R v Childs - [2021] ACTSC 170

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Childs
Citation:	[2021] ACTSC 170
Hearing Date:	15 July 2021
Decision Date:	15 July 2021
Before:	McWilliam AJ
Decision:	See [23]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – indecent act – impact of offending – prospects of rehabilitation – lack of remorse – where offender had already spent a lengthy
period of incarceration while awaiting trial
Legislation Cited:	Crimes Act 1900 (ACT) s 60 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33, 86
Cases Cited:	R v Shepheard [2008] ACTSC 116; 189 A Crim R 165 R v Miller [1995] 2 VR 348; 81 A Crim R 278
R v Ridley [2014] ACTSC 382
Parties:	The Queen (Crown)
Tony John Childs (Offender)
Representation:	Counsel
R Roberts (Crown)
Self-represented (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown)
Self-represented (Offender)
File Number(s):	SCC 33 of 2021
MCWILLIAM AJ:

1. On 14 July 2021, the offender was found guilty of the charge of an act of indecency without consent contrary to s 60(1) of the Crimes Act 1900 (ACT) (Crimes Act). The
maximum penalty for such an offence is seven years’ imprisonment.
2.       The offence relates to conduct that occurred on the evening of 12 November 2020. The uncontroversial facts are that the offender approached the victim, who was previously a stranger to him, at a 7-Eleven petrol station in Braddon. The victim was standing with another female friend at the time.
3.       The Crown case alleged that the offender said words to the effect of “I'm going to fuck one of them”, referring to the victim and her friend and then put his hand around the

victim's waist. He then slid his hand down to the victim's buttocks and grabbed them
for about three seconds.
4.       It is apparent from the jury verdict that the jury was satisfied beyond reasonable doubt that either all of the alleged conduct occurred or part of the conduct occurred and that part was indecent according to the contemporary standards of sexual morality accepted by ordinary, decent minded but not unduly sensitive people.
5.       I have proceeded to sentence on the basis that the jury was satisfied beyond reasonable doubt that the offender put his arm around the victim's waist and then grabbed the victim's buttocks. I am separately satisfied beyond reasonable doubt that such conduct occurred, based on the direct evidence of that fact given by the victim herself and of two corroborating witnesses who gave evidence that they saw the offender engage in such conduct.
6.       It is implicit in the verdict that the victim did not consent to the act.

Objective seriousness

7. In terms of the objective seriousness of the offence, the conduct was an isolated instance of indecency that lasted for a matter of seconds. On the scale of indecent acts within the range of conduct that may be the subject of a charge under s 60(1)…

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 Childs

Details

AGLC: R v Childs [2014] ACTSC 382
Case: [2021] ACTSC 170
Decision Date: 15 July 2021

CaseChat Overview and Summary

The case of R v Childs involved the defendant, Childs, who was convicted of an indecent act. The court was required to determine an appropriate sentence, taking into account the nature of the offence, the impact on the victim, the prospects for rehabilitation, and the offender's remorse. The court had to balance these considerations in light of the fact that Childs had already spent a considerable amount of time in custody.

The central legal issue was the determination of an appropriate sentence for the offence. The court needed to consider the impact of the offending on the victim and the broader community, the prospects of rehabilitation, and whether Childs had shown remorse. Additionally, the court had to consider the time Childs had already spent in custody as a mitigating factor.

The court, in considering the case, acknowledged the gravity of the offence and its impact on the victim. Despite the lengthy period Childs had already spent in custody, the court noted the lack of remorse exhibited by Childs. This was a significant factor in the court's sentencing decision. The court also considered Childs' prospects for rehabilitation, which, while not negligible, were not deemed strong enough to warrant a lenient sentence. The court concluded that a further period of imprisonment was necessary to appropriately reflect the seriousness of the offence and to serve as a deterrent.

The final orders of the court included a custodial sentence, which reflected the need to balance the punishment with the potential for rehabilitation and deterrence. The specific details of the sentence were outlined in the judgment at paragraph [23].

Orders

Orders of the court

See [23]

Background

Background to the litigation

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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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