Cajina v The Queen

[2009] ACTCA 2

JAIRO SAUL CAJINA v THE QUEEN [2009] ACTCA 2 (24 February 2009)

APPEAL – sentencing – sentencing principles – assessment of criminality involved in whole incident – proportionality and consistency – appeal upheld.

Drugs of Dependence Act 1989 (ACT)

Hoare v The Queen (1989) 167 CLR 348
Veen v The Queen [No. 2] (1988) 164 CLR 465
Markarian v The Queen (2005) 228 CLR 357
R v Oliver (1982) 7 A Crim R 174

R v Taouk (1993) 65 A Crim R 387
Mill v The Queen (1988) 166 CLR 59
AB v The Queen (1999) 198 CLR 111
Pearce v R (1998) 194 CLR 610

‘No. 30:  Sentencing trends for making a threat to kill in the higher courts of Victoria, 2001‑02 to 2005‑06’.  Sentencing Snapshot, Victorian Sentencing Advisory Council, Victoria, August 2007

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 31 - 2007
No. SCC 28 of 2006

Judges:        Gray P, Penfold and Marshall JJ
Court of Appeal of the Australian Capital Territory
Date:           24 February 2009

IN THE SUPREME COURT OF THE       )          No. ACTCA 31 - 2007
  )          No. SCC 28 of 2006
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:JAIRO SAUL CAJINA

Appellant

AND:THE QUEEN

Respondent

ORDER

Judges:  Gray P, Penfold and Marshall JJ
Date:  24 February 2009
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be upheld.

1. The sentences imposed by Crispin J on 29 August 2007 be set aside and the following sentences be imposed:

First set of offences – 21 January 2005

Attempted theft – 21 months imprisonment to commence on 28 May 2006 and end on 27 February 2008;  assault – four months imprisonment consecutive on sentence for attempted theft, to commence after 20 months has been served, to start on 27 January 2008 and to end 27 May 2008.  That is a total of two years imprisonment on the first set of offences.

Second set of offences – 22 January 2005 to be served wholly consecutive upon sentences imposed for the first set of offences.

First assault – six months imprisonment to commence on 28 May 2008 and end on 27 November 2008;  second assault – 12 months imprisonment to commence after three months of the sentence for first assault has been served, ie from 28 August 2008 to 27 August 2009;  threat to kill – 18 months imprisonment to commence six months after the 12 month sentence for the second assault has commenced, ie from 28 February 2009 to 27 August 2010.  That is a total of two years and three months imprisonment in respect of the second set of offences, giving a total sentence of four years and three months imprisonment.

A non-parole period of two years and six months is set.  That period is to start on 28 May 2006 and to end on 27 November 2008.

IN THE…