R v CD

[2017] ACTSC 261

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v CD

Citation:

[2017] ACTSC 261

Hearing Date:

9 August 2017

DecisionDate:

7 September 2017

Before:

Penfold ACJ

Decision:

See [46] to [51] below.

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency on child under 16 years – use of carriage service to menace, harass or offend – act of indecency committed in breach of good behaviour order – carriage service offence committed in breach of bail – relatively early pleas of guilty – pleas spared child victim from need to give evidence – offender was victim’s de facto step-father – breach of trust – intoxication – victim impact statement.

Legislation Cited:

Crimes (Sentence Administration) Act 2005 (ACT), ss 108, 108(2)(a)

Crimes Act 1900 (ACT), s 61(2)
Crimes Act 1914 (Cth), s 19AC(4)(b)

Criminal Code 1995 (Cth), s 474.17(1)

Cases Cited:

R v DK [2016] ACTCA 7

Parties:

The Queen (Crown)

CD (Offender)

Representation:

Counsel

Mr T Hickey (Crown)

Mr J Sabharwal (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Sharman Robertson (Offender)

File Numbers:

SCC 84 of 2017; SCC 140 of 2017

The offences

1. CD has pleaded guilty to two offences as follows: 

(a)one act of indecency on a person under 16 years, arising under s 61(2) of the Crimes Act 1900 (ACT) and carrying a maximum penalty including imprisonment for 10 years; and

(b)one offence of using a carriage service to menace, harass or offend, arising under s 474.17(1) of the Criminal Code 1995 (Cth) and carrying a maximum penalty of 3 years imprisonment.

The incidents

1. The incidents from which these charges arose took place in October and December 2016. 

1. Around December 2011, CD began a de facto relationship with ES, who lived with her two daughters in Bonner.  He moved in with the family in 2012, and in 2013, ES gave birth to CD’s son.  The relationship was volatile, and from about 2014, CD stayed sometimes at the family’s home and sometimes at his mother’s home in O'Connor. 

1. One night, CD and ES were at home with the three children.  ES put the two girls to bed, then took her son to bed, while CD stayed in the lounge room drinking. Later on, he went into the girls’ bedroom where over a brief period, he touched the genitalia of the 11‑year‑old.  When she asked what he was doing, he stopped and left the room. 

1. Immediately afterwards, the girl told her mother what had happened and ES asked CD to leave the house; he became angry, but left the house soon after. 

1. The next morning (27 October 2016), ES called the Canberra Rape Crisis Centre, who advised police of the incident.  The complainant was medically examined. 

1. CD was arrested the next day and subsequently charged with the act of indecency.  He was granted bail, but remanded in custody several weeks later after bail breaches. On 6 December, CD was again granted bail on conditions including that he…