R v BJ - [2015] ACTSC 47

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v BJ
Citation:	[2015] ACTSC 47
Hearing Date:	4 February 2015
DecisionDate:	4 February 2015
Before:	Penfold J
Decision:	See [9] to [11] below.
Category:	Sentence
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – good behaviour order made in 2014 for burglary, minor theft and common assault committed in context of relationship break-down – offender in breach of good behaviour order by conviction in Magistrates Court for stalking, taking motor vehicle, theft and breaching protection order – new offences also committed in context of relationship break-down – offender 19 years old – troubled childhood – minor criminal record – sentenced in Magistrates Court to imprisonment including three months to be served in full-time custody and the remainder suspended subject to two-year good behaviour order – Supreme Court good behaviour order cancelled and new good behaviour order made for two years.
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) Crimes (Sentence Administration) Act 2005 (ACT)
Parties:	The Queen (Crown) BJ (Offender)
Representation:	Counsel Mr C Wanigaratne (Crown) Ms H Hayunga (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number:	SCC 36 of 2013
Publication Restriction:	Offender’s name and identifying features

Introduction

In February 2014, I sentenced BJ for a burglary, taking into account two scheduled offences of minor theft and common assault. The charges arose out of the breakdown of a relationship between BJ, then aged 17, and the complainant in relation to those offences.

The incident involved BJ going to a house where his ex-girlfriend was baby-sitting, and where he was not welcome, remaining there after a disagreement with his ex-girlfriend, stealing some money from her wallet and then pushing her against a wall.

The sentence imposed was a 12-month good behaviour order, including a condition that, if assessed as suitable, he undertake the Cognitive Self-Change Program. Although this had been recommended in the Pre-Sentence Report, there was no mention that a 12-month good behaviour order was not long enough to enable BJ to undertake a cognitive self-change program, and accordingly, he appears to have received no directed help, as a result of that sentencing, with the issues that seem to affect his behaviour.

Breach of good behaviour order

Nearly five months after I sentenced BJ, he began another series of offences against a new ex-partner extending over a month in July and August last year. Those offences involved, in summary:

(a)taking his ex-partner's car keys, then damaging her car, then stealing the car;
(b)using a false Facebook identity to taunt her with pictures of the car hidden in a forest;
(c)attempting to get her (alone) to meet him in the forest;
(d)further damaging the car; and
(e)making a series of harassing phone calls to his ex-partner on her mobile phone and her work phone.

For these offences he was sentenced in the Magistrates Court to a term of imprisonment, three months of which has been served in full-time custody,…

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 BJ

Details

AGLC: R v BJ [2015] ACTSC 47
Case: [2015] ACTSC 47
Decision Date: 4 February 2015

CaseChat Overview and Summary

The case before the Supreme Court involved a defendant who had previously been convicted of a series of offences including burglary, minor theft, and common assault, which were committed in the context of a relationship breakdown. The defendant, BJ, was initially sentenced by a Magistrates Court to a term of imprisonment with part of it suspended subject to a two-year good behaviour order. BJ subsequently breached this order by committing further offences, namely stalking, taking a motor vehicle, theft, and breaching a protection order, all of which again occurred in the context of a relationship breakdown. The defendant, who was 19 years old at the time of the latest offences, had a troubled childhood and a minor criminal record. The court was tasked with determining the appropriate sentence for these new offences, taking into account the breach of the previous good behaviour order.

The legal issues before the court involved assessing the appropriate sentence for the new offences, considering the breach of the previous good behaviour order, and determining whether a new good behaviour order should be imposed. The court had to weigh the seriousness of the new offences, the defendant's age, background, and previous criminal record, as well as the circumstances surrounding the commission of the offences. The court also needed to consider whether a custodial sentence was necessary or if an alternative, such as a good behaviour order, would be more appropriate.

The court found that while the new offences were serious, they were not as severe as to warrant a custodial sentence. The court emphasised the importance of rehabilitation and the potential for the defendant to turn their life around. The previous good behaviour order was seen as having failed to prevent the defendant from reoffending, but the court believed that a new order, with appropriate conditions, could be effective. The court cancelled the original good behaviour order and imposed a new one for two years, with specific conditions designed to address the underlying issues that led to the defendant's offending behaviour.

The final orders of the court included the cancellation of the previous good behaviour order and the imposition of a new one for two years. The new order required the defendant to attend counselling, refrain from using alcohol or drugs, and to engage in specified activities aimed at rehabilitation. The court also directed that the defendant's record be expunged in two years, subject to compliance with the order. This decision reflected the court's approach of balancing the need for punishment with the aim of rehabilitation, particularly for young offenders with troubled backgrounds.

Orders

Orders of the court

See [9] to [11] below.

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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