R v Brown - [2017] ACTSC 284

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Brown
Citation:	[2017] ACTSC 284
Hearing Dates:	25 July; 1 September 2017
DecisionDate:	20 September 2017
Before:	Penfold ACJ
Decision:	See [48] to [53] below.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – damage property – arson – whether offences premeditated – offence committed out of anger after parole revoked – delay in dealing with offences caused largely by offender absconding to Queensland – some delay caused by authorities – danger created by arson requires general deterrence – punishment may not have useful deterrent effect on offender but deterrent element nevertheless appropriate – family responsibilities not a get-out-of-gaol-free card – offender diagnosed with Intermittent Explosive Disorder and Anti-Social Personality with psychotic traits – no clear plans for offender’s further rehabilitation.
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT), s 149 Crimes (Sentencing) Act 2005 (ACT), ss 63, 71, 72 Criminal Code 2002 (ACT), ss 403(1), 404(1) Magistrates Court Act 1930 (ACT), s 90B Supreme Court Act 1933 (ACT), ss 68D, 68D(2)
Cases Cited:	Hanel v Shoemark [2011] ACTCA 16 R v Brymer [2016] ACTSC 194 R v DM (No 2) [2016] ACTSC 385 R v Eluga [2016] ACTSC 304 R v Hart [2016] ACTSC 16 R v Raeyers [2014] ACTSC 134 R v Wrigley [2015] ACTSC 114 Wronski v Raue [2012] ACTSC 87
Parties:	The Queen (Crown) Rhys Liam Brown (Offender)
Representation:	Counsel Ms R Khazma (Crown) Mr R Davies (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Numbers:	SCC 260 of 2016; SCC 261 of 2016; SCC 244 of 2017

The offences

Rhys Brown has pleaded guilty to three offences, as follows:

(a)one offence of damaging property, arising under s 403(1) of the Criminal Code 2002 (ACT) and carrying a maximum penalty including 10 years imprisonment; and
(b)two offences of arson, arising under s 404(1) of the Criminal Code and carrying a maximum penalty including imprisonment for 15 years.

A further offence of obstructing a Territory public official was transferred to this Court under s 90B of the Magistrates Court Act 1930 (ACT) and s 68D of the Supreme Court Act 1933 (ACT) for sentencing, and for the purpose of s 68D(2) of the Supreme Court Act, I note that it would have been in the interests of justice to deal with that offence in these proceedings. However, before me, the Crown indicated that it had no evidence to offer, and accordingly I dismiss that charge.

Parole history

Mr Brown was last released on parole on 21 June 2017; his parole period currently expires on 11 January 2018. That parole relates to a sentence of 3 years and 7 months imprisonment for attempted aggravated robbery and two offences of damaging Commonwealth property, imposed on 19 September 2010 and originally to be served from 9 June 2010 until 8 January 2014, and also to a sentence imposed earlier this year for an offence committed in…

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 Brown

Details

AGLC: R v Brown [2017] ACTSC 284
Case: [2017] ACTSC 284
Decision Date: 20 September 2017

CaseChat Overview and Summary

In this case, the respondent, Brown, was found guilty of committing several offences, including arson, damaging property, and possessing a knife in a public place. The case was heard in the court of appeal, which was tasked with reviewing the sentence imposed by the trial judge. The appeal centred on whether the trial judge had erred in his assessment of the appropriate sentence for the respondent.

The court was required to determine whether the trial judge had adequately considered the factors relevant to sentencing, including the nature and circumstances of the offences, the respondent’s history and character, and the need for general deterrence. The court also needed to assess whether the trial judge had appropriately balanced the respondent’s family responsibilities and mental health issues against the need for punishment and deterrence.

The court found that the trial judge had adequately considered the relevant factors and that the sentence imposed was appropriate. The court held that the offences were serious and required general deterrence, and that the delay in dealing with the offences had been caused largely by the respondent’s actions. The court also found that the respondent’s family responsibilities and mental health issues were relevant to sentencing but did not outweigh the need for punishment and deterrence. The court held that the sentence imposed was an appropriate balance between these considerations. The appeal was therefore dismissed.

The court ordered that the appeal be dismissed and that the sentence imposed by the trial judge be upheld. The court also ordered that the respondent be released on parole after serving a non-parole period of three years and six months. The court noted that the respondent had been diagnosed with Intermittent Explosive Disorder and Anti-Social Personality with psychotic traits and that there were no clear plans for his further rehabilitation. However, the court held that this did not excuse his offending behaviour and that the sentence imposed was an appropriate response to his crimes.

Orders

Orders of the court

See [48] to [53] 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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