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DPP v Makoi (No 3)

DPP v Makoi (No 3)

Case [2023] ACTSC 337 21 November 2023

Aggravated Burglary

Assault Occasioning Actual Bodily Harm

Damage Property

Intensive Corrections Order

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Makoi (No 3)

Citation:

[2023] ACTSC 337

Hearing Date:

26 July 2023, 5 October 2023, 7 November 2023, 20 November 2023

Decision Date:

21 November 2023

Before:

Baker J

Decision:

See [98].

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – assault occasioning bodily harm – damage property – home invasion of a serious nature – offender has refugee background – moderate personality disorder and mental health concerns – protective factors in offender’s life supportive of rehabilitation – s 10 threshold crossed - whether Intensive Corrections Order appropriate in the circumstances– Intensive Corrections Order imposed.

Legislation Cited:

Crimes Act 1900 (ACT) s 24(1)
Crimes (Sentence Administration) Act 2005 (ACT) s 42

Crimes (Sentencing) Act 2005 (ACT) ss 10(2), 11(5), 11(6), 33

Criminal Code 2002 (ACT) ss 45A, 312, 403

Cases Cited:

AB (a pseudonym) v R (No 3) [2019] NSWCCA 46
Barbaro v R; Zirilli v R [2014] HCA 2; 253 CLR 58

Bugmy v The Queen [2013] HCA 37; 249 CLR 571

Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428

DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1

DPP v B Makoi; K Makoi; N Matot; A Matot; A Dau (No 2) [2023] ACTSC 125

DPP v Fisher [2023] ACTSC 29

DPP v McConnell-Imbriotis [2023] ACTSC 25

Hogan v Hinch [2011] HCA 47; 243 CLR 506

Hogarth v The Queen [2012] VSCA 302; 37 VR 658

Ngata v R [2020] ACTCA 18

R v Catanzariti [2020] ACTSC 326

R v Elphick [2021] ACTSC 9

R v Hagen [2022] ACTSC 362; 374 FLR 260

R v Hancock [2021] ACTSC 52

R v KB [2017] ACTSC 344

R v Knight [2021] ACTSC 165

R v Lutze [2020] ACTSC 121

R v Minnis [2014] ACTSC 268

R v Pham [2015] HCA 39; 256 CLR 550

R v Salcedo; R v Stretton (No 3) [2018] ACTSC 305

R v Verdins [2007] VSCA 102; 16 VR 240

Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465

Parties:

Director of Public Prosecutions ( ACT DPP)

Kock-Kedhia Maker Makoi ( Offender)

Representation:

Counsel

T Hickey ( ACT DPP)

T Jackson ( Offender)

Solicitors

ACT DPP

Andrew Byrnes Law Group ( Offender)

File Numbers:

SCC 13 of 2022

SCC 14 of 2022

BAKER J:
Introduction
1․On 26 May 2023, I found the offender, Kock-Kedhia Maker Makoi, guilty of the following charges, which proceeded by way of judge-alone trial:

(a)Count 1: CC2021/6319 – Aggravated burglary contrary to s 312 of the Criminal Code 2002 (ACT), which attracts a maximum penalty of 2000 penalty units, imprisonment for 20 years, or both.
(b)Count 2: CC2022/588 – Assault occasioning actual bodily harm contrary to s 24(1) of the Crimes Act 1900 (ACT), which attracts a maximum penalty of imprisonment for five years.
(c)Count 3: CC2022/590 – Damage…

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.

Continue reading DPP v Makoi (No 3)

Details

AGLC: DPP v Makoi (No 3) [2023] ACTSC 337
Case: [2023] ACTSC 337
Decision Date

CaseChat Overview and Summary

Kock-Kedhia Maker Makoi has been convicted by the Supreme Court of the Australian Capital Territory of aggravated burglary, assault occasioning actual bodily harm and damage property. The Court has imposed sentences of imprisonment for each offence, to be served by way of an Intensive Corrections Order (ICO). The Court has taken into account the offender's personal background, her mental health and her suitability for rehabilitation, as well as the seriousness of the offending and the need for general and specific deterrence. The Court has also taken into account the impact of any sentence on the offender's children. The Court has imposed a number of conditions in respect of the ICO, including conditions prohibiting the offender from consuming alcohol or other illicit substances, prohibiting her from contacting the victim or a witness, and requiring her to engage in drug and alcohol programs and psychological counselling. The Court has also imposed a curfew condition.

Orders