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Republic v BR [2025] NRCA 14; Criminal Appeal 3 of 2024 (11 December 2025)

JUDGMENT

1. This is an appeal against the sentence by the Director of Public Prosecutions (the Appellant). “BR” (the Respondent) was charged with one count of Indecent Acts in relation to a child contrary to section 117(3)(a)(b)(c) of the Crimes Act 2016 (Crimes Act).
   
2. The Respondent was sentenced on 26 April 2024 upon his plea of guilt. The learned judge of the Supreme Court found the Respondent guilty as charged but chose not to record a conviction. Subsequently the Respondent was released on the following probation order:

[44] BR- under section 7 of the Criminal Justice Act 1999, you are released on probation order with the following conditions:

a) The probation order shall be for a period of three years.

2. Within 24 hours you shall report to Chief Probation Officer, Jansen Agir and shall further report as and when required by him.

100. You shall reside with your parents and shall notify the probation officer of any change in their address.

4. BR shall not reside at an address not approved by the probation officer.
5. BR with the assistance of the probation officer, shall re-enrol in a school or pursue other modes of study that suits you.
6. BR shall not associate with specified persons or persons of a certain class that the probation officer has warned you in writing not to associate with; and
7. BR – you are to keep peace be of good behaviour and not to commit any offence.
   

3. Being aggrieved by the sentence, the Appellant filed a Notice of Appeal on 16 May 2024. Section 29(3)(b) of the Court of Appeal Act 2018 provides that the Director of Public Prosecutions may appeal against a judgment, decision or order of the Supreme Court in relation to the sentence unless the sentence is one fixed by a written law. Accordingly, the Appellant advanced the following grounds of appeal:
   
   1. That the learned trial judge erred in his sentencing remarks when he considered greater weight on the offender’s prospect of rehabilitation; and
   2. That the sentence imposed is too lenient in the circumstances.
      
4. As per the Notice of Appeal the Appellant seeks an order to:
   1. Set aside the sentence ordered by the Supreme Court
   2. Record a conviction; and
   3. Impose an imprisonment sentence.
      
5. Having considered the nature of the two grounds of appeal, we have decided that they should be addressed together, as they concern interrelated issues. We have considered the submissions made by the Appellant and the Respondent.
   
6. At the time of the incident, the victim was 8 years of age, and the Respondent was 15 years of age. The Respondent is the half-brother of the victim’s father. On 02 March 2024 at around 11.00 am, the Respondent arrived at the victim’s house on a motorcycle. After lunch, the victim was in the living room with her siblings and the Respondent, while her parents were in their bedroom. The Respondent pulled the victim by the hand causing her to fall on his lap. The Respondent pulled out his penis and pushed the victim down towards his penis and put it on the victim’s mouth and face. When the mother of the victim came out of the room, she was shocked to see the Respondent was pushing the victim’s head towards his exposed penis. She slapped the accused and alerted the victim’s father.
   
7. The Appellant asserted that the learned judge of the Supreme Court erred by taking into account irrelevant considerations and by misapplying prior case authorities, thereby according disproportionate weight to the Respondent’s prospects of rehabilitation when assessed against the nature of the offence and the circumstances in which it was committed. The Appellant further contended that, notwithstanding the Respondent’s status as a juvenile, any consideration of rehabilitation ought to have been exercised with appropriate caution and proportionality. Secondly, the Appellant submitted that the sentence was too lenient.
   
8. The Appellant relied on KT v R [2008] NSWCCA 51 where Chief Justice McClellan remarked:

[25] The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity (R v Bus, unreported, NSWCCA, 3 November 1995, Hunt CJ at CL; R v Tran [1999] NSWCCA 109 at [9]–[10]; R v TJP [1999] NSWCCA 408 at [23]; R v LC [2001] NSWCCA 175 at [48]; R v AEM Snr, KEM and MM [2002] NSWCCA 58 at [96]–[98]; R v Adamson [2002] NSWCCA 349; (2002) 132 A Crim R 511 at [31]; R v Voss [2003] NSWCCA 182 at [16]). In determining whether a young offender has engaged in “adult behaviour” (Voss at [14]), the court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence (Adamson at [31]–[32]). Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society.

9. We have considered the sentence imposed by the learned judge of the Supreme Court. It appears that His Honour discussed the significance of promoting the rehabilitation of the juvenile offender at length. The Appellant contended that the learned judge thereby placed excessive emphasis on rehabilitation and did not give sufficient regard to the nature and other circumstances of the case. This approach is reflected in paragraph 34 of the sentencing remarks. His Honour reinforced this reasoning by citing the following authority:
   

[33] In Simonds v Hill [1986] NTSC 1; (1986) 38 NTR 31 Maurice J said:

“In the Juvenile Court the retributive aspect of a sentence is at best of secondary importance. Even lower in the scale, if needed, it has any place at all is deterring others. The overwhelming concern is the young offender’s development as a law-abiding citizen. The court should be at pains to ensure that its sentences do not alienate its young clients. Particularly so in the case of a first offender.”

[34] This supports the general principle that in cases of juvenile offenders, greater weight may be given to a juvenile’s prospects of rehabilitation at the expense of general deterrence.

10. It should be noted that there is no issue with giving due regard to the rehabilitative aspect of sentencing, particularly since the offender is a juvenile. However, the issue raised by the Appellant concerns whether the weight attached to rehabilitation was properly balanced against the gravity of the offence and the nature and circumstances in which it occurred.
    
11. The Appellant submitted that the aggravating circumstances were not appropriately weighed by the learned judge of the Supreme Court. One such factor highlighted by the Appellant was the relationship between the victim and the Respondent. However, it should be noted that the learned judge of the Supreme Court correctly acknowledged that the Respondent is the uncle of the victim and that this constituted a breach of trust, as recorded in paragraph 8 of the sentencing remarks. The Appellant further submitted that the fact that the offending occurred in the presence of the victim’s siblings was not afforded due consideration by the learned judge. Additionally, the Appellant submitted that the pre-sentence report prepared by the Chief Probation Officer recorded that the Respondent had been under the influence of marijuana shortly before the offending. The Appellant contended that while the learned judge of the Supreme Court treated the assault on the Respondent by the victim’s parents after the incident as a mitigating factor, His Honour failed to consider the Respondent’s drug-affected state as an aggravating factor, which was reported in the same interview.
    
12. The Appellant relied on the sentence in The Republic v UN [2019] NRSC 38, where the Supreme Court considered the inhaling of butane gas by a juvenile offender in a rape case as a ground for imposing a custodial sentence of 15 months’ imprisonment. The Appellant contended that in the present case the learned judge of the Supreme Court ought to have treated the offender’s substance abuse as a factor warranting the imposition of a custodial sentence.
    
13. The Appellant further submitted that the learned judge misapplied the reasoning in R v DBU [2021] QCA 51 [CA 124/2020], a case of the Supreme Court of Queensland in deciding not to record a conviction. The Appellant argued that the sentence in DBU was different to the instant case, primarily as the instant case involves a sexual offence. It was argued by the Appellant that even in the case of DBU, the court has stated that a conviction must be recorded in cases that are inherently so serious.
    
14. What constitutes a serious offence must be determined within the context of the domestic jurisdiction. In Nauru, the offence of Indecent Acts in relation to a child under 16 carries a maximum penalty of 30 years imprisonment, of which at least one third must be served without parole or probation. Given the severity of this penalty, it is evident that the legislature intended to classify Indecent Acts involving a child under 16 as a serious offence. The learned judge of the Supreme Court has also correctly recognised this in paragraph [3] of the sentencing remarks:
    

[32] In this case, the offence of Indecent Acts in relation to a child under 16 years old is equally a serious offence. So serious that Parliament prescribes a maximum penalty of 30 years imprisonment.

15. However, having acknowledged the seriousness of the offence within the domestic jurisdictional context, the learned judge of the Supreme Court proceeded to state that greater weight may be given to a juvenile’s prospects of rehabilitation by following Simonds (supra). Although the learned judge of the Supreme Court correctly recognised both the seriousness of the offence in this jurisdiction and the legislative intention behind the prescribed penalty, His Honour did not substantiate the basis for disregarding those factors and instead adopted reasoning from a different jurisdiction, one shaped by dynamics that do not necessarily align with local circumstances.
    
16. In contrast to the reasoning in Simonds (supra), which the learned judge of the Supreme Court relied upon, the Appellant referred to a more recent authority in which McClellan CJ observed the following in KT v R [2008] NSWCCA 51 at [24]:

“Although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders. There remains a significant public interest in deterring antisocial conduct. In R v Pham & Ly (1991) 55 A Crim R 128 Lee CJ at CL said (at 135): “It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of criminal court’s function will cease to operate....”

17. It should be noted that case authorities used as guidelines must be relevant to the context and circumstances of the jurisdiction in which they are applied. An offence that may be regarded as less severe in one jurisdiction may be considered serious in another. Therefore, courts must exercise caution in selecting the appropriate guidelines for the appropriate circumstances. There is no dispute that children should not be subjected to custodial sentences unless the circumstances warrant such a response by the courts. As the Respondent’s counsel correctly highlighted, the Child Protection and Welfare Act 2016 clearly provides in section 48(a) that a sentence of imprisonment may be imposed on a child only as a sentencing option of last resort. However, this should not be interpreted as a total prohibition on imposing custodial sentences on children.
    
18. In P v Hill [1992] NTSC 79; (1992) 110 FLR 42, Mildren J of the Supreme Court of the Northern Territory of Australia discussed the circumstances that may warrant the imposition of custodial sentences by the courts as follows:
    

“The approach of the courts when dealing with juveniles must be cautious, patient and caring, with the interests of the juvenile foremost in mind. Of course, there are some offences which warrant an immediate custodial sentence, notwithstanding that the offender is a juvenile and notwithstanding, even, that the juvenile has no prior convictions. But these are for extremely serious crimes, usually, but not always, crimes of violence where it is right that the need to punish and deter is given particular emphasis. ... I do not say, of course, that in the case of a persistent offender, where the crimes are not in the extremely serious category, that it is not appropriate to order detention or imprisonment. But even in such cases, detention or imprisonment should only be used as a last resort, where all other options are inappropriate and the need for deterrence and to protect the community must be given special prominence: see, eg, Yovanovic v Pryce (1985) 33 NTR 24.”

19. The Appellant submitted that instances where courts have imposed custodial sentences on juveniles are not rare in this jurisdiction. In R v UN (supra), the Supreme Court imposed a sentence of 15 months imprisonment in a case involving the rape of a child under 16 years. It appears that in that case the Court also took into account the fact that the offender had been inhaling butane gas when determining that a custodial sentence was warranted.
    
20. In Republic of Nauru v AD [2019] NRSC 1, the juvenile offender was charged with one count of Indecent Acts in relation to child under 16 years and he pleaded guilty. The juvenile had two previous convictions for sexual offences. The juvenile was convicted and was sentenced to a term of 18 months imprisonment. In Republic of Nauru v KK [2016] NRDC 34, the District Court convicted the juvenile offender for indecent act contrary to section 227(2) of the Criminal Code 1899. The maximum punishment was 2 years imprisonment. The juvenile was sentenced to 9 months imprisonment.
    
21. The Respondent submitted that the learned judge of the Supreme Court considered the appropriate guidelines and did not make any error of law. The Respondent relied on Republic v EA [2018] NRSC 64 where the juvenile offender was charged for Indecent Acts in relation to a child under 16 years old. The court did not record a conviction and he was released on a probation order. The Respondent also relied on Republic v AD [2018] NRSC 27 where the juvenile offender was charged for one count of Indecent Acts in relation to a child under 16 years old and another count of Rape. The juvenile was convicted of both offences and was released on a probation order. However, both these sentences were imposed prior to the amendment of the offence with an increased sentence.
    
22. The Appellant submitted that section 117 of the Crimes Act was amended by the Crimes (Amendment) No. 2 of 2020, increasing the maximum sentence for Indecent Acts in relation to a child to 30 years. The punishment prior to the amendment appears to have been 13 years imprisonment when the offence was in relation to a child, and 15 years imprisonment where aggravating circumstances applied. It appears that the legislature has effectively doubled the penalty for this offence, and the intention behind this legislative change is clear from the following excerpts of the Second Reading Speech made by the Minister at the Bill stage:

“... it has been noted that some offences and sentences need to be reconsidered. ...There has also been an increase in the number of sexual offences. The current sentences imposed by the court are not deterrent...

...There are moral offences and as leaders and community members, it is our duty to ensure that the vulnerable, the weaker and more so the children, are protected from the perpetrators of such crime. Often, children of very tender age are victims of crime and more so are put into very difficult positions of testifying in court. The court by any means is not a place where our children should be at that age even as witnesses. This can only happen if the perpetrators of the crimes and those who intend to commit such offences, do know that the penalty for such crime will be grave and the best part of their lives will need to be served in prison. This action is necessary on the part of the Legislature to ensure that the judiciary is equipped with the necessary jurisdiction and power to impose sentences which will serve as deterrence. The new sentences in this Bill are very severe for this reason.”

23. The Appellant further submitted that the Minister’s speech referred to a case in which an offender charged with Indecent Acts on a child under 16 was found guilty and sentenced to 100 hours of community service, with no conviction recorded, as an example illustrating the leniency previously shown in offences involving children. The Appellant also submitted that the criminal law relating to children in Nauru is specifically designed to meet the needs and expectations of the community, noting that in Nauru the criminal liability of children is extended to those aged 10 to 14 years for serious offences such as rape and murder as an example.
    
24. In R v AB [2016] NRSC 47 the Supreme Court remarked on the prevalence of sexual offences in Nauruan society as follows:
    

“A study published in 2014 by the Nauruan Ministry of Home Affairs considered sexual abuse in childhood before the age of 15 years. Of the women who participated in the survey, over 30% reported sexual abuse in childhood, the majority of cases between the ages of 5 and 14 years, with the male family members being mentioned as the most frequent offenders. The prosecution of these offences sends out a clear message to the community that offending of this nature is not to be tolerated, and the part of the Court’s role when sentencing is to underline that message.”

25. Indecent Acts is, comparatively, a sexual offence of lesser severity than Rape. In Nauru, the punishment for rape under section 105 of the Crimes Act is life imprisonment, of which at least 15 years must be served without parole or probation. As per section 106 of the Crimes Act, the punishment for Indecent Acts is 20 years imprisonment if aggravating circumstances apply, and 10 years imprisonment if they do not. According to section 116 of the Crimes Act, the Rape of a child is also punishable with the same imprisonment as in section 105. However, a drastic difference in punishment can be seen in Indecent Acts in relation to children under 16 years compared to the punishment in section 106. The legislature has increased the punishment for Indecent Acts in relation to children under 16 by ten years and has imposed a condition requiring a minimum of one third of the sentence to be served.
    
26. It should be noted, for the purpose of clarity, that although the statute clearly stipulates a maximum term of imprisonment, it does not stipulate a minimum term. All that the Act provides is that whatever term of imprisonment is imposed subject to maximum of 30 years, one third of that sentence must be served before parole or probation may be considered. Therefore, we are not inclined to accept the Appellant’s submission that the penalty for offences under section 117 is 30 years imprisonment with a minimum of 10 years without parole or probation. The Act does not prescribe a mandatory minimum term of 10 years imprisonment. The Court retains full discretion to determine the appropriate length of imprisonment, including a relatively short custodial term, provided that the mandatory one third period is observed. This discretion applies equally in the sentencing of child offenders, for whom detention remains a measure of last resort.
    
27. With that said, we have also considered the other circumstances of offending. As per the summary of facts it appears that the Respondent “pushed the victim down towards his penis and put it on the victim’s mouth and face”. Although it is not expressly stated whether the Respondent’s penis penetrated the victim’s mouth, the wording of the summary of facts strongly indicates that the conduct was at the upper end of seriousness of the offence. It should be noted that some acts falling within the offence of Indecent Acts may closely approach the legal definition of rape, falling short only by the absence of penetration. For example, where an offender places his penis on or near a child’s mouth, any degree of penetration of the mouth, however slight, would constitute Rape. Thus, while a broad range of acts may fall within the offence of Indecent Acts, the circumstances of the present case place it at the very high end of that spectrum, close to the threshold of Rape. To elaborate what amounts to Rape it is pertinent to note that section 8 of the Crimes Act that defines sexual intercourse as:

(a) the penetration, to any extent, of or by any part of a person’s genitals with any part of the body of another person;

(b) the penetration, to any extent, of the anus of a person by any part of the body of another person;

(c) the penetration, to any extent, of or by any part of a person’s genitals by an object, carried out by another person;

(d) the penetration, to any extent, of the anus of a person by an object, carried out by another person;

(e) oral sex; or

(f) the continuation of an activity covered by paragraphs (a) to (e);

28. In addition, it was submitted to this Court that the pre-sentence report revealed that the Respondent had smoked marijuana with his friends shortly before the commission of the offence. Furthermore, it appears that the offending took place in the presence of other children. In view of these factors, we are of the view that the circumstances of the offending are highly serious, and although the learned judge considered the relationship between the victim and the Respondent and the fact that the offending occurred inside the victim’s home, the learned judge of the Supreme Court appears to have failed to fully appreciate the actual nature and circumstances of the offence as a whole when sentencing the Respondent.
    
29. As the learned judge of the Supreme Court has also discussed, when sentencing a juvenile offender, the courts must give special regard to the promotion of rehabilitation. However, in cases that are very serious in nature, the courts have a duty to strike a balance between the promotion of rehabilitation and the need for appropriate punishment to give effect to the intention of the legislature. Judicial discretion in assessing the factors set out in sections 278, 279 and 280 of the Crimes Act should be exercised so as to tailor the most appropriate sentence based on the circumstances of each case. As earlier mentioned, it appears that the legislature has been minded to increase the sentence for sexual offences seemingly because of the prevalence of such offences in Nauruan society, the inadequacy of deterrent punishments, and the need to protect women and children from these harms. The amendments to the law therefore demand that the courts give adequate consideration to deterrence in cases of sexual violence. Accordingly, the courts must give full effect to the intention of the legislature by imposing appropriate sentences. Unfortunately, in the present case the offender is also a juvenile who is seven years older than the victim. Thus, the Court has an additional duty to strike a careful balance between the interests of the juvenile offender and the need for appropriate punishment. The Court must therefore be extremely cautious in crafting the most suitable sentence, taking into account all relevant factors, but it should be borne in mind that the promotion of rehabilitation should not be the sole criterion when sentencing in a serious sexual offence.
    
30. As earlier noted, a custodial sentence must be imposed on a juvenile offender only as a measure of last resort. In determining whether such a sentence is appropriate, it is of utmost importance that all the circumstances of the case are thoroughly and carefully assessed. The general considerations that the court must take into account in sentencing are set out in section 279 of the Crimes Act:
    

Sentencing considerations — general

(1) In deciding the sentence to be passed, or the order to be made, in relation to a person for an offence against a law of Nauru, a court shall impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.

(2) In addition to any other matters, the court shall take into account whichever of the following matters are relevant and known to the court:

(a) the nature and circumstances of the offence;

(b) any other offences required or permitted to be taken into account;

(c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character, the course of conduct;

(d) any injury, loss or damage resulting from the offence;

(e) the personal circumstances of any victim of the offence;

(f) the effect of the offence on any victim of the offence;

(g) any victim impact statement available to the court;

(h) the degree to which the person has shown contrition for the offence by taking action to make reparation for any injury, loss or damage resulting from the offence or in any other way;

(i) if the person pleaded guilty to the charge for the offence, that fact;

(j) the degree to which the person cooperated in the investigation of the

offence;

(k) the deterrent effect that any sentence or order may have on the person or on anyone else;

(l) the need to ensure that the person is adequately punished for the

offence;

(m) the character, antecedents, age, means and physical or mental condition of the person;

(n) the prospects of rehabilitation of the person;

(o) the probable effect that any sentence or other order under consideration would have on any of the person’s family or dependants; or

(p) if the offence was committed by an adult in circumstances where the

offending conduct was seen or heard by a child, other than another

offender or a victim of the offence, those circumstances.

(3) For the purposes of subsection (1), the appropriate severity of a sentence not only include mitigating factors but other aggravating considerations

such as:

(a) deterrence of prevailing nature of common crimes;

(b) the impact on the victims and the community; or

(c) matters that in the opinion of the court are appropriate for the

prevention of prevailing or certain nature of offences or protection of the vulnerable members of the community

31. As the parties have correctly pointed out the appellate court would not interfere with the sentence imposed by a lower court merely because the sentence seems to be inadequate of excessive. The Appellant must establish that the court below did not appreciate the relevant considerations in arriving at such a sentence or the lower court was misdirected by a wrong approach in exercising the courts discretion. In Bugmy v R [2013] HCA 37 this was discussed as follows:
    

“... The difference between the Court of Criminal Appeal’s assessment of the appropriate sentence and [the sentencing judge’s] assessment may be explained by saying that [the sentencing judge] gave too little weight to some factors and too much weight to other factors. However, within a range of sentences for this offence and this offender, the weight to be given to the evidence and the various, conflicting, purposes of sentencing was a matter for [the sentencing judge]. The authority of the Court of Criminal Appeal to substitute a sentence for that imposed by [the sentencing Judge] was not enlivened by its view that it would have given greater weight to deterrence and less weight to the appellant’s subjective case. The power could only be engaged if the Court was satisfied that [the sentencing Judge’s] discretion miscarried because in the result his Honour imposed a sentence that was below the range of sentences that could be justly imposed for the offence consistently with sentencing standards”.

32. We are of the view that the learned judge of the Supreme Court erred by placing excessive weight on the offender’s prospects of rehabilitation and by failing to give proper consideration to the actual nature and seriousness of the offending. As a result, His Honour imposed a sentence that was unduly lenient. Given the gravity of the offence and the circumstances, we are of the view that this is a case that warrants the conviction of the offender. We also consider that a short custodial term is appropriate, having regard to the gravity and circumstances of the offence.
    
33. In the circumstances, the appeal against the sentence is allowed.
    
34. Orders of the Court:
    1. The Respondent is convicted as charged.
    2. The sentence imposed by the Supreme Court is set aside.
    3. The Respondent is imposed with a sentence of two (2) years imprisonment, and it is partly suspended.
    4. The Respondent is to serve one third of the sentence, being a term of eight (8) months’ imprisonment, without eligibility for parole or probation.
    5. The balance sixteen (16) months imprisonment is suspended for two years.
    6. The period spent in remand custody is not considered to discount the term of imprisonment as per section 282A of the Crimes Act.
    7. The Respondent to be kept separately from the other adult prisoners.
       

Dated this 11 December 2025

Justice Rangajeeva Wimalasena

President

Justice Sir Albert Rocky Palmer

Justice of Appeal

Justice Kingsley A. David

Justice of Appeal