R v PM

Case [2009] ACTSC 24 16 March 2009

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HUMAN RIGHTS ACT

R v P M
[2009] ACTSC 24 (16 March 2009)

CRIMINAL LAW AND PROCEDURE – Sentencing – young offender – sexual offences – purposes of sentencing for young offender – Crimes (Sentencing) Act 2005 (ACT), Chapter 8A.

CRIMINAL LAW AND PROCEDURE – Sentencing – young offenders – procedure for imposing sentences – Crimes (Sentencing) Act 2005 (ACT), Chapter 8A.

Crimes Act 1900 (ACT), ss 21, 24, 51, 54
Criminal Code 2002 (ACT), s 308
Crimes (Sentence Administration) Act 2005 (ACT), ss 7, 64, Chapter 8A
Crimes (Sentencing) Act 2005 (ACT), Ch 11, ss 7, 65,

Children and Young People Act 1999 (ACT)
Children and Young People Act 2008 (ACT), ss 68, 111, 116, 201

Human Rights Act 2004 (ACT), s 25(2)

Cotter v Corvisy (2008) 50 MVR 339

Cameron v The Queen (2002) 209 CLR 339

R v Boudelah (1991) 28 FCR 176

R v Roberts [1982] 1 WLR 133

Vaitos (1981) 4 A Crim R 238

TDJ v Carter [2001] ACTSC 38

R v P (1991) 53 A Crim R 112

B (a child) (1995) 82 A Crim R 234

R v Mills [1998] 4 VR 235

Pearce v The Queen (1998) 194 CLR 610

R v O’Rourke [1997] 1 VR 246

McKenna v The Queen (1992) 7 WAR 455

R v Collins [2004] ACTSC 73

Gough and Anor v Chief Constable of Derbyshire Constabulary [2002] 2 All ER 985

R (McCann) v Crown Court of Manchester and Anor; Clingham v Kensington and Chelsea Royal London Borough Council [2003] 1 AC 787l

Power v The Queen (1974) 131 CLR 623

R v Field [2003] 1 WLR 882

Welch v United Kingdom (1995) 20 EHRR 247

Palmer v Superintendant Auckland Prison [1991] 3 NZLR 315

R v Stockdale [1981] 2 NZLR 189

R v Smith (CA 69/88, 31 May 1988)

R v Pora [2001] 2 NZLR 37

R v Poumako [2001] 2 NZLR 695

Kafkaris v Cyprus (ECtHR, Application 21906/04, unreported)

No. SCC 327 of 2008

Judge: Refshauge J
Supreme Court of the ACT

Date: 16 March 2009

IN THE SUPREME COURT OF THE       )
  )          No. SCC 327 of 2008
AUSTRALIAN CAPITAL TERRITORY    )

THE QUEEN
V

P M

ORDER

Judge:  Refshauge J
Date:  16 March 2009
Place:  Canberra

THE COURT ORDERS THAT:

On the first count, of sexual assault in the first degree, the accused is sentenced to five years imprisonment.

On the second count, of sexual intercourse without consent, the accused is sentenced to three years imprisonment.

On the third count, of sexual intercourse without consent, the accused is sentenced to three years imprisonment.

On the fourth count, of theft, the accused is sentenced to twelve month’s imprisonment.

Two years of the sentence on the second count be concurrent with the sentence on the first count and that the third count be wholly concurrent with the second count and that the whole of the fourth count be cumulative on the second count.

All sentences commence from 19 February 2008.

On 18 February 2011…

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 PM

Details

AGLC: R v PM [2009] ACTSC 24
Case: [2009] ACTSC 24
Decision Date: 16 March 2009

CaseChat Overview and Summary

The case of R v PM involved a young offender facing multiple charges, including sexual assault, sexual intercourse without consent, and theft. The offender was tried in the Supreme Court of the Australian Capital Territory. The primary issue for the court was to determine an appropriate sentence that would address the purposes of sentencing for a young offender, particularly focusing on rehabilitation and deterrence, while also ensuring justice for the victims.

The legal issues the court had to resolve included the application of Chapter 8A of the Crimes (Sentencing) Act 2005 (ACT) to guide sentencing for a young offender. This required the court to consider the specific circumstances of the offender, the nature and severity of the offences, and the principles of sentencing as outlined in the legislation. The court also had to determine the appropriate length of custodial sentences for each offence, and how these sentences would be ordered in relation to each other, taking into account the offender's age and potential for rehabilitation.

The court's reasoning focused on balancing the need for punishment and deterrence with the rehabilitative potential of the offender. It considered the offender's age, background, and the likelihood of rehabilitation. The court imposed a five-year sentence for the first offence of sexual assault in the first degree, reflecting the seriousness of the crime, and three-year sentences for the two offences of sexual intercourse without consent. For the theft offence, a twelve-month sentence was imposed. The court also ordered certain sentences to run concurrently to avoid excessive punishment and to provide the offender with a realistic opportunity for rehabilitation. Additionally, the court suspended part of the sentence after two years, requiring the offender to comply with good behaviour obligations, including probation and treatment for alcohol abuse and counselling.

The final orders included the imposition of sentences for each offence, with specific instructions on how these sentences would run concurrently or cumulatively. The court also ordered a suspension of the balance of the sentence after two years, with the offender required to comply with a good behaviour order that included specific conditions for probation and treatment. The sentences commenced from 19 February 2008, with the balance of the sentence to be suspended on 18 February 2011.

Orders

Orders of the court

1. On the first count, of sexual assault in the first degree, the accused is sentenced to five years imprisonment.

2. On the second count, of sexual intercourse without consent, the accused is sentenced to three years imprisonment.

3. On the third count, of sexual intercourse without consent, the accused is sentenced to three years imprisonment.

4. On the fourth count, of theft, the accused is sentenced to twelve month’s imprisonment.

5. Two years of the sentence on the second count be concurrent with the sentence on the first count and that the third count be wholly concurrent with the second count and that the whole of the fourth count be cumulative on the second count.

6. All sentences commence from 19 February 2008.

7. On 18 February 2011 the balance of the sentence be suspended and that the accused sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentencing Administration) Act 2005 (ACT) for four years.

8. The good behaviour order include the following condition in addition to the core conditions, namely a probation condition that during the period of the order he is to be on probation subject to the supervision of the Chief Executive or a person delegated by her and to obey all reasonable directions of that person, especially directions about treatment, particularly for alcohol abuse, and counselling.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Actions

Citations

R v PM [2009] ACTSC 24

Most Recent Citation

JA v LYNDALL Macdonald and Morgwn Saunders [2011] ACTSC 22

Cases Citing This Decision

Director of Public Prosecutions v Jones (a pseudonym) [2025] ACTSC 140
Citation 1

…e Simoni (1981) 147 CLR 383 R v Haven (a pseudonym) [2022] ACTCA 61 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Payne-Moore [2021] ACTSC 125 R v PM [2009] ACTSC 24 R v Summerfield [2018] ACTCA 20; 273 A Crim R 45 R v Verdins [2007] VSCA 102; 16 VR 269…
Director of Public Prosecutions v Best (a pseudonym) [2024] ACTSC 334
Citation 2

…ME [2017] ACTSC 402 R v MT [2014] ACTSC 162 R v Millwood [2012] NSWCCA 2 R v Nicholas; R v Palmer [2019] ACTCA 36 R v Palmer [2017] ACTSC 357 R v PM [2009] ACTSC 24 R v Smith (a pseudonym) (No 2) [2020] ACTSC 260 R v Verdins [2007] VSCA 102; 16 VR 240…
R v Haven (a pseudonym) [2022] ACTCA 61
Citation 3 (Para 1)

…ging comments he had made about the victim and about women in general to the pre-sentence report author. She referred to the decision of R v PM [2009] ACTSC 24 as an example of a case in which full-time custody was imposed for a young offender who had committed sexual intercourse without consent.…
The Queen v Ware (a pseudonym) [2022] ACTCA 14
Citation 4 (Para 1)

…In R v PM [2009] ACTSC 24 at [72], Refshauge J referred to the consideration of Welch in R v Field [2003] 1 WLR 882 at [20], where the Court of Appeal of England and Wales referred to Welch as the leading case on the issue and adopted a number of criteria for determining what constitutes a penalty. Consistent with…
R v Haven (a pseudonym) [2022] ACTSC 25
Citation 5 (Para 1)

…Before I come back to R v PM [2009] ACTSC 24 ( PM ), a judgment that was brought to my attention by the Crown for another purpose, I was drawn to the decision of the Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 ( De La Rosa ). It is a judgment that needs to be considered in the…
Biddle v Gatherer [2021] ACTSC 236
Citation 6 (Para 1)

…58; R v AC [2015] ACTSC 240; R v JJ [2014] ACTCA 23; R v JJ (Unreported, ACTSC, 8 October 2013); TM v Karapanos and Bakes [2011] ACTSC 74; and R v PM [2009] ACTSC 24.…
MT v The Queen [2021] ACTCA 26
Citation 7 (Para 1)

…However, the case of R v PM [2009] ACTSC 24 ( PM ) is of some assistance. In that case, Refshauge J sentenced a 17-year-old offender for very serious sexual offences, on what his Honour believed to be the first occasion that the Court had sentenced a young offender under the new chapter 8A regime: at [43]. His Hon…
R v Pelecky (No 3) [2020] ACTSC 371
Citation 8

…[2020] ACTSC 83 R v CV [2013] ACTCA 22 R v Gordon (1994) 71 A Crim R 459 R v Osenkowski (1981) 30 SASR 212 R v Pelecky (No 2) [2020] ACTSC 370 R v PM [2009] ACTSC 24 R v Tonna (No 2) [2020] ACTSC 362…
R v QN [2018] ACTSC 363
Citation 9 (Para 1)

…years' imprisonment, and that was to be served, as to the first three years, by full‑time imprisonment, and the last four years suspended ( R v PM [2009] ACTSC 24 ( R v PM )).…
R v Wyper [2017] ACTSC 50
Citation 10 (Para 1)

…ory, Murrell CJ, 1 April 2014). In that case, Mr Ballantyne was 19 years old, which is, of course, a very relevant circumstance as outlined in R v PM [2009] ACTSC 24.…
R v Goboly [2016] ACTSC 322
Citation 11 (Para 1)

…As I explained in R v PM [2009] ACTSC 24 at [54], an approach approved by the Court of Appeal in R v CV , the Court must consider rehabilitation as an important purpose of sentencing for young offenders.…
R v NF (No 1) [2016] ACTSC 216
Citation 12 (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 NE [2015] ACTSC 352
Citation 13 (Para 1)

…Territory. This brings into operation the special regime under Ch 8A of the Crimes Sentencing Act 2005 (ACT). I have described that regime in R v PM [2009] ACTSC 24 at [43]-[65]. The approach that I there described was approved in the R v CV [2013] ACTCA 22 at [43].…
OH v Driessen [2015] ACTSC 148
Citation 14 (Para 1)

…In R v PM [2009] ACTSC 24 at [53], I said, in a passage approved by the Court of Appeal in R v CV (2013) 233 A Crim R 67 at 78:…
Allred v The Queen [2015] ACTCA 21
Citation 15 (Para 1)

…re a young person, though over the age of eighteen and not a minor, may be entitled to recognition of this factor in the sentence imposed. See R v PM [2009] ACTSC 24 at [52]-[54], approved in R v CV (2013) 233 A Crim R 67 at 78; [42]. In R v Gordon (1994) 71 A Crim R 459 at 469, it was pointed out that appropriate…
R v T M [2014] ACTSC 394
Citation 16

…Guy v Anderson and Telford (No 2) [2013] ACTSC 245 R v Campbell [2010] ACTCA 20 R v PM [2009] ACTSC 24…
R v BO (No 2) [2014] ACTSC 371
Citation 17 (Para 1)

…It is important that BO was a young person at the time of the offences. I have set out, in R v PM [2009] ACTSC 24, the way in which the court must approach the sentencing of young offenders in these circumstances. That decision has recently been followed by Ross J in R v AT (Unreported, ACTSC, Ross J, 9 May 2014)…
R v ML [2014] ACTSC 58
Citation 18 (Para 52)

…42.In R v PM [2009] ACTSC 24 at [52]-[54] Refshauge J pointed out that the Sentencing Act reflects the position at common law. His Honour cited the remarks of Matthews J, with whom Gleeson CJ and Samuels JA agreed, in R v P (1991) 53 A Crim R 112 at 116: The approach to be adopted in the sentencing of young offend…
The Queen v El [2014] ACTSC 57
Citation 19 (Para 52)

…42.In R v PM [2009] ACTSC 24 at [52]-[54] Refshauge J pointed out that the Sentencing Act reflects the position at common law. His Honour cited the remarks of Matthews J, with whom Gleeson CJ and Samuels JA agreed, in R v P (1991) 53 A Crim R 112 at 116: The approach to be adopted in the sentencing of young offend…
R v BB [2013] ACTSC 290
Citation 20 (Para 1)

…I have described, in R v PM [2009] ACTSC 24 at [53], the principles that apply when sentencing young offenders. These have also been expressed by the Victorian Court of Appeal in Azzopardi v The Queen (2011) 219 A Crim R 369 at 380-4; [34]-[43]. I shall apply them.…
The Queen v Olivia Grenon [2013] ACTSC 292
Citation 21 (Para 1)

…Ms Grenon is also a youthful offender, having been twenty-one years old at the time of the offences. I have set out, in R v PM [2009] ACTSC 24 at [53], the approach to sentencing youthful offenders and I shall apply that approach. That permits a degree of leniency in the circumstances which I shall afford her.…
R v CV [2013] ACTCA 22
Citation 22 (Para 1)

…In R v PM [2009] ACTSC 24 at [52]–[54] Refshauge J pointed out that the Sentencing Act reflects the position at common law. His Honour cited the remarks of Mathews J, with whom Gleeson CJ and Samuels JA agreed, in R v P (1991) 53 A Crim R 112 at 116:…
R v Meyboom [2012] ACTCA 48
Citation 23

…5 R v King [2008] ACTCA 12 R v Maloney and Sione (Unreported, Supreme Court of the ACT, Connolly J, 12 March 2004) R v Morse (1979) 23 SASR 98 R v PM [2009] ACTSC 24 R v Robertson [2010] ACTCA 19 R v Thorn [2010] ACTCA 10 R v TW (2011) 6 ACTLR 18 R v Twala (unreported, NSW Court of Criminal Appeal, Badgery-Parker…
Chifuntwe v Gardiner [2012] ACTSC 136
Citation 24 (Para 1)

…at courts take to such offenders. Those principles have been set out in GDP (1991) 53 A Crim R 112 at 116, in a passage to which I referred in R v PM [2009] ACTSC 24 at [53]. Nevertheless, as the Court of Appeal decided in Kennewell v Rand , they do not outweigh the need for deterrent sentences in cases of this ki…
Robert Davey v Ashley Childs [2011] ACTSC 129
Citation 25 (Para 1)

…matic, for the courts have made it clear that ordinary sentencing principles cannot always be applied without modification. See what I said in R v PM [2009] ACTSC 24. Those principles are not limited to offenders under the age of eighteen years. Indeed, the often cited case of R v Smith [1964] Crim LR 70 involved…
CJ v Francine Carolyn Adams;; R v CJ [2011] ACTSC 116
Citation 26 (Para 1)

…d construct an appropriate combination sentence if her Honour’s consideration led that way to meet that demand. I referred to that matter in R v PM [2009] ACTSC 24. If sentenced as an adult, the appellant would have been entitled to at least consideration of a non-parole period.…
TM v Karapanos [2011] ACTSC 74
Citation 27 (Para 1)

…He also referred to the principles in relation to the sentencing of young offenders that I had articulated in R v PM [2009] ACTSC 24 (at [64]), where I said:…
JA v LYNDALL Macdonald and Morgwn Saunders [2011] ACTSC 22
Citation 28 (Para 18)

…ave sufficient weight to the requirements of Chapter 8A of the Act. As to the sentencing of children, the attention of her Honour was drawn to R v PM [2009] ACTSC 24. In R v PM Refshauge J made an extremely extensive review of the relevant provisions. After detailing the general provisions as to the purposes of se…

See all citing cases →

Cases Cited

Cotter v Corvisy [2008] ACTSC 64
Citation 1 (Para 1)

…ents. He is regarded there as something of a loner. These, however, are not sufficient mental issues to avoid any general deterrence in the sentence: Cotter v Corvisy (2008) 50 MVR 339 at 349-51.…
R v Collins [2004] ACTSC 73
Citation 2 (Para 1)

…e penalty imposed. In general terms, the administration of a sentence is not a matter that the sentencing judge should take into account: R v Collins [2004] ACTSC 73 at [14]-[17].…
R v Voss [2003] NSWCCA 182
Citation 3

…e emphasis on rehabilitation as the starting point for sentencing courts when deciding upon an appropriate sentence for a young offender. In R v Voss [2003] NSWCCA 182 the NSW Court of Criminal Appeal cited with approval common law principles laid down in previous cases such as Wilcox [1979] (NSW, unreported 15 Augu…
Cameron v the Queen [2002] HCA 6
Citation 4 (Para 1)

…as to be given full weight for the savings to the criminal justice system in his willingness to facilitate the course of justice: Cameron v The Queen (2002) 209 CLR 339 at 343. Mr Sabharwal, who appeared for the accused, pointed out that the relatively late plea was caused by the need to obtain forensic medical repor…
TDJ and Ta v Bronwyn Carter [2001] ACTSC 38
Citation 5 (Para 1)

…of that Act did not prevent general deterrence or retribution from playing an appropriate part in the sentencing of young offenders. See TDJ v Carter [2001] ACTSC 38 at [10]-15].…
Esso Australia Ltd v Victorian Workcover Authority [2000] VSCA 74
Citation 6 (Para 1)

…time or otherwise, to cumulate sentences, when, for example, the offences add to the debasement and humiliation of the victim: R v O’Rourke [1997] 1 VR 246 at 252. In this case, there is some need for accumulation because, while a higher sentence could be imposed on the most serious of the crimes, that is…
R v Wright [1998] VSCA 84
Citation 7

…R v Mills [1998] 4 VR 235…
Pearce v The Queen [1998] HCA 57
Citation 8 (Para 1)

…rt of the same continuing episode and so all sentences should be concurrent. I am, of course, required to impose separate sentences for each offence: Pearce v The Queen (1998) 194 CLR 610. The question of what is a continuing episode, or, as the High Court has it a connected series of events, is always problematic. It is pe…
R v Boudelah [1991] FCA 144
Citation 9 (Para 1)

…ticular, the plea has saved the victim the trauma and humiliation of giving evidence, an important consideration as noted by Gallop J in R v Boudelah (1991) 28 FCR 176 at 181. I was informed that the committal proceedings were, effectively, a paper committal with no requirement for the victim to attend.…
Power v The Queen [1974] HCA 26
Citation 10 (Para 1)

…that a judge determines justice requires that [the offender] must serve having regard to all the circumstance of the offence ”: Power v The Queen (1974) 131 CLR 623 at 629. This is remarkably similar to the second criterion in s 133G(2) of the Sentencing Act.…
[1981] 2 NZLR 189 [1981] 2 NZLR 189
Citation 11 (Para 1)

…arole periods has received significant consideration. In Palmer v Superintendant Auckland Prison [1991] 3 NZLR 315, Wylie J, relying on R v Stockdale [1981] 2 NZLR 189 and R v Smith (CA 69/88, 31 May 1988), said at 321-324:…
[2003] 1 AC 787 [2003] 1 AC 787
Citation 12 (Para 1)

…le of Derbyshire [2002] 2 All ER 985; R (McCann) v Crown Court of Manchester and Anor; Clingham v Kensington and Chelsea Royal London Borough Council [2003] 1 AC 787.…
[2003] 1 WLR 882 [2003] 1 WLR 882
Citation 13 (Para 1)

…The European Court of Human Rights has dealt with this issue. In R v Field [2003] 1 WLR 882, the Court of Appeal referred to Welch v United Kingdom (1995) 20 EHRR 247 as the leading case on this issue. It accepted the following as the criteria that this case established to determine whether an action following an o…
[2001] 2 NZLR 37 [2001] 2 NZLR 37
Citation 14 (Para 1)

…On the other hand, both R v Pora [2001] 2 NZLR 37 and R v Poumako [2001] 2 NZLR 695 both seem to suggest that the imposition of a non-parole period as part of a sentence was subject to s 25(g) of the Bill of Rights Act 1990 (NZ), the equivalent of s 25(2) of the Human Rights Act 2004 (ACT). That was, however, on di…
Welch v United Kingdom [1995] 3 NZLR 712
Citation 15

…Welch v United Kingdom (1995) 20 EHRR 247…
[1991] 3 NZLR 315 [1991] 3 NZLR 315
Citation 16 (Para 1)

…On the other hand, in New Zealand, the issue of non-parole periods has received significant consideration. In Palmer v Superintendant Auckland Prison [1991] 3 NZLR 315, Wylie J, relying on R v Stockdale [1981] 2 NZLR 189 and R v Smith (CA 69/88, 31 May 1988), said at 321-324:…
[1982] 1 WLR 133 [1982] 1 WLR 133
Citation 17 (Para 1)

…rtheless, as in a passage quoted with approval by Gallop J in R v Boudelah at 187, Lord Lane CJ, speaking for the Court of Appeal said in R v Roberts [1982] 1 WLR 133 at 134-5:…
[2001] 2 NZLR 695 [2001] 2 NZLR 695
Citation 18 (Para 1)

…On the other hand, both R v Pora [2001] 2 NZLR 37 and R v Poumako [2001] 2 NZLR 695 both seem to suggest that the imposition of a non-parole period as part of a sentence was subject to s 25(g) of the Bill of Rights Act 1990 (NZ), the equivalent of s 25(2) of the Human Rights Act 2004 (ACT). That was, however, on dif…

Legislation Cited

Children and Young People Act 2008 (ACT) 111, 116, 201, 68
5 mentions (from Para 1)
Crimes Act 1900 (ACT) 21, 24, 51, 54
5 mentions (from Para 1)
Crimes (Sentence Administration) Act 2005 (ACT) 64, 7
3 mentions
Human Rights Act 2004 (ACT) 25(2)
2 mentions (from Para 1)
Bill of Rights Act 1990 (NZ)
1 mention (from Para 1)
Child Welfare Act 1947 (WA)
1 mention
Children and Young People Act 1999 (ACT)
1 mention (from Para 1)
Children's Court of Western Australia Act 1988 (WA)
1 mention
Crimes (Sentencing Administration) Act 2005 (ACT)
1 mention (from Para 1)
Crimes (Sentencing) Act 2005 (ACT)
1 mention (from Para 1)