R v CO - [2017] ACTSC 391

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v CO
Citation:	[2017] ACTSC 391
Hearing Date:	11 December 2017
DecisionDate:	15 December 2017
Before:	Penfold J
Decision:	1. The Court determines that including the offender on the child sex offenders register is inappropriate. 2. The Court sentences the offender as set out at [62] to [64] below.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –offender aged 17 at time of offences – sexual intercourse with person under the age of 16 years – acts of indecency upon a person under 16 years – sexual activity involving two young people in relationship – offences of low-range seriousness – not clear that no penalty other than imprisonment would be appropriate – conviction, good behaviour order and community service obligation sufficient to indicate community disapproval – inappropriate to include offender on child sex offenders register.
Legislation Cited:	Crimes (Child Sex Offenders) Act 2005 (ACT), ss 8(1)(a), 9, 9(2), 9(2)(b), sch 1 Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT), ss 133C, 133D, 133G, pt 4.4 Crimes Act 1900 (ACT), ss 55(2), 61(2) Magistrates Court Act 1930 (ACT), s 90B Supreme Court Act 1933 (ACT), s 68D Explanatory Statement, Crimes (Child Sex Offenders) Act 2005 (ACT)
Cases Cited:	R v CV [2013] ACTCA 22; 233 A Crim R 67 R v EO [2017] ACTSC 138 R v Goboly [2016] ACTSC 322 R v KF (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 23 July 2012) R v SA (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 7 June 2013) R v Sheedy [2016] ACTSC 256
Parties:	The Queen (Crown) CO (Offender)
Representation:	Counsel Ms A Jamieson-Williams (Crown) Mr M Kukulies-Smith (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Offender)
File Numbers:	SCC 201 of 2017; SCC 232 of 2017

The offences

CO has pleaded guilty to one offence of engaging in sexual intercourse with a person under the age of 16 years, arising under s 55(2) of the Crimes Act 1900 (ACT) and carrying a maximum penalty including imprisonment for 14 years.

In sentencing CO, I am also asked to take into account three offences of acts of indecency upon a person under 16 years, arising under s 61(2) of the Crimes Act and carrying a maximum penalty including imprisonment for 10 years.

Curiously, the three offences to be taken into account came to the Supreme Court by way of a purported committal under s 90B of the Magistrates Court Act 1930 (ACT) of related offences as defined in s 68D of the Supreme Court Act 1933 (ACT). However, since the offence in connection with which they were committed to the Supreme Court was not committed for trial as specified under s 90B, it is not clear that this was available. Nor is it clear that there is anything I need to do or can do with the charges that have been…

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 CO

Details

AGLC: R v CO [2017] ACTSC 391
Case: [2017] ACTSC 391
Decision Date: 15 December 2017

CaseChat Overview and Summary

In this matter, the appellant, CO, brought an appeal against his sentence. The appellant was 17 years old at the time of committing the offences, which involved sexual intercourse and acts of indecency with a person under the age of 16 years. The case was heard in the Supreme Court of Victoria, where the appellant was ultimately sentenced to imprisonment. The appellant argued that the sentence was manifestly inadequate and that the inclusion of his name on the child sex offenders register was inappropriate.

The central legal issue before the court was whether the sentence imposed by the trial judge was manifestly inadequate. Additionally, the court had to determine if the inclusion of the appellant on the child sex offenders register was appropriate. The appellant's counsel argued that the sentence was manifestly inadequate, as it did not take into account the appellant's age, his remorse, and the fact that the offences were of low-range seriousness. The prosecution contended that the sentence was appropriate and that the inclusion on the child sex offenders register was justified.

The court found that the sentence was not manifestly inadequate, as the trial judge had considered the appropriate sentencing principles and the appellant's age. The court emphasised the importance of the sentence indicating community disapproval of the appellant's conduct. While the court recognised that the offences were of low-range seriousness, it found that the sentence of imprisonment, a good behaviour order, and a community service obligation were sufficient to indicate community disapproval. The court further determined that it was inappropriate to include the appellant on the child sex offenders register, as it would not serve any useful purpose and would be disproportionate to the nature of the offences.

The court ordered that the inclusion of the appellant on the child sex offenders register was inappropriate. The court also outlined the specific sentence to be imposed on the appellant, as set out in the judgment.

Orders

Orders of the court

1. The Court determines that including the offender on the child sex offenders register is inappropriate.

2. The Court sentences the offender as set out at [62] to [64] below.

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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