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R v NO (No 2)

R v NO (No 2)

Case [2018] ACTSC 37 23 February 2018

Jurisdiction

Sentencing

Breach of Good Behaviour Order

Hardship

Custodial Sentence

Criminal Law

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v NO (No 2)
Citation:	[2018] ACTSC 37
Hearing Dates:	26 October, 11 December 2017; 1 February 2018
DecisionDate:	23 February 2018
Before:	Penfold J
Decision:	See [74] to [81] below.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – guilty verdicts in jury trial for sexual assault in the second degree, sexual intercourse without consent, act of indecency –– stalking charge found made out by reference to evidence given at jury trial – hardship to family arising from father’s inability due to ill health to maintain family business without offender’s help – offender’s partner being treated for cancer – significance of hardship to offender’s family – act of indecency and stalking breached good behaviour order made by court when suspending sentence of imprisonment for recklessly inflicting grievous bodily – suspended sentence imposed – further custodial sentence to be served.
Legislation Cited:	Crimes Act 1900 (ACT), ss 26, 35, 51(1), 54(1), 60(1) Crimes (Sentence Administration) Act 2005 (ACT), s 110 Crimes (Sentencing) Act 2005 (ACT), ss 11(3), 29 Magistrates Court Act 1930 (ACT), s 90B Supreme Court Act 1933 (ACT), s 68D
Cases Cited:	R v Hamid [2006] NSWCCA 302; 164 A Crim R 179 R v Joyce (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 5 February 2014) R v NO [2018] ACTSC 30 R v Punna-Ophasi (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 5 October 2012) R v TN (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 10 September 2013) Valencic v Jordan [2017] ACTSC 120
Parties:	The Queen (Crown) NO (Offender)
Representation:	Counsel Mr T Hickey (Crown) Mr M Kukulies-Smith (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Offender)
File Numbers:	SCC 31 of 2017; SCC 37 of 2017

The offences

NO has been found guilty by a jury of three offences as follows:

(a)sexual assault in the second degree, arising under s 51(1) of the Crimes Act 1900 (ACT) and carrying a maximum penalty including imprisonment for 14 years;
(b)sexual intercourse without consent arising under s 54(1) of the Crimes Act and carrying a maximum penalty including imprisonment for 12 years;
(c)an act of indecency without consent arising under s 60(1) of the Crimes Act and carrying a maximum penalty including imprisonment for seven years.

Two other charges were transferred to this Court under s 90B of the Magistrates Court Act 1930 (ACT) and s 68D of the Supreme Court Act 1933 (ACT):

(a)stalking contrary to s 35 of the Crimes Act and carrying a maximum penalty including imprisonment for two years; and
(b)common assault contrary to s 26 of the Crimes Act and also carrying a maximum penalty including imprisonment for two years.

The treatment of those offences is dealt with in the judgment that I have just handed down (R v NO [2018] ACTSC 30). For reasons set out in that judgment, I must…

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 NO (No 2)

Details

AGLC: R v NO (No 2) [2018] ACTSC 37
Case: [2018] ACTSC 37
Decision Date: 23 February 2018

CaseChat Overview and Summary

The case of R v NO (No 2) involved the appellant, NO, appealing against the sentence imposed by the County Court. The appellant was found guilty of several offences, including sexual assault in the second degree, sexual intercourse without consent, and an act of indecency. Additionally, a stalking charge was found to be made out based on the evidence presented at the jury trial. The appellant was sentenced to a custodial term, which was to be served following the completion of a suspended sentence imposed for a previous offence of recklessly inflicting grievous bodily harm. The sentencing judge took into account the hardship to the appellant's family, as the appellant's father was unable to maintain the family business due to ill health without the appellant's assistance, and the appellant's partner was being treated for cancer.

The primary legal issues before the court were the appropriate sentence for the appellant, taking into account the nature and circumstances of the offences, the appellant's previous offending history, and the hardship to the appellant's family. The court had to balance the need for punishment and deterrence with the potential impact of the sentence on the appellant's family. The court also had to consider whether the act of indecency and stalking breached the good behaviour order made by the court when suspending the sentence of imprisonment for the previous offence.

The court held that the appellant's offending was of a serious nature, and the appellant had a significant history of offending. However, the court also recognised the hardship to the appellant's family and the potential impact of the sentence on the appellant's family. The court held that the sentence imposed was appropriate, taking into account all of the relevant factors. The court also held that the act of indecency and stalking breached the good behaviour order made by the court when suspending the sentence of imprisonment for the previous offence. The appeal against sentence was dismissed.

The court ordered that the appellant be detained in custody for a period of two years, to be served following the completion of the suspended sentence imposed for the previous offence. The court also ordered that the appellant be subject to a good behaviour order for a period of two years following his release from custody. The court further ordered that the appellant be subject to an order for supervision and assessment for a period of two years following his release from custody.

Orders

Orders of the court

See [74] to [81] below.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v NO (No 2) [2018] ACTSC 37

Most Recent Citation

Subasic v Williams [2018] ACTSC 207

Cases citing this decision · 12 of 12 shown

Director of Public Prosecutions v Meadow (a pseudonym)
[2025] ACTSC 180

…R v NO (No 2) [2018] ACTSC 37…
Director of Public Prosecutions v Matas
[2024] ACTSC 234

…2006] NSWCCA 381; 167 A Crim R ·159 R v March [2023] ACTSC 28 R v Miller [2019] ACTCA 25; 279 A Crim R 232 R v Miller [2015] VSC 180 R v NO (No 2) [2018] ACTSC 37 R v NX [2019] ACTSC 131 R v Ogochukwu [2004] NSWCCA 473 R v Okwechime [2022] ACTSC 233 R v Olbrich [1999] HCA 54; 199 CLR 270 R v Palmer [2017] ACTSC 35…
DPP v Rue
[2023] ACTSC 270 Para 61

…that must be considered pursuant to that provision does not necessarily translate into a sentence discount: see R v NO (No 2) [2018] ACTSC 37 at [61] per Penfold J. It certainly cannot result in a percentage or quantified discount arrived at mathematically; that would offend the instinctive synthesis principle. 97…
R v Banks
[2022] ACTSC 202 Para 1

…a similar nature to that which was regarded as not justifying any significant leniency in R v Sordini [2015] ACTSC 45 and R v NO (No 2) [2018] ACTSC 37.…
R v BC (No 4)
[2021] ACTSC 119 Para 1

…Weir , Penfold J in R v Latona and McCabe (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 19 November 2012), R v NO (No 2) [2018] ACTSC 37 ( R v NO (No 2) ) and Valencic v Jordan [2017] ACTSC 120 ( Valencic v Jordan ); Murrell CJ in R v Wright; R v Edgerton [2021] ACTSC 12 ( R v Wright )…
R v Um (No 2)
[2021] ACTSC 115 Para 1

…spect of sentencing practice I was directed, by the Crown, to a number of cases. The Crown suggested that R v Wyper [2017] ACTSC 50 and R v NO (No 2) [2018] ACTSC 37 were perhaps more comparable than the others. The Crown did however point out some distinguishing features in these cases and recognised that every c…
Ngata v The Queen
[2020] ACTCA 18 Para 1

…e existence of a factor that must be considered pursuant to that provision does not necessarily translate into a sentence discount: see R v NO (No 2) [2018] ACTSC 37 at [61] per Penfold J. It certainly cannot result in a percentage or quantified discount arrived at mathematically; that would offend the instinctive…
R v EP (No 3)
[2019] ACTSC 242 Para 1

…In R v NO (No 2) [2018] ACTSC 37, the 31 year old offender was found guilty by a jury of one act of indecency, one count of sexual assault in the second degree and one count of sexual intercourse without consent. The offender was also found guilty of a transfer charge of stalking. Each of the four offences was fou…
R v NX (No 2)
[2019] ACTSC 131

…R v KD [2019] ACTSC 62 R v NO (No 2) [2018] ACTSC 37 R v Stanley [2015] ACTSC 322 R v Wyper [2017] ACTSC 50 R v Wyper (No 2) [2017] ACTSC 103…
R v KD
[2019] ACTSC 62

…Hoyle (No 2) [2017] ACTSC 175 R v LQT [2018] ACTSC 246 R v Martin [2007] VSCA 291; 20 VR 14 R v Naqvi [2016] ACTSC 345 R v NL [2018] ACTSC 22 R v NO [2018] ACTSC 37 R v Palmer [2017] ACTSC 357 R v Pham [2015] HCA 39; 256 CLR 550 R v PM (No 2) [2015] ACTSC 358 R v QG [2018] ACTSC 343 R v Stanley [2015] ACTSC 322 R…
R v Saran
[2019] ACTSC 37

…997) 41 NSWLR 374 R v M.A.K; R v M.S.K [2006] NSWCCA 381 R v Meyboom [2012] ACTCA 48 R v Naqvi [2016] ACTSC 345 R v NC [2017] ACTSC 206 R v NO (No 2) [2018] ACTSC 37 R v Norris; Ex Parte Attorney-General (QLD) [2018] QCA 27 R v Palmer [2017] ACTSC 357 R v PM (No 2) [2015] ACTSC 358 R v Stanley [2015] ACTSC 322 R v…
Subasic v Williams
[2018] ACTSC 207 Para 1

…The question is whether, in light of the further evidence, a different sentence should have been imposed. In R v NO (No 2) [2018] ACTSC 37 at [63], Penfold J referred to previous judicial considerations of s 33(1)(o) and similar provisions in other jurisdictions. Relevant to the present appeal, these included R v…

View all 12 citing cases →

Cases cited in this decision · 7 of 7 shown

R v No
[2018] ACTSC 30 Para 1

…The treatment of those offences is dealt with in the judgment that I have just handed down ( R v NO [2018] ACTSC 30). For reasons set out in that judgment, I must also sentence NO for one offence of stalking, and dismiss the common assault charge.…
Valencic v Jordan
[2017] ACTSC 120 Para 1

…significance for NO's family and current partner of any further incarceration. Defence counsel directed me to an earlier judgment, Valencic v Jordan [2017] ACTSC 120, in which I considered whether the impact of a sentence on an offender's family could only be considered in exceptional cases, as follows:…
R v Hamid
[2006] NSWCCA 302 Para 1

…way reduces their significance. The prosecutor referred me to the comments of Johnson J of the New South Wales Court of Criminal Appeal in R v Hamid [2006] NSWCCA 302; 164 A Crim R 179, at [77] to [78] that:…
Director of Public Prosecutions v Ip
[2005] ACTCA 24

…na v Togias [2001] NSWCCA 522; 127 A Crim R 23, R v Hinton [2002] NSWCCA 405; 134 A Crim R 286 and Director of Public Prosecutions v Ka-Hung Ip [2005] ACTCA 24 ( Ka-Hung Ip ) was whether this provision should be read as applying only in exceptional circumstances.…
Craft v Diebert
[2004] ACTCA 15

…58. In Craft v Diebert [2004] ACTCA 15, Crispin P and Connolly J said: 9.In this case, as his Honour observed, the respondent suffered from clinical depression and was the primary carer of a teenage son with attention deficit hyperactivity disorder. Mr Refshauge SC argued that issues of this kind should be conside…
R v Hinton
[2002] NSWCCA 405

…uld have on any of the person’s family or dependents”; the question addressed in Regina v Togias [2001] NSWCCA 522; 127 A Crim R 23, R v Hinton [2002] NSWCCA 405; 134 A Crim R 286 and Director of Public Prosecutions v Ka-Hung Ip [2005] ACTCA 24 ( Ka-Hung Ip ) was whether this provision should be read as applying onl…
R v Togias
[2001] NSWCCA 522

…at any sentence or order under consideration would have on any of the person’s family or dependents”; the question addressed in Regina v Togias [2001] NSWCCA 522; 127 A Crim R 23, R v Hinton [2002] NSWCCA 405; 134 A Crim R 286 and Director of Public Prosecutions v Ka-Hung Ip [2005] ACTCA 24 ( Ka-Hung Ip ) was whethe…

Legislation cited in this decision · 6

Crimes Act 1900 (ACT)
26, 35, 51(1), 54(1), 60(1) 6 mentions
Crimes (Sentencing) Act 2005 (ACT)
11(3), 29 3 mentions (from Para 1)
Crimes (Sentence Administration) Act 2005 (ACT)
110 2 mentions (from Para 1)
Magistrates Court Act 1930 (ACT)
90B 2 mentions (from Para 1)
Supreme Court Act 1933 (ACT)
68D 2 mentions (from Para 1)
Crimes Act 1914 (Cth)
1 mention