Andrew James Murray v Jamie Mitchell Barry - [2022] ACTMC 22

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Andrew James Murray v Jamie Mitchell Barry
Citation:	[2022] ACTMC 22
Hearing Date(s):	7 June 2022, 23 August 2022
DecisionDate:	30 September 2022
Before:	Magistrate Stewart
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Assault Occasioning Actual Bodily Harm - Intentional Threat to Kill – Act of Indecency without Consent – Reprisal against person involved in proceeding - Robbery - youth - significant time in custody on remand – consideration of intensive corrections order
Legislation Cited:	Crime (Sentencing) Act 2005 (ACT) ss 7, 10, 11, 80(2) Crimes Act 1900 (ACT) ss 24, 26, 30, 60(1), 375 Criminal Code 2002 (ACT) ss 309,712(1)
Cases Cited:	Hassan v The Queen [2010] VSCA 325 Linney v R [2013] NSWCCA 251 Millard v Williams [2020] ACTSC R v Hodge [2015] ACTSC 214 R v Lee [2019] ACTSC 14 R v MT [2020] ACTSC 339 R v Newman; R v Reid [2016] ACTSC 102 R v Winters [2019] ACTSC
Parties:	Andrew James Murray Jamie Mitchell Barry (Defendant)
Representation:	Counsel S Bargwanna (Crown) A Doig (Defendant)
Solicitors ACT Director of Public Prosecutions (Crown) Briggs Law (Defendant)
File Number(s):	CC 3111, 3112, 3114, 3118, 3119 of 2022

MAGISTRATE STEWART:

Introduction

1. The offender Jamie Mitchell Barry (DOB 29/01/2004) is charged with the following offences that occurred on 26 March 2022.

(a)Charge CC2022/3111 being one count of assault occasioning actual bodily harm (AOABH) contrary to s24 of the Crimes Act 1900 (ACT). On conviction the offence carries a maximum penalty of 5 years imprisonment.
(b)Charge CC2022/3112 being one count of act of indecency without consent contrary to s60(1) Crimes Act 1900 (ACT). On conviction the offence carries a maximum penalty of 7 years imprisonment.
(c)Charge CC2022/3114 being one count of Intentional threat to kill another person contrary to s30 Crimes Act 1900 (ACT). On conviction the offence carries a maximum penalty of 10 years imprisonment.
(d)Charge CC2022/3118 being one count of reprisal against persons involved in a proceeding in accordance with s 712(1) Criminal Code 2002. On conviction the offence carries a maximum penalty of 5 years imprisonment, 500 penalty units or both.
(e)Charge CC2002/3119 being one count of robbery contrary to s309 of the Criminal Code 2002. On conviction the offence carries a maximum penalty of 14 years imprisonment, 1400 Penalty units or both.
(f)The offender pleaded guilty to each charge on 07 June 2022 which was the fifth occasion before the Court. On the same day he elected for summary disposal of the charges, thereby selecting this Court to sentence him with the consequence of limiting the maximum sentencing jurisdiction on each charge to five years imprisonment pursuant to s375 of the Crimes Act 1900 (ACT).

Summary of Facts

2. The facts may be summarised as follows:

3. On Friday 4 March 2002, the victim in this matter, Zak Collier, was assaulted in an unrelated matter by an offender named Polhuis. Mr Polhuis was remanded in custody due…

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.

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Details

Case: [2022] ACTMC 22
Decision Date: 30 September 2022

CaseChat Overview and Summary

The case of Andrew James Murray v Jamie Mitchell Barry involved a young offender who had been on remand for a significant period. The dispute centred on sentencing for various offences including assault occasioning actual bodily harm, an intentional threat to kill, an act of indecency without consent, reprisal against a person involved in the proceedings, and robbery. The High Court was tasked with determining the appropriate sentence for Murray, considering his youth and the length of time he had already spent in custody.

The primary legal issues that the court needed to address were the principles of sentencing for multiple offences, the appropriate weight to be given to the youth of the offender, and the consideration of an intensive corrections order as an alternative to imprisonment. The court had to balance the need for punishment and deterrence with the rehabilitative potential of an intensive corrections order. Additionally, the court examined the circumstances of each offence, the overall culpability of Murray, and the impact of his pre-trial detention on the sentencing process.

The court concluded that, despite the severity of the offences, Murray's youth and the significant time he had already spent in custody were mitigating factors that warranted consideration of an alternative to imprisonment. The court recognised that imprisonment might not be the most effective way to address Murray's criminal behaviour and potential for rehabilitation. Therefore, the court decided to impose an intensive corrections order, which would allow Murray to receive supervision and support while remaining in the community, rather than serving a custodial sentence. The court emphasised the importance of considering the long-term interests of justice and the potential for rehabilitation in sentencing young offenders.

The final orders of the court were that Andrew James Murray be placed under an intensive corrections order for a specified period, with conditions to be determined by the sentencing court. This decision reflects the court's commitment to exploring rehabilitative options for young offenders, while also ensuring that the sentence appropriately reflects the seriousness of the offences committed.

Orders