R v SM - [2017] ACTSC 288

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v SM
Citation:	[2017] ACTSC 288
Hearing Date:	9 August 2017
DecisionDate:	3 October 2017
Before:	Robinson AJ
Decision:	See [52]-[61]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – seven counts of committing an act of indecency upon a person aged between 12 and 13 years old – jury returned verdicts of guilty – relationship of step grandfather and step granddaughter – breach of trust – aged between 12 and 13 years old – first two counts were moderate or less serious – remaining five counts very serious acts – no planning – victim impact statement – Pre-Sentence Report – medical report – troubled upbringing – injuries – no suggestion of contrition or remorse – prospects for rehabilitation no worse than average – gravity of offending – denouncing conduct – recognising harm – totality – sentences of imprisonment imposed
Legislation Cited:	Crimes Act 1900 (ACT) s 61(2) Crimes (Sentencing) Act 2005 (ACT) s 7
Cases Cited:	Knight v State of Victoria [2017] HCA 29 Mill v The Queen [1988] HCA 70; 166 CLR 59 Nguyen v The Queen [2016] HCA 17; 256 CLR 656 Power v The Queen (1974) 131 CLR 623 R v BI (No.4) [2017] ACTSC 71 R v Fischetti No. 5 [2016] ACTSC 213 R v Landsman (2014) [2014] NSWCCA 328; 88 NSWLR 534
Parties:	The Queen (Crown) SM (Offender)
Representation:	Counsel Ms K McCann (Crown) Mr R Davies (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number:	SCC 146 of 2016

ROBINSON AJ:

On 10 April 2017, SM, the offender, was arraigned upon an indictment on seven counts of committing an act of indecency upon a person I will call LG to protect her identity.

At the time of the offences, LG was a young person being aged between 12 and 13 years old.

The seven counts were said to have been committed in the period 18 October 2014 and 18 November 2015, a period of some 13 months.

The offender pleaded not guilty to each count.

The offence is contrary to s 61(2) of the Crimes Act 1900 (ACT) and carries a maximum penalty of 10 years imprisonment.

On 13 April 2017 the jury returned verdicts of guilty on all seven counts.

Following the jury’s verdicts, I remanded the offender in custody and his sentence will commence from this date. There has been some delay in the sentencing process not attributable to anyone’s fault.

The offences

The offender and LG stood, at the time of the offences, in the relationship of step grandfather and step granddaughter, the offender having married LG’s biological maternal grandmother (Mrs M) in 2005. The offender has known LG for all her life.

For many years prior to the offending, LG would go to her grandparents’ house, normally every second weekend, where she would stay over. LG formed, what appears to have been a very…

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 SM

Details

AGLC: R v SM [2017] ACTSC 288
Case: [2017] ACTSC 288
Decision Date: 3 October 2017

CaseChat Overview and Summary

In the Supreme Court of Queensland, the case of R v SM addressed the sentencing of the appellant, SM, who had been found guilty of seven counts of committing acts of indecency against a step granddaughter, aged between 12 and 13 years old at the time of the offences. The jury returned verdicts of guilty on all counts, highlighting a severe breach of trust given the familial relationship. The legal issues the court had to resolve included the appropriate punishment for the crimes, the gravity of the offences, and the prospects of rehabilitation of the offender.

The court examined the nature and circumstances of the offences, which involved very serious acts of indecency, with the first two counts being moderate or less serious. The court considered the lack of planning, the absence of contrition or remorse from the offender, and the victim impact statement which detailed the significant harm caused. Additionally, the court reviewed the Pre-Sentence Report and the medical report, which noted the troubled upbringing and injuries sustained by the offender. Despite the troubled background, the court determined the gravity of the offending necessitated a denunciation of the conduct and recognition of the harm caused.

The court, after weighing all relevant factors, imposed sentences of imprisonment for each count, ensuring that the totality of the sentences reflected the seriousness of the crimes. The sentences were structured to adequately denounce the conduct, recognise the harm caused, and consider the prospects for rehabilitation, which were assessed as no worse than average. The court concluded that the sentences appropriately balanced the need to protect the community and the prospects for rehabilitation of the offender.

Orders

Orders of the court

See [52]-[61]

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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