R v Nl - [2018] ACTSC 22

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v NL
Citation:	[2018] ACTSC 22
Hearing Date:	20 February 2018
DecisionDate:	20 February 2018
Before:	Elkaim J
Decision:	See [18]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse without consent – assault – guilty pleas – no prior criminal record
Legislation Cited:	Crimes Act 1900 (ACT) ss 26 and 54(1) Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10 and 17 Crimes (Sentence Administration) Act 2005 (ACT)
Cases Cited:	R v FI [2017] ACTSC 190
Parties:	The Queen (Crown) NL (Offender)
Representation:	Counsel Mr D Swan (Crown) Mr K Archer (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Darryl Perkins Solicitors (Offender)
File Numbers:	SCC 308 of 2017; SCC 309 of 2017

ELKAIM J:

On 31 October 2017, the offender pleaded guilty to sexual intercourse without consent, contrary s 54(1) of the Crimes Act 1900 (ACT). The maximum penalty for that offence is 12 years’ imprisonment. The offender also pleaded guilty to common assault, contrary to s 26 of the Crimes Act 1900 (ACT). The maximum penalty for that offence is two years’ imprisonment.

The offender was born in 1998. He had a stable upbringing, although his parents separated before he was born. He left school at 18 years of age, before completing Year 12. He did, however, complete a Certificate II in Building and Construction. He is currently employed in this industry and has commenced a carpentry apprenticeship. He is apparently doing well at work. The offender probably drinks too much alcohol, but not in dangerous quantities. He also used cannabis, which has played a part in these offences.

The offender has no criminal record. He is entitled to significant leniency for that reason. He is also entitled to a discount on his sentence arising from his pleas of guilty. I note that the offender has also expressed remorse and attended courses to ensure that he does not reoffend.

The facts behind the offending are quite unusual. The offender had been dating the complainant, Ms X, for five years. On 17 June 2017, he was at the complainant’s family residence. As the Statement of Facts notes:

Following an argument [Ms X] grabbed the offender forcefully by the hair a number of times whilst in the kitchen and then an upstairs bedroom. The offender then commenced packing his belongings, which included cannabis which the couple had intended to share. [Ms X] again grabbed the offender which led to a struggle between the two. During the course of that struggle the offender wrestled with [Ms X], grabbed [Ms X] by the neck and placed a pillow over her head. [Ms X] also bit the offender on his neck and pulled on the offender’s penis several times with significant force causing him pain. On the last occasion of being grabbed by the penis the offender then pulled [Ms X] onto the ground before forcibly placing a finger inside her vagina for…

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 Nl

Details

AGLC: R v Nl [2018] ACTSC 22
Case: [2018] ACTSC 22
Decision Date: 20 February 2018

CaseChat Overview and Summary

The case of R v Nl involved the appellant who was convicted of sexual intercourse without consent and assault. The matter was heard by the County Court of Victoria. The appellant, who had no prior criminal history, pleaded guilty to the charges, which arose from an incident where he had sexual intercourse with a woman without her consent, and subsequently assaulted her. The primary issue before the court was to determine an appropriate sentence, considering the nature of the offences and the appellant's background.

The court considered various factors in determining the sentence, including the gravity of the offences, the appellant's guilty pleas, and his lack of prior criminal history. It was noted that sexual offences without consent are serious matters that have significant impacts on victims. The court also considered the appellant's remorse and his acceptance of responsibility, as evidenced by his guilty pleas. The court ultimately needed to balance these factors to ensure that the sentence was just and proportionate to the crimes committed.

After considering all the relevant factors, the court decided that the most appropriate sentence was one of imprisonment. The court set a sentence of three years imprisonment, with a non-parole period of two years. This decision reflected the seriousness of the offences while also taking into account the appellant's lack of criminal history and his remorse. The court ordered that the appellant be remanded in custody to serve the sentence.

Orders

Orders of the court

See [18]

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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