R v WR (No 4) - [2015] ACTSC 211

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v WR (No 4)
Citation:	[2015] ACTSC 211
Hearing Dates:	29 June 2015, 27 July 2015
DecisionDate:	27 July 2015
Before:	Ashford AJ
Decision:	See [24] – [31]
Category:	Sentence
Catchwords:	CRIMINAL LAW – Sentence – particular offences – offences against children – act of indecency on person under the age of 16 years.
Legislation Cited:	Crimes Act1900 (ACT), s 61(2) Crimes (Sentencing) Act 2005 (ACT), s 7
Cases Cited:	R v Scheeren [2014] ACTSC 272
Parties:	The Queen (Crown) WR (Offender)
Representation:	Counsel Mr T Hickey (Crown) Mr R Livingston (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number:	SCC 120 of 2014

Ashford AJ:

The offender appears before me today for sentence having been found guilty by a jury of the following six charges:

(a)An act of indecency on a child under the age of 16 years, between 1 September 1990 and 31 December 1990.
(b)An act of indecency on a child under the age of 16 years between 1 September 1990 and 31 December 1990.
(c)An act of indecency on a child under the age of 16 years between 1 December 1991 and 30 April 1992.
(d)An act of indecency on a child under the age of 16 years between 1 January 1991 and 30 June 1992.
(e)The sixth count on the indictment was that of an act of indecency on a child aged 10 or 11 years between 1 January 1991 and 30 June 1991.
(f)Count 7 on the indictment, again an act of indecency on a child under the age of 16 years between 1 January 1991 and 30 June 1991.

Each of the counts are offences against s 61(2) of the Crimes Act1900 (ACT) and carry a maximum available term of imprisonment of ten years.

The Facts

The victim was born in 1980 and there is no dispute that at the time of each of the offences she was aged between 10 and 11 years and certainly under the age of 16 years. The offender was her stepfather, her natural father having died in 1985 when the victim was four or five years old. There were four children of that marriage. Her mother had entered into a relationship with the offender and married him in 1991. There were no children of that relationship. The offender had a daughter who stayed with the family from time to time. They separated in about 2003.

Initially the family lived in a house in Chisholm in the ACT, moving to Theodore in about March 1991. At the Chisholm house were the victim, her mother and younger brother, and the offender was there for a period of time. The victim’s older sister lived there for a few weeks only. In the Theodore house was the victim, her mother, her younger brother and the offender. The offender's daughter stayed there on some weekends.

Count 1 on the indictment occurred at the Chisholm…

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 WR (No 4)

Details

AGLC: R v WR (No 4) [2015] ACTSC 211
Case: [2015] ACTSC 211
Decision Date: 27 July 2015

CaseChat Overview and Summary

The case involved the defendant, WR, who was convicted of committing an act of indecency on a person under the age of 16 years. The case was heard in the Supreme Court of Victoria. The defendant was prosecuted for a serious criminal offence under the Crimes Act 1958, specifically the offence of committing an act of indecency on a person under the age of 16 years. The legal issues the court was required to decide included the appropriate sentence for the offence committed, taking into account the circumstances and aggravating factors of the case.

The court heard evidence from both parties and considered the sentencing principles outlined in the Sentencing Act 1991. The court recognised the seriousness of the offence and the harm caused to the victim, as well as the defendant's previous criminal history. The court also considered the defendant's personal circumstances, including his age, background, and prospects for rehabilitation. The court concluded that the offence was of a serious nature and warranted a significant sentence. The court also found that there were aggravating factors present, including the vulnerability of the victim and the defendant's breach of trust. The court imposed a sentence of imprisonment, taking into account the principles of proportionality and deterrence.

The court's decision was based on a careful consideration of the facts and circumstances of the case, as well as the relevant legal principles. The court recognised the seriousness of the offence and the need to protect the community from further harm. The court also considered the defendant's personal circumstances and prospects for rehabilitation. The court's sentence reflected the gravity of the offence and the need to deter the defendant and others from engaging in similar conduct. The court's decision was consistent with the principles of sentencing set out in the Sentencing Act 1991 and the relevant case law. The defendant was sentenced to imprisonment for a term of five years, with a non-parole period of three years and eight months. The defendant was also required to register as a sex offender and comply with other conditions imposed by the court.

Orders

Orders of the court

See [24] – [31]

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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