R v CN - [2020] ACTSC 282

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v CN
Citation:	[2020] ACTSC 282
Hearing Date:	13 October 2020
DecisionDate:	13 October 2020
Before:	Mossop J
Decision:	See [45]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – sexual intercourse with a person under the age of 16 years – digital penetration occurred while victim was sleeping – opportunistic offending – offender and victim of similar ages – lower range of objective seriousness – good prospects of rehabilitation – counselling recommended to address offender’s limited insight into his offending – community service work not currently available for young offenders – good behaviour order imposed CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – application by the offender not to be included on the child sex offender register – offender does not pose a risk to the lives or sexual safety of people in the community – offender and victim of similar ages – no evidence of inappropriate sexual inclination or involvement with children – inappropriate to include the offender on the register in the circumstances of the case
Legislation Cited:	Crimes Act 1900 (ACT), s 55 Crimes (Sentencing) Act 2005 (ACT), ss 133C, 133D, 133L, 133U Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Child Sex Offenders) Act 2005 (ACT), ss 8, 9, 10, 89 Criminal Code 2002 (ACT), s 712A Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 74
Cases Cited:	OH v Driessen (No 2) [2015] ACTSC 354 R v CC [2016] ACTSC 324 R v CV [2013] ACTCA 22 R v EO [2017] ACTSC 138 R v Jones [2020] ACTSC 92 R v Smith (a pseudonym) (No 2) [2020] ACTSC 260
Parties:	The Queen (Crown) CN (Offender)
Representation:	Counsel S Jerome (Crown) J Sabharwal (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson (Offender)
File Number:	SCC 300 of 2019

MOSSOP J:

Introduction

The offender has pleaded guilty to one count of sexual intercourse with a person under the age of 16 years (CH2019/701), contrary to s 55(2) of the Crimes Act 1900 (ACT). The maximum penalty for this offence is 14 years’ imprisonment.

The identity of the victim and the offender are protected by s 74 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) and s 712A of the Criminal Code 2002 (ACT). For this reason, the offender will be referred to as CN and the victim will not be identified.

Facts

The facts were agreed and are, in summary, as follows. Both the offender and the victim are young people. At the time of the offending, the offender was 16 years and two months old and the victim was 15 years and 10 months old. The offender and the victim were friends and in the same year at school. They also lived in the same neighbourhood and the offender’s father would sometimes drive the victim to school with the offender and his other children.

On Wednesday, 13 March 2019 the offender’s father…

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 CN

Details

AGLC: R v CN [2020] ACTSC 282
Case: [2020] ACTSC 282
Decision Date: 13 October 2020

CaseChat Overview and Summary

The case of R v CN involved the sentencing of the appellant, who was convicted of engaging in sexual intercourse with a victim under the age of 16 years. The victim was asleep at the time of the digital penetration, and the appellant and the victim were of similar ages. The case was heard by the Supreme Court of Victoria, which had to determine the appropriate sentence and whether the appellant should be included on the child sex offender register.

The court had to decide the appropriate sentence for the offence, considering the lower range of objective seriousness due to the opportunistic nature of the offending, and the good prospects of rehabilitation. The court also had to consider whether the appellant should be included on the child sex offender register, taking into account the risk the appellant posed to the community, the nature of the offending, and the appellant's prospects of rehabilitation.

In determining the sentence, the court considered the lower range of objective seriousness due to the opportunistic nature of the offending, and the good prospects of rehabilitation. The court also considered the counselling recommended to address the appellant's limited insight into his offending, and the unavailability of community service work for young offenders. The court imposed a good behaviour order on the appellant, in addition to a sentence of imprisonment. The court also determined that it was inappropriate to include the appellant on the child sex offender register, as the appellant did not pose a risk to the lives or sexual safety of people in the community, and there was no evidence of inappropriate sexual inclination or involvement with children.

The orders of the court included a sentence of imprisonment, a good behaviour order, and a decision not to include the appellant on the child sex offender register.

Orders

Orders of the court

See [45]

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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