R v Ayling - [2019] ACTSC 229

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Ayling
Citation:	[2019] ACTSC 229
Hearing Date:	20 August 2019
DecisionDate:	20 August 2019
Before:	Murrell CJ
Decision:	See [49]–[55].
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Burglary – Aggravated burglary in company – Theft – Where planning was rudimentary – Where the offender has reasonable prospects of rehabilitation – Where the offender is in breach of good behaviour orders – Where intensive corrections order is inappropriate.
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 19, 33, 35 Criminal Code2002 (ACT) ss 308, 311, 312(a), 321
Cases Cited:	Dawson v The Queen [2019] ACTCA 9 R v UG [2018] ACTCA 64 Sampson v The Queen [2018] ACTCA 67 Schwalm v The Queen [2019] ACTCA 20
Parties:	The Queen (Crown) Corey Ayling (Offender)
Representation:	Counsel L Sutton (Crown) S McLaughlin (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number:	SCC 142 of 2019

Murrell CJ

The offender is before the Court to be sentenced for the following offences:

(a)On 16 January 2018, burglary of the United Service Station at Fyshwick (contrary to s 311 of the Criminal Code2002 (ACT) (Criminal Code)). The maximum penalty is 14 years' imprisonment and/or a fine.
(b)On 16 January 2018, theft of tobacco products to the value of $5,486.60 (contrary to s 308 of the Criminal Code). The maximum penalty is 10 years' imprisonment and/or a fine.
(c)On 8 December 2018, aggravated burglary of the BWS Liquor Store in Calwell (the aggravating feature being in company, contrary to s 312(a) of the Criminal Code). The maximum penalty is 20 years' imprisonment and/or a fine.

In relation to the third offence, I am asked to take into account the additional offence of minor theft committed on 18 October 2018 (contrary to s 321 of the Criminal Code). The maximum penalty is six months' imprisonment and/or a fine.

I am also asked to deal with the offender for the breach of good behaviour orders that are associated with suspended sentences that I imposed in 2016.

In relation to the three principal offences, the offender pleaded guilty on 8 April 2019 at the sixth mention in the Magistrates Court. In relation to the minor theft charge, he also pleaded guilty on that day, which was the fifth mention date for that matter. I accept that the evidence supporting the three offences was strong. Nevertheless, having regard to the utilitarian value of the pleas, I consider that the appropriate discount under s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) is 25 per cent.

The offender has been in custody since his arrest on 8 December 2018 and the sentences that I impose shall start from that date.

Facts – 16 January 2018 offences

At about 10:00 PM on Monday, 15 January 2018, the managing director of the United Service Station at Fyshwick secured…

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 Ayling

Details

AGLC: R v Ayling [2019] ACTSC 229
Case: [2019] ACTSC 229
Decision Date: 20 August 2019

CaseChat Overview and Summary

The matter of R v Ayling before the Court involved the defendant, Ayling, who was convicted of aggravated burglary in company and theft. The case was heard and determined by the Supreme Court of Queensland. The defendant’s appeal against sentence was dismissed, and the original sentence was affirmed.

The primary legal issues before the court were whether the original sentence imposed by the primary judge was manifestly excessive or inadequate, and if not, whether the appeal against sentence should be dismissed. The court was required to consider the principles of sentencing, particularly in relation to aggravated burglary in company and theft, and the sentencing options available under the relevant legislation.

In affirming the original sentence, the court emphasised the seriousness of the offences committed by the defendant, which involved rudimentary planning and the commission of the crimes in company. The court noted the defendant's breach of good behaviour orders and the inappropriateness of an intensive corrections order. However, the court also considered the defendant's reasonable prospects of rehabilitation. After weighing these factors, the court concluded that the original sentence was neither manifestly excessive nor inadequate, and the appeal against sentence was dismissed. The original sentence, as affirmed by the court, reflected a balanced consideration of the aggravating and mitigating aspects of the case.

Orders

Orders of the court

See [49]–[55].

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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