R v Blackburn; R v QH - [2021] ACTSC 284

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Blackburn; R v QH
Citation:	[2021] ACTSC 284
Hearing Date:	29 October 2021
DecisionDate:	29 October 2021
Before:	Elkaim J
Decision:	See [62]–[63]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – forcible confinement – co-offenders – extreme subjective circumstances
Legislation Cited:	Crimes Act 1900 (ACT) ss 26A, 34 Crimes (Sentencing) Act 2005 (ACT) s 72 Crimes (Sentence Administration) Act 2005 (ACT) s 118 Criminal Code 2002 (ACT) s 318(2)
Cases Cited:	Bugmy v The Queen [2013] HCA 37; 249 CLR 571 R v Blackburn (No 1) [2020] ACTSC 373 R v Froome [2018] ACTSC 152 R v Green [2021] ACTSC 13 R v Le Clair; R v Yeboah [2016] ACTSC 126 R v QH; R v CR [2020] ACTSC 178 The Queen v Avery [2018] ACTCA 57
Parties:	The Queen ( Crown) Jake Blackburn ( Offender) QH ( Offender)
Representation:	Counsel M Howe ( Crown) J De Bruin ( Offender – Blackburn) R Baldeo ( Offender – QH)
Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender – Blackburn) Hugo Law Group ( Offender – QH)
File Numbers:	SCC 207 of 2021 SCC 209 of 2021; 210 of 2021; 105 of 2020; 106 of 2020; 107 of 2020

ELKAIM J:

Mr Blackburn and QH pleaded guilty, on 7 September 2021, to the offence of forcible confinement contrary to s 34 of the Crimes Act 1900 (ACT). The maximum penalty is 10 years imprisonment. In addition Mr Blackburn pleaded guilty to dishonestly driving a stolen motor vehicle contrary to s 318(2) of the Criminal Code 2002 (ACT). The maximum penalty is five years imprisonment and/or a fine of $80,000.

QH is also to be sentenced for assaulting a frontline community service provider contrary to s 26A of the Crimes Act1900 (ACT). The maximum penalty is two years imprisonment. Finally, he needs to be dealt with for breach of sentences imposed by Murrell CJ on 7 July 2020.

The person confined by the two offenders was Mr William Amy. Details of the offences can be found in the Agreed Statement of Facts, included in Exhibit A. The following is a summary.

In late March 2021 a red Suzuki GYA SX4 was stolen. On 6 April 2021 this vehicle, driven by Mr Blackburn, played an integral part in the confinement of Mr Amy.

On the latter date the two offenders made contact with Mr Amy at the Lanyon Marketplace. Mr Amy, owed the offenders $75 in relation to a drug debt. He was a day late in complying with his repayment schedule.

After some discussion the offenders instructed Mr Amy to sit in the rear seat of the Suzuki. The offenders demanded Mr Amy to give them his mobile phone and password. The phone was grabbed from Mr Amy and after some persuasion he disclosed the password.

The offenders examined the phone and discovered that Mr Amy had…

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.

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Details

Case: [2021] ACTSC 284
Decision Date

CaseChat Overview and Summary

Jake Blackburn and QH pleaded guilty to forcible confinement and QH pleaded guilty to assaulting a frontline community service provider. Blackburn also pleaded guilty to dishonestly driving a stolen motor vehicle. The maximum penalty for each offence was 10 years imprisonment, two years imprisonment, and five years imprisonment, respectively. The offenders were on conditional liberty when the offending occurred. The court assessed the objective seriousness of the offence of forcible confinement, considering factors such as the length of confinement, the way it was effected, the conditions under which the victim was confined, and the injuries inflicted. The court found that the confinement was not pre-planned and arose from a drug deal that went wrong. The court also considered the subjective features of the offenders, including their backgrounds, mental health, and potential for rehabilitation. The court decided to impose a discount for the pleas of guilty and to consider public deterrence. The court sentenced Blackburn to 32 months imprisonment for forcible confinement, 3 months imprisonment for driving a stolen motor vehicle, and 3 months imprisonment for assaulting a frontline community service provider. QH was sentenced to 2 years imprisonment for breach of the Good Behaviour Orders arising from the suspended sentence imposed in a previous matter, 12 months imprisonment for forcible confinement, and 3 months imprisonment for assaulting a frontline community service provider. The court set a non-parole period for the offence of forcible confinement of six months for QH.

The final orders of the court were that Blackburn is sentenced to 32 months imprisonment for forcible confinement, 3 months imprisonment for driving a stolen motor vehicle, and 3 months imprisonment for assaulting a frontline community service provider. QH is sentenced to 2 years imprisonment for breach of the Good Behaviour Orders, 12 months imprisonment for forcible confinement, and 3 months imprisonment for assaulting a frontline community service provider. The previous non-parole period set to expire on 18 March 2022 is set aside, and a new non-parole period is set to expire on 13 February 2024. A non-parole period for the offence of forcible confinement of six months is set to commence on 25 April 2023 and end on 24 October 2023.

Orders