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R v TL (No 2)

R v TL (No 2)

Case [2016] ACTSC 289 22 September 2016

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v TL (No 2)
Citation:	[2016] ACTSC 289
Hearing Date:	15 September 2016
DecisionDate:	22 September 2016
Before:	Refshauge ACJ
Decision:	1. TL be convicted of sexual intercourse with a young person on or about 13 September 2013. 2. The Good Behaviour Order made on 12 November 2012 be cancelled. 3. That breach be remitted to the Children’s Court to be dealt with by that Court. 4. TL be sentenced for engaging in sexual intercourse with a young person to two years imprisonment to commence on 11 April 2015. 5. TL be convicted of committing an act of indecency on a young person on or about 13 September 2013. 6. TL be sentenced to four months imprisonment to commence on 11 April 2015. 7. TL be convicted of committing a second act of indecency on a young person on or about 13 September 2013. 8. TL be sentenced to six months imprisonment to commence on 11 November 2016. 9. TL be convicted of committing a third act of indecency on a young person on or about 13 September 2013. 10. TL be sentenced to six months imprisonment to commence on 11 December 2016. 11. TL be convicted of committing an act of indecency on a young person between 29 April and 24 June 2014. 12. The Good Behaviour Order made on 11 April 2014 be cancelled. 13. TL be convicted for burglary committed between 2 October 2012 and 3 January 2013. 14. TL be sentenced to four months imprisonment, suspended on 9 May 2014. 15. TL be convicted for theft between 2 October 2012 and 3 January 2013. 16. TL be sentenced to four months imprisonment, suspended on 9 May 2014. 17. TL be convicted for burglary committed on 17 October 2012. 18. TL be sentenced to four months imprisonment, suspended on 9 May 2014. 19. TL be convicted for theft committed on 17 October 2012. 20. TL be sentenced to four months imprisonment, suspended on 9 May 2014. 21. TL be convicted for burglary committed between 22 and 23 October 2013. 22. TL be sentenced to four months imprisonment, suspended on 9 May 2014. 23. TL be sentenced to four months imprisonment for committing an act of indecency on a young person between 29 April and 24 June 2014, to commence on 11 June 2017. 24. TL be convicted of committing a second act of indecency on a young person between 29 April and 24 June 2014. 25. TL be sentenced to six months imprisonment to commence on 11 July 2017. 26. TL be convicted of committing an act of indecency on a young person between 1 and 22 December 2014. 27. The Good Behaviour Order made on 29 May 2014 be cancelled. 28. TL be re-sentenced for the offence of common assault to one month imprisonment to commence on 11 January 2018. 29. TL be sentenced to six months imprisonment for committing an act of indecency on…

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 TL (No 2)

Details

AGLC: R v TL (No 2) [2016] ACTSC 289
Case: [2016] ACTSC 289
Decision Date: 22 September 2016

CaseChat Overview and Summary

The case before the court involved the sentencing of TL, who was convicted of various offences including sexual offences against young people, property offences, and aggravated robbery. The proceedings took place in the Supreme Court of the Australian Capital Territory. The legal issues before the court centred on the appropriate sentences for multiple offences, the relative seriousness of the offences, the consideration of previous Good Behaviour Orders that had been breached, and the appropriate application of concurrent and consecutive sentencing principles.

The court was required to consider the relative seriousness of TL’s offences, particularly the sexual offences against young people, and how these should be weighed against the property offences and the aggravated robbery. The court also had to determine the appropriate sentences for each offence and how these sentences should be ordered, either concurrently or consecutively, to reflect the totality of TL’s offending behaviour and to achieve the aims of general deterrence and rehabilitation.

In its reasoning, the court first addressed the sexual offences against young people, noting the gravity of such offences and the need to protect the community and the victims. The court imposed sentences that reflected the seriousness of these offences, ordering some sentences to run concurrently and others consecutively to ensure the appropriate cumulative effect. Regarding the property offences, the court considered the circumstances of each offence and imposed sentences that, while reflecting the seriousness of the offending, also took into account the need for rehabilitation and the likelihood of reoffending. The aggravated robbery was treated as the most serious offence, with a significant custodial sentence imposed to reflect its gravity and to deter others from committing similar offences. The court also cancelled previous Good Behaviour Orders that had been breached and ordered TL to be referred to Restorative Justice and notified as a prisoner-at-risk due to his mental condition and the nature of his offences.

The final orders of the court included convictions for all specified offences, cancellation of previous Good Behaviour Orders, and sentences ranging from suspended imprisonment to lengthy custodial terms, with specific commencement dates for the imprisonment terms. The court also set a non-parole period for the aggravated robbery sentence and ordered TL to be referred to Restorative Justice and notified as a prisoner-at-risk.

Orders

Orders of the court

1. TL be convicted of sexual intercourse with a young person on or about 13 September 2013.

2. The Good Behaviour Order made on 12 November 2012 be cancelled.

3. That breach be remitted to the Children’s Court to be dealt with by that Court.

4. TL be sentenced for engaging in sexual intercourse with a young person to two years imprisonment to commence on 11 April 2015.

5. TL be convicted of committing an act of indecency on a young person on or about 13 September 2013.

6. TL be sentenced to four months imprisonment to commence on 11 April 2015.

7. TL be convicted of committing a second act of indecency on a young person on or about 13 September 2013.

8. TL be sentenced to six months imprisonment to commence on 11 November 2016.

9. TL be convicted of committing a third act of indecency on a young person on or about 13 September 2013.

10. TL be sentenced to six months imprisonment to commence on 11 December 2016.

11. TL be convicted of committing an act of indecency on a young person between 29 April and 24 June 2014.

12. The Good Behaviour Order made on 11 April 2014 be cancelled.

13. TL be convicted for burglary committed between 2 October 2012 and 3 January 2013.

14. TL be sentenced to four months imprisonment, suspended on 9 May 2014.

15. TL be convicted for theft between 2 October 2012 and 3 January 2013.

16. TL be sentenced to four months imprisonment, suspended on 9 May 2014.

17. TL be convicted for burglary committed on 17 October 2012.

18. TL be sentenced to four months imprisonment, suspended on 9 May 2014.

19. TL be convicted for theft committed on 17 October 2012.

20. TL be sentenced to four months imprisonment, suspended on 9 May 2014.

21. TL be convicted for burglary committed between 22 and 23 October 2013.

22. TL be sentenced to four months imprisonment, suspended on 9 May 2014.

23. TL be sentenced to four months imprisonment for committing an act of indecency on a young person between 29 April and 24 June 2014, to commence on 11 June 2017.

24. TL be convicted of committing a second act of indecency on a young person between 29 April and 24 June 2014.

25. TL be sentenced to six months imprisonment to commence on 11 July 2017.

26. TL be convicted of committing an act of indecency on a young person between 1 and 22 December 2014.

27. The Good Behaviour Order made on 29 May 2014 be cancelled.

28. TL be re-sentenced for the offence of common assault to one month imprisonment to commence on 11 January 2018.

29. TL be sentenced to six months imprisonment for committing an act of indecency on a young person between 1 and 22 December 2014 to commence on 11 September 2017.

30. TL be convicted for committing the second act of indecency committed on a young person between 1 and 22 December 2014.

31. TL be sentenced to nine months imprisonment to commence on 11 November 2017.

32. TL be convicted of aggravated robbery on 10 November 2014.

33. TL be sentenced to two years and nine months imprisonment to commence on 11 December 2017.

34. A non-parole period of two years and eight months to commence on 11 April 2015 and end on 10 December 2017 be set.

35. TL be referred to Restorative Justice under s 27 of the Crimes (Restorative Justice) Act 2004 (ACT).

36. TL be notified as a prisoner-at-risk because of his mental condition and the offences of which he has been convicted.

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 TL (No 2) [2016] ACTSC 289

Most Recent Citation

R v EP (No 3) [2019] ACTSC 242

Cases citing this decision · 6 of 6 shown

Director of Public Prosecutions v Muell
[2024] ACTSC 184

…[2019] ACTSC 77 R v Murphy [2021] ACTSC 94 R v Pham [2015] HCA 39; 256 CLR 550 R v Radich [1954] NZLR 86 R v Serena [2019] ACTSC 231 R v TL (No 2) [2016] ACTSC 289 R v Tran [1999] NSWCCA 109 R v Verdins [2007] VSCA 102; 16 VR 269 R v Zamagias [2002] NSWCCA 17 Saga v Reid [2010] ACTSC 59 Taylor v The Queen [2014] A…
Director of Public Prosecutions v Dowling
[2023] ACTSC 49 Para 1

…servation of the need for consistency in sentencing, I am also mindful, as the Crown reminded me, of the observations of Refshauge J in R v TL (No 2) [2016] ACTSC 289 at [44].…
R v Fry
[2021] ACTSC 138

…i [2016] ACTSC 345 R v Ndlovu [2017] ACTSC 244 R v Roux (No 2) [2015] ACTSC 361 R v Smith [2016] ACTSC 317 R v Stanley [2015] ACTSC 322 R v TL (No 2) [2016] ACTSC 289 R v Tonna (No 1) [2020] ACTSC 360 R v Williams [2016] ACTSC 389 Smejlis v Matthews [2004] WASCA 158 Wong v The Queen [2001] HCA 64; 207 CLR 584…
R v Lyons (No 1)
[2020] ACTSC 358

…al Territory Supreme Court, Refshauge J, 31 May 2010) R v Scott [2003] VSCA 55 R v Sharma [2016] ACTSC 180 R v Stanley [2015] ACTSC 322 R v TL (No 2) [2016] ACTSC 289…
R v EP (No 3)
[2019] ACTSC 242 Para 1

…must be by way of fulltime custody. It was submitted one option may be a suspended sentence with a bond (referring to cases of UG ; R v TL (No 2) [2016] ACTSC 289; Lakiss ).…
R v TL
[2017] ACTCA 18

…Crim R 451 R v King [2013] ACTCA 29 R v Mills [1998] 4 VR 235 R v PGM [2008] NSWCCA 172; 187 A Crim R 152 R v Nelson [2016] NSWCCA 130 R v TL (No 2) [2016] ACTSC 289 R v TW [2011] ACTCA 25; 6 ACTLR 18 Shannon v The Queen [2006] NSWCCA 39 Wong v The Queen [2001] HCA 64; 207 CLR 584…

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Cases cited in this decision · 24 of 24 shown

R v Gordon
[2022] ACTCA 48 Para 1

…he is over the age of 18 years, he is still relatively young and the principles relating to sentencing of young offenders are still applicable. See R v Gordon (1994) 71 A Crim R 459 at 469. Those principles are set out in R v BB [2013] ACTSC 58 at [72]. See, however, the relevant modification to them and the applica…
R v Massey (No 2)
[2016] ACTSC 278 Para 1

…, I must also have regard to the period during which TL was a sentenced prisoner during the remand period. I have explained that in R v Massey (No 2) [2016] ACTSC 278 at [88]. See also R v Elphick (No 2) at [91]-[92]. This seems to me to be particularly required in the case of a young man as is TL. As a result, I w…
R v NF (No 1)
[2016] ACTSC 216 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 BNS (No 2)
[2016] ACTSC 145 Para 1

…I said recently in R v BNS (No 2) [2016] ACTSC 145 at [29]:…
R v McGrail
[2016] ACTSC 142 Para 1

…e has also completed an eight week anger management group program. He has been attending the SMART Recovery, a program I described in R v McGrail [2016] ACTSC 142 at [78]-[80]. He feels confident that he can remain abstinent when he returns to the community.…
R v Curtis (No 2)
[2016] ACTSC 34 Para 1

…110 of the Crimes (Sentence Administration) Act either impose the sentence that was suspended or re-sentence TL. I have set out in R v Curtis (No 2) [2016] ACTSC 34 at [15]-[19], the approach to be taken in the response to the breach of such an Order when I said:…
R v GD
[2015] ACTSC 174 Para 1

…He had a brief period at the Ted Noffs Foundation, a program I described in R v GD [2015] ACTSC 174 at [5]-[8].…
R v Monaghan
[2015] ACTSC 153 Para 1

…The final decision was one mentioned in R v Keenan , namely R v Monaghan [2015] ACTSC 153, where Mr Monaghan with a co-offender stole $135 from the victim who was withdrawing money from an ATM. Mr Monaghan had a serrated steak knife with him. He was 24 at the time and had a good upbringing but suffered developmenta…
R v Elphick (No 2)
[2015] ACTSC 23 Para 1

…rement of the statute that the whole of the period be applied mathematically to the sentence or that it be completely ignored. See R v Elphick (No 2) [2015] ACTSC 23 at [86]-[90].…
R v Keenan
[2014] ACTSC 342 Para 1

…The next decision was R v Keenan [2014] ACTSC 342, where Mr Keenan entered a suburban supermarket with a sawn-off shotgun with which he threatened the staff, stealing $1500. He had a significant criminal history. He declined to co-operate with preparation of a Pre-Sentence Report. The Court considered 17 other deci…
R v Billington
[2014] ACTSC 350 Para 1

…In R v Billington [2014] ACTSC 350, the offender, who entered an early plea, was 18 at the time of the offence. He had hired a taxi and directed him to a cul-de-sac where he produced a knife with which he threatened the taxi-driver until he gave him $50. He later entered a newsagency also armed with a knife and dem…
R v CMB
[2014] NSWCCA 5 Para 92

…ourt has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v The Queen [2013] NSWCCA 255 at [52]. In R v G [2009] 1 AC 9…
SW v R
[2013] NSWCCA 255 Para 52

…the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v The Queen [2013] NSWCCA 255 at [52]. In R v G [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the ‘long term and serious harm, both physical and psychological, w…
R v BB
[2013] ACTSC 58 Para 1

…elating to sentencing of young offenders are still applicable. See R v Gordon (1994) 71 A Crim R 459 at 469. Those principles are set out in R v BB [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…
Guy v Anderson
[2013] ACTSC 5 Para 83

…er avoided being sentenced to full-time prison, is likely to bring such sentences into disrepute. 16.Nevertheless, as I pointed out in Guy v Anderson [2013] ACTSC 5 at [83]-[87], there is, in this jurisdiction, no presumption in favour of imposing the original sentence that had been suspended. Thus, a court may,…
R v Meyboom
[2012] ACTCA 48 Para 1

…D A Thomas, Principles of Sentencing (Heinemann Publishers, 2nd ed, 1979) 53; Attorney-General (SA) v Tichy (1982) 30 SASR 84 at 93; and R v Meyboom [2012] ACTCA 48 at [62], [77]-[80].…
Clarkson v The Queen
[2011] VSCA 157

…th a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39].…
Saga v Reid
[2010] ACTSC 59 Para 99

…15.In Saga v Reid [2010] ACTSC 59 at [99]-[101], I adopted what had been said in other cases; namely, that the failure of courts to act where there has been a clear breach of the conditions of a conditional release order, such as a Good Behaviour Order, imposed when a sentence of imprisonment is suspended and by w…
R v Ashman
[2010] ACTSC 45 Para 1

…While it is clear, as I pointed out in R v Ashman [2010] ACTSC 45 at [28]-[29], that the Crown is not bound by the contents of such reports, which it is required, in fairness, to tender, it should make clear at the time whether it wishes to controvert any of the contents including, where relevant, cross-examining…
R v Daetz
[2003] NSWCCA 216 Para 1

…Injuries and other harm done to an offender because of the offending can, in an appropriate case, be taken into account in sentencing. See R v Daetz (2003) 139 A Crim R 398 at 410-11; [62].…
Douglas v The Queen
[1995] FCA 411 Para 1

…o significant that he commenced drinking at a very early age before he was in a position to understand and give informed consent to the activity. See Douglas v The Queen (1995) 56 FCR 465 at 470.…
Ibbs v the Queen
[1987] HCA 46 Para 1

…The maximum penalty provided for by the legislature is an important indicator of the relative seriousness of the offence. See Ibbs v The Queen (1987) 163 CLR 447 at 451-2. As that case demonstrates however, it is important to ensure that the precise facts of the offences are taken into account as the offences do cove…
[2009] 1 AC 92
[2009] 1 AC 92 Para 52

…014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v The Queen [2013] NSWCCA 255 at [52]. In R v G [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the ‘long term and serious harm, both physical and psychological, which premature sexual activity ca…
Perkins v Vaughan
(1842) 134 ER 405 Para 1

…ence of this in an admissible form. His letter was hearsay and so inadmissible at common law to prove the truth of the assertion: Perkins v Vaughan (1842) 134 ER 405.…

Legislation cited in this decision · 5

Crimes (Sentencing) Act 2005 (ACT)
12, 17, 33, 63(2), 7 6 mentions (from Para 1)
Crimes (Sentence Administration) Act 2005 (ACT)
108(2), 110, 320H 4 mentions (from Para 1)
Crimes (Restorative Justice) Act 2004 (ACT)
27 2 mentions (from Para 1)
Evidence Act 2001 (TAS)
4(2) 2 mentions (from Para 1)
Crimes Act 1900 (ACT)
1 mention (from Para 1)