DPP v XK

Case [2023] ACTSC 141


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v XK

Citation:

[2023] ACTSC 141

Hearing Date:

31 May 2023

DecisionDate:

8 June 2023

Before:

McWilliam J

Decision:

See [106]

Catchwords:

CRIMINAL LAW – Judgment and Punishment – Sentence – aggravated robbery – driving offences – young offender – history of disadvantage – childhood trauma – application of Bugmy principles – good prospects of rehabilitation – largely suspended sentence in recognition of offender’s youth, disadvantage and need for supervision

Legislation Cited:

Crimes (Restorative Justice) Act 2004 (ACT) ss 6, 15, 17, 19, 24, 46

Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 33, 35, 133C, 133D
Criminal Code 2002 (ACT) ss 310, 318
Motor Traffic Act1936 (ACT) s 191G
Road Transport (Alcohol and Drugs) Act 1977 (ACT) ss 4F, 20,
Road Transport (Driver Licensing) Act 1999 (ACT) s 31
Road Transport (General) Act 1999 (ACT) ss 63, 68, 69
Road Transport (General) Bill 1999 (ACT) Explanatory Statement
Road Transport (Safety and Traffic Management Act) 1999 (ACT) s 7

Road Transport (Vehicle Registration) Act 1999 (ACT) s 22

Cases Cited:

Barrett v The Queen [2016] ACTCA 38

Beath v McCurley [2018] ACTCA 48; 339 FLR 165
Cooke (A Pseudonym) v R [2022] ACTCA 44; 18 ACTLR 204
Hall v The Queen; Barker v The Queen [2017] ACTCA 16
Markarian v R [2005] HCA 25; 228 CLR 357
McCurley v Beath [2017] ACTSC 196; 268 A Crim R 263
McLeod v The Queen [2018] ACTCA 59
Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80
MT v The Queen [2021] ACTCA 26; 17 ACTLR 22
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Collins (No 2) [2018] ACTSC 294
R v Elphick [2021] ACTSC 9
R v Forrest [2016] ACTSC 321; 11 ACTLR 311
R v Forrest (No 2) [2017] ACTSC 83
R v Gorman (Unreported, Supreme Court of the Australian Capital Territory, Acting Justice Refshauge, 5 June 2023)
R v Jajou[2009] NSWCCA 167; 196 A Crim R 370

R v Kilic [2016] HCA 48; 259 CLR 256

R v Massey (No 3) [2021] ACTSC 156

R v Shearer [2020] ACTSC 100

R v Serena [2019] ACTSC 231

R v Whyte [2002] NSWCCA 343; 55 NSWLR 252

Smith v Stivala [2018] ACTSC 309; 341 FLR 359

Parties:

ACT Director of Public Prosecutions

XK ( Offender)

Representation:

Counsel

C Daly ( DPP)

S Robinson ( Offender)

Solicitors

ACT Director of Public Prosecutions

Fortify Legal ( Offender)

File Numbers:

SCC 43, 44 and 131 of 2023

McWilliam J:

  1. The young offender (referred to by the pseudonym “XK” due to his age) has pleaded guilty to the following seven offences:

(1)CC CAN 884/2022: One count of aggravated robbery contrary to s 310(b) of the Criminal Code 2002 (ACT) (Criminal Code). The maximum penalty is 25 years’ imprisonment and/or 2,500 penalty units.

(2)CC CAN 887/2022: One count of dishonestly driving a…

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AGLC
DPP v XK [2023] ACTSC 141
Case
[2023] ACTSC 141
Decision Date

CaseChat Overview and Summary

The case before the court involved a young offender, referred to as XK, who pleaded guilty to seven criminal offences. These included aggravated robbery, dishonestly driving a motor vehicle without consent, driving with a prescribed drug in oral fluid, aggravated dangerous driving, and driving without a licence. The maximum penalties for these offences ranged from five years' imprisonment to 25 years. The offender, who was under the age of 18, had a history of disadvantage and childhood trauma, which played a significant role in his life choices. The court had to balance the objectives of sentencing, including denunciation, deterrence, rehabilitation, and protection of the community, while also considering the unique circumstances of the young offender.

The court found the aggravated robbery offence to be of medium objective seriousness, approaching the high end of the spectrum due to the use of a knife. The two aggravated dangerous driving offences were also considered to be of medium objective seriousness. The court took into account the offender's guilty pleas, the victim impact statement, the offender's subjective circumstances, and the Bugmy principles when determining the sentence. The offender demonstrated some remorse and expressed a desire to participate in the restorative justice process.

The court imposed a sentence of 2 years' imprisonment for the aggravated robbery offence, with a reduction to account for the guilty plea. For the remaining offences, the court imposed various sentences of imprisonment, with reductions to account for the guilty pleas. The total sentence was suspended, and the offender was placed under the supervision of the Director-General for a period of 2 years and 3 months. The court also ordered that the automatic disqualification periods for the driving offences run concurrently.

In summary, the court imposed a sentence that took into account the unique circumstances of the young offender, while also addressing the seriousness of the offences and the need to protect the community. The sentence was designed to promote the rehabilitation of the offender and provide support for him to make positive changes in his life.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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