R v GJ - [2014] ACTSC 186

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v GJ
Medium Neutral Citation:	[2014] ACTSC 186
Hearing Date:	26 May 2014
DecisionDate:	12 June 2014
Before:	Penfold J
Decision:	See [18] to [20]
Category:	Sentence
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence for one offence of act of indecency without consent – abuse of power imbalance between offender and victim – first offender of positive good character making significant contribution to the community – no need for sentence of imprisonment to be served in full-time custody – sentence of imprisonment suspended subject to good behaviour order with community service condition.
Legislation Cited:	Crimes Act 1900 (ACT),s61 Crimes (Sentence Administration) Act 2005 (ACT)
Cases Cited:	R v Dhaimat [2014] ACTSC, Burns J, 12 March 2014 R v Fernando [2010] ACTSC, Penfold J, 17 December 2010R v Hossein [2011] ACTSC, Nield AJ, 25 July 2012 R v Reeves [2012] ACTSC, Nield AJ, 2 May 2012
Parties:	The Queen ( Crown) GJ ( Offender)
Representation:	Counsel: Ms M Jones ( Crown) Mr A Doig ( Offender)
Solicitors: ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender)
File Number:	SCC 156B of 2013
Publication Restriction:	Yes (names of offender, victim, witnesses)

HER HONOUR: GJ has pleaded guilty to one count of an act of indecency without consent, an offence that arises under s 61 of the Crimes Act 1900 (ACT) and has since 7 July 2011 carried a maximum penalty of seven years imprisonment.

The incident is described in the agreed statement of facts as follows:

On the evening of 12 August 2011 [GJ], an Assistant Commissioner with [a service organisation in Canberra], went to a ... meeting. There he met volunteer member, [the complainant], (19 years old) who had recently transferred from NSW. After the meeting the volunteer members, including [GJ] and [the complainant] went out to dinner at the Mawson Club. [GJ] drove [the complainant] to the Mawson Club and during the trip he told her that she had a “hot arse” and put his hand on her leg.
After dinner some of the group including [GJ] and [the complainant], went to JA’s house in [Ainslie] for more drinks, movies, and dancing. [GJ] was intoxicated.
At about 3:00 am on 13 August 2011 JA, [the complainant] and [GJ] went to bed in JA’s room. JA slept in the single bed and [the complainant] and [GJ] slept on the double futon. [The complainant] told police [she] did not want to sleep in the same bed as [GJ] and placed a pillow at her back between herself and him. [The complainant] was intending to go to the lounge room after ML and his girlfriend left. (ML was JA’s housemate – he and his girlfriend were in the lounge room at the relevant time and fell asleep there).
JA told police the following:
“I said to [the complainant] “it's up to you where you sleep, there's a single bed and…

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 GJ

Details

AGLC: R v GJ [2014] ACTSC 186
Case: [2014] ACTSC 186
Decision Date: 12 June 2014

CaseChat Overview and Summary

The case of R v GJ involves a defendant who was convicted of an act of indecency without consent. The case was heard in a higher court, where the defendant was sentenced for this offence. The primary issue before the court was to determine the appropriate sentence, taking into account the specific circumstances of the offence, the offender's background, and the principles of sentencing. The court had to consider the gravity of the offence, the abuse of the power imbalance between the offender and the victim, the offender's positive character and contributions to the community, and whether the sentence should include imprisonment or be suspended with conditions.

The court acknowledged the seriousness of the offence, which involved an act of indecency without consent. It was noted that the offender had abused a position of power, which exacerbated the gravity of the offence. However, the court also recognised the offender's good character, lack of prior criminal history, and significant contributions to the community. Given these factors, the court determined that the need for deterrence and denunciation could be addressed through a suspended sentence, coupled with conditions that would ensure the offender's rehabilitation and reintegration into the community. The court concluded that a full-time custodial sentence was not necessary, as it would not serve the purposes of punishment and rehabilitation effectively.

Based on the considerations outlined above, the court decided to suspend the sentence of imprisonment. Instead, the offender was subjected to a good behaviour order, with the condition of completing community service. This approach was deemed appropriate to address the offender's accountability, provide a form of reparation to the community, and facilitate the offender's rehabilitation without the need for full-time custody. The specific details of the sentence, including the duration of the good behaviour order and the nature and extent of the community service, were outlined in the court's final orders.

Orders

Orders of the court

See [18] to [20]

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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