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R v Naing

R v Naing

Case [2023] ACTSC 210 3 August 2023

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Naing
Citation:	[2023] ACTSC 210
Hearing Date:	18 May 2023
Decision Date:	3 August 2023
Before:	Loukas-Karlsson J
Decision:	See [166]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency on person under 16 years – five counts of offending –two victims known to the offender – intoxication and moral culpability – no relevant criminal history – hardship to third parties – importance of general deterrence in sentencing sexual offences against children – term of full-time imprisonment – nonparole period imposed
Legislation Cited:	Crimes Act 1900 (ACT) s 61 Crimes Act 1900 (NSW) s 66EA Crimes Act 1914 (Cth) s 16A Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33, 34A
Cases Cited:	Bugmy v The Queen (1990) 169 CLR 525 Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41 Cheung v The Queen [2001] HCA 67; 209 CLR 1 Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 De Jesus (1986) 20 A Crim R 402 DPP v Ip [2005] ACTCA 24 Fisher v The Queen (1989) 40 A Crim R 442 Hasan v The Queen [2010] VSCA 352; 31 VR 28 Hili v the Queen [2010] HCA 45; 242 CLR 520 Hogan v Hinch [2011] HCA 4; 243 CLR 506 JG v R [2023] NSWCCA 33 Kalofolias v The Queen [2017] VSCA 308 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Martin v The Queen [2007] VSCA 291 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Munda v Western Australia [2013] HCA 38; 249 CLR 600 O’Brien v The Queen [2015] ACTCA 47 Power v The Queen (1974) 131 CLR 623 R v Anderson (No 2) [2020] ACTSC 98 R v Ardron [2021] ACTSC 91 R v Bartlett [2016] ACTSC 390 R v BC (No 4) [2021[ ACTSC 119 R v BJW [2000] NSWCCA 60; 112 A Crim R 1 R v Cole [2017] ACTSC 404 R v Coleman (1990) 47 A Crim R 306 R v Dent (Unreported, NSW Criminal Court of Appeal, Lee CJ, 14 March 1991) R v Eisenach [2011] ACTCA 2 R v Elson [2020] ACTSC 264 R v GWM [2012] NSWCCA 240 R v Hicks (No 2) [2019] ACTSC 333 R v Hill [2016] ACTSC 310 R v Horton-Hegarty [2018] ACTCA 22 R v Isaacs (1997) 41 NSWLR 374 R v Kellan (a pseudonym) [2021] ACTSC 314 R v Kilic [2016] HCA 48; 259 CLR 256 R v Lane (1990) 48 A Crim R 161 R v March [2023] ACTSC 28 R v MT [2020] ACTSC 339 R v PGM [2008] NSWCCA 172 R v Pham [2015] HCA 39; 256 CLR 550 R v Redenbach (1991) 52 A Crim R 95 R v Rosenberger; ex parte Attorney-General (Qld) (1995) 1 Qd R 677 R v Srna [2018]…

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 Naing

Details

AGLC: R v Naing [2023] ACTSC 210
Case: [2023] ACTSC 210
Decision Date

CaseChat Overview and Summary

In the case of R v Naing, the Supreme Court of the Australian Capital Territory sentenced Sithu Naing to a total of three years in prison, with a nonparole period of 18 months, for five counts of committing acts of indecency on two underage victims. The court found that the nature of the offences, involving touching the genitals of the victims under their clothes, was of considerable seriousness. While the offender's intoxication at the time of the offences slightly reduced his moral culpability, it did not significantly mitigate his culpability or the seriousness of the offending. The court considered the offender's subjective circumstances, including his good character, limited criminal history, and excellent prospects for rehabilitation if he abstains from alcohol. The court also took into account the considerable hardship faced by the offender's family due to his incarceration. The sentencing decision emphasised the importance of general deterrence for sexual offences against children and recognised the need for rehabilitation to protect the community in the long term. The court imposed concurrent sentences for the offences while acknowledging their separate and distinct nature, and recommended specific conditions for parole to support the offender's rehabilitation and prevent reoffending.

Orders