DPP v Mena - [2023] ACTSC 80

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v Mena
Citation:	[2023] ACTSC 80
Hearing Dates:	6 and 11 April 2023
DecisionDate:	14 April 2023
Before:	Mossop J
Decision:	See [38]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – attempted murder – aggravated burglary – discharging loaded arm so as to cause another person reasonable apprehension for his or her safety – offending occurred in company – offender shot victim twice from close range – intention to kill not premeditated – attempted murder and aggravated burglary in mid-range of objective seriousness – no acceptance of responsibility or remorse – young offender – guarded prospects of rehabilitation – sentences of imprisonment imposed CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – breach of good behaviour orders as a condition of suspended sentences of imprisonment – good behaviour orders cancelled – suspended sentences imposed
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT), ss 108, 110(2)(a) Crimes Act 1900 (ACT), ss 12, 27(3)(d) Criminal Code 2002 (ACT), ss 44, 312
Cases Cited:	R v Mena [2018] ACTSC 92 R v Mena (No 2) [2020] ACTSC 351
Parties:	Director of Public Prosecutions Sugimatatihuna Bernard Gabriel Mena ( Offender)
Representation:	Counsel T Hickey ( DPP) S Howell ( Offender)
Solicitors Director of Public Prosecutions Hugo Law Group ( Offender)
File Numbers:	SCC 206 of 2021 SCC 303 of 2017

MOSSOP J:

Introduction

Sugimatatihuna Bernard Gabriel Mena was found guilty by a jury of one count of attempted murder (contrary to s 12 of the Crimes Act 1900 (ACT), by virtue of s 44 of the Criminal Code 2002 (ACT)), one count of aggravated burglary (contrary to s 312 of the Criminal Code) and one count of unlawfully discharging a loaded arm so as to cause another person reasonable apprehension for his or her safety (contrary to s 27(3)(d) of the Crimes Act). The maximum penalty for attempted murder is life imprisonment. The maximum penalty for aggravated burglary is 20 years’ imprisonment or a fine of $320,000 or both. The maximum penalty for unlawfully discharging a loaded arm is 10 years’ imprisonment.

The offending also puts him in breach of five good behaviour orders. Three of those were associated with suspended sentences of imprisonment.

Facts

For the purposes of sentencing, it is necessary to find the facts and do so in a manner which is consistent with the verdicts of the jury. It is not necessary to name the victims of the offending one of whom is subject to a suppression order. They will be referred to as Mr A and Ms B.

During the evening of 10 March 2021 Mr A was acting as the driver for Ms B who was supplying illicit drugs around Canberra. At 8pm Rebecca Parlov, Mr Mena and another man were in each other’s company in Bonner near Mr Mena’s house. At 8:43pm Ms Parlov enquired of Ms B if she had any methamphetamine. Arrangements…

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 Mena

Details

AGLC: DPP v Mena [2023] ACTSC 80
Case: [2023] ACTSC 80
Decision Date

CaseChat Overview and Summary

Sugimatatihuna Bernard Gabriel Mena was convicted of attempted murder, aggravated burglary, and discharging a loaded arm to cause reasonable apprehension of harm, with the Supreme Court of the Australian Capital Territory presiding over the sentencing. The attempted murder was committed with a .22 calibre firearm, and while the injuries sustained by the victim were serious, they were fortunately not fatal. The court determined that the intention to kill was not premeditated, and the attempted murder offence was in the mid-range of objective seriousness. The aggravated burglary offence, which occurred in the early hours of the morning in a residential house, was also in the mid-range of objective seriousness. Mena's subjective circumstances, including his young age, deprived background, complex mental health conditions, and criminal history, were taken into account in the sentencing process.

The court considered Mena's prospects of rehabilitation and the need for specific deterrence and protection of the community. Despite his complex circumstances, the court found that Mena had not taken responsibility for his current offending or expressed any remorse. Based on these factors, the court imposed sentences of imprisonment for each offence. The sentences were concurrent, with the exception of one year for the aggravated burglary offence. The court also imposed suspended sentences of imprisonment for breaches of good behaviour orders. The aggregate sentence of imprisonment was nine years and ten months, with a non-parole period of five years and five months, reflecting Mena's young age and potential for rehabilitation.

The court issued orders cancelling the breached good behaviour orders and imposing sentences of imprisonment for each offence, with the non-parole period commencing on 2 November 2021 and ending on 1 April 2027. The sentences were designed to provide specific deterrence, protect the community, and address Mena's need for rehabilitation and treatment of his mental health conditions.

Orders