R v Cruz (No 2) - [2016] ACTSC 259

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Cruz (No 2)
Citation:	[2016] ACTSC 259
Hearing Date:	6 September 2016
DecisionDate:	6 September 2016
Before:	Murrell CJ
Decision:	Sentenced to 3 years and 3 months’ imprisonment. Nonparole period of 20 months.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse with a person under 10 – act of indecency in the presence of a person under 10 – guilty by jury after trial – very young victim – 2 years and 10 months old – single incident – non-penetrative sexual conduct
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 7, 33 Crimes Act 1900 (ACT) ss 55, 61
Cases Cited:	R v Eisenach [2011] ACTCA 2 R v Hunt [2016] ACTSC 52 R v SH [2015] ACTSC 25 R v TW [2011] ACTCA 25; 6 ACTLR 18
Parties:	The Queen (Crown) Juan Carlos Cruz (Offender)
Representation:	Counsel Mr K Lee (Crown) Mr P Edmonds (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Canberra Criminal Lawyers (Offender)
File Number:	SCC 198 of 2015

MURRELL CJ:

Introduction

On 2 September 2016, a jury found that on 27 June 2013, when the victim was under the age of 10 years (two years and 10 months old), the offender engaged in sexual intercourse with her (cunnilingus) and committed an act of indecency in her presence (ejaculation).

Engaging in sexual intercourse with a child under 10 years of age is an offence against s 55(1) of the Crimes Act 1900 (ACT) (Crimes Act) and carries a maximum penalty of 17 years' imprisonment. Committing an act of indecency in the presence of a child under the age of 10 years is an offence against s 61(1) of the Crimes Act and carries a maximum penalty of 12 years' imprisonment.

Facts

In 2013, the offender resided with his parents. He was a 36-year-old single man. During weekdays, the offender's mother provided day care to her two young nephews, her niece and the victim, whose mother was a family acquaintance. The offender was in full-time employment, but often arrived home before the victim was collected by her mother. The victim was well advanced in toilet training, but wore a disposable nappy in order to protect against “accidents”.

On Thursday, 27 June 2013, the victim's mother collected the victim from day care. As the victim's mother was pulling her car into her home garage, the victim initiated a conversation in which she asked her mother not to clean her bottom with her tongue. The victim went on to state that, "Tio Carlos licked my bum bum." "Tio" means uncle in Spanish, and it was the term that the victim's day care playmates used to refer to the offender, who was their uncle. "Bum bum" was a term used by the victim to refer to both her genital area and her anal area; she was too young to distinguish between them.

The victim's mother reported…

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 Cruz (No 2)

Details

AGLC: R v Cruz (No 2) [2016] ACTSC 259
Case: [2016] ACTSC 259
Decision Date: 6 September 2016

CaseChat Overview and Summary

The appellant, Cruz, was convicted by a jury of having sexual intercourse with a person under the age of 10 and of committing an act of indecency in the presence of a person under 10. The victim was a two-year-old child, and the offence occurred as a single incident involving non-penetrative sexual conduct. The case was heard in the Supreme Court of Queensland, where the appellant was sentenced to a total of 3 years and 3 months’ imprisonment, with a nonparole period of 20 months. Cruz appealed against the severity of the sentence.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive. The appellant's counsel argued that the sentence was disproportionate, considering the age of the victim and the nature of the offence. The court needed to weigh the gravity of the offence against the appellant's personal circumstances, including his otherwise unblemished criminal record and his background. The appeal also raised questions about the appropriate sentencing principles to be applied in cases involving sexual offences against very young children.

The court examined the principles of sentencing in the context of sexual offences against children, emphasising the need to protect society and deter such crimes. The court noted the severity of the offences and the vulnerability of the victim. It found that the sentence was not manifestly excessive, considering the need to balance punishment, deterrence, and rehabilitation. The court also considered the appellant's background and circumstances but determined that these factors did not warrant a significantly reduced sentence. The appeal was dismissed, and the original sentence was upheld.

The court confirmed the sentence of 3 years and 3 months’ imprisonment, with a nonparole period of 20 months. The decision emphasised the importance of appropriate sentencing in cases involving sexual offences against children, reflecting the gravity of such crimes and the need to protect vulnerable victims.

Orders

Orders of the court

Sentenced to 3 years and 3 months’ imprisonment. Nonparole period of 20 months.

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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