The Queen v Thomas Carney (No 3) - [2015] ACTSC 227

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	THE QUEEN V THOMAS CARNEY (NO 3)
Citation:	[2015] ACTSC 227
Hearing Date(s):	30 July 2015
DecisionDate:	30 July 2015
Before:	Refshauge J
Decision:	1. The Good Behaviour Order made on 27 February 2014 be cancelled. 2. The conviction for the offence of using electronic means to suggest to a young person that she take part in an act of a sexual nature between 6 and 27 July 2012 be confirmed. 3. Thomas Carney be sentenced to imprisonment for three months to commence today, 30 July 2015. 4. The sentence be served by periodic detention to commence today and end on 29 October 2015. 5. The day of the first detention period is to start on 7 August 2015 when Thomas Carney is to report, by 7:00 pm, to the Symonston Periodic Detention Centre. 6. The conviction for the offence of engaging in sexual intercourse with a young person on 26 July 2012 be confirmed. 7. Thomas Carney be sentenced to imprisonment for six months to commence today, 30 July 2015. 8. That sentence be suspended today for a period of two years. 9. Thomas Carney be required to sign an undertaking to comply with the offenders' good behaviour obligations under the Crime (Sentence Administration) Act 2005 for a period of two years from today with the following conditions. (a) A probation condition that he accept supervision by the Director General or her delegate for a period of two years or such shorter period as the person supervising him considers appropriate and that he obey all reasonable directions of the person supervising him, especially as to an appropriate counselling programs. (b) That he subject himself to assessment for admission to the Cognitive Behavioural Treatment Program of ACT Corrective Services and, if suitable and if admitted, complete the program. (c) If he is not admitted to the Cognitive Behavioural Treatment Program, he discuss with the person supervising him an appropriate other program or programs and comply with any directions of that person as to assessment for admission to and completion of any such program.
Category:	Sentence
Catchwords:	CRIMINAL LAW – Jurisdiction, practice and procedure – judgment and punishment – sentence – breach of Good Behaviour Order – further offending – failure to comply with reporting conditions under the Crimes (Child Sex Offenders) Act 2005 (ACT)
Legislation Cited:	Crime (Sentence Administration) Act (ACT) s 110 Crime (Sentence Administration) Act 2005 Crime (Sentencing) Act 2005 (ACT) ss 12(3), 33 Crimes (Child Sex Offenders) Act 2005 (ACT) s 54 Crimes (Sentence Administration) Act 2005 (ACT), s 86 Criminal CodeAct1995 (Cth) s 474(17)(1)
Cases Cited:	Barbaro v The Queen (2014) 253 CLR 58 Director Public Prosecutions New South Wales v Cooke (2007)168 A Crim R 379 Guy v Anderson [2013] ACTSC 5 Gyory v The Queen [2012] ACTCA 28 R v Carney [2013] ACTSC 266 R v Carney (No 2) [2014] ACTSC 61 R v Marston (1993) 60 SASR 320 Saga v Reid

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: [2015] ACTSC 227
Decision Date: 30 July 2015

CaseChat Overview and Summary

The case of The Queen v Thomas Carney (No 3) involved the defendant, Thomas Carney, who had previously been found guilty of using electronic means to suggest to a young person that she take part in an act of a sexual nature, and engaging in sexual intercourse with a young person. The matter was heard in the Supreme Court of the Australian Capital Territory. The primary issue before the court was whether Carney's breach of a Good Behaviour Order and his failure to comply with reporting conditions under the Crimes (Child Sex Offenders) Act 2005 warranted a specific sentence. The court had to determine an appropriate sentence for Carney's further offending, considering both the severity of the crimes and his previous compliance history.

The court addressed the breach of the Good Behaviour Order, which was made on 27 February 2014, and Carney's failure to comply with the reporting conditions set out under the Crimes (Child Sex Offenders) Act 2005. The court noted that Carney had been convicted of the offences in question between 6 and 27 July 2012. The decision focused on the need to protect the community and ensure that offenders like Carney are held accountable for their actions. The court emphasised the importance of sentencing that reflects the gravity of the crimes and the necessity for deterrence and rehabilitation.

In its judgment, the court confirmed Carney's convictions for both offences and sentenced him to imprisonment for three months for the first offence, to be served by periodic detention. For the second offence, the court sentenced him to imprisonment for six months, which was suspended for a period of two years. The court also required Carney to comply with specific good behaviour obligations, including supervision and participation in a counselling or cognitive behavioural treatment program. The detailed sentencing reflects the court's intent to balance punishment, deterrence, and the potential for rehabilitation.

Orders

Orders of the court

1. The Good Behaviour Order made on 27 February 2014 be cancelled.

2. The conviction for the offence of using electronic means to suggest to a young person that she take part in an act of a sexual nature between 6 and 27 July 2012 be confirmed.

3. Thomas Carney be sentenced to imprisonment for three months to commence today, 30 July 2015.

4. The sentence be served by periodic detention to commence today and end on 29 October 2015.

5. The day of the first detention period is to start on 7 August 2015 when Thomas Carney is to report, by 7:00 pm, to the Symonston Periodic Detention Centre.

6. The conviction for the offence of engaging in sexual intercourse with a young person on 26 July 2012 be confirmed.

7. Thomas Carney be sentenced to imprisonment for six months to commence today, 30 July 2015.

8. That sentence be suspended today for a period of two years.

9. Thomas Carney be required to sign an undertaking to comply with the offenders' good behaviour obligations under the Crime (Sentence Administration) Act 2005 for a period of two years from today with the following conditions.

(a) A probation condition that he accept supervision by the Director General or her delegate for a period of two years or such shorter period as the person supervising him considers appropriate and that he obey all reasonable directions of the person supervising him, especially as to an appropriate counselling programs.

(b) That he subject himself to assessment for admission to the Cognitive Behavioural Treatment Program of ACT Corrective Services and, if suitable and if admitted, complete the program.

(c) If he is not admitted to the Cognitive Behavioural Treatment Program, he discuss with the person supervising him an appropriate other program or programs and comply with any directions of that person as to assessment for admission to and completion of any such program.

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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