The Police v AB - [2020] ACTMC 16

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	The Police v AB
Citation:	[2020] ACTMC 16
Hearing Date(s):	2 July 2020
DecisionDate:	8 July 2020
Before:	Magistrate Theakston
Decision:	See [39]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Crimes and offences against children – Historical offence – Indecent assault on male – Pleas of guilty
Legislation Cited:	Crimes Act 1900 ss 66B, 81, 441. Law Reform (Sexual Behaviour) Ordinance 1976 s 6
Cases Cited:	R v Eisenach [2011] ACTCA 2 R v Dent (New South Wales Criminal Court of Appeal, Lee CJ, 14 March 1991) R v CC [2016] ACTSC 43 R v Miller [2019] ACTCA 25 R v Gavel [2014] NSWCCA 56; 239 A Crim R 469 GS v R [2016] NSWCCA 266 R v Sopher (1993) 70 A Crim R 570 R v Todd (1982) 2 NSWLR 517 R v EN [2019] ACTSC 354 R v Marsh [2019] ACTSC 251 R v Trezise [2018] ACTSC 135 R v Scheeren [2014] ACTSC 272
Parties:	The Police (Crown) AB (Defendant)
Representation:	Counsel R Christensen (Crown) J Pappas (Defendant)
Solicitors ACT Director of Public Prosecutions (Crown) Aulich (Defendant)
File Number(s):	CC 8749 of 2011 CC 8750 of 2011 CC 2350 of 2019

MAGISTRATE THEAKSTON:

Introduction

These are my sentencing remarks in relation to this matter. The offender’s and victims’ names have been anonymised to protect the identity of the two victims.

Background

The offender has pleaded guilty to the following three charges:

(a) 8749 of 2011 – Indecent assault on male

That he, in the Australian Capital Territory, between 31 December 1974 and 1 April 1980, did indecently assault a male, namely [BB].

Particulars: The offender performed repeated acts of oral sex on the victim.

(b) 8750 of 2011 – Indecent assault on male

That he, in the Australian Capital Territory, between 31 December 1974 and 1 April 1980, did indecently assault a male, namely [BB].

Particulars: The offender performed repeated acts of fondling and masturbation involving the victim.

(c) 2350 of 2019 – Indecent assault on male

That he, in the Australian Capital Territory, between 1 January 1977 and 31 December 1980, did indecently assault a male, namely [CD].

Particulars: The offender committed a continuing act of indecent assault involving fondling of the victim’s penis, exposing his own penis to the victim, and having the victim touch the offender’s penis.

Each of the charges is contrary to the now revoked s 81 of the Crimes Act 1900. That provision was revoked in 1984, and today equivalent offending is covered by other offences, all with larger maximum penalties and some with much larger maximum penalties. The first two charges are by virtue of s 66B of the Crimes Act 1900, which provides that charges of child sexual offences may include more than one incident of the commission of an offence under the same offence provision.

These proceedings have a long history. In 2011 and during a record of…

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 The Police v AB

Details

AGLC: The Police v AB [2020] ACTMC 16
Case: [2020] ACTMC 16
Decision Date: 8 July 2020

CaseChat Overview and Summary

The case of The Police v AB involved a defendant, AB, who pleaded guilty to an indecent assault on a male that occurred historically. The matter was heard by the court, which was tasked with determining an appropriate sentence. The legal issues at hand centred on the principles governing sentencing in cases involving historical offences against children, particularly focusing on the nature of the offence and the need to balance justice with the principles of rehabilitation and deterrence. The court was required to consider the severity of the offence, the impact on the victim, and the appropriate means of addressing the crime in a manner that reflects contemporary standards of justice.

The court undertook a detailed examination of the circumstances surrounding the offence and the background of the defendant. It took into account the principles set forth in relevant case law, including the need to impose a sentence that is proportionate to the gravity of the offence while also considering the potential for rehabilitation. The court assessed the aggravating and mitigating factors, including the historical nature of the offence, the defendant’s guilty plea, and the impact on the victim. The court emphasised the importance of ensuring that sentences reflect both the gravity of the offence and the need to uphold the principles of justice and deterrence.

Ultimately, the court determined that the appropriate sentence should reflect the seriousness of the offence while also considering the defendant’s plea and the potential for rehabilitation. The court imposed a sentence that was deemed to be just and appropriate under the circumstances. The reasoning provided by the court was grounded in a comprehensive analysis of the principles of sentencing in historical offences against children and the need to balance punitive and rehabilitative objectives. The court’s decision was aimed at ensuring that justice was served while also promoting the rehabilitation of the defendant.

In conclusion, the court ordered that the defendant, AB, be sentenced according to the findings and reasoning outlined in the judgment. The sentence imposed was intended to reflect the seriousness of the offence, the need for deterrence, and the potential for rehabilitation, all while adhering to the principles of justice and proportionality.

Orders

Orders of the court

See [39]

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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