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R v Cajina

R v Cajina

Case [2021] ACTSC 353 9 November 2021

Jurisdiction

Threatening to Inflict Grievous Bodily Harm

Damage to Property

Possessing a Knife Without Reasonable Excuse

Possessing a Weapon with Intent

Type to search within this case.

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Cajina
Citation:	[2021] ACTSC 353
Hearing Date:	5 November 2021
DecisionDate:	9 November 2021
Before:	Refshauge AJ
Decision:	1. Jairo Saul Cajina be convicted of threatening to inflict grievous bodily harm and sentenced to six months imprisonment, to commence on 2 August 2021. 2. Jairo Saul Cajina be convicted of damaging property and sentenced to two months imprisonment, to commence on 2 January 2022. 3. Jairo Saul Cajina be convicted of possessing a knife without reasonable excuse and sentenced to three months imprisonment, to commence on 2 January 2022. 4. Jairo Saul Cajina be convicted of possessing a weapon with intent and sentenced to three months imprisonment, to commence on 2 February 2022. 5. The sentence of imprisonment be suspended from 9 November 2021 for 18 months. 6. Jairo Saul Cajina be required to sign an undertaking to comply with the offender’s Good Behaviour Obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for 18 months, from 9 November 2021 until 8 May 2023, with the following conditions: a. A probation condition that Jairo Saul Cajina be under the supervision of the Commissioner of ACT Corrective Services or his delegate for the period of the Order, or such lesser period that the person supervising him considers appropriate, and that he obey all reasonable directions of the person supervising him; b. That Jairo Saul Cajina seek residential drug rehabilitation and, if suitable and able to complete it with his partner, admit himself to the program and complete it, but if none is suitable or will not also admit his partner, he engage in other treatment or counselling programs for drug dependency as directed by the person supervising him; c. That Jairo Saul Cajina engage with a psychologist in counselling for his mental health as directed by the person supervising him; d. That Jairo Saul Cajina appear in Court on 21 January 2022 at 2:30pm, including, if he is in residential drug rehabilitation, by electronic means, to report on the progress of his drug rehabilitation and psychological counselling. 7. Jairo Saul Cajina is directed to attend the Registry before he leaves the Court premises today to sign the Good Behaviour Order. 8. The Commissioner of ACT Corrective Services is requested to provide a report on the progress of on Jairo Saul Cajina under the Good Behaviour Order to the Court on 21 January 2022.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – threatening to inflict grievous bodily harm – damaging property – possessing a knife without reasonable excuse – possessing a weapon with intent – rehabilitation – imprisonment – Good Behaviour Order
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 12A, 33, 35, 46C, 46J Crimes (Sentence Administration) Act 2005 (ACT) s 85 Crimes Act 1900 (ACT) ss 31, 381, 382 Crimes Act 1900 (ACT), as amended by Crimes (Amendment) Act (No 2) 1993 (ACT), s 429 Criminal…

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 Cajina

Details

AGLC: R v Cajina [2021] ACTSC 353
Case: [2021] ACTSC 353
Decision Date: 9 November 2021

CaseChat Overview and Summary

In the case of R v Cajina, the defendant, Jairo Saul Cajina, faced charges of threatening to inflict grievous bodily harm, damaging property, possessing a knife without reasonable excuse, and possessing a weapon with intent. The trial was held in the ACT Magistrates Court. Cajina was found guilty of all charges and was sentenced to imprisonment with certain conditions and requirements attached.

The court had to decide on the appropriate sentences for each offence and whether the sentences should run concurrently or consecutively. Additionally, the court had to consider the rehabilitation needs of the defendant and how best to address his drug dependency and mental health issues. The court also needed to determine the suitability of a suspended sentence and the imposition of a Good Behaviour Order.

The court determined that Cajina should be sentenced to six months imprisonment for threatening to inflict grievous bodily harm, two months imprisonment for damaging property, three months imprisonment for possessing a knife without reasonable excuse, and three months imprisonment for possessing a weapon with intent. The sentences for the latter three offences were to run concurrently, starting on 2 January 2022. The sentence for threatening to inflict grievous bodily harm was to commence on 2 August 2021. The court suspended the sentence of imprisonment from 9 November 2021 for 18 months. Cajina was required to comply with a Good Behaviour Order, including drug rehabilitation, psychological counselling, and regular reporting to the court and the Commissioner of ACT Corrective Services.

The court issued several orders, including convictions for each offence, sentences of imprisonment with specified commencement dates, suspension of the sentence, imposition of a Good Behaviour Order, and directions for Cajina to sign the order and for the Commissioner to provide a progress report.

Orders

Orders of the court

1. Jairo Saul Cajina be convicted of threatening to inflict grievous bodily harm and sentenced to six months imprisonment, to commence on 2 August 2021.

2. Jairo Saul Cajina be convicted of damaging property and sentenced to two months imprisonment, to commence on 2 January 2022.

3. Jairo Saul Cajina be convicted of possessing a knife without reasonable excuse and sentenced to three months imprisonment, to commence on 2 January 2022.

4. Jairo Saul Cajina be convicted of possessing a weapon with intent and sentenced to three months imprisonment, to commence on 2 February 2022.

5. The sentence of imprisonment be suspended from 9 November 2021 for 18 months.

6. Jairo Saul Cajina be required to sign an undertaking to comply with the offender’s Good Behaviour Obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for 18 months, from 9 November 2021 until 8 May 2023, with the following conditions:

a. A probation condition that Jairo Saul Cajina be under the supervision of the Commissioner of ACT Corrective Services or his delegate for the period of the Order, or such lesser period that the person supervising him considers appropriate, and that he obey all reasonable directions of the person supervising him;

b. That Jairo Saul Cajina seek residential drug rehabilitation and, if suitable and able to complete it with his partner, admit himself to the program and complete it, but if none is suitable or will not also admit his partner, he engage in other treatment or counselling programs for drug dependency as directed by the person supervising him;

c. That Jairo Saul Cajina engage with a psychologist in counselling for his mental health as directed by the person supervising him;

d. That Jairo Saul Cajina appear in Court on 21 January 2022 at 2:30pm, including, if he is in residential drug rehabilitation, by electronic means, to report on the progress of his drug rehabilitation and psychological counselling.

7. Jairo Saul Cajina is directed to attend the Registry before he leaves the Court premises today to sign the Good Behaviour Order.

8. The Commissioner of ACT Corrective Services is requested to provide a report on the progress of on Jairo Saul Cajina under the Good Behaviour Order to the Court on 21 January 2022.

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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Citations

AGLC Citation

R v Cajina [2021] ACTSC 353

Most Recent Citation

R v Green [2021] ACTSC 356

Cases citing this decision · 5 of 5 shown

Director of Public Prosecutions v Ziebell
[2025] ACTSC 471 Para 1

…Refshauge AJ observed in R v Cajina [2021] ACTSC 353, an assessment of this offence calls for a range of factors such as the manner in which the threat was made, for example if it was made in the victim’s presence in circumstances where it could be easily realised. The presence of a weapon and premeditation or plan…
DPP v Chen
[2023] ACTSC 154 Para 1

…For the present offence, the parties helpfully pointed to R v Cajina [2021] ACTSC 353 where Refshauge AJ outlined the following features that may aggravate the offence of threatening to inflict grievous bodily harm at [34]:…
R v West
[2023] ACTSC 412 Para 2

…A period of time in custody as a sentenced prisoner does not count as time for the pre-sentence custody that is to be taken into account: R v Cajina [2021] ACTSC 353 at [111]. Accordingly, a period of 426 days will need to be taken into account as pre-sentence custody when Mr West is sentenced.…
R v Cajina (No 2)
[2022] ACTSC 383

…en (1978) 20 ALR 1 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 Wyper v The Queen [2017] ACTCA 59 R v Cajina [2021] ACTSC 353 R v Connors (No 2) [2022] ACTSC 384 Guy v Anderson [2013] ACTSC 5 Saga v Reid and Collett [2010] ACTSC 59 Director of Public Prosecutions (New South…
R v Green
[2021] ACTSC 356

…28; 13 ACTLR 168 O'Brien v The Queen [2015] ACTCA 47 R v Bessant [2020] ACTSC 365 R v Blundell [2019] ACTCA 34 R v Bramley [2015] ACTSC 51 R v Cajina [2021] ACTSC 353 R v Conomos [2019] ACTSC 183 R v Di Bitonto [2016] ACTSC 280 R v French [2020] ACTSC 133 R v Hyde [2020] ACTSC 301 R v Keir [2017] ACTSC 131 R v Kell…

View all 5 citing cases →

Cases cited in this decision · 28 of 28 shown

R v Foster
[2021] ACTSC 229 Para 1

…As pointed out in R v Foster [2021] ACTSC 229 at [1], there are a number of factors which can cause people to commit crimes.…
R v McHughes
[2021] ACTSC 92 Para 1

…ion when incarcerated. It also reported the Forensic Mental Health Services initial screening (Eligibility Assessment, as to which see R v McHughes [2021] ACTSC 92 at [6]) stated that he “did not present with symptoms of acute or pervasive symptoms of major mental illness… that would prevent him from participating…
Hudson v The Queen
[2020] ACTCA 46 Para 1

…CTSC 333 at [27]), or where the threat is to inflict the harm with a firearm and where the threat is made in the victim’s home ( Hudson v The Queen [2020] ACTCA 46 at [36]). Clearly, the actual presence of a weapon is an aggravating feature, as is premeditation or planning.…
R v McHenry
[2020] ACTSC 254 Para 1

…In R v McHenry [2020] ACTSC 254, Mr McHenry telephoned the victim, telling her that he would “gut her like a pig”’ and then went to her residence, where she was alone and vulnerable, firmly held a knife to her neck and threatened, again, to “gut her like a pig”. He had a “not insubstantial” criminal history, though…
R v Hudson
[2019] ACTSC 110 Para 1

…In R v Hudson [2019] ACTSC 110, Mr Hudson, who was 26 years old, was convicted of 11 offences, including of threatening to inflict grievous bodily harm. Mr Hudson committed the offence while subject to a Good Behaviour Order, which the offending breached. Mr Hudson made a threat by telephone to a man, accompanied b…
R v Summerfield
[2018] ACTCA 20 Para 1

…ce. See Director of Public Prosecutions (Vic) v O’Neill [2015] VSCA 325; 47 VR 395 at 414–5; [74], adopted in this territory in R v Summerfield [2018] ACTCA 20; 273 A Crim R 45 at 74; [91].…
R v Blundell
[2017] ACTSC 128 Para 1

…he actual use of the weapon, the axe, on the house, though, would have been frightening to the occupants and was an aggravating feature: R v Blundell [2017] ACTSC 128 at [24].…
R v Carmody
[2016] ACTSC 382 Para 1

…er by diminution in value of the damaged item or its repair. The circumstances under which the offence is committed is also relevant: see R v Carmody [2016] ACTSC 382 at [69]-[70].…
Law v Ilievski
[2016] ACTSC 291 Para 1

…jina to use it and there is no evidence on which it can be found that he intended to do so, especially as he had the axe with him. See Law v Ilievski [2016] ACTSC 291 at [125].…
Dzundza v Calatzis
[2016] ACTSC 171 Para 1

…enalty of one years imprisonment, a fine of $2,000 or both. The nature and circumstances of the possession needs to be considered: Dzundza v Calatzis [2016] ACTSC 171 at [19].…
R v Saulala
[2016] ACTSC 48 Para 1

…In R v Saulala; R v Saulala [2016] ACTSC 48, the two offenders, who were brothers, were at a nightclub when an altercation arose, apparently when the victim was bumped by one of the offenders on the dance floor. A fight then continued, with the victim escalating it. Security guards moved those involved outside, bu…
Cajina v Narsey
[2016] ACTSC 10 Para 1

…. As noted in R v Griggs [1999] ACTSC 22 at [41], a knife is “always ‘loaded’”. A knife represents a threat to public safety: Cajina v Narsey [2016] ACTSC 10 at [15].…
DPP v O'Neill
[2015] VSCA 325 Para 1

…h issue and the offender’s moral culpability and the need for general or specific deterrence. See Director of Public Prosecutions (Vic) v O’Neill [2015] VSCA 325; 47 VR 395 at 414–5; [74], adopted in this territory in R v Summerfield [2018] ACTCA 20; 273 A Crim R 45 at 74; [91].…
R v Pham
[2015] HCA 39 Para 1

…sentencing appeals is also relevant and this can be identified from comparable sentences which can be considered. As the High Court said in R v Pham [2015] HCA 39; 256 CLR 550 at 560; [29], comparable cases “illustrate (although not define) the possible range of sentences available”.…
R v Wilkins
[2015] ACTSC 145 Para 1

…or vehicle without the owner’s consent, making a false statement in a statutory declaration and assault occasioning actual bodily harm: R v Wilkins [2015] ACTSC 145 at [8].…
Kentwell v R (No 2)
[2015] NSWCCA 96 Para 1

…mployment, lack of access to services, mental illness and intellectual disability, can all lead to the same consequences: Kentwell v The Queen (No 2) [2015] NSWCCA 96 at [89]-[93]. In addition, trauma can be a potent factor involved, as the evidence shows in this case, and, may be surmised to be, civil disorder and…
R v JM
[2014] ACTSC 380 Para 1

…agga, but not for long enough in any of them to gain much benefit. He has competed the Solaris Therapeutic Community Program (as to which, see R v JM [2014] ACTSC 380 at [26]) in 2013-14 while in custody. He did not graduate formally because he was found to have used illicit drugs before doing so, an indication of…
R v Catanzariti
[2014] ACTSC 333 Para 1

…, such as when standing directly in front of or over the victim, where the threat can easily be actually carried out then and there ( R v Catanzariti [2014] ACTSC 333 at [27]), or where the threat is to inflict the harm with a firearm and where the threat is made in the victim’s home ( Hudson v The Queen [2020] ACT…
Walmsley v The Queen
[2014] ACTCA 24 Para 1

…VR 269 at 276; [32], following a consideration of a number of other cases. The approach has been adopted in this jurisdiction: Walmsley v The Queen [2014] ACTCA 24; 253 A Crim R 441 at 448–9; [40].…
Bugmy v The Queen
[2013] HCA 37 Para 1

…by circumstances or from the family or social situation in which the offenders have found themselves. As noted by the High Court in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at 594-5; [43], “a background of that kind may compromise the person’s capacity to mature and to learn from experience”. The background…
R v Shevlin
[2013] ACTSC 88 Para 1

…arm means really serious injury, usually something in the nature of damage to the structure of the body more than the experience of pain: R v Shevlin [2013] ACTSC 88 at [30]-[31].…
Auld v The Queen
[2013] ACTCA 21 Para 1

…owever, is that Mr Cajina was on bail at the time of the commission of these offences. That requires the sentence to be more severe: Auld v The Queen [2013] ACTCA 21 at [9]. That the conditional liberty was by way of bail still breaches the trust permitted to an offender to be in the community and not in custody:…
Fusimalohi v The Queen
[2012] ACTCA 49 Para 1

…Mr Cajina has taken responsibility for his offending behaviour, and his expressions of remorse, a matter described in Fusimalohi v The Queen [2012] ACTCA 49 at [28]-[34], were significant, though without much reference to the victims or empathy for them nor addressing their situation. Mr Cajina’s wish to engage in…
Grooms v Toohey
[2012] ACTSC 28 Para 1

…nditional liberty was by way of bail still breaches the trust permitted to an offender to be in the community and not in custody: see Grooms v Toohey [2012] ACTSC 28; 7 ACTLR 1 at 13; [59].…
R v Verdins
[2007] VSCA 102 Para 1

…r Cajina’s Post-Traumatic Stress Disorder is relevant in accordance with the principles articulated by the Victorian Court of Appeal in R v Verdins [2007] VSCA 102; 16 VR 269 at 276; [32], following a consideration of a number of other cases. The approach has been adopted in this jurisdiction: Walmsley v The Queen…
Stafford v The Queen
[1998] HCATrans 112 Para 1

…The Full Court of the Federal Court of Australia, then the appellate Court from this Court, gave, in Stafford v The Queen (1997) 79 FCR 1 at 13–16, an interpretation of then s 429 of the Crimes Act as amended by the Crimes (Amendment) Act (No 2) 1993 (ACT) which accorded a primacy to punishment. The significant di…
Veen v The Queen (No 2)
[1988] HCA 14 Para 1

…ly considering the references in the Explanatory Statement to the Crimes (Sentencing) Bill 2005 to the following passage in Veen v The Queen (No 2) (1988) 164 CLR 465 at 476:…
DPP v O’Neill
[2015] VSCA 32554 Para 1

…ffender’s moral culpability and the need for general or specific deterrence. See Director of Public Prosecutions (Vic) v O’Neill [2015] VSCA 325; 47 VR 395 at 414–5; [74], adopted in this territory in R v Summerfield [2018] ACTCA 20; 273 A Crim R 45 at 74; [91].…

Legislation cited in this decision · 4

Crimes (Sentencing) Act 2005 (ACT)
10, 12A, 33, 35, 46C, 46J, 7 8 mentions (from Para 1)
Crimes Act 1900 (ACT)
31, 381, 382 4 mentions (from Para 1)
Crimes (Sentence Administration) Act 2005 (ACT)
85 2 mentions
Magistrates Court Act 1930 (ACT)
90B 2 mentions (from Para 1)