SUPREME COURT OF NORFOLK ISLAND
The Queen v Christian [2020] NFSC 1
File number: SCC 3 of 2020 Judgement of: WIGNEY J Date of judgment: 1 October 2020 Catchwords: CRIMINAL LAW – two counts of sexual intercourse without consent contrary to s 112(1) Criminal Code 2007 (NI) – one count of burglary contrary to s 188(1)(b) Criminal Code 2007 (NI) – offences committed on Norfolk Island
CRIMINAL LAW – sentence – where Court must impose a term of imprisonment for sexual offence pursuant to s 119 Sentencing Act 2007 (NI) – whether appropriate to impose term of actual imprisonment – whether desirable in all the circumstances to suspend sentence pursuant to s 39 Sentencing Act 2007 (NI)
Legislation: Criminal Code 2007 (NI) ss 112, 112(1), 188, 188(1)(b)
Criminal Procedure Act 2007 (NI) s 167F
Sentencing Act 2007 (NI) ss 3(1), 5(1), 5(2), 39, 40, 42, 43, 43(1)(a), 49(1), 49(2), 50, 51, 87, 88, 89, 119, 134, 142, 142(4), 147(1), 147(2)(a), 176
Cases cited: Cordeiro v R [2019] NSWCCA 308
Dinsdale v The Queen (2000) 202 CLR 32
Elliott v Harris (No 2) (1976) 13 SASR 516
Hili v The Queen (2010) 242 CLR 520
McKinnon v R [2020] NSWCCA 106
R v Hallocogh (1992) 29 NSWLR 67
R v JCE (2000) 120 A Crim R 18
R v Rivkin (2004) 59 NSWLR 284
R v Shortland [2018] NSWCCA 34
R v Tangi (No 12) [2020] NSWSC 547
R vZamagias [2002] NSWCCA 17
Regina v DWF19 (No 2) [2019] NFSC 4
Sabapathy v R [2008] NSWCCA 82
Date of hearing: 28-29 September 2020 Category: Catchwords Number of paragraphs: 169 Counsel for the Prosecutor: Mr B Power Solicitor for the Prosecutor: Commonwealth Director of Public Prosecutions Counsel for the Offender: Ms L D Reece Solicitor for the Offender: McIntyres Lawyers ORDERS
SCC 3 of 2020 BETWEEN: THE QUEEN
Prosecutor
AND: RYAN CHRISTIAN
Offender
JUDGE:
WIGNEY J
DATE OF ORDER:
1 OCTOBER 2020
THE COURT ORDERS THAT:
1.The offender, Ryan Christian, is convicted on each of the three counts in the indictment dated 25 September 2020, being one count under s 188(1)(b) Criminal Code 2007 (NI) and two counts under s 112(1) of the Criminal Code 2007 (NI).
2.In respect of count one in the indictment, the offender is sentenced to imprisonment for a period of 14 months to commence on 1 October 2020 and end on 30 November 2021.
3.In respect of count two in the indictment, the offender is sentenced to imprisonment for a period of 18 months to commence on 1 January 2021 and end on 30 June…
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- The Queen v Christian [2020] NFSC 1
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- [2020] NFSC 1
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CaseChat Overview and Summary
The court considered the mandatory imprisonment requirement for the sexual offences and found it necessary to impose terms of actual imprisonment for each count. The court also assessed whether a suspended sentence was desirable under the circumstances. After weighing the factors in favour and against a suspended sentence, the court decided to suspend the sentence in part, commencing on 1 April 2021, after the offender had served six months imprisonment, and ending on 30 September 2022. The suspension was subject to a range of conditions designed to ensure the offender's rehabilitation and public safety.
In its judgment, the court imposed a total effective term of imprisonment of 24 months. Count one resulted in a sentence of 14 months imprisonment, count two and count three each resulted in a sentence of 18 months imprisonment. The sentences for counts two and three were to run concurrently, while the sentence for count one was to run consecutively. The sentence for count one was to commence on 1 October 2020 and end on 30 November 2021. The sentences for counts two and three were to commence on 1 January 2021 and 1 April 2021 respectively, and both were to end on 30 September 2022. The court further ordered that the offender serve his custodial sentence in NSW pursuant to s 5 of the Removal of Prisoners Act 2004 (NI).
Orders
Orders of the court
1. The offender, Ryan Christian, is convicted on each of the three counts in the indictment dated 25 September 2020, being one count under s 188(1)(b) Criminal Code 2007 (NI) and two counts under s 112(1) of the Criminal Code 2007 (NI).
2. In respect of count one in the indictment, the offender is sentenced to imprisonment for a period of 14 months to commence on 1 October 2020 and end on 30 November 2021.
3. In respect of count two in the indictment, the offender is sentenced to imprisonment for a period of 18 months to commence on 1 January 2021 and end on 30 June 2022.
4. In respect of count three in the indictment, the offender is sentenced to imprisonment for a period of 18 months to commence on 1 April 2021 and end on 30 September 2022.
5. The total effective term of imprisonment is 24 months.
6. The sentence of imprisonment imposed on the offender is suspended in part pursuant to s 39(1) of the Sentencing Act 2007 (NI), such suspension to:
(a) commence on 1 April 2021, after the offender has served six months imprisonment; and
(b) end on 30 September 2022; and
(c) be subject to the conditions set out in order 8 below.
7. For the purposes of s 39(6) of the Sentencing Act 2007 (NI), the period during which the offender is not to commit another offence punishable by imprisonment if he is to avoid being dealt with under s 42 of the Sentencing Act 2007 (NI) is 1 April 2021 to 30 September 2022.
8. The offender, Ryan Christian:
(a) must be present at and not leave XXXXX (“approved residence”) between the hours of 9pm and 6am, except as otherwise permitted by a magistrate or the Officer in Charge of the Norfolk Island Police (“the supervisor”) or when faced with immediate danger (such as in a fire or medical emergency) and must advise the supervisor as soon as practicable after leaving the approved residence during any curfew period due to immediate danger;
(b) must obey all reasonable directions of a magistrate or the supervisor;
(c) must reside only at the approved residence or any other premises approved in writing by the supervisor;
(d) must submit to searches of places or things under his immediate control as directed by the supervisor;
(e) must comply with any direction of the supervisor in relation to association with specified persons or class of persons, unless permitted by a magistrate;
(f) must not consume alcohol other than in a private residence;
(g) must not use prohibited drugs, obtain drugs unlawfully or abuse drugs lawfully obtained;
(h) must submit to breath testing, urinalysis or other medically approved test procedures for detecting alcohol or drug use as directed by the supervisor;
(i) must engage in counselling or treatment programs, as directed by the supervisor;
(j) must authorise his medical practitioner, therapist, counsellor or other professional involved in any treatment or assessment of the offender to provide information about the offender to the supervisor;
(k) must inform any employer of the suspended sentence and, if so directed by the supervisor of the nature of the offence that occasioned it;
(l) must not have any contact with the complainant, XXXXX , either directly or indirectly, including not requesting or encouraging any other person to contact the complainant;
(m) must provide the supervisor with access to any computer or electronic communication device possessed or used by the offender on request by the supervisor;
(n) must not leave Norfolk Island without the prior written approval of the supervisor and must adhere to any conditions imposed by the supervisor relating to any approval granted, with the exception of participating in fishing trips on boats within the waters off Norfolk Island;
(o) must not possess or have in his control any firearm or other offensive weapon other than at the premises of the Norfolk Island Clay Target Association shooting range and for the purposes of organised sporting target shooting at the Norfolk Island Clay Target Association shooting range.
9. Liberty to apply on seven days’ notice as regards any variations to order 8.
THE COURT NOTES THAT
10. The offender to serve his custodial sentence in NSW pursuant to s 5 of the Removal of Prisoners Act 2004 (NI).
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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