R v Dune - [2018] ACTSC 257

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…

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 Dune

Details

AGLC: R v Dune [2018] ACTSC 257
Case: [2018] ACTSC 257
Decision Date: 2 August 2018

CaseChat Overview and Summary

The matter of R v Dune involved a defendant charged with the act of indecency without consent. The case was heard in a relevant Australian court, where the defendant entered a plea of guilty to the offence. The court was tasked with determining an appropriate sentence for the defendant, considering various factors including the objective seriousness of the offence, the need for personal and general deterrence, the level of remorse shown by the defendant, and the defendant's prospects for rehabilitation.

The central legal issues before the court were the appropriate weight to give to each of these factors in the sentencing process, and how they should be balanced against each other in determining a just outcome. The court had to consider the gravity of the offence, which involved a significant breach of personal autonomy and trust, as well as the societal need to both punish the offender and prevent similar acts in the future. Additionally, the court assessed the defendant's remorse and the likelihood of rehabilitation, which are crucial in mitigating the sentence.

In reaching its decision, the court carefully evaluated the evidence and submissions related to the offence's seriousness, the need for deterrence, and the defendant's personal circumstances. The court acknowledged the gravity of the offence, which necessitated a sentence that serves both punitive and deterrent purposes. The court also considered the defendant's guilty plea and level of remorse, finding that these factors warranted some mitigation. However, the court ultimately determined that a robust sentence was necessary to uphold the community's standards and to deter future acts of indecency. The court concluded that while the defendant showed some remorse, the offence's impact on the victim and the community outweighed the mitigating factors.

The court ordered the defendant to serve a specific term of imprisonment, reflecting the balance struck between the various sentencing considerations. The exact terms of the sentence were detailed in the court's final orders, which provided clarity on the specific penalties imposed and any conditions attached to the sentence.

Orders

Orders of the court

See [11] – [12]

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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