R v Ed - [2018] ACTSC 366

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v ED
Citation:	[2018] ACTSC 366
Hearing Dates:	13 November 2018; 29 November 2018
DecisionDate:	30 November 2018
Before:	Burns J
Decision:	See [30]–[33]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse with a person aged under 16 years – attempt sexual intercourse with a person aged under 16 years – acts of indecency on a person aged under 16 years – found guilty by jury – whether the offender’s intellectual impairments had an impact on his moral culpability – good prospects for rehabilitation
Cases Cited:	R v Verdins [2007] VSCA 102; 16 VR 269.
Parties:	The Queen (Crown) ED (Offender)
Representation:	Counsel Mr P Dixon (Crown) Ms K Musgrove (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number:	SCC 314 of 2017

BURNS J

ED, on 2 July 2018, you were presented for trial on an indictment alleging four counts of engaging in sexual intercourse with a person under the age of 16 years, one count of attempting to engage in sexual intercourse with a person under the age of 16 years and two counts of committing an act of indecency on a person under the age of 16 years.

On 6 July 2018, the jury returned verdicts of guilty on Count One, a charge of engaging in sexual intercourse with a person under the age of 16 years; Count Four, a charge of attempting to engage in sexual intercourse with a person under the age of 16 years; and Counts Six and Seven, charges of committing acts of indecency on a person under the age of 16 years. On the remaining counts, the jury returned verdicts of not guilty.

The victim with regard to these offences was [redacted], who I will refer to by the initials NS. At the time of these offences, you were 18 years old and NS was 13 years old. The maximum penalty for both the offence of engaging in sexual intercourse with a person under the age of 16 years and attempting to engage in sexual intercourse with a person under the age of 16 years is 14 years’ imprisonment. The maximum penalty for the offence of committing an act of indecency on a person under the age of 16 years is 10 years’ imprisonment. The maximum penalty is reserved for offences that fall within that class of cases which may be referred to as the worst type of that particular offending.

The Crown does not submit that the charges on which you were convicted by the jury fall into that worst case category, but the maximum penalty, nevertheless, provides a yardstick against which to assess the objective seriousness of the present offences.

[Redacted]. In July 2016, you usually resided with your mother and siblings in Sydney, but on or about 4 July 2016, you came to Canberra to spend the school holidays with the victim…

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 Ed

Details

AGLC: R v Ed [2018] ACTSC 366
Case: [2018] ACTSC 366
Decision Date: 30 November 2018

CaseChat Overview and Summary

The case before the court involved an individual, Ed, who was found guilty by a jury of various offences including sexual intercourse with a person under 16 years, attempted sexual intercourse with a person under 16 years, and acts of indecency on a person under 16 years. The court was tasked with determining an appropriate sentence for Ed, taking into account his intellectual impairments and prospects for rehabilitation.

The primary legal issue for the court to decide was the extent to which Ed’s intellectual impairments should impact his moral culpability and the resulting sentence. Additionally, the court needed to consider whether these impairments affected the appropriateness of incarceration as a means of rehabilitation. The court was also required to weigh the severity of the crimes against Ed’s potential for rehabilitation and the protection of society.

The court acknowledged Ed’s intellectual impairments as a mitigating factor but concluded that they did not absolve him of moral culpability. The court found that despite his impairments, Ed demonstrated a capacity to understand and appreciate the wrongfulness of his actions. However, the court recognised Ed’s good prospects for rehabilitation, particularly in a therapeutic setting. Balancing the need for punishment, deterrence, and rehabilitation, the court determined that a custodial sentence was necessary to adequately address the gravity of the offences. Ultimately, the court imposed a sentence that included a period of incarceration followed by a period of community supervision, aiming to achieve both punishment and rehabilitation.

Orders

Orders of the court

See [30]–[33]

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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