R v BO (No 2) - [2014] ACTSC 371

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v BO (No 2)
Citation:	[2014] ACTSC 371
Hearing Date(s):	10 November 2014
DecisionDate:	13 November 2014
Before:	Refshauge J
Decision:	1. BO be convicted of the first count on the indictment, namely, committing an act of indecency in the presence of the first complainant, then a child under the age of ten years. 2. For that offence, BO be sentenced to three months imprisonment to commence on 16 September 2014, to take into account pre‑sentence custody. 3. BO be convicted of the second count on the indictment, namely, committing an act of indecency on the first complainant, then a child under the age of ten years. 4. For that offence, BO be sentenced to six months imprisonment to commence on 16 September 2014, that is, to be cumulative as to three months on the first sentence. 5. BO be convicted of the third count on the indictment, namely, engaging in sexual intercourse with the first complainant being under the age of ten years. 6. For that offence, BO be sentenced to 12 months imprisonment to commence on 16 September 2014, that is, to be cumulative as to six months on the second sentence. 7. BO be convicted of the fourth count on the indictment, namely, committing an act of indecency on the first complainant, then a child under the age of ten years. 8. For that offence, BO be sentenced to nine months imprisonment to commence on 16 May 2015, that is, to be cumulative as to six months on the third sentence. 9. BO be convicted of the fifth count on the indictment, namely, committing an act of indecency on the first complainant, then a child under the age of ten years. 10. For that offence, BO be sentenced to nine months imprisonment to commence on 16 June 2015, that is, to be cumulative as to three months on the fourth sentence that I have imposed. 11. BO be convicted of the sixth count of the indictment that namely, committing an act of indecency on the first complainant, then a child under the age of ten years. 12. For that offence, BO be sentenced to nine months imprisonment to commence on 16 September 2015, that is, to be cumulative as to three months on the fifth sentence. 13. BO be convicted of the seventh count on the indictment, namely, committing an act of indecency on the second complainant, then a child under the age of ten years. 14. For that offence, BO be sentenced to eight months imprisonment to commence on 16 February 2016, that is, to be cumulative as to four months on the sixth sentence. 15. BO be convicted of the eighth count on the indictment, namely, committing an act of indecency in the presence of the second complainant, then a child under the age of ten years. 16. For that offence, BO be sentenced to three months imprisonment to commence on 16 August 2016,…

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 BO (No 2)

Details

AGLC: R v BO (No 2) [2014] ACTSC 371
Case: [2014] ACTSC 371
Decision Date: 13 November 2014

CaseChat Overview and Summary

In the case of R v BO (No 2), BO was convicted and sentenced on multiple counts of sexual offences involving children under the age of ten. The court was required to address the sentencing of these serious offences. The legal issues included the appropriate sentencing approach for such crimes, the cumulative nature of the sentences, and the specific conditions of any suspended sentence.

The court found that the offences were of a serious nature, warranting custodial sentences. The cumulative approach to sentencing was justified due to the severity and frequency of the offences. The court determined that the sentences should run consecutively, reflecting the gravity of the crimes committed against vulnerable victims. Additionally, the court imposed specific conditions for a suspended sentence, including supervision and compliance with good behaviour obligations, to ensure the offender's rehabilitation and protection of the community.

The court sentenced BO to a total of 39 months imprisonment, to be served consecutively, with a suspended sentence of 18 months commencing on 15 September 2015. BO was also required to comply with specific conditions during the suspended sentence period, including supervision and engagement with mental health and vocational services. The court further recommended that BO serve his sentence in a juvenile detention place due to his age and the circumstances outlined in the Pre-Sentence Report. BO was marked as a prisoner at risk, highlighting the need for appropriate support during his incarceration.

The final orders included convictions on all counts of the indictment and the imposition of specific sentences, both custodial and suspended, along with conditions to be met during the suspended sentence period. BO was also to be supervised and required to engage with various services to aid in his rehabilitation and reintegration into society.

Orders

Orders of the court

1. BO be convicted of the first count on the indictment, namely, committing an act of indecency in the presence of the first complainant, then a child under the age of ten years.

2. For that offence, BO be sentenced to three months imprisonment to commence on 16 September 2014, to take into account pre‑sentence custody.

3. BO be convicted of the second count on the indictment, namely, committing an act of indecency on the first complainant, then a child under the age of ten years.

4. For that offence, BO be sentenced to six months imprisonment to commence on 16 September 2014, that is, to be cumulative as to three months on the first sentence.

5. BO be convicted of the third count on the indictment, namely, engaging in sexual intercourse with the first complainant being under the age of ten years.

6. For that offence, BO be sentenced to 12 months imprisonment to commence on 16 September 2014, that is, to be cumulative as to six months on the second sentence.

7. BO be convicted of the fourth count on the indictment, namely, committing an act of indecency on the first complainant, then a child under the age of ten years.

8. For that offence, BO be sentenced to nine months imprisonment to commence on 16 May 2015, that is, to be cumulative as to six months on the third sentence.

9. BO be convicted of the fifth count on the indictment, namely, committing an act of indecency on the first complainant, then a child under the age of ten years.

10. For that offence, BO be sentenced to nine months imprisonment to commence on 16 June 2015, that is, to be cumulative as to three months on the fourth sentence that I have imposed.

11. BO be convicted of the sixth count of the indictment that namely, committing an act of indecency on the first complainant, then a child under the age of ten years.

12. For that offence, BO be sentenced to nine months imprisonment to commence on 16 September 2015, that is, to be cumulative as to three months on the fifth sentence.

13. BO be convicted of the seventh count on the indictment, namely, committing an act of indecency on the second complainant, then a child under the age of ten years.

14. For that offence, BO be sentenced to eight months imprisonment to commence on 16 February 2016, that is, to be cumulative as to four months on the sixth sentence.

15. BO be convicted of the eighth count on the indictment, namely, committing an act of indecency in the presence of the second complainant, then a child under the age of ten years.

16. For that offence, BO be sentenced to three months imprisonment to commence on 16 August 2016, that is, to be cumulative as to one month on the seventh sentence.

17. BO be convicted of the ninth count on the indictment, namely, committing an act of indecency on the second complainant, then a child under the age of ten years.

18. For that offence, BO be sentenced to eight months imprisonment to commence on 16 July 2016, that is, to be cumulative as to four months on the eighth sentence.

19. The sentence be suspended on 15 September 2015 for a period of eighteen months.

20. BO be required to sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years from 15 September 2015, with a probation condition that he be under the supervision of the Director‑General, or her delegate, for a period of two years, or such lesser period as that person considers appropriate, and that he obey all reasonable directions from the person supervising him, especially as to engagement with a mental health service provider, engagement with vocational training, work experience or other employment activities and engagement with his therapist.

21. It be recommended, under s 18(3)(a)(ii) of the Crimes (Sentence Administration) Act 2005 (ACT), that the period of imprisonment be served in a juvenile detention place under the Children and Young People Act 2008 (ACT) because of the matters set out in the Pre‑Sentence Report.

22. BO be marked as a prisoner at risk.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.