Case Title:	R v NF (No 1)
Citation:	[2016] ACTSC 216
Hearing Date:	7 July 2016
DecisionDate:	13 July 2016
Before:	Refshauge J
Decision:	1. NF be convicted of aiding and abetting in the importation of a marketable quantity of a border controlled drug (CH 15/864). 2. NF be sentenced to 2 years and 6 months imprisonment to commence today. 3. NF be convicted of aiding and abetting in the importation of a marketable quantity of a border controlled drug (CH 15/865). 4. NF be sentenced to 18 months imprisonment to commence today to be wholly concurrent with the first sentence. 5. NF be convicted of aiding and abetting in the importation of a marketable quantity of a border controlled drug (CH 15/866). 6. NF be sentenced to 18 months imprisonment to commence today to be wholly concurrent with the first sentence. 7. Under s 20 of the Crimes Act 1914 (Cth), NF be released upon giving security in the sum of $50 to be of good behaviour for a period of 3 years and he be subject to supervision by the Director-General or her delegate for the period of 3 years or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of that person. 8. NF be convicted of trafficking in a controlled drug, namely MDMA (CH 15/584). 9. NF be sentenced to 12 months imprisonment to commence on 13/5/2018 to be cumulative as to 4 months on the sentences for the Commonwealth offences. 10. NF be convicted of supplying a drug of dependence, namely MDMA (CH 15/854). 11. NF be sentenced to 12 months imprisonment to commence on 13/9/2018 to be cumulative as to 4 months on the sentences for trafficking MDMA. 12. NF be convicted of trafficking in a controlled drug, namely mephedrone (CH 15/506). 13. NF be sentenced to 12 months imprisonment to commence on 13/1/2019 to be cumulative as to 4 months on the sentences for supplying MDMA. 14. NF be convicted of trafficking in a controlled drug, namely LSD (CH 15/505). 15. NF be sentenced to 12 months imprisonment to commence on 13/5/2019 to be cumulative as to 4 months on the sentences for trafficking mephedrone. 16. NF be convicted of damaging property (CH 15/853). 17. NF be sentenced to 4 months imprisonment to commence on 13/2/2020 to be cumulative as to 1 month on the sentences for trafficking LSD. 18. NF be convicted of damaging property (CH 15/848). 19. NF be sentenced to 4 months imprisonment to commence on 13/3/2020 to be cumulative as to 1 month on the first sentence for damaging property. 20. NF be convicted of damaging property (CH 15/849). 21. NF be sentenced to 4 months imprisonment to commence on 13/3/2020 to be wholly concurrent on the second sentence for damaging property. 22. NF be convicted of damaging property (CH 15/850). 23. NF be sentenced to 4 months imprisonment to commence on 13/3/2020 to be…

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 (No 1)

Details

AGLC: R v NF (No 1) [2016] ACTSC 216
Case: [2016] ACTSC 216
Decision Date: 13 July 2016

CaseChat Overview and Summary

The case of R v NF (No 1) was heard in the Supreme Court of the Australian Capital Territory. The respondent, NF, was charged with a series of criminal offences, including the importation and trafficking of drugs, damaging property, possessing firearms and prohibited weapons, possessing property suspected of being stolen, and theft. The court was required to consider the appropriate sentencing for these offences, taking into account the principles of sentencing for young offenders and the immaturity and rehabilitation prospects of the accused.

The central legal issues before the court were the appropriate sentencing for the range of offences committed by NF, a young offender. The court had to consider the cumulative impact of the offences and the need to balance the principles of deterrence, rehabilitation, and protection of the community. Additionally, the court had to determine whether the offences warranted concurrent or cumulative sentencing, and whether a suspended sentence and recognizance release order would be appropriate in this case.

The court found that NF's offences, while serious, warranted a sentence that allowed for rehabilitation and reintegration into society. The court acknowledged the youth and immaturity of NF, as well as the potential for rehabilitation. As a result, the court imposed a total sentence of 4 years and 1 month, to be suspended for 3 years. NF was also subject to a recognizance release order, a Good Behaviour Order, and a reparation order, which required NF to pay compensation to the victims of his crimes. The court also ordered NF to sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentencing Administration) Act 2005 (ACT) for a period of 3 years, to begin on 13/5/2018, with a probation condition that he accept the supervision of the Director-General or her delegate for the period of 3 years or such lesser period as the person supervising him considers appropriate.

The court ordered that NF be convicted of and sentenced for the various offences as detailed in the orders section. Additionally, NF was directed to pay compensation to the victims of his crimes, and to comply with the good behaviour obligations and supervision as outlined in the court's orders.

Orders

Orders of the court

1. NF be convicted of aiding and abetting in the importation of a marketable quantity of a border controlled drug (CH 15/864).

2. NF be sentenced to 2 years and 6 months imprisonment to commence today.

3. NF be convicted of aiding and abetting in the importation of a marketable quantity of a border controlled drug (CH 15/865).

4. NF be sentenced to 18 months imprisonment to commence today to be wholly concurrent with the first sentence.

5. NF be convicted of aiding and abetting in the importation of a marketable quantity of a border controlled drug (CH 15/866).

6. NF be sentenced to 18 months imprisonment to commence today to be wholly concurrent with the first sentence.

7. Under s 20 of the Crimes Act 1914 (Cth), NF be released upon giving security in the sum of $50 to be of good behaviour for a period of 3 years and he be subject to supervision by the Director-General or her delegate for the period of 3 years or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of that person.

8. NF be convicted of trafficking in a controlled drug, namely MDMA (CH 15/584).

9. NF be sentenced to 12 months imprisonment to commence on 13/5/2018 to be cumulative as to 4 months on the sentences for the Commonwealth offences.

10. NF be convicted of supplying a drug of dependence, namely MDMA (CH 15/854).

11. NF be sentenced to 12 months imprisonment to commence on 13/9/2018 to be cumulative as to 4 months on the sentences for trafficking MDMA.

12. NF be convicted of trafficking in a controlled drug, namely mephedrone (CH 15/506).

13. NF be sentenced to 12 months imprisonment to commence on 13/1/2019 to be cumulative as to 4 months on the sentences for supplying MDMA.

14. NF be convicted of trafficking in a controlled drug, namely LSD (CH 15/505).

15. NF be sentenced to 12 months imprisonment to commence on 13/5/2019 to be cumulative as to 4 months on the sentences for trafficking mephedrone.

16. NF be convicted of damaging property (CH 15/853).

17. NF be sentenced to 4 months imprisonment to commence on 13/2/2020 to be cumulative as to 1 month on the sentences for trafficking LSD.

18. NF be convicted of damaging property (CH 15/848).

19. NF be sentenced to 4 months imprisonment to commence on 13/3/2020 to be cumulative as to 1 month on the first sentence for damaging property.

20. NF be convicted of damaging property (CH 15/849).

21. NF be sentenced to 4 months imprisonment to commence on 13/3/2020 to be wholly concurrent on the second sentence for damaging property.

22. NF be convicted of damaging property (CH 15/850).

23. NF be sentenced to 4 months imprisonment to commence on 13/3/2020 to be wholly concurrent on the second sentence for damaging property.

24. NF be convicted of possessing a firearm (CH 15/504).

25. NF be sentenced to 2 months imprisonment to commence on 13/6/2020 to be cumulative as to 1 month on the second sentence for damaging property.

26. NF be convicted of possessing a prohibited weapon (CH 15/503).

27. NF be sentenced to 2 months imprisonment to commence on 13/6/2020 to be wholly concurrent on the sentence for possessing a firearm.

28. NF be convicted of possessing prohibited weapon (CH 15/502).

29. NF be sentenced to 2 months imprisonment to commence on 13/6/2020 to be wholly concurrent on the sentence for possessing a firearm.

30. That be a total sentence of 4 years and 1 month to be suspended for 3 years.

31. NF be required to sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentencing Administration) Act 2005 (ACT) for a period of 3 years, to begin on 13/5/2018, with a probation condition that he accept the supervision of the Director-General or her delegate for the period of 3 years or such lesser period as the person supervising him considers appropriate.

32. NF be convicted of possessing property unlawfully suspected of being stolen (CH 15/507).

33. NF be required to sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentencing Administration) Act 2005 (ACT) for a period of 12 months to be concurrent with the Good Behaviour Order in Order 31.

34. NF be convicted of theft (CH 15/851).

35. NF be required to sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentencing Administration) Act 2005 (ACT) for a period of 12 months to be concurrent with the Good Behaviour Order in Order 31.

36. NF be convicted of theft (CH 15/852).

37. NF be required to sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentencing Administration) Act 2005 (ACT) for a period of 12 months to be concurrent with the Good Behaviour Order in Order 31.

38. NF be directed to pay the sum of $600 to the Registrar of the Supreme Court within 18 months for payment out to Brett Allen.

39. NF be directed to pay the sum of $495.20 to the Registrar of the Supreme Court within 18 months for payment out to Scott Maher.

40. NF be directed to pay the sum of $819.24 to the Registrar of the Supreme Court within 18 months for payment out to Suvransu Brahma.

41. NF be directed to pay the sum of $2058.23 to the Registrar of the Supreme Court within 2 years for payment out to the Australian Capital Territory.

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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Citations

AGLC Citation

R v NF (No 1) [2016] ACTSC 216

Most Recent Citation

R v NF (No 2) [2016] ACTSC 227

Cases citing this decision · 13 of 13 shown

R v Subasic (No 2)
[2023] ACTSC 79

…346 R v JM [2014] ACTSC 380 R v Johnson [2018] ACTSC 137 R v Marschall [2002] NSWCCA 197; 129 A Crim R 381 R v McGrail [2016] ACTSC 142 R v NF (No 1) [2016] ACTSC 216 R v Nona [2015] ACTSC 136 R v Pikula [2015] ACTSC 380 R v Qutami [2001] NSWCCA 353; 127 A Crim R 369 R v Reid (No 1) [2021] ACTSC 334 R v Sladic [201…
R v Celeski (No 2)
[2022] ACTSC 393

…hi ; R v Grech (No 2) [2017] ACTSC 176 R v Visser [2016] ACTSC 261 R v Walker; R v Walker [2016] ACTSC 232 R v Williams [2022] ACTSC 72 R v NF (No 1) [2016] ACTSC 216 Saga v Reid [2010] ACTSC 59 Talbot v The Queen (1992) 59 A Crim R 383 Tate v The Queen [2012] ACTCA 50 Ward v Marsh [1959] VR 26…
R v McKenna
[2022] ACTSC 346 Para 1

…inal activity, have often remarked on this social tragedy. In this Territory, see, for example, R v NE [2015] ACTSC 352 at [55]–[58], R v NF (No 1) [2016] ACTSC 216 at [38]–[39] and R v Green [2021] ACTSC 356 at [1]–[2].…
R v Green
[2021] ACTSC 356 Para 1

…It is worth repeating what was said in R v NF (No 1) [2016] ACTSC 216 at [38]–[39]: 38. There is no doubt that drug abuse causes serious problems in our community. Not only does it have a devastating effect on the lives of those addicted, but they tend to prey on the community, particularly as the addiction takes h…
R v KN
[2020] ACTSC 218 Para 1

…In R v NF (No 1) [2016] ACTSC 216, the offender pleaded guilty to 17 offences committed against Territory and Commonwealth laws, the most serious of which was aiding and abetting the unlawful importation of a marketable quantity of a border-controlled drug. The offender was 16 years of age at the time of the offend…
Barnes v Lodding
[2019] ACTMC 24

…Di Bitonton [2016] 280 R v Hyde [2017] ACTSC 337 R v Le Pavoux [2017] ACTSC 330 R v Lou (No 2) [2017] ACTSC 266 R v NE [2015] ACTSC 352 R v NF (No 1) [2016] ACTSC 216 Zhao v The Queen [2018] ACTCA 38…
R v Sharp
[2018] ACTSC 286 Para 1

…pliance with onerous bail conditions can be relied upon as a relevant matter on sentence: R v Webb [2004] NSWCCA 330; 149 A Crim R 167; R v NF (No 1) [2016] ACTSC 216 at [79]. No submission to the contrary was made by the prosecution. I therefore take this bail compliance with onerous conditions into account on sen…
R v NF
[2018] ACTSC 165 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…
Le Clair v The Queen
[2017] ACTCA 19 Para 1

…Onerous bail conditions can affect the sentencing outcome: R v Webb [2004] NSWCCA 330; 149 A Crim R 167; R v NF (No 1) [2016] ACTSC 216 at [79]. This is particularly so if the bail conditions are quasi-custodial, for example, where an offender is granted bail on condition that they reside in a residential rehabilit…
R v Goboly
[2016] ACTSC 322 Para 1

…es to seek employment. Strict bail conditions, especially when there is satisfactory compliance can be a relevant factor in sentencing: R v NF (No 1) [2016] ACTSC 216 at [79]. I take this into account.…
R v TL (No 2)
[2016] ACTSC 289 Para 1

…[2013] ACTSC 58 at [72]. See, however, the relevant modification to them and the applicability in a case such as this as explained in R v NF (No 1) [2016] ACTSC 216 at [103]-[108]. I shall apply that reasoning here.…
R v Di Bitonto
[2016] ACTSC 280 Para 1

…As I pointed out in R v NF (No 1) [2016] ACTSC 216 at [38]-[39]:…
R v NF (No 2)
[2016] ACTSC 227 Para 1

…rtation of drugs, the distribution of drugs, damaging property, weapons offences and an offence of unlawful possession of stolen property. See R v NF [2016] ACTSC 216.…

View all 13 citing cases →

Cases cited in this decision · 9 of 9 shown

R v NE
[2015] ACTSC 352 Para 1

…So far as the Commonwealth offences are concerned, they involve the assistance provided by NF to NE, who imported drugs. I have set out in R v NE [2015] ACTSC 352 at [10]-[16], the facts relating to NE's offending. NF was the friend referred to in those passages.…
OH v Driessen
[2015] ACTSC 148 Para 1

…In OH v Driessen [2015] ACTSC 148 at [74]-[75], I referred, by reference to decisions of the Supreme Court of the United States of America, to the important obligation that statute and common law requires of sentencers when sentencing young offenders, namely to recognise the immaturity which leads them to commit wh…
R v CV
[2013] ACTCA 22 Para 1

…ncing for young offenders. I note that the approach taken in that case to sentencing the young offender was approved by the Court of Appeal in R v CV [2013] ACTCA 22.…
R v BB
[2013] ACTSC 58 Para 1

…There is, under the Crimes (Sentencing) Act , a specific regime for the sentencing of young people set out in Ch 8A of that Act. In R v BB [2013] ACTSC 58 at [72], I summarised the principles relating to the sentencing of young offenders as follows:…
Azzopardi v The Queen
[2011] VSCA 372 Para 1

…As was commented in Azzopardi v The Queen (2011) 35 VR 43 at 53; [34], young offenders, being immature, are "more prone to ill-considered or rash decisions". Thus, they "may lack the degree of insight, judgment and self-control that is possessed by an adult". Further, they "may not fully appreciate the nature, seriousness and…
Muldrock v The Queen
[2011] HCA 39 Para 1

…ded by the legislature which, it has been clearly stated, is an important indicator of the relative seriousness of offences. See Muldrock v The Queen (2011) 244 CLR 120 at 133; [31].…
R v PM
[2009] ACTSC 24 Para 1

…As I pointed out in R v PM [2009] ACTSC 24 at [54], the court must consider rehabilitation as a purpose of sentencing for young offenders. I note that the approach taken in that case to sentencing the young offender was approved by the Court of Appeal in R v CV [2013] ACTCA 22.…
R v Webb
[2004] NSWCCA 330 Para 1

…d with it and has not been subject to any breach. There is relevance in sentencing to being subject to and complying with strict bail conditions. See R v Webb (2004) 149 A Crim R 167 at 170; [18]. I will take this into account.…
CLR 499 LB v The Queen
[2016] ACTCA 6 Para 1

…These last two principles, however, must be modified. In LB v The Queen [2016] ACTCA 6 at [24], the Court of Appeal held that neither of these principles "sit comfortably with the statutory regime in Ch 8A of the Crimes (Sentencing) Act ." That Act focuses attention "on individualised justice and considerations s…

Legislation cited in this decision · 6

Crimes Act 1914 (Cth)
16A, 20, 20C 4 mentions (from Para 1)
Crimes (Sentencing) Act 2005 (ACT)
33, 7 3 mentions (from Para 1)
Drugs of Dependence Act 1989 (ACT)
164(2)(a) 2 mentions
Firearms Act 1996 (TAS)
43(1)(a)(iii) 2 mentions
Prohibited Weapons Act 1996 (ACT)
5 2 mentions
Crimes (Sentencing Administration) Act 2005 (ACT)
1 mention