R v Hammer - [2019] ACTSC 182

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Hammer
Citation:	[2019] ACTSC 182
Hearing Dates:	1 May 2019, 15 July 2019
DecisionDate:	15 July 2019
Before:	Murrell CJ
Decision:	Sentenced to a total of 22 months’ imprisonment to be served by way of intensive correction in the community.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Act of indecency upon a young person – Sexual intercourse with a young person – Significant breach of trust – Where the victim has an intellectual disability – Where the offender experienced traumatic child sexual abuses and other abuses – Where the offender suffered from various mental health issues and has an overall cognitive ability in the low average range – Personal deterrence – Rehabilitation – Recognition of harm – Whether an intensive corrections order is warranted.
Legislation Cited:	Crimes Act 1900 (ACT) ss 55(2), 61(2) Crimes (Sentencing) Act 2005 (ACT) ss 7, 11, 33, 35
Cases Cited:	Edwards v The Queen [2001] WASCA 263 R v Farrugia (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 1 October 2013) R v NC [2017] ACTSC 206 R v QI (No 2) [2016] ACTSC 188
Parties:	The Queen (Crown) Samantha Hammer (Offender)
Representation:	Counsel K McCann (Crown) R Davies (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number:	SCC 16 of 2019

Murrell CJ

The offences

The offender is to be sentenced for two offences that occurred on 3 August 2018. First, the offender committed an act of indecency upon a person aged under 16 years, contrary to s 61(2) of the Crimes Act 1900 (ACT) (Crimes Act). Second, she engaged in sexual intercourse with the young person, contrary to s 55(2) of the Crimes Act.

The maximum penalties for the offences are, respectively, 10 years’ and 14 years’ imprisonment.

The offender pleaded guilty to the offences on the fourth mention before the Magistrates Court. The early pleas have high utilitarian value. Despite the strength of the Crown case, I will allow a discount of 25 per cent under s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).

The offender has spent no time in custody.

At the outset, I wish to acknowledge the pain and harm caused to the victim of the offences and his mother. In these reasons I will refer at length to the subjective circumstances of the offender because they are complex and important to an understanding of her conduct. I hope that the victims do not see this as in any way diminishing the Court’s focus on their suffering.

Facts of the offences

The victim, C, was 15 years of age at the time of the offences. C is moderately intellectually disabled; his social reasoning and cognitive capacity are below his chronological age. He attends a special school for young people with special needs. C’s mother describes him as having a rudimentary sense of right 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 Hammer

Details

AGLC: R v Hammer [2019] ACTSC 182
Case: [2019] ACTSC 182
Decision Date: 15 July 2019

CaseChat Overview and Summary

The case of R v Hammer involved the defendant, Hammer, who was convicted of committing an act of indecency upon a young person, specifically engaging in sexual intercourse with a young person who had an intellectual disability. This matter was heard in the relevant Australian court, which examined the appropriate sentence for Hammer, considering various mitigating and aggravating factors. The court was required to balance the need for personal deterrence, rehabilitation, and recognition of the harm caused to the victim.

The primary legal issue was whether an intensive corrections order (ICO) was warranted in this case, given the unique circumstances. The court considered Hammer’s traumatic past, including experiences of child sexual abuse and other forms of abuse, alongside his mental health issues and cognitive abilities, which were in the low average range. Additionally, the court evaluated the severity of the offence, the breach of trust, and the impact on the victim. The court’s task was to determine if an ICO, which allows for a sentence to be served in the community, was appropriate as opposed to a custodial sentence.

In reaching its decision, the court weighed the factors of personal deterrence, the potential for rehabilitation, and the need to recognise the harm caused. The court found that while the offence was serious, the unique personal circumstances of Hammer, including his own history of abuse, mental health issues, and cognitive abilities, warranted consideration of an alternative to imprisonment. The court concluded that an ICO would provide sufficient personal deterrence, facilitate rehabilitation, and adequately recognise the harm caused to the victim. Consequently, the court sentenced Hammer to a total of 22 months’ imprisonment, to be served by way of an intensive corrections order in the community.

Orders

Orders of the court

Sentenced to a total of 22 months’ imprisonment to be served by way of intensive correction in the community.

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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