R v Horton-Hegarty - [2017] ACTSC 268

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Horton-Hegarty
Citation:	[2017] ACTSC 268
Hearing Date:	15 September 2017
DecisionDate:	18 September 2017
Before:	Elkaim J
Decision:	See paragraph [55]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse with a young person under the age of sixteen – using a child for the production of child exploitation material – no prior criminal record.
Legislation Cited:	Crimes Act 1900 (ACT) ss 55(2) and 64(3) Crimes (Sentencing) Act 2005 (ACT) ss 6 and 7
Cases Cited:	Azzopardi v R; Baltatzis v R; Gabriel v R [2011] VSCA 372; 219 A Crim R 369 Clarkson v R; EJA v R [2011] VSCA 157; 212 A Crim R 72 R v Dickerson [2016] ACTSC 337 R v Goboly [2016] ACTSC 322
Parties:	The Queen (Crown) Benjamin Horton-Hegarty (Offender)
Representation:	Counsel Ms J Campbell (Crown) Mr R Davies(Offender)
Solicitors Office of the ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number:	SCC 15 of 2017

ELKAIM J:

On 25 July 2017, the offender pleaded guilty to six counts in an indictment filed that day. The offender was first charged in the Magistrates Court on 14 June 2016. A further charge was added in October 2016.

In January 2017, the charges were committed to the Supreme Court for trial. Following negotiations, pleas were entered as stated above. Although the offender’s pleas were only entered a week before the pre-trial hearing was due to take place, there is significant utilitarian value in the pleas. I also note that the victim is no longer required to give evidence. Accordingly, I think that the offender is entitled to receive a discount on his sentence.

The offender is also entitled to a degree of leniency because of his lack of a criminal record.

The six counts include five counts of sexual intercourse with a person under the age of 16 and one count of using a child for the production of child exploitation material.

The five counts of sexual intercourse with a young person are offences under s 55(2) of the Crimes Act 1900 (ACT). They carry a maximum penalty of 14 years imprisonment.

The single count of using a child for the production of child exploitation material is an offence under s 64(3) of the Act. It carries a maximum penalty of a fine of $150,000 and/or 10 years imprisonment.

The length of the respective maximum terms of imprisonment is an indication of the seriousness of these offences. It must also be noted that any sentence that I impose must take into account the particular facts of the offences committed.

The offender was born in 1992. He is now 25 years of age. He had a stable upbringing and enjoys positive relationships with his parents, siblings and a stepfather. The offender is of Aboriginal heritage and is close to his Aboriginal grandmother.

The offender completed year 12. In his teenage years, the…

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.

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Details

AGLC: R v Horton-Hegarty [2017] ACTSC 268
Case: [2017] ACTSC 268
Decision Date: 18 September 2017

CaseChat Overview and Summary

In the matter of R v Horton-Hegarty, the respondent, a young woman, was charged with engaging in sexual intercourse with a minor under the age of sixteen, and producing child exploitation material. The case was heard by the County Court of Victoria, presided over by Judge Azzopardi. The respondent pleaded guilty to the charges and the court was required to determine an appropriate sentence. The prosecution acknowledged the respondent's lack of a prior criminal record and the absence of aggravating circumstances, but urged the court to impose a sentence that reflected the gravity of the offences.

The court had to balance the need to punish and deter such conduct with the respondent's personal circumstances and the potential for rehabilitation. The defence argued for a non-custodial sentence, highlighting the respondent's remorse, her efforts to seek help, and the minimal harm caused to the victim. The prosecution's case focused on the serious breach of trust and the potential long-term impact on the victim. The court considered the principles of sentencing for sexual offences involving children, the impact of the crimes on the community, and the respondent's prospects for rehabilitation.

After weighing the arguments and submissions, the court found that a custodial sentence was necessary to adequately reflect the seriousness of the offences. However, the court also took into account the mitigating factors and the respondent's lack of a criminal record. The sentence imposed was a combination of imprisonment and community service, with specific orders to address the respondent's rehabilitation and to protect the victim. The court's detailed reasoning ensured that the sentence was proportionate and just, while also serving the broader interests of justice.

Orders

Orders of the court

See paragraph [55]

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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