KD v Gillard

[2020] ACTSC 144

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

KD v Gillard

Citation:

[2020] ACTSC 144

Hearing Date:

12 February 2020

DecisionDate:

12 February 2020

Before:

Burns J

Decision:

The appeal is allowed. See [1]–[5]

Catchwords:

APPEAL – GENERAL PRINCIPLES – Appeal from Magistrate – Appeal against sentence – re-sentencing – breach of good behaviour order

Parties:

KD (Appellant)

Joshua Gillard (Respondent)

Representation:

Counsel

R Davies (Appellant)

E Wren (Respondent)

Solicitors

Legal Aid ACT (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

SCA 64 of 2019

Decision under appeal:

Court:  Childrens Court of the ACT

Before:  Magistrate Cook

Date of Decision:          14 October 2019

Case Title:  The Police v KD

Court File Number:      CC 465 of 2019

BURNS J:

1. The appeal will be upheld. The sentences imposed by the Magistrate with respect to the offence of common assault, which was CH2019/465, and the sentences imposed with respect to the re-sentencing for the offences of aggravated robbery, being CH2017/505 and CH2017/490, will be set aside.

1. The conviction imposed by the Magistrate with regard to the offence of common assault is confirmed. There will be a sentence of two months' imprisonment which is to commence today, 12 February 2020, and expire on 11 April 2020. I am going to suspend the sentence and there will be a Good Behaviour Order.

1. With regard to the re-sentencing for the two earlier offences of aggravated robbery, bearing in mind the period of time that the offender has served pre-sentence with respect to those offences and the period of time that he was subject to the

   
   

   Good Behaviour Orders that were imposed in 2017 and then, subsequently, in 2018: on each of those charges there will be a sentence of two months’ imprisonment commencing today, 12 February 2020, and expiring on 11 April 2020.

1. All of those sentences will be immediately suspended with a Good Behaviour Order for a period of eight months from today, 12 February 2020. There will be a condition that he is to accept the supervision of the Director-General for that period of eight months, or such lesser period as deemed appropriate by the Director-General or that person's delegate, and he is to obey all reasonable directions of the Director-General or the Director-General's delegate.

1. I recommend that the Director-General put in place the case plan which was placed before the Magistrate on 14 October 2019. I recommend that it be implemented in such a way as to encourage KD in his present full-time employment and to focus upon the issue of anger management.

[Speaking directly to appellant]

1. KD, what all of that means is that I set aside the orders that were made by

   
   

   Magistrate Cook.

1. I have imposed sentences of two months' imprisonment with respect to the two aggravated robbery charges that his Honour dealt with a breach on. You committed those aggravated robberies when you were 14 years old and you were sentenced to 10 months' imprisonment.

1. When you committed the offence of common assault with your co-offender, you breached the orders that were made about that 10 months' imprisonment. Part of it was suspended.

1. You breached those orders, so the Magistrate sentenced you to 10 months' imprisonment to be released after serving three months. I have set that aside and instead I have imposed two months' imprisonment, but I have suspended it.  On each of the matters, I have imposed sentences of two months' imprisonment all to be served together, so it is a total of two months.

1. It is a total of two months all suspended, but you have an obligation for a period of eight months to stay out of trouble and to comply with the directions that are given to you by Youth Justice. If you do something wrong, then you place yourself in jeopardy of having to serve that two months' imprisonment or in detention.

1. I understand that you became angry on this occasion when you and your partner were the subject of abuse. That is perfectly understandable. That does not mean that it is acceptable to hit people.

1. That is what you have to work on because you are not doing too badly in other areas. You have gotten yourself a job and you seem to be maturing, but you need to work on that anger management. There are a lot of things as a community that we can tolerate, that we can put up with, but violence usually is not one of those things.

1. The ball is back in your court now. You have done well, you have gotten yourself a job. You have been living with your mother; she provides good support to you.

I certify that the preceding thirteen [13] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.

Associate:

Date: