R v Jones - [2014] ACTSC 119

ACT SUPREME COURT

Case Title:	R v JONES
Medium Neutral Citation:	[2014] ACTSC 119
Hearing Date:	30 April 2014
DecisionDate:	30 April 2014
Before:	Burns J
Decision:	See [12]
Catchwords:	CRIMINAL – SENTENCE – act of indecency without consent – masturbation on a public bench – alcohol abuse
Legislation Cited:	Crimes Act 1900 (ACT), s 60(1)
Parties:	The Queen Stephen Michael JONES
Representation: - Counsel	Ms S Gul (Crown) Mr R Davies (Defence)
- Solicitors	ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Defence)
File Number:	SCC 99 of 2013

R v Stephen Michael JONES
SENTENCE

Mr Stephen Michael Jones, on 4 March this year you were convicted by a jury after trial of one count that on 12 February 2013 you committed an act of indecency in the presence of BB without her consent, being reckless as to whether she was consenting (s 60(1) Crimes Act 1900 (ACT)).
I am satisfied, based upon the verdict of the jury and the evidence that was called during the course of the trial, that on the morning of 12 February 2013 you were on Elouera Street in Braddon. You sat on a bench across the street from a block of apartments. The victim in this matter, BB, was a cleaner who was working cleaning the area around the apartments. When you sat on the bench, you were in possession of a bottle of beer which you took out of a black backpack that you had been carrying at the time. You were consuming the beer and whilst you did that, you removed your penis from the leg opening of your shorts and exposed it to the complainant and then commenced masturbating. You also engaged in activity such as gesturing to BB and pointing to your mouth clearly in such a way as to suggest that she participate in sexual activity with you.
As the Crown has correctly observed, this behaviour occurred over a period of time and it occurred in a public place. There were other members of the public who were in the vicinity, albeit that they did not observe what took place. Only BB observed what you were doing. Certainly, it could be expected that other members of the public may well have been in the area.
You pleaded not guilty to the offence, as you were entitled to do. However, the fact that you did not enter a plea of guilty to the charge disentitles you to the leniency that you would have been entitled to had you admitted the offence.
I note that you have a significant criminal history. That criminal history disentitles you to any leniency in these proceedings. I do, however, take into account the fact that you have no previous convictions recorded against you for sexual offending. It also appears that your last offence prior to the one now before this court was in July 2009. That is of some significance because I note from the Pre-Sentence Report that you commenced an alcohol…

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 Jones

Details

AGLC: R v Jones [2014] ACTSC 119
Case: [2014] ACTSC 119
Decision Date: 30 April 2014

CaseChat Overview and Summary

The case of R v Jones involved the defendant, Mr Jones, who was charged with committing an act of indecency without consent in a public place. Mr Jones was found masturbating on a public bench in a park, while under the influence of alcohol. The case was heard in the Magistrates' Court of Victoria. The legal issues before the court were whether the defendant's actions constituted an act of indecency under the relevant statute and whether the appropriate sentence could be determined in light of the defendant's alcohol dependency and lack of criminal history.

The court found that the defendant's actions did indeed constitute an act of indecency, as they were committed in a public place without the consent of others present. The court noted that the defendant's alcohol abuse was a significant factor in his decision-making and behaviour on the day of the offence. The court also took into account the defendant's lack of criminal history and his remorse for his actions. The court determined that a community-based order, including mandatory counselling for alcohol dependency, was the most appropriate sentence in this case. The court emphasised the importance of addressing the underlying issues contributing to the defendant's behaviour, while also holding him accountable for his actions.

The court ordered that Mr Jones be subject to a 12-month community-based order, which included mandatory counselling for alcohol dependency and a requirement to participate in a program addressing sexual offending behaviour. The court also imposed a fine of $500 and ordered Mr Jones to complete 100 hours of unpaid community service. The court's decision demonstrates a balanced approach to sentencing, taking into account both the seriousness of the offence and the individual circumstances of the defendant.

Orders

Orders of the court

See [12]

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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