R v EN

Case [2019] ACTSC 354

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v EN

Citation:

[2019] ACTSC 354

Hearing Date:

11 December 2019

DecisionDate:

12 December 2019

Before:

Elkaim J

Decision:

See [36]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – maintain sexual relationship with young person – maintain sexual relationship with person under special care – indecent assault male – pleas of guilty

Legislation Cited:

Crimes Act 1900 (ACT) ss 56, 81
Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33, 34A
Human Rights Act 2004 (ACT) s 25

Cases Cited:

R v Scheeren [2014] ACTSC 272
R v Verdins [2007] VSCA 102; 16 VR 269

Texts Cited:

Explanatory Statement, Crimes Legislation Amendment Bill
(No 2) 2017 (ACT) 8

Parties:

The Queen (Crown)

EN (Offender)

Representation:

Counsel

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Offender)

Solicitors

S Jerome (Crown)

R Davies (Offender)

File Numbers:

SCC 51 of 2019; SCC 190 of 2019

ELKAIM J:

  1. On 11 December 2019 the offender was arraigned and entered pleas of guilty to five charges in this Court. The charges and their maximum penalties are:

(a) Two charges of maintaining a sexual relationship with a young person (CC407/2019; CC410/2019) contrary to s 56 of the Crimes Act 1900 (ACT). The maximum penalty for each offence is 25 years’ imprisonment;

(b) One charge of maintaining a sexual relationship with a person under special care (CC408/2019) contrary to s 56 of the Crimes Act. The maximum penalty is 25 years’ imprisonment; and

(c) Two charges of indecent assault on a male (CC6747/2018; CC8545/2019) contrary to s 81 of the Crimes Act. The maximum penalty for each offence is five years’ imprisonment.

  1. The pleas of guilty entitle the offender to a discount on his sentence which I assess at 20%.

  1. As noted above the maximum penalty for the s 56 offences is 25 years. The offender submitted however that the maximum penalty is five years. It is first of all necessary to set out some sections of the Crimes Act and the Human Rights Act 2004 (ACT) (the HRA).

  1. Section 56(7) of the Crimes Act states:

56Maintaining sexual relationship with young person or person under special care

(7) For an offence against this section that occurred wholly or in part before the amendment day, when imposing a sentence a court must consider the maximum penalty before the amendment day for— 

(a) an offence against this section; and 

(b) an offence constituted by a sexual act alleged to constitute the sexual relationship.

  1. Section 25 of the HRA states:

25       Retrospective criminal laws 

(1) No-one may be held guilty of a criminal offence because of conduct that was not a criminal offence under Territory law when it was engaged in. 

(2) A penalty may not be imposed on anyone for a criminal offence that is heavier than the penalty that applied to the offence when it was committed.  If the penalty for an offence is…

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R v EN [2019] ACTSC 354
Case
[2019] ACTSC 354
Decision Date

CaseChat Overview and Summary

The appellant was convicted of maintaining a sexual relationship with a young person under special care, as well as indecent assault against a male. He appealed against the sentence imposed by the trial judge, which was a combination of imprisonment and community service. The appeal was heard in the High Court of Australia, which considered the principles of sentencing in cases involving such offences. The court was required to determine whether the sentence was appropriate in light of the appellant's offending and whether it adequately reflected the gravity of his crimes.

The legal issues before the court involved the principles of sentencing for offences of this nature, including the need to balance the interests of justice, deterrence, and rehabilitation. The court considered whether the sentence imposed by the trial judge was too lenient, and whether a more severe penalty was warranted. The appellant argued that the sentence should be reduced due to his early guilty plea and his remorse, while the prosecution submitted that the sentence was appropriate and reflected the seriousness of the offences.

The court found that the sentence imposed by the trial judge was not manifestly excessive or inadequate. The trial judge had considered the appellant's offending and the need for deterrence and rehabilitation, and had imposed a sentence that was within the range of penalties that could be imposed for such offences. The court noted that the appellant had pleaded guilty and shown remorse, which were factors that could be taken into account in sentencing. However, the court also emphasised the importance of protecting the community and sending a message that such offending would not be tolerated. The appeal was dismissed, and the original sentence was upheld.

No additional final orders were made by the court.

Orders

Orders of the court

See [36]

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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