R v Cowley - [2017] ACTSC 213

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Cowley
Citation:	[2017] ACTSC 213
Hearing Date:	25 July 2017
DecisionDate:	26 July 2017
Before:	Mossop J
Decision:	The offender is convicted. The offender is required to enter into an undertaking to be of good behaviour for a period of 2 years with a Community Service condition requiring a period of Community Service work of 75 hours within 12 months. See [53].
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentencing – using a carriage service to transmit indecent communications to a person under the age of 16 years – Facebook messages – offender 35 years old at time of offending – 12 year old victim – offender related to victim – victim a real person under the age of 16 – offending not highest level of indecency – offending took place over a limited number of days – no admissions to police – early plea of guilty – delay in prosecution – offender otherwise of good character – offender diagnosed with adjustment disorder and depressed mood, suffering from depression, anxiety and issues with self-esteem during the period leading up to the offending conduct – good rehabilitation prospects – offender sought psychological help on own initiative and implemented measures to reduce the risk of a further depressive episode – general deterrence – Good Behaviour Order with a Community Service work condition
Legislation Cited:	Crimes Act 1914 (Cth), ss 16A(2), 17A(1), 20AB Crimes (Child Sex Offenders) Act 2005 (ACT), ss 9(1)(b), 10 and sch 2 pt 2.2 item 33 Crimes Regulations 1990 (Cth), s 6 Crimes (Sentence Administration) Act 2005 (ACT), ss 109 and 110 Criminal Code Act 1995 (Cth), ss, 474.27, 474.27A
Cases Cited:	R v Aniezue [2015] ACTSC 82 R v Harris (Unreported, District Court of Queensland, Farr DCJ, 20 August 2014) R v Hutton (Unreported, Supreme Court of the Northern Territory, Barr J, 19 June 2014) R v Linardon [2014] NSWCCA 247
Parties:	The Queen (Crown) Alexander Luis Cowley (Offender)
Representation:	Counsel T Ellison (Crown) A Fraser (Offender)
Solicitors Commonwealth Director of Public Prosecutions (Crown) Armstrong Legal (Offender)
File Numbers:	SCC 85 of 2017 SCC 86 of 2017

MOSSOP J:

Charge

The offender is charged with using a carriage service to transmit a communication that included material that was indecent to a person who was under the age of 16 years old. The offence is alleged to have occurred between 15 December 2013 and 6 January 2014. The conduct is alleged to be a breach of s 474.27A of the Criminal Code Act 1995 (Cth).

Maximum penalty

The maximum penalty for a contravention of s 474.27A is a period of imprisonment for seven years.

Facts

Statement of facts

The victim is the daughter of a relative of the offender. At the time of the offences she was 12 years old and lived in the United Kingdom with her family.

At the time of the offending conduct the offender was 35 years…

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 Cowley

Details

AGLC: R v Cowley [2017] ACTSC 213
Case: [2017] ACTSC 213
Decision Date: 26 July 2017

CaseChat Overview and Summary

The case of R v Cowley came before a magistrate in the Local Court of New South Wales. The defendant, Cowley, was charged with using a carriage service to transmit indecent communications to a person under the age of 16 years. The communications were sent via Facebook messages to a 12-year-old girl with whom Cowley was acquainted. At the time of the offence, Cowley was 35 years old and related to the victim. The court had to decide on Cowley's sentence given the seriousness of the offence, his age, his otherwise good character, his mental health issues, and the limited duration and level of indecency in the communications.

The court was required to consider various sentencing principles, including the need to deter Cowley and others from engaging in similar conduct, the offender's prospects for rehabilitation, and the impact on the victim. Key issues included the gravity of the offence, Cowley's prior good character, his mental health issues at the time of the offence, and his early guilty plea. The court also considered the delay in prosecution, Cowley's voluntary steps to seek psychological help and reduce the risk of further offending, and the overall circumstances of the case.

After weighing these factors, the magistrate determined that the appropriate sentence would be a Good Behaviour Order for two years, with a condition requiring Cowley to complete 75 hours of community service within 12 months. This sentence aimed to address the need for general deterrence while also considering Cowley's rehabilitation prospects and the unique circumstances of the case. The court found that this outcome balanced the need to protect the community with the potential for Cowley to reform and avoid further offending.

The court made a final order convicting Cowley and imposing the specified sentence. The order included a Good Behaviour Undertaking for two years, with a requirement to complete 75 hours of community service within 12 months. This decision reflected the court's careful consideration of all relevant factors in determining an appropriate sentence for the offence.

Orders

Orders of the court

The offender is convicted. The offender is required to enter into an undertaking to be of good behaviour for a period of 2 years with a Community Service condition requiring a period of Community Service work of 75 hours within 12 months. See [53].

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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