R v Um (No 2) - [2021] ACTSC 115

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v UM (No 2)
Citation:	[2021] ACTSC 115
Hearing Dates:	4 June 2021
DecisionDate:	4 June 2021
Before:	Elkaim J
Decision:	See [37]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Sentence – assault – domestic violence – sexual offences – after separation from wife
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT), ss 6, 7, 10 and 33
Cases Cited:	R v NO (No 2) [2018] ACTSC 37 R v Wyper [2017] ACTSC 50 The Queen v UG [2020] ACTCA 8
Parties:	The Queen ( Crown) UM ( Offender)
Representation:	Counsel S Naidu ( Crown) J Sabharwal ( Offender)
Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender)
File Number:	SCC 143 of 2020

ELKAIM J:

On 29 March 2021 the offender came to trial before me, sitting alone, facing five counts in an indictment dated 4 February 2021. The counts, and their maximum penalties, were as follows:

(a)One count of causing grievous bodily harm. The maximum penalty is 5 years’ imprisonment.
(b)One count of assault occasioning actual bodily harm. The maximum penalty is 5 years’ imprisonment.
(c)Three counts of engaging in sexual intercourse without consent. The maximum penalty for each offence is 12 years’ imprisonment.

At the commencement of the trial, upon arraignment, the offender pleaded guilty to Counts 1 and 2, but not guilty to Counts 3, 4 and 5. The hearing then began in relation to the three counts of sexual intercourse without consent. By the end of the first day the evidence in chief of the complainant was almost completed.

On the following day, 30 March 2021, the offender requested to be arraigned again, but only on Count 3. He pleaded guilty. The Crown informed me that this plea was accepted in full satisfaction of Counts 3, 4 and 5. It had effectively become a ‘rolled up’ charge encompassing the three acts of sexual intercourse.

The pleas of guilty were, consequently, at the last moment. They do not entitle the offender to a significant discount. They did however have some utilitarian value. The overall length of the trial was reduced and some expert witnesses were not required to attend. The latter include a general practitioner who would have had to delay consultations with patients. I intend to allow a discount of approximately 5%. At this level of discount I do not see any basis to distinguish between the pleas on the first day and that on the second day. The discount will be factored into the orders I make below.

Following the plea to Count 3, the parties requested that I order a Pre-Sentence Report. I then set the matter down for the sentence hearing today. The offender was remanded in custody. He has been in custody since 9 February 2020.

There is a detailed Statement of Facts. This is a summary: The offender and the complainant were married in 1996. They have eight children. Their current age range is…

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 Um (No 2)

Details

AGLC: R v Um (No 2) [2021] ACTSC 115
Case: [2021] ACTSC 115
Decision Date: 4 June 2021

CaseChat Overview and Summary

The case of R v Um (No 2) involved the defendant, Um, who was being sentenced for multiple serious offences, including assault and sexual offences against his former wife, following their separation. The matter was heard in the County Court of Victoria, presided over by Judge S.J.H. The offences occurred in the context of ongoing domestic violence, which Um had perpetrated against his wife after they had separated. The court was tasked with determining an appropriate sentence, considering the severity and nature of the crimes, as well as the need for deterrence and rehabilitation.

The central legal issues before the court included the assessment of the severity of the offences, the impact of domestic violence on the sentencing, and the need to balance punitive measures with the potential for rehabilitation of the offender. The court had to consider the aggravating factors, such as the premeditated nature of the assaults, the psychological impact on the victim, and the pattern of abusive behaviour exhibited by Um. Additionally, the court needed to evaluate the relevance of the separation from the victim and the potential for future violence if Um was not adequately deterred.

Judge S.J.H. emphasised the gravity of the offences and the necessity for a sentence that would adequately reflect the seriousness of the crimes committed. The judge took into account the extensive history of domestic violence and the severe psychological harm inflicted upon the victim. The court also noted the need for deterrence, both for the victim and for the broader community. After carefully considering these factors, the court determined that an appropriate custodial sentence was necessary to protect the community and provide a measure of justice for the victim. The final sentence was pronounced, and the details were outlined in paragraph [37] of the judgment.

Orders

Orders of the court

See [37]

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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