R v EC

[2019] ACTSC 211

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v EC

Citation:

[2019] ACTSC 211

Hearing Date:

9 August 2019

DecisionDate:

9 August 2019

Before:

Elkaim J

Decision:

See [15]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – Sentence – act of indecency with young person under 16 years – plea of guilty – offender found not guilty by jury of incest and production of child pornography – no element of sexual gratification

Legislation Cited:

Crimes Act 1900 (ACT) s 61(2)

Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33

Parties:

The Queen (Crown)

EC (Offender)

Representation:

Counsel

S Beaumont (Crown)

J Sabharwal (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Offender)

File Number:

SCC 277 of 2018

Publication Restriction:

The name of the offender and the complainant is suppressed.

ELKAIM J:

1. The offender faced three counts in an indictment dated 10 December 2018. He came on for trial before me and a jury on 12 June 2019. He pleaded Not Guilty to Counts 1 and 3. He pleaded guilty to Count 2.

1. Count 1 alleged that the offender had committed an act of incest upon his daughter. Count 2 alleged an act of indecency, constituted by his shaving of his daughter’s pubic area when she was aged about 12 years of age. Count 3 alleged the use of a child for the production of child exploitation material, constituted by the offender taking a photograph of the complainant’s pubic area following the shaving.

1. On 18 June 2019 the jury acquitted the offender of Counts 1 and 3. That left the offender to be sentenced for Count 2, the act of indecency, which is an offence contrary to s 61(2) of the Crimes Act 1900 (ACT). The maximum penalty for this offence is 10 years’ imprisonment.

1. The alleged facts leading to Count 1 are not relevant to the sentencing process. As already stated, Count 2 involved the offender shaving his daughter’s pubic area. There was no dispute that following this action the offender took a photograph of the complainant’s newly shaven vaginal area.

1. In opening to the jury the Crown, fairly and properly, told the jury that the offender’s plea to Count 2 was not a subjective acknowledgement that he had performed an indecent act but rather an acknowledgement that according to ordinary community standards his actions would be seen as indecent.

1. The offender took part in a recorded interview (in the course of the execution of a search warrant) and he gave oral evidence in the trial. In both his recorded interview and in his evidence he stated that the photograph had been taken in order to show the complainant the result of the shaving activity. An attempt by her to see the result using a mirror had not been successful. The offender was adamant that the photograph was not taken for any form of sexual gratification and had, as confirmed by the execution of the search warrant, been deleted from the offender’s mobile telephone.

1. It is inherent from the jury’s verdict that the offender took the photograph for the reasons he stated and not for his sexual gratification or arousal. The result is that the objective seriousness of Count 2 must be regarded as minor.

1. The offender may now regret his plea of guilty but there has been no suggestion that he be given leave to withdraw it. I am bound to proceed on the basis that he properly pleaded guilty to Count 2. He should not have shaved his daughter’s pubic area. I appreciate his evidence that the complainant’s mother was, in effect, neglectful of his daughters needs but, nevertheless, his female partner was present and could have been asked to carry out the shaving exercise.

1. There is a victim impact statement from the complainant. I have taken it into account but with this reservation. It clearly relates to matters that are not related to the offence to which the offender pleaded guilty. I can well understand the effects on a young girl of having her father perform the indecent act. However the breadth of the statement goes well beyond the offence. To that extent I do not take it into account.

1. The offender was born in 1974. I was given very little detail of his background other than that he currently works as a chef. He has a criminal record as a minor but it contains no matters of a similar nature. It does not impact upon this sentence although it does deprive him of the extra leniency attached to a person who has no record at all.

1. I have been provided with a number of references all attesting to the offender being a “good man” and a devoted family man.

1. Sentencing requires consideration of a number of matters. These include ss 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT). Section 10 says a person should not be sent to prison except as a last resort. Section 33 is also important.

1. The main difference between the approaches of the parties was whether or not a good behaviour order should be accompanied by supervision. The Crown strenuously emphasised that the nature of the offence was abhorrent and community standards demanded supervision as did the offender’s own rehabilitation.

1. Counsel for the offender pointed out that he had not committed any further offences in the two years since he was arrested and he had immediately admitted what he had inappropriately done. I think he has learned from his experience, which has included the trauma of a jury trial where he was acquitted. I do not think supervision is necessary.

Orders

1. I make the following orders:

(a)    In relation to Count 2, act of indecency with young person (CC 2017/8771), the offender is convicted and sentenced to a Good Behaviour Order for a period of 18 months with the core conditions only, commencing today.

I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for judgment of his Honour Justice Elkaim.

Associate:

Date: 9 August 2019