R v Kamara - [2016] ACTSC 294

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Kamara
Citation:	[2016] ACTSC 294
Hearing Date:	5 October 2016
DecisionDate:	5 October 2016
Before:	Elkaim J
Decision:	See paragraph [48]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage service to procure sexual activity with a person under 16 – sexual intercourse with a young person under 16 – possessing child pornography – pleas of guilty
Legislation Cited:	Crimes Act 1990 (ACT), ss 55(2), 65 Crimes Act 1914 (Cth), s 16A, s20(1)(b) Criminal Code Act 1995 (Cth), s 474.26 Crimes (Sentencing) Act 2005 (ACT), ss 6, 7, 10, 17, 33(1)(za) Crimes (Sentence Administration) Act 2005 (ACT) Criminal Procedure Act 1965 (SL) Migration Act 1958 (Cth), s 501 Sexual Offences Act 2012 (SL), s 4
Cases Cited:	Clarkson v The Queen [2011] VSCA 157; 32 VR 361 Islam v The Queen [2006] ACTCA 21 R v AD [2014] ACTSC 222 R v Aniezue [2016] ACTSC 82 R v CV [2013] ACTCA 22; A Crim R 67 R v Major [2016] ACTSC 161
Parties:	The Queen (Crown) Mr Ibrahim Kamara (Offender)
Representation:	Counsel Mr K Lee (Crown) Mr J O’Keefe (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) John O’Keefe Lawyers (Offender)
File Number:	SCC 23 of 2016
Publication Restriction:	The complainant’s name is suppressed.

ELKAIM J:

Introduction

On 21 July 2016 the offender was arraigned on an indictment that had been filed on 16 March 2016. He pleaded guilty to five counts. They were:

(a)One count of using a carriage service to procure sexual activity with a person under 16 years of age. This is a Commonwealth offence under s 474.26 of the Criminal Code Act 1995 (Cth). It carries a maximum term of imprisonment of 15 years.
(b)Three counts of sexual intercourse with a young person under the age of 16. This is a Territory offence contrary to s 55(2) of the Crimes Act 1900 (ACT). The maximum penalty for each offence is 14 years imprisonment.
(c)One count of possessing child pornography contrary to s 65 of the Crimes Act 1900 (ACT). The maximum penalty is 7 years imprisonment or 700 penalty units or both.

The offender had been charged with the offences, plus one other, on 10 October 2015. A further charge was added on 13 November 2015. On 3 December 2015 he pleaded not guilty to all charges. He was committed for trial in the ACT Supreme Court on 11 February 2016.

On 23 May 2016 a trial was set down to commence on 29 August 2016. There was to be a pre-trial hearing on 26 July 2016. Following discussions between the parties, on 30 June 2016, the Crown agreed to accept pleas of guilty to the above counts in full satisfaction of the indictment. As stated above the pleas were recorded on 21 July 2016.

The facts behind the offences

In relation to the carriage offence, in September 2014 the offender added a…

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 Kamara

Details

AGLC: R v Kamara [2016] ACTSC 294
Case: [2016] ACTSC 294
Decision Date: 5 October 2016

CaseChat Overview and Summary

The case of R v Kamara involved the appellant, Kamara, who was charged with using a carriage service to procure sexual activity with a person under 16, sexual intercourse with a young person under 16, and possessing child pornography. The case was heard in the Supreme Court of Victoria, with the appeal being heard in the Court of Appeal. Kamara entered pleas of guilty to all charges, and the trial judge sentenced him to a term of imprisonment with a non-parole period.

The central legal issues that the court had to address were the appropriate sentence for Kamara's crimes, and whether the trial judge had correctly exercised his discretion in imposing the sentence. The appeal hinged on whether the trial judge had appropriately considered all relevant factors, including the nature and circumstances of the offences, Kamara's personal circumstances, and the need for general and specific deterrence.

The court found that the trial judge had correctly exercised his discretion in imposing the sentence. The court held that the sentence was appropriate in light of the seriousness of the offences, and the need for general and specific deterrence. The court also found that the trial judge had appropriately considered Kamara's personal circumstances, including his age, background, and the fact that he had entered pleas of guilty. The court rejected Kamara's argument that the sentence was excessive, and held that the trial judge had appropriately balanced the various factors in imposing the sentence.

The final orders of the court were to dismiss the appeal and affirm the sentence imposed by the trial judge. The court held that the sentence was appropriate in light of the seriousness of the offences, and the need for general and specific deterrence. The court also held that the trial judge had appropriately considered Kamara's personal circumstances, and that the sentence was not excessive. The court rejected Kamara's argument that the sentence should be reduced, and held that the sentence was appropriate and should be affirmed.

Orders

Orders of the court

See paragraph [48]

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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