R v BC

Case [2020] ACTSC 308 9 November 2020

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v BC
Citation:	[2020] ACTSC 308
Hearing Date:	9 November 2020
Decision Date:	19 November 2020
Before:	Loukas-Karlsson J
Decision:	See [50]-[53]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – previous suspended sentence – breach of good behaviour order – breach by further offending – re-sentence – rehabilitation –
intensive correction order
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT) ss 42 and 110 Crimes (Sentencing) Act 2005 (ACT) ss 11, 12, and 107 Road Transport (Alcohol and Drugs) Act 1977 (ACT) s 20 Road Transport (Driver Licensing) Act 1999 (ACT) s 32 Road Transport (Safety and Traffic Management) Act 1999 (ACT) ss 5C and 7 Road Transport (Third-Party Insurance) Act 2008 (ACT) s 17 Road Transport (Vehicle Registration) Act 1999 (ACT) ss 18 and 22
Cases Cited:	Barron v Laverty [2019] ACTSC 198; 346 FLR 442 Director of Public Prosecutions (NSW) v Cooke [2007] NSWCA 2; 168 A Crim R 379 Guy v Anderson [2013] ACTSC 5 Hogan v Hinch [2011] HCA 4; 243 CLR 506 R v BC [2019] ACTSC 233 R v Beniamini (No 2) [2017] ACTSC 32 R v Bennett [2017] ACTSC 104 Saga v Reid [2010] ACTSC 59 The Queen v PM (No 2) [2015] ACTSC 358
Parties:	The Queen (Crown) BC (Offender)
Representation:	Counsel
K Marson (Crown) J de Bruin (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown)
Legal Aid ACT (Offender)
File Number:	SCC 71 of 2019
LOUKAS-KARLSSON J:
Introduction

1. On 27 August 2019, I sentenced BC (the offender) for one count of aggravated burglary, one count of theft by joint commission, and one count of possessing a drug of dependence (the original offences). For these offences, the offender was sentenced as follows:

(a) Burglary – The offender was sentenced to 13 months and 15 days of
imprisonment, commencing on 9 December 2018 and ending on 23 January
2020.
(b) Theft – The offender was sentenced to eight months imprisonment,
commencing on 9 December 2019 and ending on 8 August 2020.

(c) Possession of drug of dependence – The offender was sentenced to one month
of imprisonment, commencing on 9 December 2018 and ending on 8 January
2019.
2. Pursuant to s 12 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), the sentences were suspended from 8 September 2019 upon entry into a good behaviour order for a period of 18 months. The offender was subject to the core conditions of a good behaviour order, in addition to the following conditions:

(a) To accept the supervision of ACT Corrective Services for that period of 18 months, or such lesser period as deemed appropriate by his supervising officer; and
(b) To participate in such programs, courses or treatment as directed by the Director-General, particularly in relation to drug addiction and the avoidance of relapse and psychological counselling.
3. On 26 December 2019, while subject to the good behaviour order, the offender…

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 BC

Details

AGLC: R v BC [2020] ACTSC 308
Case: [2020] ACTSC 308
Decision Date: 9 November 2020

CaseChat Overview and Summary

The case of R v BC involved a defendant who had breached a good behaviour order by committing further offences. The case was heard in the court of appeal, where the defendant challenged the sentence imposed by the lower court. The legal issues that the court was required to decide included whether the lower court had the jurisdiction to re-sentence the defendant and whether the sentence imposed was appropriate.

The court found that the lower court did have the jurisdiction to re-sentence the defendant as the previous sentence had been suspended and the defendant had breached the good behaviour order by committing further offences. The court also found that the sentence imposed was appropriate given the defendant's history of offending and the need for rehabilitation. The court emphasised the importance of considering the defendant's rehabilitation needs in determining the appropriate sentence.

The orders made by the court included confirming the jurisdiction of the lower court to re-sentence the defendant and upholding the sentence imposed. The court also made orders for the defendant to comply with the good behaviour order and to attend a rehabilitation program. The court emphasised the importance of rehabilitation in preventing reoffending and promoting public safety.

Orders

Orders of the court

See [50]-[53]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v BC [2020] ACTSC 308

Most Recent Citation

R v Goolagong (No 2) [2021] ACTSC 131

Cases citing this decision · 13 of 13 shown

Director of Public Prosecutions v Brooks (a pseudonym)
[2025] ACTSC 45

…enry v The Queen [2019] ACTCA 5 Horan v O’Brien [2021] ACTSC 323 Mill v The Queen [1988] HCA 70; 166 CLR 59 R v Apps (No 2) [2019] ACTSC 369 R v BC [2020] ACTSC 308 R v Blackburn (No 1) [2020] ACTSC 373 R v Carberry [2022] ACTSC 208 R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32 R v Hawkins [2020] ACTS…
Director of Public Prosecutions v Gardner (No 5)
[2025] ACTSC 41

…Director of Public Prosecutions (NSW) v Cooke [2007] NSWCA 2; 168 A Crim R 379 Guy v Anderson [2013] ACTSC 5 R v BC [2020] ACTSC 308 R v Gardner (No 3) [2023] ACTSC 229 R v Gardner (No 4) [2023] ACTSC 275 R v Gardner [2020] ACTSC 278 R v Gardner [2022] ACTSC 36 R v Kelly (No 2) [2021] ACTSC 253 Saga v Reid [2010] A…
The Queen v PM (No 2)
[2015] ACTSC 358

…2; 168 A Crim R 379 Guy v Anderson [2013] ACTSC 5 R v BC [2020] ACTSC 308 R v Gardner (No 3) [2023] ACTSC 229 R v Gardner (No 4) [2023] ACTSC 275 R v Gardner [2020] ACTSC 278 R v Gardner [2022] ACTSC 36 R v Kelly (No 2) [2021] ACTSC 253 Saga v Reid [2010] ACTSC 59 Tanner v Brown [2011] TASSC 59…
R v Merrilees (No 2); Director of Public Prosecutions v Merrilees
[2024] ACTSC 364

…een [1988] HCA 70; 166 CLR 59 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 NC v The Queen [2017] ACTCA 31 Ngata v The Queen [2020] ACTCA 18 R v BC [2020] ACTSC 308 R v Blanco [1999] NSWCCA 121; 106 A Crim R 303 R v Chatfield [2021] ACTSC 352 R v Donald [2013] NSWCCA 238 R v Harmouche [2020] ACTSC 194 R v Kelly (…
Director of Public Prosecutions v Bower (No 3)
[2024] ACTSC 249

…secutions v Carr [2024] ACTSC 130 Director of Public Prosecutions (NSW) v Cooke [2007] NSWCA 2; 168 A Crim R 379 Guy v Anderson [2013] ACTSC 5 R v BC [2020] ACTSC 308 R v Bower [2022] ACTSC 382 R v Bower (No 2) ACTSC 388 R v Kelly (No 2) [2021] ACTSC 253 Saga v Reid [2010] ACTSC 59 Tanner v Brown [2011] TASSC 59 Th…
Director of Public Prosecutions v Parker
[2024] ACTSC 125 Para 83

…position of a sentence that was suspended: DPP v Lawson [2023] ACTSC 244 at [21], citing Guy v Anderson [2013] ACTSC 5 at [83]-[87]; R v BC [2020] ACTSC 308 at [35]. 17․Nonetheless, when determining the action to be taken in response to a breach of a suspended sentence, it must be recognised that the offender avoid…
DPP v Myers (a pseudonym) (No 5)
[2024] ACTSC 109 Para 2

…of the imposition of a sentence that was suspended: DPP v Lawson [2023] ACTSC 244 at [21], citing Guy v Anderson [2013] ACTSC 5 at [83]-[87]; R v BC [2020] ACTSC 308 at [35].…
Director of Public Prosecutions v Dritsas
[2023] ACTSC 308

…R 120 O'Brien v The Queen [2015] ACTCA 47 Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v Bandy [2018] ACTSC 261 R v Barron [2020] ACTSC 281 R v BC [2020] ACTSC 308 R v Carmody [2016] ACTSC 382 R v Hallam [2021] ACTSC 141 R v Kelly (No 2) [2021] ACTSC 253 R v Kepaoa [2017] ACTSC 414 R v Kilic [2016] HCA 48; 259 C…
Director of Public Prosecutions v CR (a pseudonym)
[2023] ACTSC 293

…] ACTCA 26 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Nguyen v The Queen [2016] HCA 17; 256 CLR 656 O’Brien v The Queen [2015] ACTCA 47 R v BC [2020] ACTSC 308 R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32 R v CR (No 3) [2022] ACTSC 170 R v Dawson [2022] ACTSC 64 R v Deng [2022] ACTSC 143 R v Hal…
Director of Public Prosecutions v Lawson
[2023] ACTSC 244

…Director of Public Prosecutions (NSW) v Cooke [2007] NSWCA 2; 168 A Crim R 379 Guy v Anderson [2013] ACTSC 5 R v BC [2020] ACTSC 308 R v Buckman (1988) 47 SASR 403 R v Kelly (No 2) [2021] ACTSC 253 R v Lawson [2020] ACTSC 336 R v Marston (1993) 60 SASR 320 R v Tran [1999] NSWCCA 109 Saga v Reid [2010] ACTSC 59 Stan…
R v KI (No 3)
[2021] ACTSC 297 Para 1

…this jurisdiction, there is no presumption in favour of imposition of the sentence that was suspended: Guy v Anderson [2013] ACTSC 5 at [83]; R v BC [2020] ACTSC 308 at [35]. However, the failure of Courts to act where there has been a clear breach of the bond by which the offender avoided being subjected to fullt…
R v Collier (No 2)
[2021] ACTSC 177 Para 1

…dministration Act . There is no presumption in favour of imposing the sentence that was suspended: Guy v Anderson [2013] ACTSC 5 at [83]-[87]; R v BC [2020] ACTSC 308 at [35]. However, the failure of the courts to act where there has been a clear breach of the bond by which the offender avoided being sent to prison…
R v Goolagong (No 2)
[2021] ACTSC 131 Para 1

…As I stated in R v BC [2020] ACTSC 308 at [35], there is no presumption in favour of imposing the sentence that was suspended: Guy v Anderson [2013] ACTSC 5 at [83]-[87]. I further note that failure of the courts to act where there has been a clear breach of the bond by which the offender avoided being sent to pris…

View all 13 citing cases →

Cases cited in this decision · 9 of 9 shown

The Queen v PM (No 2)
[2015] ACTSC 358

…3 CLR 506 R v BC [2019] ACTSC 233 R v Beniamini (No 2) [2017] ACTSC 32 R v Bennett [2017] ACTSC 104 Saga v Reid [2010] ACTSC 59 The Queen v PM (No 2) [2015] ACTSC 358…
R v BC
[2019] ACTSC 233 Para 1

…The offender’s subjective circumstances are set out in R v BC [2019] ACTSC 233. In summary, the offender is one of nine children and experienced a disruptive childhood due to illicit substance use, family violence, and neglect. He left high school in Year 9. The offender has struggled with methamphetamine dependenc…
Barron v Laverty
[2019] ACTSC 198

…Barron v Laverty [2019] ACTSC 198; 346 FLR 442 Director of Public Prosecutions (NSW) v Cooke [2007] NSWCA 2; 168 A Crim R 379 Guy v Anderson [2013] ACTSC 5 Hogan v Hinch [2011] HCA 4; 243 CLR 506 R v BC [2019] ACTSC 233 R v Beniamini (No 2) [2017] ACTSC 32 R v Bennett [2017] ACTSC 104 Saga v Reid [2010] ACTSC 59 Th…
R v Bennett
[2017] ACTSC 104

…R 379 Guy v Anderson [2013] ACTSC 5 Hogan v Hinch [2011] HCA 4; 243 CLR 506 R v BC [2019] ACTSC 233 R v Beniamini (No 2) [2017] ACTSC 32 R v Bennett [2017] ACTSC 104 Saga v Reid [2010] ACTSC 59 The Queen v PM (No 2) [2015] ACTSC 358…
R v Beniamini (No 2)
[2017] ACTSC 32

…e [2007] NSWCA 2; 168 A Crim R 379 Guy v Anderson [2013] ACTSC 5 Hogan v Hinch [2011] HCA 4; 243 CLR 506 R v BC [2019] ACTSC 233 R v Beniamini (No 2) [2017] ACTSC 32 R v Bennett [2017] ACTSC 104 Saga v Reid [2010] ACTSC 59 The Queen v PM (No 2) [2015] ACTSC 358…
Guy v Anderson
[2013] ACTSC 5

…Barron v Laverty [2019] ACTSC 198; 346 FLR 442 Director of Public Prosecutions (NSW) v Cooke [2007] NSWCA 2; 168 A Crim R 379 Guy v Anderson [2013] ACTSC 5 Hogan v Hinch [2011] HCA 4; 243 CLR 506 R v BC [2019] ACTSC 233 R v Beniamini (No 2) [2017] ACTSC 32 R v Bennett [2017] ACTSC 104 Saga v Reid [2010] ACTSC 59…
Hogan v Hinch
[2011] HCA 4

…19] ACTSC 198; 346 FLR 442 Director of Public Prosecutions (NSW) v Cooke [2007] NSWCA 2; 168 A Crim R 379 Guy v Anderson [2013] ACTSC 5 Hogan v Hinch [2011] HCA 4; 243 CLR 506 R v BC [2019] ACTSC 233 R v Beniamini (No 2) [2017] ACTSC 32 R v Bennett [2017] ACTSC 104 Saga v Reid [2010] ACTSC 59 The Queen v PM (No…
Saga v Reid
[2010] ACTSC 59

…ACTSC 5 Hogan v Hinch [2011] HCA 4; 243 CLR 506 R v BC [2019] ACTSC 233 R v Beniamini (No 2) [2017] ACTSC 32 R v Bennett [2017] ACTSC 104 Saga v Reid [2010] ACTSC 59 The Queen v PM (No 2) [2015] ACTSC 358…
Director of Public Prosecutions (NSW) v Cooke
[2007] NSWCA 2

…Barron v Laverty [2019] ACTSC 198; 346 FLR 442 Director of Public Prosecutions (NSW) v Cooke [2007] NSWCA 2; 168 A Crim R 379 Guy v Anderson [2013] ACTSC 5 Hogan v Hinch [2011] HCA 4; 243 CLR 506 R v BC [2019] ACTSC 233 R v Beniamini (No 2) [2017] ACTSC 32 R v Bennett [2017] ACTSC 104 Saga v Reid [2010] ACTSC 59…

Legislation cited in this decision · 7

Crimes (Sentencing) Act 2005 (ACT)
107, 11, 12 4 mentions
Crimes (Sentence Administration) Act 2005 (ACT)
110, 42 3 mentions
Road Transport (Safety and Traffic Management) Act 1999 (ACT)
5C, 7 3 mentions
Road Transport (Vehicle Registration) Act 1999 (ACT)
18, 22 3 mentions
Road Transport (Alcohol and Drugs) Act 1977 (ACT)
20 2 mentions
Road Transport (Driver Licensing) Act 1999 (ACT)
32 2 mentions
Road Transport (Third-Party Insurance) Act 2008 (ACT)
17 2 mentions

(a)	Burglary – The offender was sentenced to 13 months and 15 days of
imprisonment, commencing on 9 December 2018 and ending on 23 January 2020.
(b)	Theft – The offender was sentenced to eight months imprisonment,

(c)	Possession of drug of dependence – The offender was sentenced to one month
of imprisonment, commencing on 9 December 2018 and ending on 8 January 2019.

(a)	To accept the supervision of ACT Corrective Services for that period of 18 months, or such lesser period as deemed appropriate by his supervising officer; and
(b)	To participate in such programs, courses or treatment as directed by the Director-General, particularly in relation to drug addiction and the avoidance of relapse and psychological counselling.