R v Qi (No 2)

[2016] ACTSC 188

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v QI (No 2)

Citation:

[2016] ACTSC 188

Hearing Date(s):

6 July 2016

DecisionDate:

6 July 2016

Before:

Murrell CJ

Decision:

Convicted and sentenced to 30 months’ imprisonment; the first seven months and 14 days to be served in full-time imprisonment and the remainder suspended upon entering into a two-year good behaviour order.  

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual offences – sexual intercourse with person under 16 years – intoxication – abuse of position of trust – low risk of re‑offending

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT) ss 7, 12, 33, 35

Crimes Act 1900 (ACT) s 55(2)

Cases Cited:

R v AM (Unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 28 March 2014)

R v Barker [2014] ACTSC 115
R v Bye (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 3 July 2012)
R v KF (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 23 July 2012)

R v P (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 9 January 2013)

R v Payne [2015] ACTSC 345

Parties:

The Queen (Crown)

QI (Offender)

Representation:

Counsel

Ms P Burgoyne-Scutts (Crown)

Mr M Kukulies-Smith (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Kamy Saeedi Law (Offender)

File Number(s):

SCC 191 of 2015

MURRELL CJ:

1. The offender pleaded guilty to two offences of engaging in sexual intercourse with a person under the age of 16 years contrary to s 55(2) of the Crimes Act 1900 (ACT) (Crimes Act).  The maximum penalty is 14 years' imprisonment. 

1. The pleas of guilty were entered in the week preceding the trial date, and after tendency and relationship applications had been granted.  As a result of the negotiations, the prosecution accepted pleas to Counts 3 and 6 in the indictment in full satisfaction of the remaining counts.

1. The offender gave evidence that he had decided to plead guilty at the last moment because he realised that he did not want to put the victim and her family through the trauma of a trial.  Previously, he "was in denial" and "couldn't come to grips with what he had done."  Additional factors that motivated the offender to plead guilty were that he did not want to put his own family through the trial and he decided to accept responsibility for his actions. 

1. Taking into account the matters referred to in s 35 of the Crimes (Sentencing) Act 2005 (ACT), a discount of approximately 12.5% should be allowed on the sentences that I would otherwise have imposed.

Facts

1. In about 2004, the victim met the offender when he began to date her older sister.  The victim was about 10 years old.

1. By 2008/2009, the victim and the offender had a close relationship.  They would often discuss personal matters, including matters of a sexual nature.  The offender became a confidant to the victim.

1. On about 30 September 2009, when…