R v Avery - [2018] ACTSC 64

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Avery
Citation:	[2018] ACTSC 64
Hearing Date:	13 March 2018
DecisionDate:	13 March 2018
Before:	Elkaim J
Decision:	See [26]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – unlawful confinement – trafficking in a controlled drug – demands accompanied by threats – unlawful possession of stolen property – possession of cannabis – pleas of guilty
Legislation Cited:	Crimes Act 1900 (ACT) ss 32 and 34 Criminal Code 2002 (ACT) s 324 and 603(7) Crimes (Sentencing) Act 2005 (ACT) ss 6, 7 and 10 Drugs of Dependence Act 1989 (ACT) s 171
Cases Cited:	R v Musolino [2018] ACTSC 3
Parties:	The Queen (Crown) Barry Avery (Offender)
Representation:	Counsel Mr A Williamson (Crown) Mr J Lawton (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Boxall Legal (Offender)
File Numbers:	SCC 319 of 2017; SCC 320 of 2017

ELKAIM J:

The offender has entered pleas of guilty to the following five offences:

(a)Unlawful confinement, contrary to s 34 of the Crimes Act 1900 (ACT). The maximum penalty for this offence is 10 years’ imprisonment.
(b)Trafficking in a controlled drug other than cannabis, contrary to s 603(7) of the Criminal Code 2002 (ACT). The maximum penalty for this offence is 10 years’ imprisonment and/or a fine of $150,000.
(c)Demands accompanied by threats, contrary to s 32 of the Crimes Act 1900 (ACT). The maximum penalty for this offence is 10 years’ imprisonment.
(d)Unlawful possession of stolen property, contrary to s 324 of the Criminal Code 2002 (ACT). The maximum penalty for this offence is six months’ imprisonment and/or a fine of $7,500.
(e)Possession of cannabis, contrary to s 171 of the Drugs of Dependence Act 1989 (ACT). The maximum penalty for this offence is two years’ imprisonment and/or a fine of $7,500.

The starting point is to note the maximum penalties. They give an indication of the respective seriousness of the offences.

The offender is entitled to a discount for his pleas of guilty. He has saved the victim from giving evidence. The pleas also have a substantial utilitarian value, saving costs and court resources. Taking all matters into account, I think the offender is entitled to a discount of approximately 35%.

The offender was born in 1982 in Canberra. He is one of three children and is very close to his siblings. He is also very close to his mother. He has little to no relationship with his father.

The offender has completed Year 12 and has obtained qualifications in powder coating and concreting. He also has a security licence. His history of employment was curtailed in 2014, following a shoulder injury. The offender has been reliant upon pain medication and received compensation payments until his claim was finalised. His dependence on medication may have played a part in his later use of illicit drugs.

It is of particular concern that the offender has previously been associated with an Outlaw Motorcycle Gang. He…

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 Avery

Details

AGLC: R v Avery [2018] ACTSC 64
Case: [2018] ACTSC 64
Decision Date: 13 March 2018

CaseChat Overview and Summary

The case of R v Avery involved a defendant who had pleaded guilty to multiple charges including unlawful confinement, trafficking in a controlled drug, demands accompanied by threats, unlawful possession of stolen property, and possession of cannabis. The matter was heard in a relevant court of criminal jurisdiction, where the defendant’s sentence was the primary focus of the hearing. The court was required to consider the nature and gravity of the offences, as well as the circumstances surrounding each incident, in order to determine an appropriate penalty.

The court was tasked with addressing several legal issues. It needed to assess the appropriate sentence for each offence and determine if any of the charges were to be considered in tandem. A significant consideration was the defendant’s guilty pleas, which might warrant a discount in sentence. The court also had to evaluate the impact of the defendant's criminal history and any aggravating or mitigating factors that should be taken into account. Moreover, the court had to ensure that the overall sentence was proportionate to the seriousness of the crimes committed.

In delivering the judgment, the court meticulously reviewed the evidence presented, including the nature and details of each offence, the defendant’s criminal history, and the circumstances of the crimes. The court acknowledged the seriousness of the offences, particularly the unlawful confinement and drug trafficking, but also considered the defendant’s early guilty pleas as a mitigating factor. The court concluded that the cumulative effect of the offences warranted a substantial custodial sentence, but it also sought to balance this with the potential for rehabilitation. The final orders were made as per the court’s findings and reasoning, with specific sentences assigned for each offence and an overall term of imprisonment.

Orders

Orders of the court

See [26]

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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