R v Porter (No 2) - [2022] ACTSC 50

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Porter (No 2)
Citation:	[2022] ACTSC 50
Hearing Dates:	28 – 29 October 2021, 18 November 2021
DecisionDate:	21 March 2022
Before:	Loukas-Karlsson J
Decision:	See [262]-[266]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – disputed facts hearing – engaging in a sexual relationship with a child under special care – guilty plea – dispute regarding number of occasions of sexual activity – dispute regarding number of occasions of penile-anal intercourse
Legislation Cited:	Crimes Act 1900 (ACT) ss 56, 64, 65, 66 Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 74
Cases Cited:	Duffy v The Queen [2009] NSWCCA 304 Filippou v The Queen [2015] HCA 29; 256 CLR 47 Hinton v Brisbane [1992] ACTSC 42 Leach v The Queen [2007] HCA 3; 230 CLR 1 Liberato v The Queen (1985) 159 CLR 507 R v Johnson [2015] SASCFC 170 R v O’Neill [1979] 2 NSWLR 582 The Queen v Olbrich [1999] HCA 54; 199 CLR 270
Texts Cited:	Explanatory Statement, Royal Commission Criminal Justice Legislation Amendment Bill 2020 (ACT)
Parties:	The Queen (Crown) Stephen James Porter (Offender)
Representation:	Counsel A Chatterton (Crown) J Pappas (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Hugo Law Group (Offender)
File Number:	SCC 40 of 2021

LOUKAS-KARLSSON J:

Introduction

On 2 September 2021, Stephen Porter (the offender) was arraigned and entered pleas of guilty to the following offences:

(a) Count 1: Use child under 12 years of age to produce child exploitation material, contrary to s 64(1) of the Crimes Act 1900 (ACT) (Crimes Act). Count 1 is in respect of the victim Alexander Goodwin (a pseudonym).

(b) Count 2: Engage in a sexual relationship with a child under special care, contrary to s 56(1) of the Crimes Act. Count 2 is in respect of the victim Wesley Mason (a pseudonym).

(c) Count 3: Engage in conduct with a young person with the intention of making it more likely that the young person would commit or take part in an act of a sexual nature (grooming), contrary to s 66(1)(b) of the Crimes Act. Count 3 is in respect of the victim Riley Priestley (a pseudonym).

(d) Count 4: Possess child exploitation material, contrary to s 65(1) of the Crimes Act.

Pursuant to s 74 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), the victims have all been anonymised by the substitution of different names in this judgment. The pseudonyms are as set out above. The key to the anonymisation is contained in a schedule to these reasons, which will be provided to the parties, kept on the court file, and not published on the internet.

Notwithstanding his plea of guilty, in relation to count 2, the offender contests the facts in relation to the sexual relationship with a child, Wesley Mason, under special care. That matter was listed for a disputed facts hearing which commenced before the Court…

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 Porter (No 2)

Details

AGLC: R v Porter (No 2) [2022] ACTSC 50
Case: [2022] ACTSC 50
Decision Date

CaseChat Overview and Summary

The offender, Stephen James Porter, was charged with engaging in a sexual relationship with a child under special care, producing child exploitation material, possessing child exploitation material, and grooming a young person with the intention of making it more likely that the young person would commit or take part in an act of a sexual nature. Porter pleaded guilty to all counts but disputed the facts in relation to the sexual relationship with a child, Wesley Mason. The Supreme Court of the Australian Capital Territory held a disputed facts hearing to determine the number of occasions the offender engaged in sexual activity with the complainant and the number of times penile-anal intercourse occurred. The prosecution contended that the offender engaged in sexual activity with the complainant between 35 and 45 times, while the offender contended that sexual activity occurred between 14 and 15 times. In relation to the number of times penile-anal penetration occurred, the prosecution contended that it occurred on every occasion of sexual activity after the first such occasion, whereas the offender contended that it occurred on two occasions only. The Court found that the complainant presented as an honest and impressive witness and found his evidence to be truthful. The Court found the offender's evidence to be deceptive and found that the offender engaged in sexual activity with the complainant on at least 35 occasions and that each occasion, bar the first, involved penile-anal intercourse as part of the sexual activity engaged in thereafter.

Orders