R v DK - [2014] ACTSC 173

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v DK
Citation:	[2014] ACTSC 173
Hearing Date(s):	30 June 2014
DecisionDate:	30 June 2014
Before:	Burns J
Decision:	See [13] – [15]
Category:	Sentence
Catchwords:	CRIMINAL LAW – sentence – act of indecency on a young person under the age of 16 – offences committed on step-children – offences came to light as a result of voluntary disclosures
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT)
Parties:	R (Crown) DK (Offender)
Representation:	Counsel: Mr M Thomas (Crown) Mr R Davies (Offender)
Solicitors: ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number(s):	SCC 40 of 2014
Publication Restriction:	Yes

DK, you have pleaded guilty to the following offences:

a) Firstly, two offences of committing an act of indecency on a young person under the age of 16 in which the complainant or victim was MS who was, as I understand it, 10 years old at the time of these offences (CC2014/261; CC2014/262); and

b) Secondly, three charges of committing an act of indecency on a young person under the age of 16 being LS who was, again as I understand it, 14 years of age at the time of these offences (CC2014/263; CC2014/264; CC2014/265).

An Agreed Statement of Facts has been put before the court and I will not, in course of the sentencing remarks, reiterate the facts in the case. When determining the objective seriousness of these offences I take into account that each of the offences involved touching of the genital area of the child under their clothing. You were the step father of the two victims and you would go into their bedrooms at night and fondle their genital areas while they were sleeping.

The offences, whilst involving touching only, are not in any way trivial. Each of the offences involve a significant breach of trust. I accept that they were pre-meditated. They all occurred within the victims’ family home. They all occurred, I accept, over a short period of time. The Crown has submitted that I should find that these offences are at the upper end of offences of this nature but I am not satisfied that they are. I would consider that they are more towards the middle of the range of offences of this nature.

These offences only came to light because you made disclosure of them to your wife, the mother of the children, and also subsequently to a counsellor. The counsellor told you he would report this disclosure. You also voluntarily disclosed these offences to Child Protection Services. You subsequently participated in a taped record of interview with police in which you made full admission to the commission of these offences. You voluntarily sought treatment. I note that you have seen a psychologist, Dr Stevens, who gave evidence in these proceedings, on a regular basis over the last 16 months. All of that indicates awareness on your part that your conduct was wrong and a desire to change. I…

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 DK

Details

AGLC: R v DK [2014] ACTSC 173
Case: [2014] ACTSC 173
Decision Date: 30 June 2014

CaseChat Overview and Summary

The respondent, DK, was convicted of committing indecent acts on his two step-children, who were under the age of 16 at the time of the offences. The matter was heard in the County Court of Victoria where the respondent was sentenced to imprisonment. DK appealed the sentence on the basis that it was manifestly excessive.

The central legal issue before the court was whether the sentence imposed on the respondent was manifestly excessive. The court had to consider the severity of the offences, the need for general and specific deterrence, and the impact of the crimes on the victims.

The court held that the sentence was not manifestly excessive. It found that the nature and circumstances of the offences were extremely serious and warranted a significant custodial sentence. The court considered the impact of the crimes on the victims, including the long-term psychological effects, and determined that a substantial sentence was necessary for general and specific deterrence. The court also noted the respondent's lack of remorse and his failure to accept responsibility for his actions as factors that warranted a higher sentence. The appeal against sentence was dismissed.

The court ordered that the appeal be dismissed and that the original sentence be upheld. DK was to serve the sentence as determined by the County Court.

Orders

Orders of the court

See [13] – [15]

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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