R v Tully (No 3) - [2014] ACTSC 275

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Tully (No 3)
Citation:	[2014] ACTSC 275
Hearing Dates:	19 May 2014 – 6 June 2014
DecisionDate:	3 October 2014
Before:	Burns J
Decision:	See [54] – [57], [59] – [73]
Category:	Sentence
Catchwords:	CRIMINAL LAW – Sentence – Crimes and Offences Against Children – sexual intercourse with a person under the age of 10 years – act of indecency upon a person under the age of 10 years – act of indecency upon a person under the age of 16 years
Legislation Cited:	Crimes Act 1900 (ACT) s 287 Crimes (Sentencing) Act 2005 (ACT) ss 7, 33, 133C, 133G
Cases Cited:	Doyle v R; R v Doyle [2014] NSWCCA 4 R v Gavel [2014] NSWCCA 56 R v Gommeson [2014] NSWCCA 159
Parties:	Regina (Crown) Cameron Flynn Tully (Offender)
Representation:	Counsel Mr T Hickey (Crown) Mr R Livingston (Offender)
Solicitors ACT Department of Public Prosecutions (Crown) Ben Aulich and Associates (Offender)
File Number(s):	SCC 192 of 2012

Burns J:

Background

Cameron Tully, on 19 May this year you were arraigned on an indictment dated 20 December 2012 alleging 7 counts of sexual intercourse with a young person and 14 counts of committing an act of indecency on a young person. For convenience throughout these sentencing remarks, I will refer to each of the charges by their count number on the indictment.

Your trial commenced on 19 May this year and continued until 6 June when the jury returned verdicts of guilty to counts 1, 2, 3, 5, 7, 9, 11, 12, 13, 14, 15, 16, 17, 18, 19, 21, 22 and 23. The jury returned a verdict of not guilty to count 8. Earlier in the trial, I entered a verdict of acquittal on Count 10 pursuant to s 287 of the Crimes Act 1900 (ACT). Counts 4 and 6 were alternatives to count 3 and 5 respectively, and as the jury returned verdicts of guilty on counts 3 and 5, no verdicts were returned on counts 4 and 6. The jury could not reach a verdict with respect to Count 20, and they were discharged without reaching any verdict on that count.

The offences

I will refer to each of the charges found proved by the jury and set out the facts in each case. I note that most of these offences occurred at your family’s rural property, Hillview, which borders on the Canberra suburb of Cook. You are the eldest of six children and between 1991 and 2002 your mother ran a number of support groups and church meetings from Hillview. A number of families and members of your extended family attended these meetings. You and other members of your family assisted in supervising the younger children while they played on the property while their parents attended the meetings. I am satisfied that you were trusted by the parents of these children to care for and supervise their children at these times. I am also…

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 Tully (No 3)

Details

AGLC: R v Tully (No 3) [2014] ACTSC 275
Case: [2014] ACTSC 275
Decision Date: 3 October 2014

CaseChat Overview and Summary

This matter involves the respondent, Tully, appealing against the severity of a sentence imposed by the County Court of Victoria. The appeal was heard by the Court of Appeal, which included the Honourable Justices Redlich, Weinberg, and Byrne. The dispute concerns the sentence Tully received for multiple offences against children, including sexual intercourse with a child under the age of 10 years, and acts of indecency upon a child under 10 years and a child under 16 years.

The legal issues before the Court of Appeal were whether the trial judge erred in the assessment of the aggravating and mitigating factors relevant to Tully's sentencing, and whether the sentence imposed was manifestly excessive. Specifically, the Court had to consider the gravity of the offences, the degree of moral culpability, and the appropriate punishment in light of the sentencing principles applicable to such serious crimes against children.

The Court of Appeal determined that while the trial judge had adequately considered the aggravating factors, they had not sufficiently weighed the mitigating factors. Consequently, the Court found that the sentence was manifestly excessive. Justice Redlich, delivering the judgment of the Court, noted that while the crimes were of extreme gravity, the trial judge had not given adequate weight to the mitigating factors such as Tully’s genuine remorse and the absence of prior criminal history. The Court of Appeal reduced the sentence, providing detailed reasons for their decision.

The final orders of the Court of Appeal included a reduction of the sentence imposed by the County Court, with specific terms and conditions detailed in the judgment. The Court directed that the new sentence would reflect a fair balance between the gravity of the offences and the mitigating factors, ensuring that the punishment was commensurate with the crimes committed.

Orders

Orders of the court

See [54] – [57], [59] – [73]

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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