R v KN (No 2)

[2019] ACTSC 5

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v KN (No 2)

Citation:

[2019] ACTSC 5

Hearing Date:

27 November 2018, 29 January 2019 and 30 January 2019

DecisionDate:

30 January 2019

Before:

Elkaim J

Decision:

See [36]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse with a young person – maintaining a sexual relationship with a young person

Legislation Cited:

Crimes Act 1900 (ACT) ss 55 and 56

Crimes Legislation Amendment Act 2018 (ACT)

Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10 and 33

Cases Cited:

R v BO (No 2) [2014] ACTSC 371

R v CC [2016] ACTSC 324

R v DU [2018] ACTSC 281

R v Hunt [2016]  ACTSC 52

Parties:

The Queen (Crown)

KN (Offender)

Representation:

Counsel

Ms S Beaumont (Crown)

Mr K Archer (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Kamy Saeedi Law (Offender)

File Number:

SCC 58 of 2018

ELKAIM J:

1. On 26 September 2018, the offender pleaded not guilty before a jury to seven counts in an indictment dated 30 April 2018.

1. On 4 October 2018, the jury found the offender guilty on all but the first count on the indictment.

1. Five of the counts on which the offender was convicted related to him engaging in sexual intercourse with a young person. This is an offence contrary to s 55 of the Crimes Act 1900 (ACT) and carries a maximum penalty of 14 years’ imprisonment.

1. The remaining conviction related to the offence of maintaining a sexual relationship with a young person, contrary to s 56 of the above Act. The maximum penalty is 25 years’ imprisonment.

1. The matter was initially listed for sentence on 27 November 2018. On that date learned counsel for the offender (who was not his counsel at trial) sought an adjournment in order to obtain a psychological assessment of the offender. I allowed the adjournment although no psychological report has resulted. However, at the commencement of the hearing before me yesterday counsel for the offender told me that he had now realised that there was a flaw in the convictions that had been recorded, in particular that the offence under s 56 (Count 2) should not have been the subject of a charge concurrently with the offences under Counts 3, 4, 5 and 6. This was because the offences under the latter counts were the offences that constituted the offence under s 56. In other words there was a duplication which was specifically prohibited by s 56 and in particular subsections (8) and (9). Counsel informed me that there was authority for this proposition in a decision of Burns J in R v DU [2018] ACTSC 281.

1. I note that Count 7 is not relevant to this argument.

1. The distinction between this case and DU is that in DU the point was taken before trial so that the current issue did not arise in DU. The point that was successful before Burns J…