R v Smith (a pseudonym) (No 2)

[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…