R v March - [2014] ACTSC 244

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v March
Citation:	[2014] ACTSC 244
Hearing Date(s):	31 July 2014
DecisionDate:	31 July 2014
Before:	Murrell CJ
Decision:	See [37]-[41]
Category:	Sentence
Catchwords:	CRIMINAL LAW – Sentence – burglary – sexual intercourse without consent – guilty plea
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) Crimes Act 1900 (ACT) s 54 Criminal Code 2002 (ACT) s 311(1)(b)
Cases Cited:	Pearce v The Queen (1998) 194 CLR 610 R v Ponfield (1999) 48 NSWLR 327
Parties:	The Queen (Crown) James March (Offender)
Representation:	Counsel Mr T Hickey (Crown) Ms L Taylor (Offender)
Solicitors Director of Public Prosecutions (ACT) (Crown) Legal Aid ACT (Offender)
File Number(s):	SCC 61 of 2014

MURRELL CJ:

The offences for which the Court is to sentence the offender involved a horrendous personal violation of the victim. On behalf of the community, I express the deepest sympathy of the Court for the victim and her family.

Two offences were committed on 10 September 2013. The first is an offence of burglary, contrary to s 311(1)(b) of the Criminal Code 2002 (ACT). That offence carries a maximum available penalty of 14 years’ imprisonment. The second is an offence of sexual intercourse without consent, contrary to s 54 of the Crimes Act 1900 (ACT). In the circumstances of this case, this is the principle offence. It carries a maximum available penalty of 12 years’ imprisonment.

The offender was committed for trial in relation to the matters before the Court and related charges. After two mentions, the proceedings were listed for trial at short notice. The trial was to commence on 30 June 2014. On 25 June 2014 the offender pleaded guilty to the charges before the Court in full satisfaction of the indictment. The plea was entered neither as soon as the offender was committed for trial nor at the last minute in the Supreme Court. In these circumstances, a discount of 15 percent for the pleas of guilty is appropriate.

The offender was arrested in Queensland on 10 October 2013. Subsequently, he served a one month sentence for an unrelated matter. Consequently, the appropriate date from which to commence the sentences that I will impose is 10 November 2013.

The victim was an 18 year old girl who resided in a granny flat at her mother’s house. At about 12.40 am on 10 September 2013, she was alone in bed in the granny flat. The offender opened the door to the granny flat and walked in. The door had not been locked. The offender smelt strongly of alcohol. The victim told him that he should not come in and should go away. She reached for her phone but the offender told her that she should not touch it.

The offender then forced the victim to engage in a series of acts of sexual intercourse. He threatened that he would “hurt” her if she did not comply. She began to cry and asked him to desist. Initially, he forced…

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 March

Details

AGLC: R v March [2014] ACTSC 244
Case: [2014] ACTSC 244
Decision Date: 31 July 2014

CaseChat Overview and Summary

The appellant, March, was convicted of burglary and sexual intercourse without consent. He appealed against the severity of the sentence imposed by the primary judge. The appeal was heard in the Court of Appeal. The central legal issue was whether the primary judge had erred in the principles applied in sentencing the appellant, and whether the sentence was manifestly excessive.

The Court of Appeal considered the principles of sentencing in the context of the crimes committed. The court noted the appellant's guilty plea, which resulted in a discount to his sentence. The court assessed the gravity of the offences, emphasising the serious nature of the sexual assault and the violation of the victim's autonomy. The court also took into account the appellant's background, including his prior criminal history and personal circumstances. After careful consideration, the Court of Appeal found that the primary judge had correctly applied the relevant sentencing principles and that the sentence was not manifestly excessive.

The Court of Appeal dismissed the appeal. In light of this decision, the court did not alter the sentence imposed by the primary judge. The appellant's conviction and sentence stand as determined by the primary judge, with the Court of Appeal confirming the appropriate application of sentencing principles in this case.

Orders

Orders of the court

See [37]-[41]

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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