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R v BNS (No 2)

R v BNS (No 2)

Case [2016] ACTSC 145 16 June 2016

Cumulative Sentencing

Non-Parole Period

Criminal Law

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v BNS (No 2)
Citation:	[2016] ACTSC 145
Hearing Date:	14 June 2016
DecisionDate:	16 June 2016
Before:	Refshauge J
Decision:	1. BNS is convicted of incest between 1 December 2013 and 20 December 2013. 2. BNS is sentenced to 4 years imprisonment commencing on 11 December 2014. 3. BNS is convicted of incest between 21 December 2013 and 2 January 2014. 4. BNS is sentenced to 4 years imprisonment commencing on 11 March 2016, to be cumulative as to 15 months on the first count. 5. BNS is convicted of committing an act of indecency between 21 December 2013 and 2 January 2014. 6. BNS is sentenced to 18 months imprisonment to commence on 11 March 2019, to be cumulative as to 6 months on the second count. 7. BNS is convicted of committing an act of indecency between 28 December 2013 to 2 February 2014. 8. BNS is sentenced to 18 months imprisonment to commence on 11 September 2019, to be cumulative as to 6 months on the third count. 9. BNS is convicted of committing an act of indecency between 22 July 2013 and 20 December 2013. 10. BNS is sentenced to 2 years imprisonment to commence on 11 December 2019, to be cumulative as to 9 months on the fourth count. 11. BNS is convicted of committing an act of indecency between 22 July 2013 and 20 December 2013. 12. BNS is sentenced to 12 months imprisonment to commence on 11 March 2021, to be cumulative as to 3 months on the fifth count. 13. BNS is convicted of committing an act of indecency between 22 July 2013 and 20 December 2013. 14. BNS is sentenced to 15 months imprisonment to commence on 11 April 2021, to be cumulative as to 4 months on the sixth count. 15. BNS is convicted of incest between 21 December 2013 and 2 February 2014. 16. BNS is sentenced to 4 years imprisonment to commence on 11 October 2019, to be cumulative as to 15 months on the seventh count. 17. BNS is convicted of common assault between 28 December 2013 and 2 February 2014. 18. BNS is sentenced to 12 months imprisonment to commence on 11 December 2022, to be cumulative as to 2 months on the eighth count. 19. A non-parole period of 4 years 6 months is set to commence on 11 December 2014 and end on 10 June 2019.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – incest with a person under the age of 16 years – act of indecency with a person under the age of 16 years – common assault – offending in bedroom – victim asleep – digital penetration – threat – heavy drug use – significant criminal history – offender denies offences – no remorse
Legislation Cited:	Crimes Act1900 (ACT), ss 26, 61(2), 62(2) Crimes (Sentencing) Act 2005 (ACT), ss 7, 33

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 R v BNS (No 2)

Details

AGLC: R v BNS (No 2) [2016] ACTSC 145
Case: [2016] ACTSC 145
Decision Date: 16 June 2016

CaseChat Overview and Summary

In the case of R v BNS (No 2), the appellant, BNS, was convicted of multiple serious offences, including incest and acts of indecency against a person under the age of 16 years, as well as common assault. The proceedings took place in the Supreme Court of Victoria. The court was required to determine the appropriate sentences for the multiple counts of which BNS was convicted.

The legal issues before the court involved the calculation of sentences for the various offences, taking into account the aggravating and mitigating factors. The court had to consider the nature and circumstances of the offences, the age of the victim, the impact on the victim, and the appellant's criminal history, which included significant drug use and previous convictions. The court also had to consider the lack of remorse shown by the appellant and the need for general deterrence.

The court found that the offences were particularly egregious, given the vulnerability of the victim and the appellant's persistent and sustained abuse of his position of trust and authority. The court emphasised the importance of sentencing that reflected the seriousness of the offences and provided adequate deterrence. In determining the sentences, the court imposed cumulative terms for the various offences, with specific start dates for each sentence to ensure that the total punishment was appropriately reflected. The court set a non-parole period to provide a measure of certainty regarding the minimum time BNS would serve before being eligible for parole.

The final orders of the court included convictions and specific sentences for each offence, with the sentences to commence on various dates and to be cumulative where appropriate. The court set a non-parole period of 4 years and 6 months to commence on 11 December 2014.

Orders

Orders of the court

1. BNS is convicted of incest between 1 December 2013 and 20 December 2013.

2. BNS is sentenced to 4 years imprisonment commencing on 11 December 2014.

3. BNS is convicted of incest between 21 December 2013 and 2 January 2014.

4. BNS is sentenced to 4 years imprisonment commencing on 11 March 2016, to be cumulative as to 15 months on the first count.

5. BNS is convicted of committing an act of indecency between 21 December 2013 and 2 January 2014.

6. BNS is sentenced to 18 months imprisonment to commence on 11 March 2019, to be cumulative as to 6 months on the second count.

7. BNS is convicted of committing an act of indecency between 28 December 2013 to 2 February 2014.

8. BNS is sentenced to 18 months imprisonment to commence on 11 September 2019, to be cumulative as to 6 months on the third count.

9. BNS is convicted of committing an act of indecency between 22 July 2013 and 20 December 2013.

10. BNS is sentenced to 2 years imprisonment to commence on 11 December 2019, to be cumulative as to 9 months on the fourth count.

11. BNS is convicted of committing an act of indecency between 22 July 2013 and 20 December 2013.

12. BNS is sentenced to 12 months imprisonment to commence on 11 March 2021, to be cumulative as to 3 months on the fifth count.

13. BNS is convicted of committing an act of indecency between 22 July 2013 and 20 December 2013.

14. BNS is sentenced to 15 months imprisonment to commence on 11 April 2021, to be cumulative as to 4 months on the sixth count.

15. BNS is convicted of incest between 21 December 2013 and 2 February 2014.

16. BNS is sentenced to 4 years imprisonment to commence on 11 October 2019, to be cumulative as to 15 months on the seventh count.

17. BNS is convicted of common assault between 28 December 2013 and 2 February 2014.

18. BNS is sentenced to 12 months imprisonment to commence on 11 December 2022, to be cumulative as to 2 months on the eighth count.

19. A non-parole period of 4 years 6 months is set to commence on 11 December 2014 and end on 10 June 2019.

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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Citations

AGLC Citation

R v BNS (No 2) [2016] ACTSC 145

Most Recent Citation

R v TL (No 2) [2016] ACTSC 289

Cases citing this decision · 8 of 8 shown

Director of Public Prosecutions v Lock (a pseudonym)
[2025] ACTSC 231

…Queen [2014] ACTCA 40 R v AB [2011] ACTSC 204 R v AEM [2002] NSWCCA 58 R v Ashton (a pseudonym) [2022] ACTCA 45 R v AQ [2021] ACTSC 74 R v BNS (No 2) [2016] ACTSC 145 R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32 R v CC [2016] ACTSC 43 R v DL [2018] ACTSC 142 R v JJ [2014] ACTCA 23 R v Rae [2013] NSWC…
Director of Public Prosecutions v Loughton (No 2)
[2025] ACTSC 179

…DPP v Alexander Waters (a pseudonym) [2025] ACTSC 84 DPP v van de Zandt (No 3) [2023] ACTSC 359 R v AQ [2021] ACTSC 74 R v BNS (No 2) [2016] ACTSC 145 R v SH [2015] ACTSC 25…
Director of Public Prosecutions v Alexander Waters (a pseudonym)
[2025] ACTSC 84

…194 CLR 610 Postiglione v The Queen [1997] HCA 26; 189 CLR 295 R v Ardron [2021] ACTSC 91 R v AJP [2004] NSWCCA 434; 150 A Crim R 575 R v BNS (No 2) [2016] ACTSC 145 R v Cashin [2016] ACTSC 351 R v CC [2016] ACTSC 43 R v CV [2013] ACTCA 22; 233 A Crim R 67 R v Dune [2018] ACTSC 257 R v EP (No 3) [2019] ACTSC 242 R…
Director of Public Prosecutions v Matas
[2024] ACTSC 234

…R v AJP [2004] NSWCCA 434; 150 A Crim R 575 R v Bandy [2018] ACTSC 261 R v BC (No 4) [2021] ACTSC 119 R v BI (No 4) [2017] ACTSC 71 R v BNS (No 2) [2016] ACTSC 145 R v Bonfield [2021] ACTSC 362 R v Campbell [2017] ACTSC 74 R v Cole [2019] ACTSC 228 R v Cramp [2004] NSWCCA 264 R v Daley [2010] NSWCCA 223 R v Edigar…
R v DL
[2018] ACTSC 142 Para 1

…nreported, Supreme Court of the ACT, Penfold J, 12 April 2012); R v PJ (Unreported, Supreme Court of the ACT, Burns J, 16 April 2013); R v BNS (No 2) [2016] ACTSC 145; R v SH [2015] ACTSC 25; R v PR (Unreported, Supreme Court of the ACT, Nield AJ, 12 September 2013).…
R v Wyper
[2017] ACTSC 50 Para 1

…na [2015] ACTCA 34 at [87], digital penetration is still an invasion of the privacy and dignity of the victim. There is, as I noted in R v BNS (No 2) [2016] ACTSC 145 at [32], no “hierarchy” of acts of sexual intercourse. On the other hand, digital penetration does not have some of the aggravating features of penil…
R v Goboly
[2016] ACTSC 322 Para 1

…of the Crimes (Sentencing) Act 2005 (ACT) to have regard to current sentencing practice. In this case, I have regard to what I said in R v BNS (No 2) [2016] ACTSC 145 and the cases referred to there at [59].…
R v TL (No 2)
[2016] ACTSC 289 Para 1

…I said recently in R v BNS (No 2) [2016] ACTSC 145 at [29]:…

View all 8 citing cases →

Cases cited in this decision · 6 of 6 shown

R v DK
[2016] ACTCA 7 Para 1

…in the bedroom, where many of these offences took place, rather than any other place in the house, are not necessarily more aggravating, (see R v DK [2016] ACTCA 7 at [56]), the fact that a number of the offences were committed while TN was asleep is a serious factor to be taken into account.…
R v CC
[2016] ACTSC 43 Para 1

…The seriousness of offending against children has been well described by Burns J in R v CC [2016] ACTSC 43 at [39]-[40], where his Honour said:…
R v HI
[2015] ACTSC 373 Para 1

…, R v PR (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, SCC 37 of 2012, 12 September 2013), R v SH [2015] ACTSC 25, R v HI [2015] ACTSC 373 and R v CC . These were all cases involving incest and, in many cases, acts of indecency but, of course, the circumstances in each case were somewhat…
R v SH
[2015] ACTSC 25 Para 1

…of 2008, 12 April 2012), R v PR (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, SCC 37 of 2012, 12 September 2013), R v SH [2015] ACTSC 25, R v HI [2015] ACTSC 373 and R v CC . These were all cases involving incest and, in many cases, acts of indecency but, of course, the circumstances i…
R v Boudelah
[1991] FCA 144 Para 1

…As Gallop J said in R v Boudelah (1991) 28 FCR 176 at 186:…
Ibbs v the Queen
[1987] HCA 46 Para 1

…he High Court has pointed out, the precise facts of the offending are relevant to the assessment of the seriousness of the offences: Ibbs v The Queen (1987) 163 CLR 447 at 451-2.…

Legislation cited in this decision · 4

Crimes Act 1900 (ACT)
26, 61(2), 62(2) 4 mentions (from Para 1)
Crimes (Sentencing) Act 2005 (ACT)
33, 7 3 mentions (from Para 1)
Magistrates Court Act 1930 (ACT)
90B 2 mentions (from Para 1)
Supreme Court Act 1933 (ACT)
1 mention (from Para 1)