R v Ware (a pseudonym) - [2021] ACTSC 180

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Ware (a pseudonym)
Citation:	[2021] ACTSC 180
Hearing Date:	20 July 2021
DecisionDate:	28 July 2021
Before:	Burns J
Decision:	See [21]–[25]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – maintaining sexual relationship a child – two counts act of indecency on a young person under 16 years – pleas of guilty – where offender biological father of victim – where offending occurred over period of 4.5 years – where offender has not fully accepted responsibility for offending – no real risk of re-offending – terms of full-time imprisonment only appropriate sentencing option
Legislation Cited:	Crimes Act 1900 (ACT) ss 56(1), 92K(2) (now repealed)
Cases Cited:	R v CC [2016] ACTSC 43
Parties:	The Queen ( Crown) Irving Ware ( Offender)
Representation:	Counsel S Janackovic ( Crown) J Robertson ( Offender)
Solicitors ACT Director of Public Prosecutions ( Crown) JDR Law ( Offender)
File Number:	SCC 101 of 2021

BURNS J:

Irving Ware, on 20 April 2021 you entered pleas of guilty to the following charges in the ACT Magistrates Court:

· CC 2021/2625: a charge that between 31 December 1997 and 20 July 2002 you maintained a sexual relationship with a child contrary to s 56(1) of the Crimes Act 1900 (ACT) (the Crimes Act);

· CC 2020/8257: a charge that between 31 December 1997 and 1 January 1999 you committed an act of indecency on a young person under the age of 16 years, contrary to s 92K(2) of the Crimes Act;

· CC 2020/8258: a charge that between 31 October 1999 and 1 January 2000 you committed an act of indecency on a young person under the age of 16 years, contrary to s 92K(2) of the Crimes Act.

You were committed for sentence to this Court on 20 April 2021. A sentence hearing was conducted on 20 July 2021. It is now my responsibility to sentence you for these offences.

Maximum penalties

The maximum penalty currently prescribed for the offence of maintaining a sexual relationship with a child is 25 years’ imprisonment. Due to the dates between which this offence was committed and the provisions of the Crimes Act at that time, the

maximum penalty that may be imposed for the present offence of maintaining a sexual relationship with a child is 14 years’ imprisonment. The maximum penalty for the offence of committing an act of indecency on a young person under 16 years of age is 10 years’ imprisonment.

The facts

A comprehensive Agreed Statement of Facts was tendered at the sentence hearing. I will not now recite those facts. The victim of these offences is your son, who I will refer to as K. He was born in 1986. In 1996 you, your wife, K and his three siblings moved to Canberra. You were a Christian pastor and you and your family moved around Australia while you were acting in your ministry. Between 1 January…

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 Ware (a pseudonym)

Details

AGLC: R v Ware (a pseudonym) [2021] ACTSC 180
Case: [2021] ACTSC 180
Decision Date

CaseChat Overview and Summary

The case of R v Ware (a pseudonym) involved the offender, Irving Ware, who was convicted of maintaining a sexual relationship with a child and committing acts of indecency on a young person under the age of 16 years. Ware was the biological father of the victim, who was abused between the ages of 11 and 15 years. Ware entered pleas of guilty to all charges before the Supreme Court of the Australian Capital Territory, presided over by Burns J. The legal issues before the court were the appropriate sentencing for the gravity of the crimes, the offender's acceptance of responsibility, and the risk of reoffending.

In determining the appropriate sentence, the court assessed the objective seriousness of the offences, taking into account the duration, regularity, and nature of the abuse, as well as the relationship between the offender and the victim. The court emphasised the devastating impact on the victim and the broader community, as well as the offender's failure to fully accept responsibility. Although Ware had not reoffended since the crimes, the court found that full-time imprisonment was the only appropriate sentencing option to achieve deterrence, community disapproval, and punishment. The court also considered Ware's age, lack of prior convictions, and voluntary psychological treatment in mitigation.

The court sentenced Irving Ware to three years and two months' imprisonment for maintaining a sexual relationship with a child, reduced from four years due to his guilty plea. For the two counts of committing acts of indecency, Ware received 12 months and 16 months imprisonment, respectively, reduced from 15 months and 20 months due to his pleas. The aggregate sentence was three years and two months imprisonment, with a non-parole period of 20 months.

Orders