(1) Pursuant to s 110(2) of the Crimes (Sentence Administration) Act 2005 (ACT) (CSA Act), the good behaviour order in respect of [JJ] is cancelled and the offender is resentenced for the offence of murder, contrary to s 12 of the Crimes Act 1900 (ACT), by joint commission pursuant to s 45A of the Criminal Code 2002 (ACT) (Criminal Code) (CH 1281/2011) as follows:
(a) The offender is convicted and a term of imprisonment for 18 years (reduced from 20 years and 1 month on account of his guilty plea), is imposed, backdated to commence on 6 August 2011 and conclude on 5 August 2029.
(b) Pursuant to s 12 of the Crimes (Sentencing) Act 2005 (Sentencing Act), the sentence is to be suspended on 26 November 2024.
(c) Pursuant to s 13 of the Sentencing Act, a good behaviour order is made upon the offender signing or giving an undertaking to comply with the offender’s good behaviour obligations under the CSA Act for the period during which the sentence is suspended (26 November 2024 to 5 August 2029).
(d) As part of the good behaviour order, the following conditions are imposed:
(i) The core conditions pursuant to s 86 of the CSA Act;
(ii) A supervision condition pursuant to ss 133U and 133W of the Sentencing Act, whereby the appellant must comply with all reasonable requirements of the Director-General, including as to undertaking any psychiatric or psychological assessment and participating in any program of treatment or rehabilitation, for a period of three years (26 November 2024 to 25 November 2027) or such lesser period as is deemed appropriate by the Director-General or his/her delegate.
(2) For the offence of aggravated robbery contrary to s 310 of the Criminal Code by joint commission pursuant to s 45A of the Criminal Code (CC 2022/7279):
(a) The offender is sentenced to a term of imprisonment for 2 years and 4 months, to commence on 27 July 2022 and conclude on 26 November 2024.
(b) Pursuant to s 65(4) of the Sentencing Act, the Court declines to set a nonparole period.
(3) The Court NOTES: Consideration should be given to an education and training condition to be imposed as part of an amended good behaviour order pursuant to s 112 of the CSA Act, following consultation with the offender and identification of an appropriate and suitable course upon his release.
Catchwords:
CRIMINAL LAW – Judgment and Punishment – Sentence – joint commission aggravated robbery – where offender on conditional liberty – whether suspended sentence should be imposed – application of young offender principles to original sentence for murder – limited sentencing options in respect of further offending – offender re-sentenced to promote rehabilitation and transition to community…
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
AGLC
Director of Public Prosecutions v JJ (No 2) [2024] ACTSC 74
Case
[2024] ACTSC 74
Decision Date
CaseChat Overview and Summary
The matter before the court was a sentencing hearing for JJ, who was convicted of both murder and aggravated robbery. JJ had previously been convicted of murder and was on conditional liberty when he committed the aggravated robbery. The court was tasked with determining an appropriate sentence for the aggravated robbery, while also taking into account JJ's prior conviction and the principles of sentencing for young offenders. The court had to balance the need for punishment, deterrence, and the rehabilitation of JJ.
The key legal issue the court had to decide was whether to impose a suspended sentence for the aggravated robbery, in light of JJ's prior conviction and the principles of sentencing for young offenders. The court was also required to consider the limited sentencing options available for a person who has already been sentenced for a serious offence. The court needed to ensure that the sentence for the aggravated robbery promoted JJ's rehabilitation and his transition back into the community.
In reaching its decision, the court considered the principles of sentencing for young offenders, which emphasise the importance of rehabilitation and the potential for reform. The court also took into account the fact that JJ was on conditional liberty when he committed the aggravated robbery, and that he had already been sentenced for the murder. The court found that a suspended sentence was appropriate for the aggravated robbery, to allow JJ the opportunity to rehabilitate and reintegrate into the community. The court imposed a term of imprisonment for the aggravated robbery but declined to set a non-parole period, in order to provide JJ with the opportunity to demonstrate his rehabilitation and reform.
The court resentenced JJ for the murder, reducing the term of imprisonment from 20 years and 1 month to 18 years, on account of his guilty plea. The sentence was to be suspended on 26 November 2024, and JJ was required to comply with a good behaviour order during the period of suspension. The court also imposed a supervision condition, requiring JJ to comply with any reasonable requirements of the Director-General, including psychiatric or psychological assessments and participation in treatment or rehabilitation programs. Finally, the court noted that consideration should be given to imposing an education and training condition as part of an amended good behaviour order, following consultation with JJ and identification of a suitable course upon his release.
Orders
Orders of the court
(1) Pursuant to s 110(2) of the Crimes (Sentence Administration) Act 2005 (ACT) (CSA Act), the good behaviour order in respect of [JJ] is cancelled and the offender is resentenced for the offence of murder, contrary to s 12 of the Crimes Act 1900 (ACT), by joint commission pursuant to s 45A of the Criminal Code 2002 (ACT) (Criminal Code) (CH 1281/2011) as follows:
(a) The offender is convicted and a term of imprisonment for 18 years (reduced from 20 years and 1 month on account of his guilty plea), is imposed, backdated to commence on 6 August 2011 and conclude on 5 August 2029.
(b) Pursuant to s 12 of the Crimes (Sentencing) Act 2005 (Sentencing Act), the sentence is to be suspended on 26 November 2024.
(c) Pursuant to s 13 of the Sentencing Act, a good behaviour order is made upon the offender signing or giving an undertaking to comply with the offender’s good behaviour obligations under the CSA Act for the period during which the sentence is suspended (26 November 2024 to 5 August 2029).
(d) As part of the good behaviour order, the following conditions are imposed:
(i) The core conditions pursuant to s 86 of the CSA Act;
(ii) A supervision condition pursuant to ss 133U and 133W of the Sentencing Act, whereby the appellant must comply with all reasonable requirements of the Director-General, including as to undertaking any psychiatric or psychological assessment and participating in any program of treatment or rehabilitation, for a period of three years (26 November 2024 to 25 November 2027) or such lesser period as is deemed appropriate by the Director-General or his/her delegate.
(2) For the offence of aggravated robbery contrary to s 310 of the Criminal Code by joint commission pursuant to s 45A of the Criminal Code (CC 2022/7279):
(a) The offender is sentenced to a term of imprisonment for 2 years and 4 months, to commence on 27 July 2022 and conclude on 26 November 2024.
(b) Pursuant to s 65(4) of the Sentencing Act, the Court declines to set a nonparole period.
(3) The Court NOTES: Consideration should be given to an education and training condition to be imposed as part of an amended good behaviour order pursuant to s 112 of the CSA Act, following consultation with the offender and identification of an appropriate and suitable course upon his release.