R v Payne - [2015] ACTSC 345

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Payne
Citation:	[2015] ACTSC 345
Hearing Date(s):	30 October 2015
DecisionDate:	30 October 2015
Before:	Walmsley AJ
Decision:	See [39] – [42].
Category:	Sentence
Catchwords:	CRIMINAL LAW – Sentencing – particular offences – sexual offences – act of indecency on a person under the age of 16 years – sexual intercourse with a person under the age of 16 years – pleas of guilty
Legislation Cited:	Crimes Act 1900 (ACT), ss 55(2), 61(2)
Cases Cited:	Monfries v The Queen [2014] ACTCA 46 R v Fortaleza (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 8 February 2012) R v Kelly (Unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 28 April 2014) R v KF (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 23 July 2012)
Parties:	The Queen (Crown) Warwick James Payne (Offender)
Representation:	Counsel Ms J Campbell (Crown) Mr R Davies (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number(s):	SCC 91 of 2015

WALMSLEY AJ:

Background

The offender, Warwick James Payne, pleaded guilty to two counts, one being sexual intercourse with a person under 16 years of age, and the other being committing an act of indecency on a young person under 16 years.

The first offence is contrary to the provisions of s 55(2) of the Crimes Act and carries a maximum penalty of 14 years' imprisonment. The act of indecency is contrary to s 61(2) of the Crimes Act and carries a maximum penalty of 10 years.

The Offences

According to the agreed facts, the offender was born in 1967.

In short, on 12 October 2014, he inserted his fingers into a young person's vagina and later grabbed her bottom over her clothing as she was leaving his residence.

In October 2014 he was living in a Canberra suburb with one of his children and a stepchild. The victim had begun associating with the offender and his children when he moved into the house earlier in 2014 and she would often visit the offender's house and play with his children. The offender knew that she was, at the relevant time, 15 years of age.

On 12 October 2014 the two children were playing at the young person’s home and at about 8.30 pm that evening she walked the children to the offender's home. She continued to play with them there. They were playing various games including back bends, which was bending over backwards, arching their backs, and placing their hands on the floor behind them. This was in the lounge room of the home.

At a time when the young person was sitting on the lounge room floor she noticed the offender standing behind a couch directly opposite her and she noticed that he grabbed his crutch outside his jeans and adjusted his penis. He then mouthed some words to her but she did not understand what he said.

Later he made a number…

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 Payne

Details

AGLC: R v Payne [2015] ACTSC 345
Case: [2015] ACTSC 345
Decision Date: 30 October 2015

CaseChat Overview and Summary

In the case of R v Payne, the appellant stood before the court, having entered pleas of guilty to two serious charges: committing an act of indecency on a person under the age of sixteen years and engaging in sexual intercourse with a minor under the age of sixteen years. The court was tasked with determining an appropriate sentence for these offences, considering their gravity and the appellant's criminal history.

The primary legal issues before the court involved assessing the severity of the offences, evaluating the appellant's criminal history, and determining a sentence that balanced the need for punishment, deterrence, and rehabilitation. The court needed to consider relevant statutory provisions, judicial precedents, and sentencing principles pertinent to sexual offences against minors.

The court acknowledged the appellant's guilty pleas and the seriousness of the offences, which involved vulnerable victims under the age of sixteen. It noted the appellant's previous convictions, which indicated a pattern of similar offending. The court applied the principles of sentencing for sexual offences, weighing factors such as the gravity of the offence, the appellant's culpability, and the need for deterrence and community protection. Ultimately, the court decided on a sentence that aimed to adequately punish the appellant, deter future offending, and protect the community while also considering the potential for rehabilitation.

The final orders, detailed from paragraph [39] to [42], outlined the specific sentence imposed on the appellant, reflecting the court's careful consideration of all relevant factors.

Orders

Orders of the court

See [39] – [42].

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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