R v QN - [2018] ACTSC 363

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v QN
Citation:	[2018] ACTSC 363
Hearing Dates:	15, 24 May 2018; 29 August 2018; 11, 19 December 2018
DecisionDate:	19 December 2018
Before:	Loukas-Karlsson J
Decision:	See [34].
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of Good Behaviour Order – further offending – intensive corrections order APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – whether magistrate had jurisdiction to order an intensive corrections order when offender serving a suspended sentence – appeal upheld
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) s 7, 8, 12, 80 Crimes (Sentence Administration) Act 2005 (ACT) s 110 Magistrates Court Act1930 (ACT) s 219D
Cases Cited:	R v PM [2009] ACTSC 24 R v PM (No 2) [2015] ACTSC 358
Parties:	The Queen (Crown) QN (Offender)
Representation:	Counsel Ms S Beaumont (Crown) Ms B Dunne and Mr R Davies (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Numbers:	SCC 327 of 2008 ; SCA 28 of 2018
Decision under appeal:	Court/Tribunal: Magistrates Court Before: Magistrate Boss Date of Decision: 21 March 2018 Case Title: Murphy v QN Court File Numbers: CC14/9822; CC17/4335; CC17/4729

LOUKAS-KARLSSON J

Introduction

On 16 March 2009 Justice Refshauge sentenced QN for several serious sexual offences and an offence of theft. The sentences totalled seven 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)).

As required under s 12 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), Justice Refshauge made a good behaviour order for those further four years. Section 12(2) of the Sentencing Act requires that the length of the good behaviour order must be as long as the period during which the sentence is suspended. The balance of the sentence that was suspended was four years, so that was the minimum period for which the good behaviour order was made.

As QN was a young person, under the age of 18 years, he was excluded from the parole regime. The good behaviour order Justice Refshauge made was to expire on 18 February 2015. On 24 September 2014, however, QN committed driving offences, and these offences constituted a breach for which he was dealt with by Justice Refshauge in R v PM (No 2) [2015] ACTSC 358 (PM (No 2)). His honour made the following orders:

1.     I confirm the conviction for the offences of sexual assault in the first degree, sexual intercourse without consent, sexual intercourse without consent and theft.
2.     I cancel the Good Behaviour Order made on 16 March 2009.
3.     On the first count of sexual assault in the first degree, I sentence you to four years imprisonment to commence on 5 November 2012.  Had you not pleaded guilty I would have sentenced you to six years imprisonment.
4.…

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 QN

Details

AGLC: R v QN [2018] ACTSC 363
Case: [2018] ACTSC 363
Decision Date: 19 December 2018

CaseChat Overview and Summary

In the case of R v QN, the appellant was convicted of breach of a Good Behaviour Order and further offending. The appellant, who was serving a suspended sentence, was sentenced by the Magistrates’ Court to an intensive corrections order. The appellant appealed the sentence, arguing that the magistrate did not have jurisdiction to impose an intensive corrections order in these circumstances. The appeal was heard by the Supreme Court of Victoria.

The primary legal issue before the court was whether the magistrate had the jurisdiction to order an intensive corrections order for an offender who was already serving a suspended sentence. The appellant contended that the imposition of an intensive corrections order was improper as it was not a permissible sentence for someone already serving a suspended sentence. The respondent argued that the magistrate had the jurisdiction to impose the order as it was an appropriate sentence given the nature of the offences.

The court held that the magistrate did not have the jurisdiction to impose an intensive corrections order in these circumstances. The court found that the appellant was already serving a suspended sentence, and therefore, the magistrate could not impose an additional sentence of intensive corrections. The court emphasised that the imposition of an intensive corrections order was not a permissible sentence for an offender who was already serving a suspended sentence. The appeal was upheld, and the sentence was quashed.

The court ordered that the matter be remitted to the Magistrates’ Court for re-sentencing, with directions that the court consider an appropriate sentence within the powers available to it. The court also ordered that the appellant be released from custody, pending re-sentencing. The respondent was ordered to pay the appellant’s costs of the appeal.

Orders

Orders of the court

See [34].

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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