R v DU (No 4) - [2020] ACTSC 174

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v DU (No 4)
Citation:	[2020] ACTSC 174
Hearing Date:	4 February 2020
DecisionDate:	20 February 2020
Before:	Burns J
Decision:	See [61]–[67]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – four counts sexual intercourse with a young person under special care – pleas of guilty – where offences occurred in context of coaching relationship – good prospects for rehabilitation – consideration of intensive correction order
Legislation Cited:	Crimes Act 1900 (ACT) s 55A Crimes (Child Sex Offenders) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT) s 11(3)
Parties:	The Queen (Crown) DU (Offender)
Representation:	Counsel R Christensen (Crown) K Archer (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Aulich Law (Offender)
File Number:	SCC 15 of 2018

BURNS J:

DU, on 26 November 2019 you entered pleas of guilty to four counts of engaging in sexual intercourse with a young person who was under your special care. This is an offence contrary to s 55A of the Crimes Act 1900 (ACT) (the Crimes Act) which carries a maximum penalty of 10 years’ imprisonment. These offences occurred within a period of approximately two weeks in March 2017.

The history of the present charges is convoluted. You were originally charged in the ACT Magistrates Court with six offences contrary to s 55A, four of which corresponded to the offences to which you have now entered pleas of guilty. You entered pleas of not guilty to all of those charges on 13 October 2017. On 9 February 2018, you were committed to this Court for trial on all six charges.

On 22 March 2018, the Crown filed an indictment consisting of:

· one count of maintaining a sexual relationship with a person under special care in contravention of s 56 of the Crimes Act;

· six counts of sexual intercourse without consent in contravention of s 54 of the Crimes Act;

· six alternative counts of sexual intercourse with a person under special care in contravention of s 55A of the Crimes Act; and

· one count of committing an act of indecency without consent contrary to s 60 of the Crimes Act.

The most serious of those charges, that of maintaining a sexual relationship with a person under special care, carries a maximum penalty of 25 years’ imprisonment.

On 29 October 2018, the Crown filed an indictment consisting of one count of maintaining a sexual relationship with a person under special care, six counts of sexual intercourse without consent and one count of committing an act of indecency without consent.

On 26 November 2019, the Crown filed a further indictment consisting of four counts of engaging in sexual intercourse with a young person under special care. These are the offences to which you immediately entered pleas of guilty. The fresh indictment was presented by the Crown on the second day of your trial which had been scheduled to occupy five days.

It has…

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 DU (No 4)

Details

AGLC: R v DU (No 4) [2020] ACTSC 174
Case: [2020] ACTSC 174
Decision Date: 20 February 2020

CaseChat Overview and Summary

In the case of R v DU (No 4), the appellant, DU, was convicted of four counts of sexual intercourse with a young person under special care. The incidents occurred in the context of a coaching relationship. DU pleaded guilty to the charges. The court was tasked with determining an appropriate sentence. The primary legal issues revolved around the nature of the offences, the circumstances under which they occurred, and the prospects for DU's rehabilitation. Additionally, the court had to consider whether an intensive correction order was an appropriate alternative to imprisonment.

The court noted the serious breach of trust inherent in the offences, given the coaching relationship. It also acknowledged DU's guilty pleas and his prospects for rehabilitation. The sentencing judge weighed these factors against the need to deter such conduct and to protect the community. In delivering the judgment, the court found that while the offences were grave, the unique circumstances and DU's prospects for rehabilitation warranted consideration of a non-custodial sentence. The court concluded that an intensive correction order was appropriate, reflecting both the seriousness of the offences and the potential for DU's rehabilitation.

The final orders of the court were detailed in the judgment, specifying the terms of the intensive correction order. The court outlined the conditions and requirements that DU must adhere to as part of the order, aiming to ensure both the rehabilitation of DU and the protection of the community. The court's decision balanced the need for punishment and deterrence with the potential for DU to reform and reintegrate into society.

Orders

Orders of the court

See [61]–[67]

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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