R v Smith (a pseudonym) (No 2)

Case [2020] ACTSC 260


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Smith (a pseudonym) (No 2)

Citation:

[2020] ACTSC 260

Hearing Date:

28 September 2020

DecisionDate:

29 September 2020

Before:

Mossop J

Decision:

See [51]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – sexual intercourse without consent – act of indecency – offender and victim were young persons – found guilty in judge alone trial – offender maintains not guilty plea – no remorse or insight into actions – importance of rehabilitation for a young offender – good support network – suspended sentence of imprisonment and good behaviour order

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – application by the offender not to be included on the child sex offender register – offender does not pose a risk to lives or sexual safety of people in the community – offender and victim were the same age – no evidence of inappropriate sexual inclination or involvement with children – inappropriate to  include the offender on the register in the circumstances of the case

Legislation Cited:

Crimes Act 1900 (ACT), ss 54(1), 60(1)

Crimes (Child Sex Offenders) Act 2005 (ACT), s 9
Crimes (Sentencing) Act 2005 (ACT), ss 7, 10, 133C, 133D, 133G
Criminal Code 2002 (ACT), s 712A

Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 74

Cases Cited:

Milner v AW [2014] ACTSC 231

R v Aroub [2017] ACTSC 187
R v Ballantyne (Unreported, ACT Supreme Court, Murrell CJ, 1 April 2014)
R v Buda-Kaa [2013] ACTCA 46
R v EO [2017] ACTSC 138
R v ME [2017] ACTSC 402
R v MT [2014] ACTSC 162
R v Smith (a pseudonym) [2020] ACTSC 142
R v UG [2018] ACTCA 64; 14 ACTLR 70
TM v Karapanos and Bakes [2011] ACTSC 74; 250 FLR 366

Wyper v The Queen [2017] ACTCA 59

Parties:

 The Queen (Crown)

 John Smith (Offender)

Representation:

Counsel

S Saikal-Skea (Crown)

S Whybrow (Offender)

Solicitors

 ACT Director of Public Prosecutions (Crown)

 Kamy Saeedi Law (Offender)

File Number:

SCC 170 of 2019

MOSSOP J:

Introduction

  1. On 4 June 2020, following a four day judge alone trial, I found the offender, a young man who was 17 years old at the time of the offending, guilty of one count of an act of indecency contrary to s 60(1) of the Crimes Act 1900 (ACT) and two counts of sexual intercourse without consent contrary to s 54(1) of the Crimes Act: R v Smith (a pseudonym) [2020] ACTSC 142 (R v Smith).  The maximum penalty for the act of indecency is seven years’ imprisonment and for the sexual intercourse without consent it is 12 years.

  1. In order to protect the identity of the victim (Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act) s 74) and the offender (Criminal Code 2002 (ACT) s 712A), I have adopted the same scheme for anonymisation as in R v Smith.   The key to…

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AGLC
R v Smith (a pseudonym) (No 2) [2020] ACTSC 260
Case
[2020] ACTSC 260
Decision Date

CaseChat Overview and Summary

The respondent, Smith, was found guilty in a judge alone trial of engaging in sexual intercourse without consent with a young person and committing an act of indecency. The offender maintains a plea of not guilty and has shown no remorse or insight into the actions. Smith was sentenced to a suspended sentence of imprisonment and a good behaviour order. The offender applied to not be included on the child sex offender register, arguing that he does not pose a risk to the lives or sexual safety of people in the community. The offender and victim were the same age, and there was no evidence of inappropriate sexual inclination or involvement with children.

The court was required to decide whether the offender should be included on the child sex offender register, given that he does not pose a risk to the community and there was no evidence of inappropriate sexual inclination or involvement with children. The court also needed to consider the importance of rehabilitation for a young offender, who has a good support network, in deciding the appropriate sentence.

The court found that it was inappropriate to include the offender on the child sex offender register in the circumstances of the case. The court recognised the importance of rehabilitation for a young offender and the good support network available to the offender. The court also considered that the offender does not pose a risk to the community and there was no evidence of inappropriate sexual inclination or involvement with children. The court imposed a suspended sentence of imprisonment and a good behaviour order.

The court ordered that the offender not be included on the child sex offender register. The court also imposed a suspended sentence of imprisonment and a good behaviour order.

Orders

Orders of the court

See [51]

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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