SUPREME COURT OF NORFOLK ISLAND
The Queen v Christian (No 2) [2018] NFSC 4
File number: SCC 1 of 2018 Judge: WIGNEY J Date of judgment: 7 June 2018 Catchwords: CRIMINAL LAW – five counts of sexual intercourse with young person under the age of 16 years contrary to s 113 Criminal Code 2007 (NI) – where complainant 13 years of age and offender 19 years of age – 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 comparable cases establish ‘correct range’ of sentences – whether home detention order under s 43 Sentencing Act 2007 (NI) an available sentencing option – whether desirable in all the circumstances to suspend sentence pursuant to s 39 Sentencing Act 2007 (NI) – whether suspended sentence achieves purposes of sentence in s 5(1) Sentencing Act 2007 (NI)
CRIMINAL LAW – where offender entered guilty plea at earliest possible opportunity – where four of five offences committed in breach of bail conditions – where complainant and offender in a “boyfriend/girlfriend” relationship – psychological evidence of intellectual and emotional immaturity of offender – where strong prospects of rehabilitation
Legislation: Criminal Code 2007 (NI)
Liquor Act 2005 (NI)
Sentencing Act 2007 (NI)
Cases cited: Amado v R [2011] NSWCCA
Brand v State of Western Australia [2011] WASCA 269
BP v R (2010) 201 A Crim R 379
Burnard v The Queen (2009) 193 A Crim R 23; [2009] NSWCCA 5
Dinsdale v The Queen (2000) 202 CLR 321
Elliott v Harris (No 2) (1976) 13 SASR 516
GNR v The State of Western Australia [2015] WASCA 5
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
Hogan v The Queen (2008) 186 A Crim R 52
Kakai v The Queen (unreported, Court of Appeal of the Supreme Court of Western Australia, Malcolm CJ, Ipp and Anderson JJ, 23 February 1999)
MJ v R, CPD v R [2010] NSWCCA 52
MLP v The Queen (2006) 164 A Crim R 93
Nanya v The State of Western Australia [2016] WASCA 169
R v Abbott (2007) 170 A Crim R 306; [2007] VSCA 32
R v Agnew (unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Handley JA and Loveday J, 6 December 1990)
R v Ahmetaj (2015) 256 A Crim R 203; [2015] QCA 248
R v BJW (2000) 112 A Crim R 1; [2000] NSWCCA 60
R v Clifford; ex parte Attorney-General (Qld) [2006] QCA 492
R v JCE (2000) 120 A Crim R 18
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- Case
- [2018] NFSC 4
- Decision Date
CaseChat Overview and Summary
The court was required to decide the appropriate sentence for the offender, considering the mandatory imprisonment for sexual offences under section 119 of the Sentencing Act 2007 (NI). The court needed to determine if actual imprisonment was appropriate, establish the correct range of sentences based on comparable cases, consider a home detention order as a sentencing option, and decide whether to suspend the sentence under section 39 of the Sentencing Act. The court also had to assess whether a suspended sentence would achieve the purposes of sentence outlined in section 5(1) of the Sentencing Act.
The court held that actual imprisonment was not appropriate given the offender's early guilty plea, the relationship between the offender and the complainant, the psychological evidence of the offender's intellectual and emotional immaturity, and the strong prospects of rehabilitation. The court considered a home detention order to be an appropriate alternative that would achieve the purposes of the sentence. The execution of the whole sentence was suspended for two years, subject to the offender being of good behaviour and entering into a home detention order for 12 months. The home detention order included specific terms and conditions, such as restrictions on leaving the approved residence, prohibitions on alcohol and drug use, and requirements for community service work and personal development activities.
The final orders included the offender's conviction on the specified counts, the imposition of imprisonment terms for each count, the suspension of the execution of the sentence for two years, and the imposition of a home detention order with detailed terms and conditions. The offender and the Crown were granted leave to apply to the Court for any variation of the home detention order terms and conditions.
Orders
Orders of the court
1. The offender, Tiaan Linley Christian, is convicted on counts 2, 3, 4, and 5 in the indictment dated 5 April 2018, and count 1 in the indictment dated 25 May 2018.
2. In relation to count 2 in the indictment dated 5 April 2018, the offender, Tiaan Linley Christian, is sentenced to a term of imprisonment of 9 months to commence on 7 June 2018 and expire on 7 March 2019.
3. In relation to count 1 in the indictment dated 25 May 2018, the offender, Tiaan Linley Christian, is sentenced to a term of imprisonment of 12 months to commence on 7 September 2018 and expire on 7 September 2019.
4. In relation to count 3 in the indictment dated 5 April 2018, the offender, Tiaan Linley Christian, is sentenced to a term of imprisonment of 12 months to commence on 7 December 2018 and expire on 7 December 2019.
5. In relation to count 4 in the indictment dated 5 April 2018, the offender, Tiaan Linley Christian, is sentenced to a term of imprisonment of 12 months to commence on 7 March 2019 and expire on 7 March 2020.
6. In relation to count 5 in the indictment dated 5 April 2018, the offender, Tiaan Linley Christian, is sentenced to a term of imprisonment of 12 months to commence on 7 June 2019 and expire on 7 June 2020.
7. Pursuant to s 39 of the Sentencing Act 2007 (NI), the execution of the whole of the sentence is suspended for the period of two years subject to the following conditions:
(a) the offender, Tiaan Linley Christian, be of good behaviour for the period of two years; and
(b) the offender, Tiaan Linley Christian, enter into a home detention order pursuant to s 43 of the Sentencing Act for the period of 12 months subject to the terms and conditions specified in the following order.
8. The home detention order entered into by the offender, Tiaan Linley Christian, be subject to the following terms and conditions. The offender, Tiaan Linley Christian:
(a) must not leave [redacted for privacy reasons] (“approved residence”) except at the times and for the periods as prescribed or as otherwise permitted by a magistrate or the Officer in Charge of the Norfolk Island Police (“the supervisor”);
(b) must obey all reasonable directions of a magistrate or the supervisor;
(c) must be of good behaviour and must not commit any offence;
(d) must reside only at the approved residence or any other premises approved in writing by the supervisor;
(e) must remain at the approved residence or any other premises approved in writing by the supervisor at all times other than:
(i) when engaged in activities approved or arranged by the supervisor, or
(ii) 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 due to immediate danger;
(f) must adhere to an approved activity plan during approved absences from the approved residence;
(g) must submit to searches of places or things under his immediate control as directed by the supervisor;
(h) must comply with any direction of the supervisor in relation to association with specified persons or class of persons;
(i) must not consume alcohol;
(j) must not use prohibited drugs, obtain drugs unlawfully or abuse drugs lawfully obtained;
(k) must submit to breath testing, urinalysis or other medically approved test procedures for detecting alcohol or drug use as directed by the supervisor;
(l) must engage in personal development activities or in counselling or treatment programs, as directed by the supervisor;
(m) 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;
(n) must accept any direction of the supervisor in relation to the maintenance of or obtaining of employment;
(o) must inform any employer of the home detention order and, if so directed by the supervisor of the nature of the offence that occasioned it;
(p) must authorise contact between any employer of the offender and the supervisor;
(q) when not otherwise employed, the offender must undertake community service work (not exceeding 20 hours per week), as directed by the supervisor;
(r) must not have any planned contact with the complainant, [redacted for privacy reasons], either directly or indirectly;
(s) must not obtain or use a mobile telephone, or use any other telephone, unless permitted to do so in writing by the supervisor and must adhere to any conditions of such usage prescribed by the supervisor;
(t) must, if approval by the supervisor is granted under condition (s), provide to the supervisor the details of the mobile telephone number or other telephone obtained or used by the offender and must provide the supervisor with access to the mobile telephone on request;
(u) must not use any computer or electronic communication device unless permitted to do so in writing by the supervisor and must adhere to any conditions of such usage prescribed by the supervisor;
(v) must, if approval by the supervisor is granted under condition (u), provide the supervisor with access to the computer or electronic communication device on request;
(w) 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;
(x) must not possess or have in his control any firearm or other offensive weapon.
9. The offender and the Crown have leave to apply to the Court on 7 days’ notice for any variation of the terms and conditions of the home detention order.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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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