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Case Reports - Criminal Law Twenty-year-old matter revisited At the age of 34, Mr D was charged with indecent assault, a brief improper touching, which was interrupted by the mother. The offence occurred 20 years earlier when he was 14 years old and the complainant was 8 years old at the time. In the interim, Mr D had travelled widely, started a family, excelled at university and had a promising career before him, which would have involved overseas travel to work and deliver academic papers. Despite there being numerous bases on which to attack the Crown case, Mr D decided to plead guilty so as not to put his family through the trauma of a court case. The sentencing judge was quite impatient with the Crown, inquiring why he should not dispense with the matter, and put some pressure on the Defence to submit evidence in written form rather than calling witnesses. Defence counsel who appeared for Mr D in the District Court was strongly under the impression that the judge would make an order under s10 of the Crimes (Sentencing Procedure) Act and would order that there be no conviction, dismissing the matter. In the sentencing his Honour found, "It seems to me to be an offence which was, at its highest, some form of a child experimenting in some sexual activity. There is no suggestion before me that there was any ongoing sexual perversion ever displayed by the prisoner...The event now has occurred so long ago and did not fit into what, to my mind, is a serious example of indecent assault ...." Defence Counsel were surprised to find, after a fair summary of the facts, that his Honour ordered a good behaviour bond which required that a conviction be recorded. When defence counsel inquired about this, he responded: "No, I do not intend not to impose a conviction. I think these sort of offences must carry with them the recognition that those who interfere with children in any circumstances must result in a conviction, but I do not intend to take any course different from the one that I have taken." The Court of Criminal Appeal's response to this was brief and to the point: "[Firstly,] it is one thing to say that any adult who interferes with a child should, absent exceptional circumstances, be at least formally convicted. It is quite another thing to say that an offence of the kind here in point should, "in any circumstances" warrant a conviction. It cannot be correct, in my opinion, to apply so sweeping a generalisation to an event described by his Honour as "at it highest, some form of a child experimenting in some sexual activity." ... Secondly, his Honour did not deal properly, in my respectful opinion, with the important fact that the offence with which he was dealing was strikingly stale." Sully J went on to query the reliability of the complaint, and the culpability of Mr D in all the circumstances. In the hearing of argument, the Bench were concerned about stigmatising Mr D with a recent conviction for a matter which was so old, and where it would have a disproportionate impact on his future. The CCA allowed the appeal, quashed the conviction; and, without proceeding to conviction, and pursuant to s10(1) of the Crimes (Sentencing Procedure) Act, ordered that the charge preferred in the District Court be dismissed. Mary Spiers Criminal Appeals |
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