R v BB - [2013] ACTSC 58

R V BB
[2013] ACTSC 58 (25 March 2013)

CRIMINAL LAW – jurisdiction, practice and procedure – trial – application for bail prior to sentence – bail granted
CRIMINAL LAW – jurisdiction, practice and procedure – judgment and punishment – sentencing young offenders – common law approach to sentencing young persons
CRIMINAL LAW – jurisdiction, practice and procedure – judgment and punishment – sentencing young offenders – breach of good behaviour order made when sentence
suspended – whether opportunity should be given to show reform progress – bail granted – sentencing adjourned

Crime (Sentencing) Act 2005 (ACT), ss 7, 40A, 64(1), 133C, 133G, Pt 4.2
Criminal Code 2002 (ACT), ss 311, 318(2), 403(1)

Director of Public Prosecutions (NSW) v Cooke & Anor (2007) 168 A Crim R 379
KT v the Queen (2008) 182 A Crim R 571
R v BM (Unreported, Supreme Court of the ACT, Refshauge J, 14 February 2012)
R v BM (Unreported, Supreme Court of the ACT, Refshauge J, 29 October 2012)
R v Marston (1993) 60 SASR 320
Saga v Reid [2010] ACTSC 59
Taylor v Bowden [2009] ACTSC 13
TM v Karapanos (2011) 250 FLR 366

ACT Government Department of Education and Training, Countering Bullying, Harassment and Violence in ACT Public Schools (Policy Statement CBH200704, 2007)
RPR Consulting, Turning Lives Around: Effective Service Responses for Young People with Intensive Support Needs (Final Report, June 2002)

EX TEMPORE JUDGMENT

No. SCC 254 of 2012

Judge: Refshauge J
Supreme Court of the ACT

Date: 25 March 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCC 254 of 2012
AUSTRALIAN CAPITAL TERRITORY           )

R
V
BB

ORDER

Judge:  Refshauge J
Date:  25 March 2013
Place:  Canberra

THE COURT ORDERS THAT:

BB be granted bail to appear before his Honour at 9:30 am on 22 May 2013 for sentence with the following conditions:

1. That BB accept supervision of the Director-General or her delegate and obey all reasonable directions of the person delegated to supervise him including as to the use of alcohol and other drugs, as to urinalysis and as to a curfew.

2. That BB participate in the Turnaround Program and comply with the obligations of that program and any directions made by the professional participants in the program.

3. That BB accept monitoring by the Court Alcohol and Drug Assessment Service and consent to any person by whom he is supported or counselled in the Turnaround Program providing any information reasonably required by that service.

4. That BB not contact directly or indirectly or approach within 100 metres of Stephanie Morales.

The person supervising BB be requested to direct him to undertake urinalysis on at least two occasions in each month during the bail period.

The Director-General prepare a Pre-Sentence Report under Part 4.2 of the Crime (Sentencing) Act 2005 (ACT), to address each of the Pre-Sentence Report matters set out in s 40A of that Act, limited to updating the report of 19 March 2013.

The Court Alcohol and Drug Assessment…

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 BB

Details

AGLC: R v BB [2013] ACTSC 58
Case: [2013] ACTSC 58
Decision Date: 25 March 2013

CaseChat Overview and Summary

In the case of R v BB, BB sought bail pending his sentencing for an offence. The matter was heard by the ACT Magistrates Court. BB was facing sentencing for a breach of a good behaviour order that was made when his sentence was suspended. The legal issues for the court to consider were whether BB should be granted bail pending sentencing and, if so, what conditions should apply.

The court considered the sentencing principles applicable to young offenders under the common law, which emphasise reformative outcomes. The court also took into account BB's compliance with the conditions of the good behaviour order, his participation in the Turnaround Program, and his commitment to rehabilitation. The court was satisfied that BB had made progress towards reform and that granting him bail would provide an opportunity to demonstrate his continued reform and rehabilitation. The court concluded that it was appropriate to grant bail, subject to conditions to ensure that BB did not reoffend and to support his rehabilitation efforts.

The court ordered that BB be granted bail to appear for sentencing on a specified date. The bail conditions included supervision by the Director-General, participation in the Turnaround Program, and monitoring by the Court Alcohol and Drug Assessment Service. The court also directed that BB not contact the victim of his offence. The court requested that the Director-General prepare a Pre-Sentence Report and that the Court Alcohol and Drug Assessment Service provide a report on BB's progress and options for ongoing treatment. The sentencing hearing was adjourned to a later date.

Orders

Orders of the court

BB be granted bail to appear before his Honour at 9:30 am on 22 May 2013 for sentence with the following conditions:

1. That BB accept supervision of the Director-General or her delegate and obey all reasonable directions of the person delegated to supervise him including as to the use of alcohol and other drugs, as to urinalysis and as to a curfew.

2. That BB participate in the Turnaround Program and comply with the obligations of that program and any directions made by the professional participants in the program.

3. That BB accept monitoring by the Court Alcohol and Drug Assessment Service and consent to any person by whom he is supported or counselled in the Turnaround Program providing any information reasonably required by that service.

4. That BB not contact directly or indirectly or approach within 100 metres of Stephanie Morales.

The person supervising BB be requested to direct him to undertake urinalysis on at least two occasions in each month during the bail period.

The Director-General prepare a Pre-Sentence Report under Part 4.2 of the Crime (Sentencing) Act 2005 (ACT), to address each of the Pre-Sentence Report matters set out in s 40A of that Act, limited to updating the report of 19 March 2013.

The Court Alcohol and Drug Assessment Service prepare a report of the monitoring undertaken by it of BB and provide options for ongoing treatment or counselling from the end of the bail period.

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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