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The Queen v Ashton (a pseudonym)

The Queen v Ashton (a pseudonym)

Case [2022] ACTCA 45 21 September 2022

Breach of Trust

Fiduciary Duty

Unconscionable Conduct

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	The Queen v Ashton (a pseudonym)
Citation:	[2022] ACTCA 45
Hearing Date:	16 August 2022
DecisionDate:	21 September 2022
Before:	McCallum CJ, Elkaim and Collier JJ
Decision:	(i) Appeal allowed. (ii) The sentence and nonparole period imposed by Norrish AJ on 4 February 2022 are set aside. (iii) Offender resentenced to 15 years’ imprisonment (reduced from 20 years’ imprisonment) to commence on 9 July 2021 and end on 8 July 2036. (iv) The nonparole period is 9 years and 4 months to commence on 9 July 2021 and end on 8 November 2030.
Catchwords:	APPEAL – CRIMINAL LAW – Crown appeal against sentence – engaging in sexual relationship with child under special care – whether sentence manifestly inadequate – whether starting point of sentence manifestly too low
Legislation Cited:	Crimes Act 1900 (ACT) ss 56, 56A Crimes (Sentencing) Act 2005 (ACT) s 36
Cases Cited:	Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mills v R [2017] NSWCCA 87 R v Ashton (a pseudonym) [2022] ACTSC 27 R v Duffy [2014] ACTCA 53; 297 FLR 359 R v Nicholas; R v Palmer [2019] ACTCA 36 R v SAG [2004] QCA 286 The Queen v Avery [2018] ACTCA 57
Parties:	The Queen ( Appellant) Baker Ned Ashton (a pseudonym) ( Respondent)
Representation:	Counsel S Drumgold SC ( Appellant) J White SC ( Respondent)
Solicitors ACT Director of Public Prosecutions ( Appellant) Legal Aid ACT ( Respondent)
File Number:	ACTCA 5 of 2022
Decision under appeal:	Court/Tribunal: ACT Supreme Court Before: Norrish AJ Date of Decision: 4 February 2022 Case Title: R v Ashton (a pseudonym) Citation: [2022] ACTSC 27

McCallum CJ:

This is an appeal brought by the Director of Public Prosecutions against the alleged leniency of the sentence imposed on the respondent after he pleaded guilty to an offence of engaging in a sexual relationship with a child under special care, contrary to s 56 of the Crimes Act 1900 (ACT). That offence carries a maximum penalty of imprisonment for 25 years.

As necessarily occurs in the event of a plea of guilty, the offender was sentenced on the strength of a statement of agreed facts (summarised in detail in the judgment at first instance: R v Ashton [2022] ACTSC 27 at [6]–[25]). Statements of agreed facts serve an important function and are of considerable assistance to sentencing courts. However, being generally (appropriately) couched in neutral terms, they can serve to sanitise the offence in question and mask the true degree of an offender’s moral turpitude.

The victim here was under the offender’s special care because she was his natural daughter. Her parents had separated when she was two. They remained amicable and agreed that she should live primarily with her mother but see her father as requested by him, which was generally every fortnight. When she was younger, she would stay with his parents to facilitate those access visits. By the time…

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 Queen v Ashton (a pseudonym)

Details

AGLC: The Queen v Ashton (a pseudonym) [2022] ACTCA 45
Case: [2022] ACTCA 45
Decision Date

CaseChat Overview and Summary

The appeal was brought by the Director of Public Prosecutions against the alleged leniency of the sentence imposed on the respondent after he pleaded guilty to engaging in a sexual relationship with a child under his special care, contrary to s 56 of the Crimes Act 1900 (ACT). The maximum penalty for this offence is 25 years' imprisonment. The respondent was sentenced by Norrish AJ on 4 February 2022 to imprisonment for 12 years, commencing on 12 July 2021 and ending on 11 July 2033. A non-parole period of 7 years and 6 months was imposed, to expire on 11 January 2029. The starting point for the sentence was 16 years, reduced by 25% to reflect the utilitarian value of the offender's guilty plea. The appeal against the sentence was the sole ground argued. The Crown submitted that the starting point of 16 years was manifestly too low. The Court allowed the appeal and resentenced the respondent to imprisonment for 15 years, commencing on 9 July 2021 and ending on 8 July 2036, with a non-parole period of 9 years and 4 months, to expire on 8 November 2030. The respondent had engaged in a series of sexual assaults against his daughter over a period of eight years, beginning when she was six years of age. The offending escalated in severity and frequency over time. The respondent's conduct was premeditated and persistent. The victim suffered significant psychological trauma and will require long-term treatment for her mental health. The seriousness of the offending was below the worst category but just below that category. The starting point for the sentence was, in all the circumstances, manifestly too low. The sentence imposed by the sentencing judge was unreasonable or plainly unjust and the appeal must be allowed.

Orders