R v DT - [2018] ACTSC 355

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v DT
Citation:	[2018] ACTSC 355
Hearing Date:	14 December 2018
DecisionDate:	14 December 2018
Before:	Elkaim J
Decision:	See [44]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – sexual intercourse with a young person – using a carriage service for child pornography material – possess child pornography – using the internet to provide pornographic material to a young person
Legislation Cited:	Crimes Act 1900 (ACT) ss 55(2), 65, 66(2) Criminal Code 1995 (Cth) s 474.19 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 17, 33
Cases Cited:	Clarkson v R; EJA v R [2011] VSCA 157; 32 VR 361 R v Arthur [2017] ACTSC 23 R v Horton-Hegarty [2017] ACTSC 268
Parties:	The Queen (Crown) DT (Offender)
Representation:	Counsel Ms S Janackovic and Ms R Christensen (Crown) Mr J Pappas (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Aulich Criminal Law (Offender)
File Number:	SCC 170 of 2018

ELKAIM J:

1. On 3 July 2018 the offender pleaded guilty to six offences involving sexual activity with a young person.
2. The offences and their maximum penalties are as follows:
a.(a) Three charges of sexual intercourse with a young person (CC2017/11099; CC2017/11101; CC2017/11102), contrary to s 55(2) of the Crimes Act 1900 (ACT). The maximum penalty is 14 years’ imprisonment.
b.(b) Using a carriage service for child pornography material (CC2017/11095), contrary to s 474.19 of the Criminal Code 1995 (Cth). The maximum penalty is 15 years’ imprisonment.
c.(c) Possess child pornography (CC2017/11103), contrary to s 65 of the Crimes Act. The maximum penalty is 7 years’ imprisonment and/or a fine of $105,000.
d.(d) Using the internet to provide pornographic material to a young person (CC2017/11128), contrary to s 66(2) of the Crimes Act. The maximum penalty is 7 years’ imprisonment and/or a fine of $105,000.
3. The offender was born in 1997 and is currently 21 years old. He was 18 years of age when the offences took place. The complainant was 13 years old. She was in Year 7 at high school.
4. The offender was a member of a rowing team. The complainant’s stepfather was the coach of this team.
5. The offender was aware of the complainant’s age. Nevertheless they entered into a sexual relationship. Part of the relationship involved the exchanging of messages via Facebook messenger. A number of these messages were sexually explicit.
6. It is necessary for me to give a brief description of each charge. Charge 2017/11095 relates to the offender requesting, and receiving, sexually explicit photographs of the complainant either wearing very little clothing or none at all.
7. Charge 2017/11128 involves the offender sending 10 images of himself to the complainant. Three of these images depicted his erect penis.
8. Charge 2017/11099 relates to sexual intercourse which occurred on 6 December 2015. The offender purchased condoms and lubricant. He met the complainant and they travelled on their bicycles to…

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 DT

Details

AGLC: R v DT [2018] ACTSC 355
Case: [2018] ACTSC 355
Decision Date: 14 December 2018

CaseChat Overview and Summary

The case of R v DT involved the appellant, DT, and the Crown. The appellant was charged with engaging in sexual intercourse with a young person under the age of 16, using a carriage service for child pornography material, possessing child pornography, and using the internet to provide pornographic material to a young person. The appellant appealed against his sentence, arguing that it was excessive. The appeal was heard in the High Court of Australia.

The central legal issues before the court were whether the sentence imposed by the trial judge was manifestly excessive and whether the trial judge had erred in his assessment of the gravity of the offences. The appellant's counsel argued that the trial judge had failed to properly consider the totality principle, which requires that the overall sentence be proportionate to the gravity of the crimes committed. The Crown contended that the sentence was appropriate given the severity of the offences.

The court found that the sentence was not manifestly excessive. The judges considered the totality principle but held that the trial judge had given proper consideration to the totality of the appellant's offending. The court noted that the offences involved serious breaches of community standards and had a significant impact on the victims. The court also emphasised the need to deter such conduct and protect the community. The appeal was dismissed, and the original sentence was upheld.

The final orders of the court were to dismiss the appeal and affirm the sentence imposed by the trial judge. The court found that the sentence was appropriate given the gravity of the offences and the need for deterrence and community protection. The appeal was dismissed, and the original sentence was upheld.

Orders

Orders of the court

See [44]

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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