R v MC
[2018] ACTSC 350
•13 December 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v MC |
Citation: | [2018] ACTSC 350 |
Hearing Date: | 13 December 2018 |
DecisionDate: | 13 December 2018 |
Before: | Elkaim J |
Decision: | See [15] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – acts of indecency without consent – act of indecency in the third degree |
Legislation Cited: | Crimes Act 1900 (ACT) ss 53 and 60(1) Crimes (Sentencing) Act 2005 (ACT) ss 6, 7 and 10 Crimes (Sentencing Administration) Act 2005 (ACT) |
Parties: | The Queen (Crown) MC (Offender) |
Representation: | Counsel Mr P Dixon (Crown) Ms B Morrisroe (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 53A of 2018 |
ELKAIM J:
The offender came to trial before a judge and jury on 8 October 2018. He faced eight counts in an indictment, one of which was put in the alternative.
On 11 October 2018, the jury returned verdicts of guilty on Counts 2, 7 and 8. There were verdicts of not guilty on Counts 1, 4, 5 and 6. The jury could not reach a verdict on Count 3. The Crown has since abandoned this count.
The offences in respect of which the offender was convicted and their maximum penalties are as follows:
(a)Two offences of an act of indecency without consent (CC 2017/11168; CC 2017/11164), contrary to the s 60(1) of the Crimes Act 1900 (ACT), which carries a maximum penalty of 7 years’ imprisonment.
(b)An offence of act of indecency in the third degree (XO 2018/31312), contrary to s 59 of the Crimes Act 1900 (ACT), which carries a maximum penalty of 10 years’ imprisonment.
All of the charges concerned a visit to the complainant’s residence on 25 April 2017. It is apparent from the guilty verdicts that the jury was satisfied beyond reasonable doubt that the offender attempted to suck the complainant’s abdomen in order to create a love bite (Count 2), that he pulled down the complainant’s pants with the intention of committing an act of indecency upon her (Count 7) and that, while trying to lower his own pants he leaned against the back of the complainant’s legs to prevent her from getting up (Count 8). It is implicit in the verdicts that each act committed upon the complainant was indecent, or intended to be indecent, and that she did not consent to the acts.
The offender was born in 1975. He has a criminal record but the last recorded matter was some 20 years ago. There are no matters of a similar nature to the current offences.
The offender was raised in Queensland as one of six siblings. His mother died when he was 13 years of age. He left the family home two years later. He lived on the streets until he achieved independence and started working.
The offender was married for 12 years and has had a number of relationships. He has four children from the assorted relationships. He has contact with three adult children but not with a three year old child.
The offender has worked with youth and assisted them through his music. He has travelled widely in Australia and overseas in pursuit of his music career.
The offender is currently unemployed but does have a work history in social work, drug and alcohol services and government positions. He was working in youth detox when the offences occurred.
10. The offender has had a problem with alcohol. He has attended Alcoholics Anonymous. He has stopped drinking from October 2017.
11. According to the Pre-Sentence Report the offender maintains his innocence. I note, however, that his appeal has been withdrawn.
12. It is important in sentencing the offender that I take into account the objects and principles of sentencing as set out in ss 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT). Section 10 is also important because it says that a person should not be sent to prison except as a last resort.
13. Section 33 dictates relevant considerations. They include the loss occasioned by the offending. There is a Victim Impact Statement from the complainant in which she graphically describes the effects of the offender’s conduct. It has impacted upon her social life, her family relationships and her work. She has had flashbacks and suffered depression. She lost her job because she could not work in the same place as the offender. There is one caveat to the Victim Impact Statement which is that it appears to assume that the jury accepted all of the allegations made by the complainant. It is important to bear in mind that a number of the allegations were not accepted.
14. Offences of indecency are always to be condemned. However, it must be acknowledged that the offences in this case are of minor objective seriousness. I do not think they warrant full-time imprisonment.
15. I make the following orders:
(a)In respect of Count 2, act of indecency without consent (CC 2017/11164), the offender is sentenced to 3 months’ imprisonment to commence today and end on 12 March 2019.
(b)In respect of Count 7, act of indecency in the third degree (XO 2018/31312), the offender is sentenced to 12 months’ imprisonment to commence today and end on 12 December 2019.
(c)In respect of Count 8, act of indecency without consent (CC 2017/11168), the offender is sentenced to 9 months’ imprisonment to commence today and end on 12 September 2019.
(d)The above sentences are suspended with immediate effect on condition that the offender enter into a Good Behaviour Order for a period of 18 months and comply with his obligations under the Crimes (Sentence Administration) Act 2005 (ACT) and further that he accept the supervision of ACT Corrective Services and obeys all reasonable directions of the Director-General or her delegate for 18 months or such shorter time as the Director-General decides. The Good Behaviour Order is subject to the following additional condition: that the offender engage in an adult sex offenders program.
| I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: 13 December 2018 |
0
0
3