TDJ and Ta v Bronwyn Carter

TDJ and TA v BRONWYN CARTER [2001] ACTSC 38 (4 MAY 2001)

CATCHWORDS

SENTENCING – young offenders – whether the introduction of the Children and Young People Act 1999 has affected the decisions in R v Boudelah & Charleston and R v AM – no analogy with parity principle where principals in separate offences – no error of principle – sentences not manifestly excessive.

Crimes Act 1900, ss 92D(1), 556B
Children and Young People Act 1999, ss 10(e), 12, 13, 68, 96

Children’s Services Act 1986, ss 5

R v Boudelah & Charleston (1991) 28 FCR 176
R v AM (1996) 134 FLR 361
R v Roberts [1982] 1 All ER 609
R v Sharpe (unreported, Miles CJ, ACTSC, 24 November 2000)
Postiglione v The Queen (1997) 189 CLR 295
Lowe v The Queen (1984) 154 CLR 606

No. SCA 30 & 33 of 2001

Judge:          Gray J
Supreme Court of the ACT
Date:           4 May 2001

IN THE SUPREME COURT OF THE     )
  )          No. SCA 30 & 33 of 2001
AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE CHILDRENS COURT

BETWEEN: TDJ

Appellant

AND: TA

Appellant

AND:BRONWYN CARTER

Respondent

ORDER

Judge:  Gray J
Date:  4 May 2001
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeals be dismissed.

1. This is an appeal against orders made by the Children’s Court Magistrate in respect of the appellants after the Children’s Court Magistrate had convicted the appellants of an offence of sexual intercourse without consent (s 92D(1) of the Crimes Act 1900) with the same victim.  The appellant TA was born on 19 August 1985.  The appellant TDJ was born on 25 November 1985.  The victim was born on 2 January 1985.

1. On 6 April 2001, pursuant to s 96(l) of the Children and Young People Act 1999, the Magistrate ordered the committal of both the appellants to an institution in the Australian Capital Territory for a period of nine months to date from 19 March 2001 (the date that they were taken into custody) and to be released on probation for 12 months on conditions as to supervision by Youth Justice.

1. The appellants had been charged with a number of sexual offences that were alleged to have been committed by them at the Canberra Show on 25 February 2000.  One offence against each appellant was found proved against the victim separately although the victim had alleged a number of other sexual acts that had been committed upon her by the appellants separately and jointly. 

1. The offences occurred in the boys’ tent at the showgrounds after they had assisted the victim to the tent because she was too drunk to be able to get home, or find her friends.  The Magistrate made the specific finding that the appellants acted in full knowledge that the victim was incapable of consenting to their separate acts of intercourse by reason of her excessive consumption of intoxicating liquor. 

1. On the part of the appellant TDJ, it was put that the Magistrate failed…