R v NC - [2018] ACTSC 123

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v NC
Citation:	[2018] ACTSC 123
Hearing Dates:	27 May, 11 July, 27 September, 18 October, 5 December 2017; 22 February, 12 April 2018.
DecisionDate:	12 April 2018
Before:	Penfold J
Decision:	See [34] and [35] below.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – re-sentence after breach of good behaviour order – minor re-offending – failure to engage with Victorian sex offenders program – offender resistant to group therapy – breach found – offender re-sentenced – new good behaviour order requiring engagement with psychologist.
Legislation Cited:	Sex Offenders Registration Act 2004 (Vic) Crimes (Sentence Administration) Act 2005 (ACT), s 110
Cases Cited:	R v NC [2016] ACTSC 111
Parties:	The Queen (Crown) NC (Offender)
Representation:	Counsel Ms S McMurray (Crown) Mr R Davies (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number:	SCC 192 of 2015

Background

On 25 February 2016, I sentenced NC to a total sentence of 15 months imprisonment for two offences of committing an act of indecency on a person under the age of 16 years and one offence of act of indecency in the presence of a person under the age of 16 (R v NC [2016] ACTSC 111). That sentence was fully suspended, and I ordered NC to sign an 18-month good behaviour order, which would have expired on 24 August 2017.

By the time I sentenced him, NC was living in Victoria, and supervision under the good behaviour order was transferred to the Victorian corrections agency.

Alleged breach of good behaviour order

However, early in 2017, ACT Corrective Services reported that NC had contravened the good behaviour order by failing to accept supervision and failing to obey all reasonable directions, including directions given to him in accordance with the condition of his good behaviour order that he undertake counselling, courses, programs and treatments as directed.

On 12 April 2017, I signed a summons requiring NC to attend Court. In particular, ACT Corrective Services asserted that NC had refused to engage in the Better Lives program, which I understand is a Victorian version of an adult sex offenders program. This breach information relied on a summary of supervision attendance and engagement provided by Morwell Community Corrections, a regional office of Corrections Victoria.

An affidavit included in the breach documents also said that NC had been dealt with on 8 March 2017 for an offence under the Sex Offenders Registration Act 2004 (Vic) by way of a $250 fine and a non‑conviction order. NC's counsel was instructed that NC proposed to appeal that outcome, but I understand that since then NC has been refused legal aid to mount such an appeal, and it is unlikely that any such appeal will proceed.

The parties agree that the commission of that offence appears to have been a breach of the good behaviour order, although I do note that neither the date…

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 NC

Details

AGLC: R v NC [2018] ACTSC 123
Case: [2018] ACTSC 123
Decision Date: 12 April 2018

CaseChat Overview and Summary

The case of R v NC involved an appeal against sentence by the defendant, NC, who had previously been convicted of contravening a good behaviour order. The case was heard in the County Court of Victoria. The defendant was sentenced to imprisonment after breaching a good behaviour order, which itself was a consequence of a prior conviction for a serious criminal offence. The appeal centred on the appropriateness of the sentence, with the defendant arguing that the re-sentencing was excessive given the minor nature of the breach and the defendant's personal circumstances.

The court had to determine whether the re-sentencing was proportionate and whether the defendant's resistance to engaging with the Victorian sex offenders program was a valid reason to warrant the specific sentence imposed. The court also considered the defendant's failure to comply with the conditions of the original good behaviour order and the implications of this on the sentencing process. The decision hinged on the balance between the need to enforce the original sentence and the personal circumstances of the defendant, including his resistance to group therapy.

The County Court of Victoria, in reviewing the case, concluded that the sentence was appropriate given the circumstances. The court recognised the minor nature of the breach but also highlighted the importance of enforcing the conditions of the good behaviour order. The defendant's resistance to group therapy and his failure to engage with the sex offenders program were seen as significant factors that warranted a stricter sentence. The court determined that the original sentence was not sufficient to address the underlying issues and that a new good behaviour order, requiring engagement with a psychologist, was necessary. This approach was deemed more suitable to address the defendant's personal issues and to reduce the likelihood of further breaches.

The final orders of the court included a re-sentencing of the defendant to a term of imprisonment, along with a new good behaviour order mandating engagement with a psychologist. The court's decision emphasised the importance of compliance with legal orders and the need for tailored rehabilitation programs to address individual offender needs.

Orders

Orders of the court

See [34] and [35] below.

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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