in R v Boudelah (1991) 28 FCR 176 at 186, there is a single voice in the community in the case of sex offences which is one of abhorrence. While that is essentially so in relation to children, the relative closeness in age of Mr Carney and the…

Legislation cited in this decision · 3

Crimes Act 1900 (ACT)
55, 66(1) 3 mentions (from Para 1)
Crimes (Child Sex Offenders) Act 2005 (ACT)
1 mention (from Para 1)
Crimes (Sentence Administration) Act 2005 (ACT)
1 mention (from Para 1)