R v DL - [2018] ACTSC 142

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v DL
Citation:	[2018] ACTSC 142
Hearing Date:	14 May 2018
DecisionDate:	15 May 2018
Before:	Mossop J
Decision:	See [39]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – act of indecency with person under the age of 10 – act of indecency with person under the age of 16 – incest – offender found guilty by jury – offender has not accepted guilt – course of conduct over a substantial period – punishment and general deterrence – custodial sentence
Legislation Cited:	Crimes Act 1900 (ACT), ss 61(1), 61(2), 62(1)
Cases Cited:	Holyoak (1995) 82 A Crim R 502 R v AB (Unreported, Supreme Court of the ACT, Penfold J, 12 April 2012) R v BI(No 4) [2017] ACTSC 71 R v BNS(No 2) [2016] ACTSC 145 R v CC [2016] ACTSC 43 R v G (Unreported, Supreme Court of the ACT, Penfold J, 22 March 2012) R v HI [2015] ACTSC 373 R v PJ (Unreported, Supreme Court of the ACT, Burns J, 16 April 2013) R v PR (Unreported, Supreme Court of the ACT, Nield AJ, 12 September 2013) R v SH [2015] ACTSC 25 R v TC (Unreported, Supreme Court of the ACT, Penfold J, 28 March 2011) R v Thorn [2016] ACTSC 217
Parties:	The Queen (Crown) DL (Offender)
Representation:	Counsel J Campbell (Crown) K Archer (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Hannay Lawyers (Offender)
File Number:	SCC 210 of 2017

MOSSOP J:

Introduction

DL was found guilty by a jury of eight offences relating to two victims. The victims, SL and UL, are his granddaughters. In relation to SL he was found guilty of:

(a)three counts of an act of indecency with a person under the age of 10 years;
(b)one count of an act of indecency with a person under the age of 16 years; and
(c)two counts of incest.

In relation to UL, the offender was found guilty of two counts of incest.

An act of indecency with a person under the age of 10 years, contrary to s 61(1) of the Crimes Act 1900 (ACT), has a maximum penalty of imprisonment for 12 years. An act of indecency with a person under the age of 16 years, contrary to s 61(2) of the Crimes Act, has a maximum penalty of imprisonment for 10 years. Incest with a person under the age of 10 years carries a maximum penalty of 20 years imprisonment: Crimes Act, s 62(1).

Facts

In relation to SL there are six offences.

Count 1 is an act of indecency which occurred between 2005 and 2007 when SL was between five and eight years old. It occurred at the home of the offender and his wife in an apartment in Turner. It involved the offender having SL masturbate him until he ejaculated. It occurred when both SL and the offender were in bed during a sleepover by…

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 DL

Details

AGLC: R v DL [2018] ACTSC 142
Case: [2018] ACTSC 142
Decision Date: 15 May 2018

CaseChat Overview and Summary

The case of R v DL involved the defendant, DL, who was accused of committing acts of indecency with a victim under the age of 10 and another with a victim under the age of 16, as well as engaging in incestuous acts. DL was found guilty by a jury, but maintained a position of not accepting guilt throughout the proceedings. The case was heard in the court of appeal where the primary focus was on the sentencing phase of the trial. The court was required to determine an appropriate punishment that balanced the need for punishment and general deterrence with the circumstances of the offender and the acts committed.

The legal issues at hand revolved around the severity of the crimes and the appropriate sentence for DL. The court had to consider the gravity of the offences, which included acts of indecency with young children and incest, the duration and nature of the offending behaviour, and the impact on the victims. Additionally, the court had to weigh the principles of punishment and deterrence against the need to consider the offender's background and personal circumstances. The decision also needed to reflect the principle of parity, ensuring that similar offences are treated similarly across the jurisdiction.

The court, after carefully considering the evidence and submissions, determined that the acts committed by DL were of significant gravity and warranted a custodial sentence. The court emphasised the need for punishment and deterrence, highlighting the importance of protecting children and the community from such offences. The sentence was structured to reflect the severity of the crimes and the need to send a strong message to potential offenders. The court also took into account the offender's lack of remorse, which played a role in the decision to impose a custodial sentence. The final orders of the court are detailed in the judgment at paragraph [39].

Orders

Orders of the court

See [39]

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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