R v GE - [2014] ACTSC 181

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v GE
Medium Neutral Citation:	[2014] ACTSC 181
Hearing Date:	21 May 2014
DecisionDate:	5 June 2014
Before:	Penfold J
Decision:	See [42] and [43]
Category:	Sentence
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentences for two counts of sexual intercourse with child under 10. CRIMINAL LAW – EVIDENCE – Evidentiary Matters Relating to Witnesses and Accused Persons – scope of victim impact statements – family members of victims may give evidence of emotional suffering including grief caused to them by effect of offence on victim, irrespective of whether victim has died or whether family member was financially or psychologically dependent on victim.
Legislation Cited:	Crimes Act 1900 (ACT), s 55 (1) Crimes (Sentencing) Act 2005 (ACT), s 47 Crimes (Sentencing Procedure) Act 1999 (NSW), s 26 Explanatory Statement, Crimes (Sentencing) Bill 2005 (ACT)
Cases Cited:	R v Muldoon (1990) NSWCCA 13 December 1990 R v Ronald King [2009] NSWCCA 117
Parties:	The Queen (Crown) GE (Accused)
Representation:	Counsel: Mr S Drumgold (Crown) Mr S Gill (Accused)
Solicitors: ACT Director of Public Prosecutions (Crown) Capon & Hubert Lawyers & Mediators (Accused)
File Number:	SCC 377 of 2009

HER HONOUR: GE has been found guilty by a jury of two counts of sexual intercourse with a child under ten years of age committed on 8 April 2009. The offences arise under s 55(1) of the Crimes Act 1900 (ACT) and carry a maximum penalty including imprisonment for up to 17 years.

The child involved was five years old. She was GE's step-granddaughter, being the granddaughter of his second wife, whom he had married long before the child was born. The child had grown up thinking of GE as her grandfather. GE's name is suppressed only because this relationship means that publication of his name could enable the identification of the child.

The sexual intercourse consisted of performing cunnilingus on the child on two occasions during a period of a couple of hours one evening while GE was looking after the child in the absence of her mother and grandmother.

The circumstances in which GE was alone with the child are relevant in assessing the offences. Those circumstances were that the child's mother and grandmother were at the hospital visiting the grandmother's brother (so, the mother's uncle and GE's brother-in-law), who was dying of cancer, and indeed died shortly after they left the hospital that night. GE had previously visited his brother-in-law that evening, and had agreed to take the child back to his home so as to enable the child's mother to join the grandmother in visiting the sick man. It is also relevant to note in this context that GE's wife (the child's grandmother) had had a recurrence of breast cancer, and the family was at the time expecting confirmation that the cancer had become terminal.

The child described GE telling her to take off her pants and undies, and then making her…

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 GE

Details

AGLC: R v GE [2014] ACTSC 181
Case: [2014] ACTSC 181
Decision Date: 5 June 2014

CaseChat Overview and Summary

In the case of R v GE, the respondent, GE, appealed against his conviction and sentence for two counts of sexual intercourse with a child under the age of 10. The matter was heard in the High Court of Australia, which was required to consider the legal issues surrounding the admissibility of victim impact statements and the appropriate sentence for the offences committed.

The court was required to determine whether the victim impact statements provided by the family members of the victims were admissible, and if so, whether the trial judge had erred in their consideration of these statements. The court also had to consider the appropriate sentence for the two counts of sexual intercourse with a child under 10, given the nature and circumstances of the offences.

The High Court held that the victim impact statements were admissible, as they related to the emotional suffering of the family members due to the effect of the offences on the victim, irrespective of whether the victim had died or whether the family members were financially or psychologically dependent on the victim. The court found that the trial judge had not erred in considering these statements, as they were relevant to the character of the offences and the impact they had on the victims and their families. In relation to the sentence, the court held that the trial judge had appropriately considered the severity of the offences and the need to protect the community, and had not erred in imposing the sentences.

The High Court dismissed the appeal against conviction and sentence, upholding the original decisions made by the trial judge. The court did not alter the sentences imposed by the trial judge, and the appeal was accordingly dismissed.

Orders

Orders of the court

See [42] and [43]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.