R v Middleton (No 2) - [2020] ACTSC 123

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Middleton (No 2)
Citation:	[2020] ACTSC 123
Hearing Dates:	24 April 2020, 5 May 2020
DecisionDate:	15 May 2020
Before:	Burns J
Decision:	See [78]–[90]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Re-sentence – plea of guilty – two counts engaging in sexual intercourse with a young person under the age of 10 years – three counts engaging in sexual intercourse with a young person under the age of 16 years – four counts committing an act of indecency on a person under the age of 10 years – original judge misinformed about maximum penalty – fresh evidence – impact of mental impairment on offending – consideration of community protection
Legislation Cited:	Crimes Act 1900 (ACT) ss 55(1), 55(2), 61(1) Crimes (Sentencing) Act 2005 (ACT) s 7
Cases Cited:	Middleton v The Queen [2020] ACTCA 6 R v Middleton [2018] ACTSC 198
Parties:	The Queen (Crown) Peter Middleton (Offender)
Representation:	Counsel R Christensen (Crown) P Boulten SC (24 April 2020, 5 May 2020); T Taylor (14 April 2020, 5 May 2020, 15 May 2020) (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) McKenna Taylor (Offender)
File Number:	SCC 283 of 2017

BURNS J:

Peter Middleton, you appear before me today via video link to be sentenced for multiple sexual offences committed against two young girls who I will refer to as DE and FE respectively. DE and FE are sisters. Their grandparents were longstanding friends of yours. You were regarded as a member of the victims' family and were referred to by the children as “uncle”.

The offending occurred between 20 January 2017 and 19 June 2017 at which time FE was seven years old and DE was nine or 10 years old. The charges upon which you are to be sentenced may be summarised as:

·
two counts of engaging in sexual intercourse with a young person under the age of 10 years, being DE, contrary to s 55(1) of the Crimes Act 1900 (ACT)

(the Crimes Act) carrying a maximum penalty of 17 years' imprisonment;

· three counts of engaging in sexual intercourse with a young person under the age of 16 years, being DE, contrary to s 55(2) of the Crimes Act carrying a maximum penalty of 14 years' imprisonment;

·
two counts of committing an act of indecency on DE, being a person under

the age of 10 years, contrary to s 61(1) of the Crimes Act, carrying a maximum penalty of 12 years' imprisonment; and

·
two counts of committing an act of indecency on FE, being a person under

the age of 10 years, contrary to s 61(1) of the Crimes Act, which also carries a maximum penalty of 12 years' imprisonment.

You were arrested and charged with these offences on 18 June 2017. You first came before the ACT Magistrates Court the following day, 19 June 2017, at which time you were released on…

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 Middleton (No 2)

Details

AGLC: R v Middleton (No 2) [2020] ACTSC 123
Case: [2020] ACTSC 123
Decision Date: 15 May 2020

CaseChat Overview and Summary

The appeal arose from a case heard by the Court of Appeal of the Supreme Court of South Australia, where the appellant, Middleton, was convicted on multiple counts of engaging in sexual intercourse with a young person under the age of 10 years and under the age of 16 years, as well as committing acts of indecency on a person under the age of 10 years. The original sentencing judge had been misinformed about the maximum penalties applicable to these offences, leading to the need for a re-sentencing hearing. The court was required to determine whether the new evidence regarding the maximum penalties and the appellant's mental impairment warranted a different sentence.

The court examined whether the original sentence was appropriate in light of the new information about the maximum penalties and the impact of the appellant's mental impairment on his offending behaviour. The court had to balance the need for community protection with the appellant's personal circumstances, including his mental state and the likelihood of rehabilitation. The court considered the severity of the offences, the appellant's history of offending, and the impact of his mental impairment on his capacity to understand and control his actions.

The court found that the original sentence did not adequately reflect the maximum penalties available for the offences and did not sufficiently consider the appellant's mental impairment. The court acknowledged that while the appellant's mental impairment did not excuse his actions, it was a relevant factor that should have been given more weight in the sentencing process. The court decided to re-sentence the appellant, taking into account the maximum penalties and the impact of his mental impairment on his offending. The court also considered the need to protect the community from the appellant's future offending.

The court ordered a new sentence for the appellant, taking into account the maximum penalties for the offences and the impact of his mental impairment. The court specified the new sentence, which included a term of imprisonment and other conditions, such as registration as a sex offender and participation in a rehabilitation program. The court emphasised the importance of ensuring that the sentence reflected the seriousness of the offences and provided adequate protection for the community.

Orders

Orders of the court

See [78]–[90]

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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