DPP v Welsh - [2023] ACTSC 209

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v Welsh
Citation:	[2023] ACTSC 209
Hearing Date:	14 July 2023
Decision Date:	3 August 2023
Before:	Baker J
Decision:	(1) The parties are to notify the Court as to whether the offender is granted parole within 24 hours of the Sentence Administration Board making that decision. (2) The sentence proceedings are adjourned to 24 August 2023 at 9am.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offender accepted into residential rehabilitation program – whether adjournment of sentence until after completion of program is appropriate – sentence adjourned until parole decision is made – potential for further adjournment.
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT) s 120 Crimes (Sentencing) Act 2005 (ACT) s 56(1)(a) Criminal Code 2002 (ACT) s 318 Magistrates Court Act 1930 (ACT) s 90B Road Transport (Driver Licensing) Act 1999 (ACT) s 32(1)(a) Road Transport (Vehicle Registration) Act 1999 (ACT) s 22(1)(a)
Parties:	Director of Public Prosecutions ( DPP) Dean Ivan Welsh ( Offender)
Representation:	Counsel M Dyason ( DPP) A Doig ( Offender)
Solicitors ACT Director of Public Prosecutions James Horniblow ( Offender)
File Numbers:	SCC 340 of 2022 SCC 341 of 2022

BAKER J:

Introduction

1․The offender, Dean Ivan Welsh, has entered pleas of guilty to the following offences:
(a)Count 1 (CC2022/6049): aggravated burglary by virtue of s 45A contrary to s 312 of the Criminal Code 2002 (ACT).
(b)Count 3 (SCCAN2023/35): burglary by virtue of s 45A, contrary to s 311 of the Criminal Code 2002 (ACT).
(c)Count 4 (CC2022/6053): take motor vehicle without consent by virtue of s 45A, contrary to s 318 of the Criminal Code 2002 (ACT).
(d)Count 5 (CC2022/6054): aggravated burglary by virtue of s 45A contrary to s 312 of the Criminal Code 2002 (ACT).
(e)Count 6 (SCCAN2023/36): take motor vehicle without consent by virtue of s 45A, contrary to s 318 of the Criminal Code 2002 (ACT).
(f)Count 7 (CC2022/6057): drive motor vehicle without consent, contrary to s 318 of the Criminal Code 2002 (ACT).

2․These offences each relate to a series of burglaries that occurred during the early hours of 10 June 2022. In brief, between 3:30am and 5:00am, the offender together with two other co-offenders entered three separate residences and stole a number of personal items, including car keys which were used to take various vehicles. In respect of the burglary of the first house (Count 1), one of the unknown offenders was in possession of a handgun. In respect of the second burglary (Count 3), entry was gained to the house by cutting open a security door. Entry was gained in the third burglary (Count 5) when one of the offenders kicked open an external door to the premises.
3․This matter came before me for sentence on 14 July 2023. On that day, the prosecution identified Count 1 as a “principal offence” for the purposes of taking additional offences into account: see Part 4.4 and s 57…

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 Welsh

Details

AGLC: DPP v Welsh [2023] ACTSC 209
Case: [2023] ACTSC 209
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the Director of Public Prosecutions (DPP) brought charges against Dean Ivan Welsh, who had pleaded guilty to multiple serious criminal offences. These included aggravated burglary, theft, and taking motor vehicles without consent, all of which involved significant personal and property damage. The case was heard by Baker J, who had to decide on the appropriate sentencing and whether to adjourn the proceedings to allow the offender to complete a rehabilitation program before sentencing.

The legal issues that the court had to address were whether the sentence should be adjourned to enable the offender to complete a 12-week drug and alcohol rehabilitation program at The Glen Rehabilitation Centre, and if so, under what conditions. The court needed to consider the seriousness of the offences, the potential impact on the victims, and the role of rehabilitation in the sentencing process. The offender's counsel argued that completion of the rehabilitation program would be highly relevant to the offender's prospects of rehabilitation and could potentially influence the sentence. The prosecution did not oppose the adjournment but acknowledged the importance of rehabilitation.

Baker J decided to adjourn the sentence proceedings to allow the Sentence Administration Board (SAB) to determine whether to grant the offender parole, which would enable him to undertake the rehabilitation program. The court emphasised that its decision should not be seen as pre-empting the SAB's decision on parole. The court recognised the seriousness of the offences and the emotional distress caused to the victims, but also acknowledged the potential benefits of rehabilitation. The court ordered that the parties notify the Court within 24 hours of the SAB's decision on parole and adjourned the sentencing proceedings to 24 August 2023. If parole was not granted or if the offender did not commence the program for other reasons, the court would sentence the offender at that time. If parole was granted and the offender completed the program, the court might grant a further adjournment.

The court's final orders were that the parties notify the Court within 24 hours of the SAB's decision on parole and that the sentencing proceedings be adjourned to 24 August 2023 at 9 am. This decision balances the need for justice for the victims and the potential for rehabilitation of the offender.

Orders