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Sentencing in the ACT

“Every case must turn on its own facts and circumstances.”

It’s one of the great maxims of the criminal law, but it comes under enormous pressure from legislators, media commentators and much community reaction, not all of it well-informed.

Such pressure is to be avoided by judicial officers (judges and magistrates) when matters come before the courts.

So, what seems impossible on its face can turn out to be quite reasonable.

A recent ACT Magistrates Court sentencing decision is a good case in point.

On its face? An act of indecency committed on a 15-year-old girl in a moving vehicle in the company of others in the early hours of the morning.

Maximum penalty: 10 years’ imprisonment.

The offender received a non-conviction order.

That’s right. No jail, no fine, no community service, no nothing. Except a finding of guilt (the offender had pleaded guilty) and a good behaviour order.

The offender was 32 years old and sitting in the back of a car in which the victim was sitting in the front passenger seat. The victim and driver had gone to the city to pick up a friend of the driver’s.

They picked up the friend, and the defendant (a friend of the friend).

Comments were made about the victim’s age, which angered the driver. The offender made one such derogatory comment and then reached forward and placed her hand on the clothed breast of the victim and said, “Do you approve of this?”

The driver expressed his displeasure. The offender, who had consumed a large amount of alcohol, immediately began to cry and apologise.

The offender (a woman) also gave an interview to police, expressing what the Magistrate found to be her “extreme remorse”. She had no previous criminal matters, suffered depression and had glowing referees as to her role as a mother of two.

The Magistrate noted, “Unusually included on the Statement of Facts was the following paragraph, ‘Police have considered issuing a police caution to the defendant for the commission of this offence. The complainant [victim] and her mother are not in agreement with this course of action and the complainant stated she wished to proceed to a prosecution’.”

If, as some argue, there had been mandatory sentencing in this case, the Magistrate may have had to jail someone she found to be “immediately contrite and remorseful” and whom the evidence found to be “a fine woman of good character” for an offence “at the low end of objective seriousness”.

Image Credit – Sergii Gnatiuk ©

Written by Andrew Fraser on November 2, 2018

Andrew represents clients in the ACT Supreme and Magistrates Courts as well as the NSW Local and District Courts of the Canberra region. He appears also before the ACT Civil and Administrative Tribunal in licensing, mental-health and other matters. His breadth of experience allows him to tailor his advice and submissions to ensure the best possible results for his clients. View Andrew's profile

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