The Queen v Sarah Jane Thomson (No 2) - [2014] ACTSC 133

THE QUEEN v SARAH JANE THOMSON (NO 2)
[2014] ACTSC 133 (6 May 2014)

CRIMINAL LAW – Judgment and Punishment – Sentencing – Committing an act of indecency in the presence of a child under the age of ten years

Crimes Act 1900 (ACT), s 61(1)
Crimes (Sentence Administration) Act 2005 (ACT)
Crimes (Sentencing) Act 2005 (ACT), ss 7, 33

Gilson v The Queen (1991) 172 CLR 353
Markarian v The Queen (2005) 228 CLR 357
Ibbs v The Queen (1987) 163 CLR 447
R v Osenkowski (1982) 30 SASR 212

EX TEMPORE JUDGMENT

No. SCC 42 of 2012

Judge: Refshauge J
Supreme Court of the ACT

Date: 6 May 2014

IN THE SUPREME COURT OF THE       )
  )          No. SCC 42 of 2012
AUSTRALIAN CAPITAL TERRITORY    )

THE QUEEN
v
SARAH JANE THOMSON

ORDER

Judge:  Refshauge J
Date:  6 May 2014
Place:  Canberra

THE COURT ORDERS THAT:

Ms Thomson be convicted of committing an act of indecency in the presence of a person under the age of ten years between 1 January and 30 September 2008.

Ms Thomson be sentenced to two years’ imprisonment to commence on 6 May 2014.

Ms Thomson be convicted of committing an act of indecency in the presence of a person under the age of ten years between 1 January and 30 September 2008.

Ms Thomson be sentenced to two years’ imprisonment to commence on 5 November 2014. That is to be cumulative as to six months on the first sentence

Ms Thomson be convicted of committing an act of indecency in the presence of a person under the age of ten years between 1 January and 30 September 2008.

Ms Thomson be sentenced to two years’ imprisonment to commence on 5 May 2015. That is to be cumulative as to six months on the second sentence imposed

The sentence be suspended from 6 May 2014 for four years.

Ms Thomson be required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for four years with a probation condition that she be under the supervision of the Director-General or her delegate for two years or such lesser period as the person delegated to supervise her may determine and obey all reasonable directions of the person delegated to supervise her, especially as to counselling and treatment for her mental health.

On 28 March 2014, Sarah Jane Thomson was found guilty by a jury of three counts of committing an act of indecency in the presence of a child under the age of ten years. Each of those offences, contrary to s 61(1) of the Crimes Act 1900 (ACT), renders Ms Thomson liable to a maximum penalty of seven years’ imprisonment. As the High Court has pointed out, in Markarian v The Queen (2005) 228 CLR 357 at 372; [30]-[31], the courts must have regard to the maximum legislated penalty as a mark of the seriousness with which the offences are to be regarded. They…

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.

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Details

Case: [2014] ACTSC 133
Decision Date: 6 May 2014

CaseChat Overview and Summary

The defendant, Sarah Jane Thomson, faced the District Court of the Australian Capital Territory charged with committing an act of indecency in the presence of a child under the age of ten years, an offence occurring between 1 January and 30 September 2008. The court was tasked with determining her guilt and appropriate sentence, considering the impact of the offence on the child and the need for deterrence and rehabilitation.

The primary legal issues before the court were whether the prosecution had proven beyond reasonable doubt that Ms Thomson had committed the indecency acts in the presence of a child under ten, and if so, what appropriate sentence should be imposed. The court had to weigh the severity of the offence, the need for punishment, and the potential for rehabilitation.

In delivering the judgment, the court found Ms Thomson guilty on all counts. The court considered the gravity of the offence, the need to protect the community, and the importance of rehabilitation. It decided that the appropriate sentence should include a combination of imprisonment and community supervision, with a focus on rehabilitation. The court sentenced Ms Thomson to two years’ imprisonment on each charge, to commence on different dates, with the sentences to run cumulatively. However, the court also suspended the sentence from 6 May 2014 for four years, and required Ms Thomson to comply with specific good behaviour obligations and supervision conditions during this period.

The court made several orders, including convictions on each charge and sentences of two years’ imprisonment for each, with the sentences to run cumulatively. The court also ordered that the sentence be suspended for four years from 6 May 2014, and imposed conditions for Ms Thomson’s good behaviour and supervision during this period.

Orders

Orders of the court

1. Ms Thomson be convicted of committing an act of indecency in the presence of a person under the age of ten years between 1 January and 30 September 2008.

2. Ms Thomson be sentenced to two years’ imprisonment to commence on 6 May 2014.

3. Ms Thomson be convicted of committing an act of indecency in the presence of a person under the age of ten years between 1 January and 30 September 2008.

4. Ms Thomson be sentenced to two years’ imprisonment to commence on 5 November 2014. That is to be cumulative as to six months on the first sentence

5. Ms Thomson be convicted of committing an act of indecency in the presence of a person under the age of ten years between 1 January and 30 September 2008.

6. Ms Thomson be sentenced to two years’ imprisonment to commence on 5 May 2015. That is to be cumulative as to six months on the second sentence imposed

7. The sentence be suspended from 6 May 2014 for four years.

8. Ms Thomson be required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for four years with a probation condition that she be under the supervision of the Director-General or her delegate for two years or such lesser period as the person delegated to supervise her may determine and obey all reasonable directions of the person delegated to supervise her, especially as to counselling and treatment for her mental health.

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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