R v AX (No 4) - [2023] ACTSC 47

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v AX (No 4)
Citation:	[2023] ACTSC 47
Hearing Date:	15 March 2023
DecisionDate:	15 March 2023
Before:	Norrish AJ
Decision:	Pursuant to s 20A(5) of the Crimes Act 1914 (Cth) I extend the term of the Recognisance Order ordered by Burns J for a period of 6 months to commence on 28 February 2023 expiring on 27 August 2023.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Breach of Recognisance Order – Recognisance extended
Legislation Cited:	Crimes Act 1914 (Cth) s 20A
Cases Cited:	R v AX (No 3) [2020] ACTSC 334
Parties:	The Queen ( Crown) AX ( Offender)
Representation:	Counsel S Hoad ( Crown) T Lee ( Offender)
Solicitors Commonwealth Director of Public Prosecutions (Crown) Legal Aid ACT ( Offender)
File Number:	SCC 114 of 2020

NORRISH AJ:

1․The offender, AX, is called up in relation to a breach of a Recognisance Release Order, the call up by summons dated 19 October 2022. The summons identifies the fact that the offender was on 16 November 2020 convicted in the ACT Supreme Court on two counts, one count of possessing or controlling child abuse material and another count of using a carriage service to access child abuse material. In respect of those offences, he was sentenced to 12 months’ imprisonment to be released after four months’ imprisonment, then agreeing to be of good behaviour for a period of two years and to comply with various conditions including that he accept the supervision of the ACT Corrective Services. He was to obey all reasonable directions of officers of that service.
2․It is alleged in the summons that between 1 April 2022 and 20 June 2022 he failed to comply with the condition of accepting supervision from ACT Corrective Services and obey all reasonable directions of the officers of that service.
3․Details of that breach are set out in an affidavit sworn 1 February 2023 by Robin Gibson. Particular details of the failure to comply with the conditions of the recognisance are set out in paragraphs 6 to 10 of that affidavit. I note in his favour that his engagement with the supervision of the service was satisfactory until March 2022. Euphemistically it is said that after that date his engagement “declined”. That is a euphemism for basically saying that he failed to comply with what was required of him.
4․I do note, however, that he maintained contact with the Child Sex Offender Registry Team (CSORT) up until December 2022. He provided an address in New South Wales which was the address of his parents where he did live. There is no evidence of any further offending by the offender.
5․I note the recommendation that the order that was originally made in relation to this matter be extended, in terms of the requirement for him to be of good behaviour be extended by six months. I have read the judgment of Burns…

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 AX (No 4)

Details

AGLC: R v AX (No 4) [2023] ACTSC 47
Case: [2023] ACTSC 47
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the matter of R v AX (No 4) was heard before Norrish AJ on 15 March 2023. The offender, AX, was called up on a summons dated 19 October 2022 in relation to an alleged breach of a Recognisance Release Order. AX had been convicted on 16 November 2020 on two counts: possessing or controlling child abuse material and using a carriage service to access child abuse material. He was sentenced to imprisonment with release after four months, and required to comply with conditions including supervision by ACT Corrective Services. It was alleged that AX failed to comply with these conditions between 1 April 2022 and 20 June 2022.

The court had to decide whether to extend the term of the Recognisance Order originally ordered by Burns J. The court examined the evidence, including an affidavit by Robin Gibson, which outlined the alleged breaches. It was noted that AX had satisfactory engagement with supervision until March 2022 but then declined to comply with the requirements. The court considered the seriousness of the original offence but also the fact that AX had not committed further offences since his release from custody. Given his settled domestic circumstances in Albury, employment, and the impact of his mother's illness on his mental state, the court opted not to revoke the recognisance but instead to extend it.

Norrish AJ found that the offender had not committed any further offences since his release and had a stable living situation in Albury. The court concluded that there was no need for continued supervision by ACT Corrective Services. Therefore, the court decided to extend the Recognisance Order for a further six months, from 28 February 2023 to 27 August 2023. This extension was made pursuant to s 20A(5) of the Crimes Act 1914 (Cth). The court also noted that the offender's address was a residence in North Albury.

Orders