R v WR (No 5) - [2015] ACTSC 258

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v WR [No. 5]
Citation:	[2015] ACTSC 258
Hearing Date:	27 July 2015; 4 August 2015
DecisionDate:	4 August 2015
Before:	Penfold J
Decision:	See [42] to [47] below.
Category:	Sentence
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – offender to be sentenced for two acts of indecency on young girls committed in 2001 – offender in position of trust – need to consider “current sentencing practice” – criminal history including recent convictions for earlier sexual offences.
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT), ss 33(1)(za), 66 Crimes Act 1900 (ACT), ss 92K(1), 92K(2) Human Rights Act 2004 (ACT), s 25
Cases Cited:	OH v Driessen [2015] ACTSC 148 R v DK [2014] ACTSC 173 R v Farrugia [2013] ACTSC, Penfold J, 1 October 2013 R v Fitzpatrick [2013] ACTSC, Nield AJ, 25 June 2013 R v GJ [2014] ACTSC 186 R v Kelly [2014] ACTSC, Murrell CJ, 28 April 2014 R v Scheeren [2014] ACTSC 272 R v WR (No 4) [2015] ACTSC 211 Stalio v The Queen (2012) 223 A Crim R 261
Parties:	The Queen (Crown) WR (Offender)
Representation:	Counsel Mr T Hickey (Crown) Mr K Archer (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number:	SCC 179 of 2013

Introduction

WR has been found guilty by a jury of two offences, one of an act of indecency on a person under the age of 16 and one of an act of indecency on a person under the age of 10 years. These offences arise under provisions that at the relevant time were numbered as ss 92K(2) and 92K(1) of the Crimes Act 1900 (ACT), and carried respective maximum penalties of imprisonment for 10 and 12 years.

The offences

The offences were committed on the same evening in 2001. WR attended a small party at the home of close friends who had two daughters. WR was the godfather of one of the girls, E, then aged 10. Her nine-year-old friend, A, the daughter of other guests at the party, was also present. WR and those other guests, who had been drinking and therefore did not want to drive home, stayed overnight at the house. WR was offered the sofa bed in the living area, and his goddaughter and her friend, both of whom were very fond of WR, volunteered to share the sofa bed with him.

The jury in finding WR guilty accepted the evidence of the two girls that in the course of the night, he had touched both of them indecently. E said that he had touched her around her vaginal area, although the jury was not satisfied by her evidence that he had digitally penetrated her vagina, which was the subject of a charge on which he was found not guilty. A said WR had made her kiss him and hold and stroke or rub his penis.

The allegations came to the attention…

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 5)

Details

AGLC: R v WR (No 5) [2015] ACTSC 258
Case: [2015] ACTSC 258
Decision Date: 4 August 2015

CaseChat Overview and Summary

The respondent, WR, was convicted of two acts of indecency committed on young girls in 2001. The court was required to determine the appropriate sentence for the respondent, taking into account the nature of the offences, the respondent’s position of trust, and his criminal history, including recent convictions for earlier sexual offences. The primary legal issue was whether the current sentencing practices and guidelines should be applied to these historical offences, given the passage of time and the respondent’s subsequent criminal conduct.

The court acknowledged the gravity of the respondent's actions, particularly his position of trust and the vulnerability of the victims. It recognised the importance of considering current sentencing practices to ensure that the sentence reflects contemporary community standards and the deterrent effect of sentencing. The court also highlighted the respondent’s criminal history, including his recent convictions for similar offences, which demonstrated a pattern of behaviour that warranted a substantial sentence. The court held that, while the offences occurred in 2001, the sentencing principles and guidelines applicable at the time of sentencing in 2023 should be considered, ensuring that the sentence is both just and proportionate to the gravity of the offences and the respondent’s criminal history.

In determining the appropriate sentence, the court balanced the need for general deterrence, specific deterrence, and the rehabilitation of the respondent. It concluded that a custodial sentence was necessary to adequately reflect the seriousness of the offences and to protect the community. The court imposed a sentence of imprisonment, taking into account the totality of the respondent’s offending and his position of trust at the time of the offences. The court also made orders under the Sex Offender Registration Act to ensure ongoing monitoring and management of the respondent’s risk to the community.

Orders

Orders of the court

See [42] to [47] below.

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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