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Elphick v The Queen

Elphick v The Queen

Case [2021] ACTCA 35 12 November 2021

Statutory Interpretation

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Elphick v The Queen
Citation:	[2021] ACTCA 35
Hearing Date:	9 November 2021
DecisionDate:	12 November 2021
Before:	Elkaim ACJ, Loukas-Karlsson and Banks-Smith JJ
Decision:	Appeal dismissed
Catchwords:	APPEAL – CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Time spent in custody before sentence – manifest excess – self-represented appellant
Legislation Cited	Crimes (Sentencing) Act 2005 (ACT) s 63
Cases Cited:	CX v The Queen [2017] ACTCA 37 Hampton v R [2014] NSWCCA 131 O’Brien v The Queen [2015] ACTCA 47 R v Elphick [2021] ACTSC 9 Zdrakovic v The Queen [2016] ACTCA 53
Parties:	Kieran William Elphick ( Appellant) The Queen ( Respondent)
Representation:	Counsel Self-represented ( Appellant) K McCann ( Respondent)
Solicitors Self-represented ( Appellant) ACT Director of Public Prosecutions ( Respondent)
File Number:	ACTCA 15 of 2021
Decision under appeal:	Court: ACT Supreme Court Before: Murrell CJ Date of Decision: 4 February 2021 Case Title: R v Elphick Citation: [2021] ACTSC 9

THE COURT:

On 4 February 2021 Murrell CJ sentenced the appellant to a total of seven years and seven months’ imprisonment. A non-parole period of four years was set. The appellant was also disqualified from driving for 24 years.

The period of imprisonment commenced on 17 December 2019 and will run until 16 July 2027. The non-parole period expires on 16 December 2023.

The appellant was sentenced for 100 offences which had been grouped into 20 series of offending. The final series also had three additional offences taken into account.

As stated by her Honour, at [2]:

The offences occurred in a three-week period in December 2018/January 2019 and a two-week period in December 2019/January 2020.

At [3] her Honour listed the offences and their maximum penalties:

The offences are:
(a)11 counts of aggravated burglary with intent to steal or attempted aggravated burglary, contrary to s 312 of the Criminal Code 2002 (ACT) (Criminal Code).
Each offence carries a maximum penalty of a fine of $320,000, 20 years’ imprisonment or both.
(b)One count of burglary with intent to steal, contrary to s 311 of the Criminal Code.
The maximum penalty is a fine of $224,000, 14 years’ imprisonment or both.
(c)17 counts of taking (one by joint commission), driving, or riding in a motor vehicle without consent, contrary to s 318(1) or (2) of the Criminal Code.
Each offence carries a maximum penalty of a fine of $80,000, five years’ imprisonment or both.
(d)Eight counts of dishonestly obtaining property by deception (one by joint commission), contrary to s 326 (and s 45A) of the Criminal Code.
Each offence carries a maximum penalty of a fine of $160,000, 10 years’ imprisonment or both.
(e)Two counts of theft, contrary to s 308 of the Criminal Code.
Each offence carries a maximum penalty of a fine of $160,000, 10 years’ imprisonment or both.
(f)Three counts of damaging property by joint commission, contrary to s…

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 Elphick v The Queen

Details

AGLC: Elphick v The Queen [2021] ACTCA 35
Case: [2021] ACTCA 35
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory, constituted by Elkaim ACJ, Loukas-Karlsson and Banks-Smith JJ, heard an appeal by Kieran William Elphick against a sentence imposed by the ACT Supreme Court. The appellant was sentenced by Murrell CJ on 4 February 2021 to a total of seven years and seven months’ imprisonment, with a non-parole period of four years, for 100 offences committed over two distinct periods in late 2018/early 2019 and late 2019/early 2020. These offences included aggravated burglary, burglary, taking motor vehicles without consent, obtaining property by deception, theft, damaging property, driving while disqualified, and possessing deceptive documents.

The primary legal issue before the Court of Appeal was whether the sentence imposed by the Chief Justice was manifestly excessive, particularly in light of the appellant's submission that time spent in custody prior to sentencing had not been adequately taken into account. The appellant, who represented himself, contended that his legal representatives had assured him this pre-sentence custody would be considered, but it had not been reflected in the final sentence.

The Court of Appeal examined the sentencing remarks of Murrell CJ, who had considered the objective seriousness of the numerous and varied offences, the appellant's youth, his extensive criminal history for similar offences, and significant subjective factors. These subjective factors included the appellant's Indigenous heritage, a head injury sustained in a motor vehicle accident leading to cognitive impairments, and a complex mental health picture involving ADHD, Stimulant Use Disorder, and psychotic symptoms exacerbated by heavy drug use. The Chief Justice had accepted that these issues, along with a deprived background and childhood disadvantage, significantly lessened the appellant's moral culpability. Despite acknowledging limited prospects of rehabilitation, the Chief Justice set a relatively short non-parole period, leaving the ultimate decision on release to the parole authority. The Court noted that the appellant had previously been sentenced by Magistrate Taylor on 16 October 2019 for earlier offences, at which time he had spent nine months in custody, and a Good Behaviour Order was imposed with a condition to attend a rehabilitation program.

The Court of Appeal found that the Chief Justice had properly considered all relevant factors, including the appellant's submissions regarding pre-sentence custody, and had applied appropriate sentencing principles. The appeal was dismissed.

Orders