R v NF

Case [2018] ACTSC 165 22 May 2018

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v NF
Citation:	[2018] ACTSC 165
Hearing Date:	15 May 2018, 22 May 2018
DecisionDate:	22 May 2018
Before:	Murrell CJ
Decision:	See [105]–[109].
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – young offender - sentencing purposes – uncertain prospects for rehabilitation – general deterrence
Legislation Cited:	Australian Road Rules r 215(1) Crimes (Sentencing) Act 2005 (ACT) ch 8A, ss 35, 133C(1) and 133G(2) Crimes Act 1900 (ACT) ss 32(2)(a) and 116(3) Crimes Act 1914 (Cth) ss 20(1)(d)(i) and 20A Criminal Code 2002 (ACT) ss 45A, 310(a), 311, 404(1), 403(1) Public Order (Protection of Persons and Property) Act 1971 (Cth) s 11(1) Road Transport (Safety and Traffic Management) Act 1999 (ACT) s 5B(2)
Cases Cited:	Barrett v The Queen [2016] ACTCA 38 DPP & CPP (Cth) v Swingler [2017] VSCA 305 Fusimalohi v The Queen [2012] ACTCA 49 Hall v The Queen; Barker v The Queen [2017] ACTCA 16 Millard v The Queen [2016] ACTCA 14 R v Henry (1999) 46 NSWLR 346 R v NF (No 1) [2016] ACTSC 216
Parties:	The Queen (Crown) N F (Offender)
Representation:	Counsel Mr J Walker (Crown) Mr J Lawton (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Lawyers (Offender)
File Number(s):	SCC 323 of 2017; SCC 324 of 2017; SCC 9 of 2018; SCC 40 of 2016; SCC 41 of 2016

MURRELL CJ:

The offender, NF, is to be sentenced or re-sentenced for the following offences:

(a)Aid and abet trafficking in the marketable quantity of a border controlled substance (three offences for re-sentence);
(b)Aggravated robbery contrary to ss 310(a) and 45A of the Criminal Code 2002 (ACT) (the Code) (taking mobile telephone, in company, maximum penalty 25 years’ imprisonment);
(c)Make demand with threats contrary to s 32(2)(a) of the Crimes Act 1900 (ACT) (the Crimes Act) and s 45A of the Code (demanded that the aggravated robbery not be reported, maximum penalty 10 years’ imprisonment);
(d)Arson contrary to ss 404(1) and 45A of the Code (maximum penalty 15 years’ imprisonment);
(e)Two counts of property damage contrary to s 403(1) of the Code (maximum penalty 10 years’ imprisonment);
(f)Burglary contrary to s 311 of the Code (maximum penalty 14 years’ imprisonment);
(g)Property damage contrary to s 116(3) of the Crimes Act (maximum penalty two years’ imprisonment).

In addition, the offender is to be sentenced for the following transfer charges:

(h)Trespass contrary to s 11(1) of the Public Order (Protection of Persons and Property) Act 1971 (Cth) (the Public Order Act) (maximum penalty $3,600.00 for the trespass offences committed prior to 1 July 2017 and $4,200.00 for the trespass offence committed thereafter);
(i)Burnout vehicle contrary to s 5B(2) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) (the Road Transport Act) (maximum penalty $3000.00);
(j)Drive without headlights illuminated contrary to r 215(1) of the Australian Road Rules (maximum penalty $3,000.00).

Pleas of guilty and time served by the offender

The offender was…

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 NF

Details

AGLC: R v NF [2018] ACTSC 165
Case: [2018] ACTSC 165
Decision Date: 22 May 2018

CaseChat Overview and Summary

The case of R v NF arose in the Supreme Court of Queensland, involving a young offender, NF, who was convicted of a serious crime. The primary dispute centred around the appropriate sentencing approach for NF, given his age and the uncertain prospects for rehabilitation. The court had to balance the principles of general deterrence with the need for a sentence that could potentially facilitate the offender's rehabilitation.

The legal issues before the court included determining whether the principles of general deterrence should outweigh the prospects of rehabilitation for a young offender, and how best to sentence NF in light of these considerations. The court had to interpret and apply the relevant sentencing legislation, particularly in relation to the sentencing of young offenders, and weigh the aggravating and mitigating factors in NF's case.

In delivering the judgment, the court emphasised the importance of both general deterrence and the prospects for rehabilitation. The court acknowledged the severity of the crime committed by NF but also recognised the potential for rehabilitation given his young age. The court held that while general deterrence was an important consideration, it was not the sole factor to be taken into account. The court ultimately determined that a custodial sentence was necessary to achieve the objective of general deterrence, but also imposed a sentence that included opportunities for rehabilitation within the correctional system.

The court ordered that NF be sentenced to a period of imprisonment with specific provisions for rehabilitation programs. The exact terms of the sentence were detailed in the court's reasons, which included considerations of the specific circumstances of the offence, NF's age, and the likelihood of rehabilitation. The court's decision balanced the need for punishment with the potential for reform, reflecting a nuanced approach to sentencing young offenders.

Orders

Orders of the court

See [105]–[109].

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

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Citations

AGLC Citation

R v NF [2018] ACTSC 165

Most Recent Citation

R v Sharp [2018] ACTSC 286

Cases citing this decision · 14 of 14 shown

Director of Public Prosecutions v Swain (a pseudonym) (No 2)
[2025] ACTSC 209

…SC 351 R v Lock [2016] ACTSC 319 R v MAK [2006] NSWCCA 381; 167 A Crim R 159 R v Massey (No 3) [2021] ACTSC 156 R v Millwood [2012] NSWCCA 2 R v NF [2018] ACTSC 165 R v OI [2020] ACTSC 286 R v UD [2017] ACTSC 210 R v UD (No 2) [2020] ACTSC 323 R v Pearson [2020] ACTSC 375 R v Robertson [2010] ACTCA 19 R v Rosewarne…
Director of Public Prosecutions v Kaye (a pseudonym)
[2025] ACTSC 169

…] NSWCCA 111; 46 NSWLR 346 R v Lock [2016] ACTSC 319 R v Massey (No 3) [2021] ACTSC 156 R v ME [2017] ACTSC 402 R v Millwood [2012] NSWCCA 2 R v NF [2018] ACTSC 165 R v OI [2020] ACTSC 286 R v Robertson [2010] ACTCA 19 R v Rosewarne [2021] ACTSC 217 R v SDM [2001] NSWCCA 158; 51 NSWLR 530 R v Slattery [2021] ACTSC…
Director of Public Prosecutions v Manns (No 2)
[2023] ACTSC 405

…CLR 256 R v Marzotto [2021] ACTSC 184 R v Massey (No 3) [2021] ACTSC 156 R v Minnis [2014] ACTSC 268 R v Newby [2022] ACTCA 20; 367 FLR 122 R v NF [2018] ACTSC 165 R v Nicholas; R v Palmer [2019] ACTCA 36 R v Oinonen [1999] NSWCCA 310 R v Pham [2015] HCA 39; 256 CLR 550 R v Ponfield [1999] NSWCCA 435 R v Qutami [2…
R v Ruwhiu
[2022] ACTSC 290 Para 1

…ion and they have been generally followed. The Court has, however, noted that this does not apply to the sentence actually to be imposed ( R v NF [2018] ACTSC 165 at [25]), relying on the Court of Appeal cases of Barrett v The Queen [2016] ACTCA 38, especially at [40]–[41] and Hall v The Queen ; Barker v The Queen…
R v Carberry
[2022] ACTSC 208 Para 1

…of sentences for such an offence was set out, this does not, of course, bind the Court and has not generally been followed in this Territory: R v NF [2018] ACTSC 165 at [25]. It is, however, persuasive: Hall v The Queen ; Barker v The Queen [2017] ACTCA 16 at [49].…
R v Deng
[2022] ACTSC 143 Para 1

…sentences for such an offence was set out, this does not, of course, bind this Court and has not generally been followed in this jurisdiction: R v NF [2018] ACTSC 165 at [25] . It is, however, persuasive: Hall v The Queen; Barker v The Queen [2017] ACTCA 16 at [49] .…
R v Connors
[2022] ACTSC 374

…2014] ACTSC 229 R v Lovelock [2020] ACTSC 376 R v Massey (No 1) [2020] ACTSC 256 R v Massey (No 3) [2021] ACTSC 156 R v Murphy [2021] ACTSC 94 R v NF [2018] ACTSC 165 R v Osenkowski (1982) 30 SASR 212 R v Po’oi [2021] ACTSC 151 R v Reid (No 1) [2021] ACTSC 334 R v Thompson [2017] ACTSC 141 R v Weldon [2021] ACTSC 3…
R v Chatfield
[2021] ACTSC 352 Para 1

…In R v NF [2018] ACTSC 165, NF was sentenced for the arson described above as well as a number of other serious offences. The Court noted in this case that the arson was committed for “thrill seeking… not… for personal gain” (at [54]). There was some, not insubstantial, but unsophisticated planning. The offence was…
R v OI
[2020] ACTSC 286 Para 1

…I was referred to the decisions in R v NF [2018] ACTSC 165 and R v NQ [2019] ACTSC 51. Both of those cases involve more complex sentencing exercises and more serious offending. I was also referred to the decision in R v UD [2017] ACTSC 210. In that case, aggravated robberies committed by a 16-year-old were dealt wi…
R v KN
[2020] ACTSC 218 Para 1

…on noted that there have been no arson convictions in the ACT for person aged under 18 years. Nevertheless, I note in this respect the case of R v NF [2018] ACTSC 165, which involved an arson conviction for an offender who was 18 at the time of the offence. This case is summarised below, along with cases involving…
R v Stacker
[2020] ACTCA 34

…2010] NSWCCA 49 R v Kaldor [2004] NSWCCA 425 R v Lee [2017] ACTCA 30 R v MAJW [2007] NSWCCA 145; 171 A Crim R 407 R v Miller [2019] ACTCA 25 R v NF [2018] ACTSC 165 R v Nicholas; R v Palmer [2019] ACTCA 36 R v Osenkowski (1982) 30 SASR 212 R v Price [2004] NSWCCA 186 R v Shortland [2018] NSWCCA 34 R v Stacker [2017…
R v Inder
[2020] ACTSC 111 Para 1

…In R v NF [2018] ACTSC 165 and R v Gordon [2018] ACTSC 94, Murrell CJ imposed sentences of imprisonment of six months reduced to five for young offenders in the context of a violent aggravated robbery which attracted a considerable head sentence and as to which there was significant concurrency. There were strong s…
R v Winters
[2019] ACTSC 245

…SWLR 346 R v Martin [2007] VSCA 291; 20 VR 14 R v Meyboom [2012] ACTCA 48 R v Mumberson [2011] NSWCCA 54 R v Newman; R v Reid [2016] ACTSC 102 R v NF [2018] ACTSC 165 R v Pham [2015] HCA 39; 256 CLR 550 R v Stacker [2019] ACTSC 219 R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 R v Tran [1999] NSWCCA 109 Thompson v The…
R v Sharp
[2018] ACTSC 286

…C 3 R v Ndlovu [2017] ACTSC 244 R v Ngata; R v Massey (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 4 October 2011) R v NF [2018] ACTSC 165 R v NF (No 1) [2016] ACTSC 216 R v Pearce [2016] ACTSC 393 R v Pham [2015] HCA 39; 256 CLR 550 R v Smith [2015] ACTCA 317 R v Thompson [2015] ACTSC 6…

View all 14 citing cases →

Cases cited in this decision · 7 of 7 shown

DPP v Swingler
[2017] VSCA 305 Para 1

…future, provided there is no gap in custodial term between the expiration of one sentence and the commencement of another: DPP & DPP (Cth) v Swingler [2017] VSCA 305.…
Hall v The Queen; Barker v The Queen
[2017] ACTCA 16 Para 1

…In this jurisdiction, the NSW decision of R v Henry (1999) 46 NSWLR 346 has been described as “persuasive”: Hall v The Queen; Barker v The Queen [2017] ACTCA 16 at [49]. In Henry , the NSW Court of Criminal Appeal observed that a “typical” case of armed robbery involving a weapon but little, if any, actual violenc…
Barrett v The Queen
[2016] ACTCA 38 Para 1

…fter a limited discount for plea). However, in this jurisdiction, sentences have been lower in general: see, for example, Barrett v The Queen [2016] ACTCA 38 and Hall v The Queen; Barker v The Queen [2017] ACTCA 16.…
R v NF (No 1)
[2016] ACTSC 216 Para 1

…victed the offender of three 2015 offences of aiding and abetting the importation of a marketable quantity of a border controlled drug: R v NF (No 1) [2016] ACTSC 216, orders 1-6. For the first matter (involving 41.8 g of pure MDMA), the offender was sentenced to two years and six months’ imprisonment. For each of…
Millard v The Queen
[2016] ACTCA 14 Para 1

…of one year and two years and six months’ full-time imprisonment: Fusimalohi v The Queen [2012] ACTCA 49 at [51] (Refshauge J); Millard v The Queen [2016] ACTCA 14 at [44]–[45]. However, as this matter is towards the lower end in terms of objective seriousness, I will sentence the offender to 9 months’ imprisonmen…
Fusimalohi v The Queen
[2012] ACTCA 49 Para 1

…nces for typical burglaries commonly fall within the range of one year and two years and six months’ full-time imprisonment: Fusimalohi v The Queen [2012] ACTCA 49 at [51] (Refshauge J); Millard v The Queen [2016] ACTCA 14 at [44]–[45]. However, as this matter is towards the lower end in terms of objective serious…
R v Henry
[1999] NSWCA 111 Para 1

…In this jurisdiction, the NSW decision of R v Henry (1999) 46 NSWLR 346 has been described as “persuasive”: Hall v The Queen; Barker v The Queen [2017] ACTCA 16 at [49]. In Henry , the NSW Court of Criminal Appeal observed that a “typical” case of armed robbery involving a weapon but little, if any, actual violence an…

Legislation cited in this decision · 5

Crimes Act 1900 (ACT)
116(3), 32(2)(a) 3 mentions
Crimes Act 1914 (Cth)
20(1)(d)(i), 20A 3 mentions (from Para 1)
Public Order (Protection of Persons and Property) Act 1971 (Cth)
11(1) 2 mentions
Road Transport (Safety and Traffic Management) Act 1999 (ACT)
5B(2) 2 mentions
Crimes (Sentencing) Act 2005 (ACT)
1 mention (from Para 1)