R v Dune
[2018] ACTSC 257
•2 August 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Dune |
Citation: | [2018] ACTSC 257 |
Hearing Date: | 2 August 2018 |
DecisionDate: | 2 August 2018 |
Before: | Burns J |
Decision: | See [11] – [12] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency without consent – objective seriousness of offence – plea of guilty – need for personal deterrence – need for general deterrence – level of remorse – prospects for rehabilitation |
Parties: | The Queen (Crown) Tinaye Dune (Offender) |
Representation: | Counsel Mr J De Bruin (Crown) Mr A Doig (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Armstrong Legal (Offender) | |
File Number: | SCC 255 of 2017 |
BURNS J
Mr Dune, it is difficult to reconcile the person who is referred to in the references that have been tendered on your behalf with the sort of person who would commit this offence of act of indecency without consent (CC2017/3651). The only way in which one can reconcile it without indeed trying to excuse it in any way is by the fact that clearly you were significantly affected by alcohol on this evening. I accept that you do not usually drink to excess and it seems to me that the only explanation for your conduct is the amount of alcohol which you had consumed that evening.
I accept on the basis of the material before me that this was out of character for you, that you do not usually behave in this manner. That is demonstrated not only by the references which have been put before me but also by the fact that you have no previous criminal history.
With regard to the objective seriousness of the offence, I note that the victim was asleep at the time that the offence commenced which, as the Crown correctly submitted, meant that she was vulnerable. I, however, accept that there was little premeditation involved in the commission of the offence, that it was an opportunistic offence and that as the victim was wearing some clothing, it did not involve direct skin to skin contact between your penis and the skin of the victim. I also note that you did not persist in commission of the offence when the victim objected to your conduct. Whilst the offence is not trivial in any way, it is not one of the more serious types of this type of offending that comes before this Court.
I note that the maximum penalty is seven years' imprisonment.
I take into account the contents of all of the material which demonstrates to me that you have strong family support which is important in assessing your prospects for rehabilitation. You also have an excellent work ethic, you are employed and also you have demonstrated remorse with respect to what you have done. You have demonstrated that in part through your plea of guilty and also through the letter which you directed to the Director of Public Prosecutions for transmission onto the victim with respect to this matter.
The plea of guilty was somewhat late and as such you are not entitled to the full extent of leniency that would have been shown to you had you entered an early plea of guilty. However, I accept that your recollection of the events of this evening are limited because of the amount of alcohol which you had consumed. As such, I accept that you found it difficult to accept that you had engaged in the conduct which was alleged against you.
I accept ultimately that you came to understand and to yourself accept that you had engaged in this conduct, and it was at that point that you entered a plea of guilty. As such, this is not a case where a late plea of guilty demonstrates a lack of remorse. I also accept that your plea of guilty had significant utilitarian value, in addition to which it resulted in the complainant not having to attend court to give evidence in the matter.
On all of the material before me, I am satisfied that you are not likely to reoffend in the same way and that you have good prospects for rehabilitation. As such there is no significant need for any element of personal deterrence in any sentence which I pass. The Crown has correctly pointed to the fact that all offences of this nature call for sentences which have some element of general deterrence. That is, which are designed to deter others from committing this type of offending.
In my opinion, the requirements of sentencing do not require a term of imprisonment to be imposed with respect to this offence. However, it is clear that a conviction is called for.
Sentence
10. I will record a conviction with respect to the charge CC2017/3651.
11. There will be a Good Behaviour Order for a period of 20 months, which I have reduced from two years in order to reflect your plea of guilty.
12. That Good Behaviour Order, in addition to the core conditions, will have a condition that you are to accept the supervision of the Director-General of ACT Corrective Services or that person's delegate for that period of 20 months or such lesser period as deemed appropriate by your supervising officer. You are to undertake such programs, assessments or treatment as directed by your supervising officer, including if directed, undertaking the assessment for the adult sex offender program and if found suitable, completing that program.
[Speaking directly to the offender]
13. Mr Dune, you obviously have a lot to offer the community. You obviously have a lot of positive personal values and abilities. It is up to you now to demonstrate that you can make the best use of those qualities, not only for yourself but also for the community and that this offence was, as I have said, truly out of character.
| I certify that the preceding thirteen [13] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 10 September 2018 |
2
0
0