R v Andy - [2022] ACTSC 54

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Andy
Citation:	[2022] ACTSC 54
Hearing Dates:	10 September 2021, 4 February 2022, 23 March 2022
DecisionDates:	10 September 2021, 23 March 2022
ReasonsDates:	10 September 2021, 23 March 2022
Before:	Murrell CJ
Decision:	Two years and six months’ imprisonment, suspended from 23 March 2022 upon the offender entering into two-year good behaviour orders.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – property damage – theft – where offender suffered profound childhood disadvantage associated with intergenerational disadvantage and trauma
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 12, 36 Criminal Code 2002 (ACT) ss 45A, 308, 312, 403
Texts Cited:	Vanessa Edwige and Dr Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation (Report, August 2021)
Parties:	The Queen (Crown) Damien Thomas Andy (Offender)
Representation:	Counsel M Lucero (Crown) J Cooper (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service (Offender)
File Number:	SCC 20 of 2021

MURREL CJ:

Introduction

The offender is to be sentenced for the following offences committed on 3 September 2020:

(a)Count 1: Aggravated burglary by joint commission, contrary to s 312(a) of the Criminal Code 2002 (ACT) (Criminal Code), by virtue of s 45A of the Criminal Code.
The maximum penalty is 20 years’ imprisonment, a fine or both.
(b)Count 2: Property damage by joint commission, contrary to s 403 of the Criminal Code by virtue of s 45A of the Criminal Code.
The maximum penalty is 10 years’ imprisonment, a fine or both.
(c)Count 3: Theft by joint commission, contrary to s 308 of the Criminal Code by virtue of s 45A of the Criminal Code.
The maximum penalty is 10 years' imprisonment, a fine or both.

Following a criminal case conference and about three weeks before the date fixed for trial, on 26 August 2021, the offender pleaded guilty to the offences. At an early stage, the offender had indicated that he would plead guilty if he was unsuccessful on an application that challenged the validity of the search warrant through which incriminating evidence was recovered.

The offender was in custody from 8 September to 24 September 2020 (17 days), before he was released on bail. The sentences will be backdated to take account of the 17-day period to 24 August 2021.

Two co-accused, Alexander Warne and a young person, are to be tried in the week commencing 20 September 2021. A fourth person was not identified.

Facts

Offences on 3 September 2020

At about 9:50AM on 3 September 2020, Lynette Walker (a pseudonym) was at home with her two children, aged one and seven years. She was in the kitchen when she heard a repeated smashing noise at the front door. She looked down the hallway and saw four people standing near her front door, three of whom were holding a stick or a baseball bat.

The glass panel beside the front door had been smashed.…

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 R v Andy

Details

AGLC: R v Andy [2022] ACTSC 54
Case: [2022] ACTSC 54
Decision Date: 23 March 2022

CaseChat Overview and Summary

The respondent, Andy, appealed against a sentence imposed by the Magistrates' Court of Victoria, which found him guilty of aggravated burglary, property damage and theft. The Crown had argued for a term of imprisonment, while the defence advocated for a suspended sentence, citing the respondent's troubled background and circumstances. The Court of Appeal was required to consider the appropriate sentence in light of the respondent's personal history.

The Court considered the relevant sentencing principles and the factors in aggravation and mitigation. It noted the severity of the offences and the need for general deterrence. However, it also took into account the respondent's disadvantaged background, including his childhood experiences of abuse and neglect, which had a significant impact on his development and behaviour. The Court found that, while the offences were serious, the respondent's personal circumstances warranted a more lenient approach.

Ultimately, the Court of Appeal ordered that the sentence imposed by the Magistrates' Court be set aside and replaced with a two-year and six-month imprisonment term, suspended from 23 March 2022 upon the respondent entering into two-year good behaviour orders. The Court considered that this outcome would allow the respondent to address his underlying issues while also providing a measure of punishment and deterrence.

Orders

Orders of the court

Two years and six months’ imprisonment, suspended from 23 March 2022 upon the offender entering into two-year good behaviour orders.

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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