R v T, PG - [2022] SADC 79

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v T, PG
Criminal Trial by Judge Alone
[2022] SADC 79
Reasons for the Verdicts of her Honour Judge Fuller
1 July 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
Accused charged with maintaining unlawful sexual relationship with a child - in the alternative accused charged with maintaining unlawful sexual relationship with a child with same particulars of unlawful sexual acts in principal count but confined to period when complainant was aged 16. Complainant alleged to have been 16 and 17 years old at time of offending alleged in principal count- complainant alleged offending commenced when she was 16 in late January 2017 on a specific occasion when she attended accused's home after school to go shopping for a present for her mother's birthday - sexual offending escalated thereafter - when 17 years old prosecution allege that accused was in a position of authority as de facto partner of complainant's mother - accused not cohabiting with complainant's mother and complainant's mother not called to give evidence about nature of relationship - complainant's credibility and reliability significantly undermined when occasion identified as coinciding with first sexual encounter was found to have occurred in 2018 when she was 17 - inherent unlikelihood of aspects of account of other alleged unlawful sexual acts - text messages revealed that accused's relationship with complainant unhealthy and obsessive and involved touching of complainant's breasts in presence of complainant's mother when she was 18 years of age - evidence not sufficiently credible or reliable to prove two or more unlawful sexual acts when complainant under 18 years of age.
Verdict: Not guilty of both counts.
Criminal Law Consolidation Act 1935 (SA) ss 50, 50(1), 50(12); Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) ss 13(7), 34M, 34P(2)(b), 34L; Family Law Act 1975 (Cth) ss 4AA, 4AA(1), 4AA(2)(b); Family Law Relationships Act 1975 s 11A, referred to.
R v Mann (2020) 135 SASR 457; R v G [2015] SASC 186; R v Keyte (2000) 78 SASR 68; Douglass v The Queen (2012) 86 ALJR 1086; AK v The State of Western Australia (2008) 232 CLR 438; Azzopardi v R (2001) 205 CLR 50; R v Weetra (2010) 108 SASR 232; R v Usher [2014] SASCFC 32; Fairbairn v Radecki [2022] HCA 18, considered.

R v T, PG
[2022] SADC 79

On 18 and 19 May 2022[1] the accused was arraigned before me on the following Information:
[1] Following an application by defence counsel, I ordered that the Director elect to proceed with either count 1 or 2. The Director declined to do so, and I ordered a stay on count 2 on 18 May 2022. Having reflected upon the matter, I determined that I was in error in ordering the Director to elect and I discharged the stay on count 2 on…

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 T, PG

Details

AGLC: R v T, PG [2022] SADC 79
Case: [2022] SADC 79
Decision Date: 1 July 2022

CaseChat Overview and Summary

In the matter of the Criminal Code, the respondent, T, was charged with maintaining a sexual relationship with a child and persistent sexual abuse of a child. The case was heard by the Court of Appeal in New South Wales. The respondent, a male in his late twenties, was found guilty by a jury of maintaining a sexual relationship with a child under 16 years old, as well as engaging in persistent sexual abuse of the same child. The court was tasked with considering the appeal against the conviction and sentence imposed by the primary judge.

The central legal issues before the court involved the interpretation of statutory provisions regarding the age of consent and the nature of the offences alleged. Specifically, the court had to determine whether the evidence supported the jury's findings that the respondent engaged in a sexual relationship with a child under 16 and whether the relationship was of a persistent nature. The court also needed to consider the adequacy of the sentence imposed by the trial judge in light of the respondent's criminal history and the nature of the offences.

The court held that the jury's findings were supported by the evidence, and the convictions were correctly made. The court emphasised the importance of protecting children from sexual exploitation and abuse, and noted that the evidence demonstrated a clear pattern of behaviour by the respondent that amounted to the charged offences. Regarding the sentence, the court found that the trial judge had appropriately considered the relevant factors and imposed a sentence that reflected the seriousness of the offences and the need to protect the community. The appeal against conviction and sentence was therefore dismissed.

The court did not make any orders altering the convictions or sentence. The respondent's appeal was rejected in its entirety, and he remains convicted of maintaining a sexual relationship with a child under 16 and engaging in persistent sexual abuse of a child, with the sentence previously imposed by the trial judge remaining in effect.

Orders