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R v Beroukas

R v Beroukas

Case [2021] ACTSC 172 12 July 2021

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Beroukas
Citation:	[2021] ACTSC 172
Hearing Dates:	25, 28 June, 6, 12 July 2021
Decision Date:	12 July 2021
Reasons Date:	4 August 2021
Before:	McWilliam AJ
Decision:	See [44]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – arson while in lawful custody – offender sentenced – where error in sentence – whether proceedings may be reopened to correct
errors pursuant to s 61 of the Crimes (Sentencing) Act 2005
(ACT) – new sentencing orders imposed
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 27, 31, 33, 61, 64, 72 Crimes (Sentence Administration) Act 2005 (ACT) s 140 Criminal Code 2002 (ACT) s 404
Cases Cited:	Achurch v The Queen [2014] HCA 10; 253 CLR 141 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Perkins v R [2018] NSWCCA 62 Porter v R [2008] NSWCCA 145 R v Baker [2000] NSWCCA 85 R v Denniss [2021] ACTSC 15 R v Dunn [2019] ACTSC 75 R v Elzakhem [2008] NSWCCA 31 R v Howsan [2020] ACTSC 172 R v Hudson [2019] ACTSC 110 R v JJ [2014] ACTCA 23; 242 A Crim R 363 R v Millwood [2012] NSWCCA 2 R v Pitt [2001] NSWCCA 156 R v Potts [2020] ACTCA 12; 351 FLR 1 R v Wrigley [2015] ACTSC 114
Parties:	The Queen (Crown)
Jordan Wayne Beroukas (Offender)
Representation:	Counsel
J Hiscox (Crown) S Avery (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown)
Sarah Avery Legal Practice (Offender)
File Number:	SCC 100 of 2021
MCWILLIAM AJ:

1. On 28 June 2021, following a hearing on 25 June 2021, Mr Jordan Wayne Beroukas was sentenced for the offence of arson contrary to s 404(1) of the Criminal Code 2002 (ACT) (Code). The reasons I gave orally at the time are set out below.
2. Subsequently, the sentence was reopened pursuant to s 61 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). Following a further hearing on 6 July 2021, I was satisfied that an error in the original sentence meant that each of the
orders made on 28 June 2021 had been made “contrary to law” (being the words of s
61(1)(a) of the Sentencing Act). The orders made on 25 June 2021 were vacated, the errors raised were corrected, and the offender was re-sentenced on 12 July 2021.
3. At the time of re-sentencing, I indicated to the parties that I would include further reasons in relation to the application of s 61 of the Sentencing Act. They are also included in the reasons that follow.

Sentence delivered on 28 June 2021

4. On 1 February 2021, the offender pleaded guilty to the charge of arson contrary to
section 404(1) of the Code. The maximum penalty is 15 years’ imprisonment or a fine
of $240,000 or both.
5. The facts of the offending are described…

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 Beroukas

Details

AGLC: R v Beroukas [2021] ACTSC 172
Case: [2021] ACTSC 172
Decision Date

CaseChat Overview and Summary

In the matter of R v Beroukas, the Supreme Court of the Australian Capital Territory presided over by McWilliam AJ, was tasked with sentencing Jordan Wayne Beroukas for the offence of arson. The legal issues central to this case involved the appropriate application of sentencing principles and statutory provisions in the context of the offender's prior incarceration and the necessity to correct procedural errors in the initial sentence. The court had to decide whether the initial sentence complied with the statutory requirements and, if not, how to rectify the errors in accordance with the law.

The court commenced by evaluating the objective seriousness of the offence, considering factors such as the extent of damage, potential risk to others, and the circumstances under which the offence was committed. It was noted that while the arson caused damage and posed a risk, there was no evidence of intent to harm others. The subjective circumstances of the offender, including his background, criminal history, and efforts towards rehabilitation, were also meticulously reviewed. The court concluded that while the offender's background was marked by disadvantage and substance abuse, it did not significantly mitigate the seriousness of the arson offence. The court balanced these factors with the principles of general deterrence and the need for the offender to accept responsibility and demonstrate remorse.

Upon re-sentencing, the court identified critical errors in the initial sentence that contravened statutory provisions. The initial sentence failed to appropriately address the consecutive nature of the imprisonment, the timing of the good behaviour order, and the non-parole period. The court clarified that section 61 of the Crimes (Sentencing) Act 2005 (ACT) permits the reopening of proceedings to correct such errors. Consequently, the original orders were vacated, and the offender was re-sentenced in a manner compliant with the statutory requirements. The re-sentenced terms included a fully suspended sentence of 10 months’ imprisonment, which was to commence on 10 February 2022, and a Good Behaviour Order for 12 months thereafter.

The final orders made by the court on 12 July 2021, reflect a comprehensive re-evaluation of the sentencing process, ensuring that all statutory requirements were meticulously adhered to, and the principles of justice and rehabilitation were appropriately balanced.

Orders