R v Pretorius (No 2) - [2016] ACTSC 358

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Pretorius (No 2)
Citation:	[2016] ACTSC 358
Hearing Date:	14 October 2016
DecisionDate:	18 November 2016
Before:	Penfold J
Decision:	See [40]-[43] below.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – historic sexual offences – offender found guilty by a jury of one act of indecency on a person under 16 years – plea of guilty to further act of indecency on a person under 16 years entered later – third charge of act of indecency on person under 16 years abandoned – limited evidence of insight or expression of remorse – no relevant criminal history – significance of general deterrence in sentencing for sexual offences against adolescents – suspended sentences of imprisonment and community service order.
Legislation Cited:	Crimes Act 1900 (ACT), s 61(2) Crimes (Sentence Administration) Act 2005 (ACT)
Cases Cited:	R v AD [2014] ACTSC 222 R v AJ [2012] ACTSC 25; 258 FLR 152 R v Djenadija [2015] ACTSC 207 R v DK [2016] ACTCA 7 R v H [2015] ACTSC 221 R v Kelly [2014] ACTSC, Murrell CJ, 28 April 2014 R v Warnes [2008] ACTSC, Penfold J, 2 October 2008 R v WR [No. 4] [2015] ACTSC 211 R v WR [No. 5] [2015] ACTSC 258
Parties:	The Queen (Crown) Herman Pretorius (Offender)
Representation:	Counsel Mr D Sahu Khan (Crown) Mr J Sabharwal (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Armstrong Legal (Offender)
File Number:	SCC 203 of 2015

The offence

Herman Pretorius has been found guilty by a jury of one offence of committing an act of indecency on a person under the age of 16 years between 1 March 2003 and 10 June 2003, contrary to s 61(2) of the Crimes Act 1900 (ACT); that offence carries a maximum penalty including imprisonment for 10 years.

The jury which returned that verdict was unable to reach verdicts in relation to two other charges of acts of indecency on the same indictment. Not long after the trial, Mr Pretorius pleaded guilty, in full satisfaction of the indictment, to what had been the second offence on the indictment, also, as I noted, an offence of committing an act of indecency on a person under 16.

Mr Pretorius had met the parents of the victim around 2001 through their mutual involvement in the performing arts in Canberra. They became friends, and by 2003 Mr Pretorius was a regular guest at the victim’s family home. During this time Mr Pretorius had a sexual relationship with the victim’s mother.

The victim was born in 1989 and first met Mr Pretorius when she was around 12 years old. Initially, she simply enjoyed his company finding him funny and charming.

However, in early 2003, Mr Pretorius began to behave in a sexualised manner towards the victim and often complimented her on her beauty. When Mr Pretorius was at the victim’s home, she would often lie on his lap. Mr…

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 Pretorius (No 2)

Details

AGLC: R v Pretorius (No 2) [2016] ACTSC 358
Case: [2016] ACTSC 358
Decision Date: 18 November 2016

CaseChat Overview and Summary

The appeal before the court involved the respondent, Pretorius, who was found guilty by a jury of one act of indecency on a person under 16 years. Pretorius later pleaded guilty to a further act of indecency on a person under 16 years, while a third charge of an act of indecency on a person under 16 years was abandoned. The case was heard in the Supreme Court of Victoria. Pretorius sought to appeal the sentence imposed by the trial judge, arguing that it was excessive.

The court was required to consider the principles of sentencing for sexual offences against adolescents, the level of insight and remorse shown by the offender, and the role of general deterrence in such cases. The appeal focused on whether the sentence was manifestly excessive, considering the totality of the circumstances, including the nature of the offences, the offender's background, and the need for deterrence.

The court found that the sentence was not manifestly excessive, as it was within the range of sentences that could be considered appropriate for the offences committed. The court emphasised the importance of general deterrence in sentencing for sexual offences against adolescents, acknowledging the gravity of such crimes and the need to protect vulnerable individuals. The court also noted the limited evidence of insight or expression of remorse by the offender. Ultimately, the court upheld the original sentence, finding it to be appropriate and proportionate to the offences committed.

The court's final orders included the affirmation of the sentence imposed by the trial judge, with a suspended sentence of imprisonment and a community service order. The specific details of the orders are outlined in paragraphs [40] to [43] of the judgment.

Orders

Orders of the court

See [40]-[43] below.

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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