R v NC - [2016] ACTSC 111

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v NC
Citation:	[2016] ACTSC 111
Hearing Date(s):	4 February 2016
DecisionDate:	25 February 2016
Before:	Penfold J
Decision:	See [47] – [50].
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offender sentenced for three acts of indecency on or in the presence of person aged under 16 years – offender in a position of trust – early plea of guilty – delay in prosecution – need to consider sentencing practice at time of offending – consideration of offender’s mental health where Verdins principles not engaged.
Legislation Cited:	Crimes Act 1900 (ACT), s 92K(2) Crimes (Sentence Administration) Act 2005 (ACT)
Cases Cited:	Monfries v The Queen [2014] ACTCA 46 R v Blanco (1999) 106 A Crim R 303 R v Nona [2015] ACTSC 136 R v Scheeren [2014] ACTSC 272 R v Verdins (2007) 16 VR 269 R v WR (No 4) [2015] ACTSC 211 R v WR (No 5) [2015] ACTSC 258
Parties:	The Queen (Crown) NC (Offender)
Representation:	Counsel Ms M Moss (Crown) Mr R Davies (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number:	SCC 192 of 2015

The offences

NC has pleaded guilty to three offences, being two acts of indecency on a person under the age of 16 years and one act of indecency in the presence of a person under the age of 16, committed in 1999 and therefore arising under s 92K(2) of the Crimes Act 1900 (ACT). Those offences carried a maximum penalty including 10 years imprisonment.

The incident

The incident from which these charges arose took place in September 1999, when the complainant was 11 years old. At that time the complainant’s mother was in a relationship with NC, and the complainant and her mother were living in his house in suburban Canberra.

The incident is described in the agreed statement of facts as follows:

On an afternoon in September 1999 [NC] was in the bedroom at the computer. Whilst [the complainant’s mother] was in the bath, [NC] called the complainant into the bedroom and told her to sit on his lap as they chose songs to put on a CD. The complainant sat on [NC’s] left thigh. [He] asked the complainant whether she had grown any pubic hair and asked her to show him. The complainant pulled down her pants partially to show [NC].
[NC] placed his left hand into the complainant’s underpants and began to gently rub the outside of her vagina. The complainant froze and [NC] continued to rub the area below her pubic bone and just above her vagina.
[NC] then moved his hand down towards her vagina. [He] then rubbed the complainant’s clitoris and the top of her vagina for about one minute.
Whilst rubbing the complainant’s clitoris, [NC] pulled the front of his pants out to expose his penis. [He] asked the complainant if she wanted to look at his penis and…

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 [2016] ACTSC 111
Case: [2016] ACTSC 111
Decision Date: 25 February 2016

CaseChat Overview and Summary

The case of R v NC involved an offender who was sentenced for three acts of indecency committed on or in the presence of a person aged under 16 years. The offender was in a position of trust at the time of the offending. The case was heard in the Supreme Court of Queensland. The key issues before the court were the appropriate sentence for the offender, considering the delay in the prosecution, the need to account for sentencing practices at the time of the offending, and the offender’s mental health, which did not engage the principles set out in Verdins.

The court first addressed the delay in the prosecution, acknowledging the delay but noting the offender’s early plea of guilty, which was a mitigating factor. The court examined the sentencing practices at the time of the offending, finding that the appropriate sentence should reflect the gravity of the offences and the offender’s position of trust. The court also considered the offender’s mental health, though it did not engage the principles from Verdins, as the offender did not meet the criteria for a psychiatric or psychological disorder impacting their culpability. The court ultimately determined that a custodial sentence was necessary, but it also considered the offender's rehabilitation potential and the need for deterrence.

The court imposed a sentence that balanced the need for punishment and deterrence with the offender’s prospects for rehabilitation. The sentence was designed to reflect the seriousness of the offences, taking into account all relevant factors, including the delay in prosecution, the offender's early plea, and their mental health. The court made clear that the sentence aimed to address the breach of trust and the impact on the victim, while also considering the offender's potential for rehabilitation.

The final orders of the court included the sentencing of the offender to a term of imprisonment, with specific conditions and considerations for the offender's mental health and rehabilitation. The exact terms of the sentence and conditions were detailed in the judgment from paragraphs [47] to [50].

Orders

Orders of the court

See [47] – [50].

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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