R v Anderson

[2020] ACTSC 235

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Anderson

Citation:

[2020] ACTSC 235

Hearing Dates:

3 July, 28 July, 11 August 2020

DecisionDate:

3 September 2020

Before:

Robinson AJ

Decision:

See [32]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – abolition of periodic detention – re-sentence – sentence of imprisonment

Legislation Cited:

Crimes Act 1900 (ACT), s 24

Crimes (Sentence Administration) Act 2005 (ACT), ss 102, 902
Crimes (Sentencing and Restorative Justice) Amendment Act 2016 (ACT) (repealed)
Criminal Code 2002 (ACT), ss 309, 403

Domestic Violence and Protection Orders Act 2001 (ACT) (repealed), s 34

Cases Cited:

GW v The Queen [2016] ACTCA 9

Parties:

The Queen (Crown)

Jimmy Anderson (Offender)

Representation:

Counsel

C Wanigaratne (Crown)

S McLaughlin (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid (Offender)

File Number:

SCC 214 of 2009

Robinson AJ:

Jurisdiction

1. This matter comes to this Court upon a referral by the Sentence Administration Board to the Court under s 902(1) of the Crimes (Sentence Administration) Act 2005 (ACT), which was a transitional provision introduced by the Crimes (Sentencing and Restorative Justice) Amendment Act 2016 (ACT).

1. The Court, in these circumstances, is obliged to proceed under s 902(2) and (3) which are as follows-

   (2) If the board refers the offender for re-sentencing under subsection (1), the sentencing court must re-sentence the offender for the offence in relation to which the periodic detention order was made.

   (3)In re-sentencing the offender, the court—

   (a) must take into account the following (in addition to any other matters the court considers should be taken into account):

   (i) the fact that the offender was sentenced to periodic detention;

   (ii)     anything done under the periodic detention; and

   (b) must not—

   (i) impose a penalty that, when taken together with a penalty previously imposed for the offence for which the periodic detention was ordered, is greater than the maximum penalty the court could have imposed for the offence; or

   (ii)     re-sentence the offender to periodic detention.

History

1. This matter first came before me on 3 July 2020. Neither party was able to progress the proceedings on that day and jointly sought an adjournment in order to examine the court file and consult, so as to piece together the happenings and events from 2009 until 2020. What follows is taken partly from contemporaneous records in the court file and partly from an agreed chronology of events given to me from the bar table.

1. Jimmy Anderson, whom I will refer to as the offender, was charged by police in respect of three offences alleged to have been committed on 24 January 2009. The offences occurred in connection with a domestic dispute between the offender and a person with whom he had been in a domestic relationship and which relationship had produced two daughters.

1. On 3 June 2009, the offender was committed for trial and on 9 September 2009 an indictment was filed which alleged, in summary, three counts-

(a)Count 1:…