The Queen v GJ [No. 3] - [2014] ACTSC 193

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	The Queen v GJ [No. 3]
Citation:	[2014] ACTSC 193
Hearing Date:	20 June 2014
DecisionDate:	14 July 2014
Before:	Penfold J
Decision:	See [30] and [31]
Category:	Sentence
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – one offence of act of indecency in presence of child under 10 – victim was offender’s daughter – breach of trust – removal of mother from family home – isolation of child who spoke little English – child threatened with imprisonment if act of indecency reported – no remorse – offender aged 65, no prior convictions, positive good character – limited community service available to sex offenders – available community service not suitable for offender because of health concerns – sentence of two years imprisonment, first three months to be served by periodic detention.
Legislation Cited:	Crimes Act 1900 (ACT), s 61(1) Crimes (Sentence Administration) Act 2005 (ACT)
Cases Cited:	R v DF [2010] ACTSC, Penfold J, 10 June 2010 R v AB [2008] ACTSC, Penfold J, 12 April 2012 R v Adnan Symss [2011] ACTSC, Gray J, 22 July 2011 R v Dhaimat [2014] ACTSC, Burns J, 12 March 2014 R v Duy Pham [2012] ACTSC, Burns J, 23 October 2012 R v Jones [2014] ACTSC 119 R v Kelly [2014] ACTSC, Murrell CJ, 28 April 2014 R v Liam Taylor [2008] ACTSC, Higgins CJ, 2 March 2011 R v Liam Taylor [2010] ACTSC 121 R v Meyboom [2012] ACTCA 48 R v Navin Edwin [2013] ACTSC, Burns J, 26 September 2013 R v TC ([2011] ACTSC, Penfold J, 28 March 2011)
Parties:	The Queen (Crown) GJ (Offender)
Representation:	Counsel: Mr M Thomas (Crown) Mr S Gill (Offender)
Solicitors: ACT Director of Public Prosecutions (Crown) Kamy Saeedi Lawyers (Offender)
File Number:	SCC 55 of 2013
Publication Restriction:	Yes, victim and identifying information (including offender's name)

The offence

GJ has been found guilty by a jury of one act of indecency in the presence of a child under 10, being in this case GJ’s five-year-old daughter.

That offence arises under s 61(1) of the Crimes Act 1900 (ACT) and carries a maximum penalty of 12 years imprisonment.

The offence was committed over the last weekend in March 2012. GJ’s wife, who was the mother of the victim and the victim’s younger sister, had been removed from the family home after GJ reported to police that she had assaulted him.

There is no dispute that on the night before the mother was removed from the family home, there had been an argument between GJ and the mother that had briefly become physical. The mother’s evidence, however, was that the argument had been resolved before they went to bed, and that she was taken completely by surprise when the police turned up the next morning.

The children remained with GJ for several days, until they were removed and taken into care because of concerns for their welfare reported by the…

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 GJ [No. 3]

Details

AGLC: The Queen v GJ [No. 3] [2014] ACTSC 193
Case: [2014] ACTSC 193
Decision Date: 14 July 2014

CaseChat Overview and Summary

In The Queen v GJ [No. 3], the defendant, GJ, was convicted of an act of indecency in the presence of a child under the age of 10, who was his daughter. The court had to determine an appropriate sentence given the breach of trust and the particular circumstances of the case. GJ had removed the mother from the family home, isolating the child, who spoke little English, and threatened the child with imprisonment if the act of indecency was reported. GJ had no prior convictions and exhibited positive character, but showed no remorse. The sentencing judge had to consider the limited availability of community service for sex offenders and GJ's health concerns that made available options unsuitable.

The primary legal issues before the court were the appropriate sentence for the offence, considering the aggravating factors of the breach of trust, the isolation of the victim, and the threats made against the victim, and the mitigating factors of the defendant's age, lack of prior convictions, and good character. The court also had to consider the suitability of community service options and the impact of imprisonment on the defendant, who had health concerns. The court needed to balance these factors to arrive at a just and appropriate sentence.

The court considered the seriousness of the offence, the breach of trust, and the impact on the victim. The court noted that the victim was particularly vulnerable due to her young age, limited English proficiency, and isolation within the family home. The court also acknowledged the defendant's age, lack of prior convictions, and good character but highlighted the absence of remorse and the threats made to the victim. The court found that imprisonment was necessary to adequately reflect the seriousness of the offence and to provide protection to the community. The court determined that a sentence of two years imprisonment, with the first three months to be served by periodic detention, was appropriate, taking into account the defendant's health concerns and the unsuitability of available community service options.

The court ordered that GJ be imprisoned for a total of two years, with the first three months to be served by periodic detention. This sentence was deemed necessary to reflect the seriousness of the offence, to provide deterrence, and to protect the community, while also considering the defendant's health concerns and the unsuitability of community service options.

Orders

Orders of the court

See [30] and [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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