R v BO (No 3) - [2016] ACTSC 175

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v BO (No 3)
Citation:	[2016] ACTSC 175
Hearing Date:	6 July 2016
DecisionDate: Reasons Date:	6 July 2016 22 July 2016
Before:	Refshauge J
Decision:	BO has not breached his good behaviour obligations.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Alleged breach of Good Behaviour Order – alleged failure to comply with directions – onus on prosecution to prove breach – beyond reasonable doubt – appropriate fault element – whether breach of conditions is subject to proof strict liability. CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Breach of obligations of Good Behaviour Order – no statutory capacity to excuse breach or ignore for triviality – desirability of reform.
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT), ss 86(1)(d), 102, 106, 110 Crimes (Sentencing) Act 2005 (ACT), ss 12, 12(3), 64 Crimes (Sentencing Procedure) Act 1999 (NSW), s 98(3) Court Procedures Rules 2006 (ACT)
Cases Cited:	Director of Public Prosecutions (NSW) v Cooke (2007) 168 A Crim R 379 Guy v Anderson [2013] ACTSC 5 He Kaw Teh v The Queen (1985) 157 CLR 523 Proudman v Dayman (1941) 67 CLR 536 R v Judge Leckie; ex parte Felman (1977) 18 ALR 93 R v Marlow Justices; Ex parte O’Sullivan [1984] QB 381 R v McGarry (1945) 30 Cr App R 187 R v Smith [1925] 1 KB 603 R v Southampton Justices; Ex parte Green [1976] QB 11 Sherras v De Rutzen [1895] 1 QB 918 Sweet v Parsley [1970] AC 132
Texts Cited:	David Lanham et al, Criminal Laws in Australia (Federation Press, 2006)
Parties:	The Queen (Crown) BO (Defendant)
Representation:	Counsel Ms S McMurray (Crown) Mr R Davies (Defendant)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid (ACT) (Defendant)
File Number:	SCC 215 of 2013

REFSHAUGE J:

On 16 September 2014, following a trial by jury, the offender, BO, was convicted of one offence of engaging in sexual intercourse with a young person under the age of ten years and eight offences of committing an act on or in the presence of a young person under the age of ten years.

On 13 November 2014, I sentenced BO to a total of two years and six months imprisonment from 16 September 2014 to 15 March 2017.

I directed that the sentence be suspended after twelve months, on 15 September 2015, for a period of eighteen months.

In accordance with s 12(3) of the Crimes (Sentencing) Act 2005 (ACT), I made a Good Behaviour Order for a period of two years from 15 September 2015, with a probation condition that BO be under the supervision of the Director-General or her delegate for a period of two years or such lesser period as the person supervising him considers appropriate and that he obey all reasonable directions of 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…

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 3)

Details

AGLC: R v BO (No 3) [2016] ACTSC 175
Case: [2016] ACTSC 175
Decision Date: 22 July 2016

CaseChat Overview and Summary

In the matter of R v BO (No 3), the court considered the defendant's alleged breach of a Good Behaviour Order (GBO). The dispute involved whether the defendant had failed to comply with specific directions outlined in the GBO, with the prosecution asserting that the breach occurred. The case was heard in the appropriate court, where the legal principles surrounding the enforcement and interpretation of GBOs were to be applied.

The central legal issues before the court were whether the prosecution had demonstrated, beyond reasonable doubt, that the defendant had breached the terms of his GBO, and if so, what the appropriate fault element should be in such cases. The court also had to consider whether breaches of GBOs should be subject to a strict liability regime or if a lesser standard of proof was sufficient. Another issue was whether there was any statutory capacity to excuse a breach or to disregard a breach on the basis of its triviality.

In its reasoning, the court concluded that the prosecution had not established, beyond reasonable doubt, that the defendant had breached the terms of his GBO. The court held that the appropriate fault element to be applied was one requiring proof of fault, rather than strict liability. The court further noted that there was no statutory capacity to excuse or disregard a breach of a GBO for triviality, but suggested that there might be a need for legislative reform to address this issue. Consequently, the court found that the defendant had not breached his good behaviour obligations.

The final orders of the court were that the defendant had not breached his good behaviour obligations. This decision underscored the importance of the prosecution proving a breach beyond reasonable doubt and highlighted the potential for legislative reform in this area.

Orders

Orders of the court

BO has not breached his good behaviour obligations.

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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