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R v Butkovic; R v Kaddour

R v Butkovic; R v Kaddour

Case [2019] ACTSC 398 21 November 2019

Breach of Contract

Specific Performance

Admissibility of Evidence

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Butkovic; R v Kaddour
Citation:	[2019] ACTSC 398
Hearing Date(s):	21 November 2019
Decision Date:	21 November 2019
Before:	Loukas-Karlsson J
Decision:	See [54]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – two offenders – Common assault – possession of offensive weapon with intent – good behaviour orders imposed
Legislation Cited:	Crimes Act 1900 (ACT) ss 26, 381 Crimes (Sentencing Procedure) Act 1999 (NSW) s 22 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7 10, 11, 12, 13, 33, 35
Cases Cited:	Ashdown v The Queen [2011] VSCA 408; 37 VR 341 Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Hili v the Queen [2010] HCA 45; 242 CLR 520 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80
O’Brien v The Queen [2015] ACTCA 47
R v Hill [2016] ACTSC 310 R v Meyboom [2012] ACTCA 48 R v Pham [2015] HCA 39; 256 CLR 550 R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 R v Tran [1999] NSWCCA 109 R v Vance [2008] VSC 468 Thompson v The Queen [2018] ACTCA 2 Zdravkovic v The Queen [2016] ACTCA 53
Parties:	The Queen (Crown)
Kyle Joseph Butkovic (Offender) Ibrahim Kaddour (Offender)
Representation:	Counsel
A Williamson (Crown) B Morrisroe (Offender)
T Jackson (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown)
Sharman Robertson (Offender) United Legal (Offender)
File Number(s):	SCC 98 of 2019; SCC 99 of 2019; SCC 101 of 2019; SCC 102 of 2019
Loukas-Karlsson J
Introduction

1. The offender Kyle Butkovic has pleaded guilty to:

(a) One count of common assault (SCAN2019/3832), contrary to s 26 of the Crimes Act 1900 (ACT) (Crimes Act), the maximum penalty for which is two years' imprisonment.
(b) A transferred offence of possession of an offensive weapon with intent, (CC18/14831), contrary to s 381 of the Crimes Act, the maximum penalty for which is a fine of $2000, one year of imprisonment, or both.
2. The offender Ibrahim Kaddour pleaded guilty to:

(a)

One count of common assault (SCAN2019/3833) contrary to s 26 of the Crimes Act, the maximum penalty for which is two years' imprisonment.

(b)

A transferred offence of possession of an offensive weapon with intent (CC18/14829) contrary to s 381 of the Crimes Act, the maximum penalty for which is a fine of $2,000, one year of imprisonment, or both.

Agreed Facts

3.       The agreed facts are as follows.
4.       At about 1 am on 5 November 2019 the two offenders and Javarne Saipani attended Unit 28/20 Oliver Street, Lyneham in the ACT in order to see Mr James Lynch.
5.       Upon arrival, both offenders and Mr Saipani entered…

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 Butkovic; R v Kaddour

Details

AGLC: R v Butkovic; R v Kaddour [2019] ACTSC 398
Case: [2019] ACTSC 398
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the Crown prosecuted Kyle Joseph Butkovic and Ibrahim Kaddour for their involvement in an altercation at a residence in Lyneham. The charges against both offenders included common assault and possession of an offensive weapon with intent. The legal issues before the court were the objective seriousness of the offences, the subjective circumstances of the offenders, the breach of conditional liberty by one offender, and the appropriate sentence considering the statutory and other relevant considerations.

The court found that the offences, though in the low to mid-range of objective seriousness, were aggravated by the residential setting and the use of offensive weapons. The subjective circumstances of the offenders were considered, noting their criminal histories, age, employment, and family support. Both offenders had pleaded guilty, and the court applied the relevant discounts to their sentences. Additionally, the court acknowledged the breach of conditional liberty by one offender as an aggravating factor. The sentencing purposes, including punishment, deterrence, and rehabilitation, were weighed alongside the maximum penalties and the need for individualised justice. The court concluded that good behaviour orders were appropriate, reflecting the criminality of the offences and the prospects for rehabilitation.

The court sentenced Butkovic to a good behaviour order for 18 months for each offence, and Kaddour to a good behaviour order for 24 months for each offence. The orders were made to commence on 21 November 2019, with the durations ending on 20 May 2021 for Butkovic and 20 November 2021 for Kaddour. The court also recorded convictions for both offenders.

Orders