R v Carberry - [2018] ACTSC 341

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Carberry
Citation:	[2018] ACTSC 341
Hearing Date:	13 September 2018
DecisionDate:	2 October 2018
Before:	Burns J
Decision:	See [30]-[36]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – making a demand accompanied by threats – minor theft – three offences of common assault – objective seriousness – psychiatric diagnoses relevant to mental functioning – number of ways in which impaired mental functioning at the time of offending may reduce an offender’s moral culpability – moral culpability for these offences is somewhat reduced – demonstrated remorse – therapeutic community program – literacy program – pleas of guilty – terms of imprisonment imposed – encouraging circumstances – non parole period – recommendation to Sentence Administration Board
Legislation Cited:	Crimes Act 1900 (ACT) ss 26, 32(2) Criminal Code 2002 (ACT) s 321
Cases Cited:	The Queen v Verdins [2007] VSCA 102; 16 VR 269
Parties:	The Queen (Crown) Robert Michael Carberry (Offender)
Representation:	Counsel Mr P Dixon (Crown) Mr R Cavanagh (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Numbers:	SCC 299 of 2017; SCC 300 of 2017

BURNS J:

Robert Carberry, you appear before me today to be sentenced with respect to one offence of making a demand accompanied by threats, three offences of assault and one offence of minor theft. The maximum penalty for the offence of making a demand accompanied by threats, contrary to s 32(2) of the Crimes Act 1900 (ACT) (Crimes Act) is 10 years’ imprisonment. The maximum penalty for the offence of assault contrary to s 26 of the Crimes Act is two years’ imprisonment.

The maximum penalty for the offence of minor theft, contrary to s 321 of the Criminal Code 2002 (ACT) is six months’ imprisonment, a fine of 50 penalty units or both. The charges of common assault and minor theft were transferred to this Court from the Magistrates Court, as charges related to the indictable charges on which you were committed for trial. For convenience, I will refer to the transferred charges by reference to their Magistrates Court numbers.

All of these offences occurred on 11 May 2017. The victim was your former partner MD. On 11 May 2017, she was living at an address in Kingston. At about 9.30 pm that day, she was having a shower at her residence, when she heard movement in the kitchen, and got out of the shower. She went to the kitchen. She saw you. You had used a spare key which you possessed, to enter via the back door. You approached her and demanded that she pay you $50 which you said she owed you. She responded that she did not have the money. You then pulled MD to the ground and climbed on top of her. That is the basis of the first charge of assault, charge number CC2017/5434.

You then produced a long silver square-bladed knife and held…

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 Carberry

Details

AGLC: R v Carberry [2018] ACTSC 341
Case: [2018] ACTSC 341
Decision Date: 2 October 2018

CaseChat Overview and Summary

The appellant, Carberry, was convicted for three counts of common assault and one count of making a demand accompanied by threats. The sentencing appeal was heard in the Supreme Court of Queensland. The central issue for the court was to determine the appropriate sentence for the appellant, considering the nature of the offences, his mental health conditions, and the mitigating factors.

The court examined the objective seriousness of the offences, which included making a demand with threats and three instances of common assault. The appellant had a history of psychiatric diagnoses, which were relevant to his mental functioning at the time of the offences. These conditions were considered in assessing the appellant's moral culpability, which the court found to be somewhat reduced due to his impaired mental state. The court also took into account the appellant's demonstrated remorse, his participation in a therapeutic community program, and his enrolment in a literacy program as mitigating factors. The appellant had pleaded guilty to all charges, which also influenced the sentencing.

The court concluded that, while the offences were serious, the encouraging circumstances and the appellant's efforts towards rehabilitation warranted a sentence that balanced punishment with the opportunity for rehabilitation. The court imposed terms of imprisonment with specific non-parole periods, noting that the appellant had shown remorse and had taken steps to address his mental health and educational needs. The court recommended that the Sentence Administration Board consider these factors in their review of the sentence. The specific details of the terms of imprisonment and the non-parole periods are outlined in the court's orders from paragraphs [30] to [36].

Orders

Orders of the court

See [30]-[36]

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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