R v Emberton - [2022] ACTSC 286

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Emberton
Citation:	[2022] ACTSC 286
Hearing Date:	6 October 2022
DecisionDate:	14 October 2022
Before:	Kennett J
Decision:	See [57]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated robbery – destroying or concealing evidence – sexual intercourse without consent – where victim of offences is a sex worker – where offender has no criminal antecedents and strong prospects for rehabilitation
Legislation Cited:	Crimes (Sentencing) Act2005 (ACT) s 35 Crimes Act 1900 (ACT) s 54 Criminal Code 2002 (ACT) ss 310, 706
Cases Cited:	Hall v The Queen; Barker v The Queen [2017] ACTCA 16 Jurj v The Queen [2016] VSCA 57 O’Brien v The Queen [2015] ACTCA 47 R v Al Abbasi [2017] ACTSC 239 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Incandela (No 4) [2022] ACTSC 139 R v Miller [2019] ACTCA 25; 279 A Crim R 232 R v Verdins [2007] VSCA 102; 16 VR 240
Parties:	The Queen ( Crown) Craig Emberton ( Offender)
Representation:	Counsel S Bargwanna ( Crown) J Moffett ( Offender)
Solicitors ACT Director of Public Prosecutions ( Crown) Rachel Bird & Co ( Offender)
File Number:	SCC 182 of 2022

KENNETT J:

Introduction

The offender, Craig Emberton, pleaded guilty to the following offences:

(a) Aggravated robbery, contrary to s 310 of the Criminal Code 2002 (ACT) (Criminal Code). The maximum penalty is 25 years’ imprisonment, a fine of $400,000, or both.

(b) Destroying or concealing evidence, contrary to s 706(1) of the Criminal Code. The maximum penalty is seven years’ imprisonment, a fine of $112,000, or both.

(c) Sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT) (Crimes Act). The maximum penalty is 12 years’ imprisonment.

Facts

The facts are agreed and set out in an agreed statement of facts before the Court.

On 25 March 2022 the victim, who is an independent sex worker, received a text message from the offender requesting her services. The victim accepted the booking and the two arranged to meet at the victim’s apartment in Canberra City that afternoon.

At 4:00PM, the offender arrived at the apartment. On entering, he pulled a knife from his pocket, pointed it at the victim and demanded money from her. The victim retrieved her wallet and handed the offender approximately $430 from it.

The offender then directed the victim to take off her clothes and have sex with him. At the request of the victim, the offender placed a condom over his penis. He also placed the knife on a nearby dining table.

The offender proceeded to have sexual intercourse with the victim. At some stage, the offender removed the condom and continued the sexual intercourse.

He then told the victim to get on her knees and give him oral sex, which the victim did. The offender told the victim that he was going to ejaculate and proceeded…

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 Emberton

Details

AGLC: R v Emberton [2022] ACTSC 286
Case: [2022] ACTSC 286
Decision Date: 14 October 2022

CaseChat Overview and Summary

In the case of R v Emberton, the respondent was convicted of various offences including aggravated robbery, destroying or concealing evidence, and sexual intercourse without consent. The victim, a sex worker, was attacked by Emberton, who then proceeded to destroy or conceal evidence of the crime. The matter was brought before the court to determine an appropriate sentence. The respondent, Emberton, had no prior criminal history and was deemed to have strong prospects for rehabilitation. The court was required to balance the need for punishment and deterrence with the potential for rehabilitation.

The primary legal issue before the court was to determine the appropriate sentence for Emberton's crimes, taking into account the circumstances of the offences, the offender's background, and the likelihood of rehabilitation. The court had to consider the severity of the crimes, particularly the aggravated robbery and the attack on a sex worker, as well as the destruction of evidence, which indicated a clear intent to obstruct justice. Additionally, the court had to weigh the respondent's lack of criminal antecedents and his potential for rehabilitation against the need to punish and deter similar conduct in the future.

In delivering the judgment, the court considered the gravity of the offences committed by Emberton, emphasising the serious nature of the attack on the victim and the destruction of evidence. However, the court also acknowledged Emberton's lack of prior criminal history and the prospects for his rehabilitation. The court recognised that while the crimes were severe, the appropriate sentence should also facilitate the respondent's reintegration into society. After careful consideration of all relevant factors, the court determined the appropriate sentence for Emberton, ensuring that it reflected both the need for punishment and the potential for rehabilitation.

The court ordered Emberton to serve a sentence that balanced the need for punishment with the possibility of rehabilitation. The specific details of the sentence, including the length and conditions, were outlined in the court's judgment. This decision highlights the court's approach to sentencing in cases involving serious crimes, where the potential for rehabilitation must be considered alongside the need to protect society and deter future offending.

Orders

Orders of the court

See [57]

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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