R v Carpenter (No 2) - [2021] ACTSC 22

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Carpenter (No 2)
Citation:	[2021] ACTSC 22
Hearing Date:	3 February 2021
Decision Date:	3 February 2021
Before:	Burns J
Decision:	See [10]–[12]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Re-sentence – breach of Good Behaviour Order – consideration of continuing
steps to rehabilitation
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT)
Parties:	The Queen (Crown) Kylie Ann Carpenter (Offender)
Representation:	Counsel
C Muthurajah (Crown)
T Tu’ulakitau (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown)
Tu’ulakitau McGuire (Offender)
File Number:	SCC 42 of 2018
BURNS J:

1.       Kylie Carpenter, on 31 October 2018 you appeared before me to be sentenced with regard to an offence of aggravated robbery (CC2017/10656) which occurred on 21 September 2017. At that time, I imposed a sentence of 16 months' imprisonment, of which approximately seven months was suspended.
2.       The suspended part of the sentence was for a period of seven months from 31 October 2018, and the suspension was accompanied by a Good Behaviour Order from 31 October 2018 to 30 October 2020.
3.       Subsequently, in the ACT Magistrates Court on 24 August 2020, you were sentenced with regard to two series of offences. The first series occurred on 26 April 2019, when you committed an offence of theft (CAN2020/375) and an offence of driving whilst disqualified (CAN2019/5005).
4.       The second series occurred on 15 August 2019, when you committed an offence of attempting to obtain property by deception (CAN 2020/6802) and an offence of driving whilst disqualified (CAN 2019/9171).
5.       On 24 August 2020, you were sentenced in the ACT Magistrates Court to terms of imprisonment effectively amounting to seven months' imprisonment with an order that you were to be released after serving three months and six days and with a Good Behaviour Order for a period of two years, commencing on 24 August 2020. There were conditions attached to the Good Behaviour Order imposed, which are clearly directed towards assisting you in your rehabilitation.
6.       It is, of course, a matter of great concern that, having been sentenced on 31 October 2018 for a particularly serious offence, you have breached the sentence imposed with regard to that offence in the way in which you have. I do, however, take into account the evidence which has been placed before me regarding the continuing steps that you are taking to try to rehabilitate yourself from drug addiction and also to deal with mental health issues and also parenting issues.

Subjective Circumstances

7. I acknowledge that you have three children who are currently residing with you and who are dependent upon you. You have stable accommodation. You have a partner who is in full-time employment, and it appears that you have made progress since you appeared before me in October 2018, although it may appear that it is a case of two steps forward and one step back.
8. I note that the Crown does not oppose me…

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 Carpenter (No 2)

Details

AGLC: R v Carpenter (No 2) [2021] ACTSC 22
Case: [2021] ACTSC 22
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the case of R v Carpenter (No 2) was heard by Justice Burns on 3 February 2021. Kylie Ann Carpenter, the respondent, was being sentenced for an offence of aggravated robbery committed on 21 September 2017. This case involved the reconsideration of a previously imposed sentence and the imposition of a new sentence due to a breach of a Good Behaviour Order. The legal issues before the court included the appropriate response to the respondent's breach of the original sentence, the factors that should be considered in re-sentencing, and the imposition of a new sentence that balances the need for punishment with the respondent's ongoing efforts towards rehabilitation.

Justice Burns considered the respondent's history of offending, her efforts to rehabilitate herself from drug addiction, mental health issues, and her responsibilities as a parent. The court noted the Crown's non-opposition to re-sentencing and the statutory obligation to cancel a suspended sentence order in the event of a proven breach. The court concluded that while the respondent's previous offending was serious, the steps she was taking to rehabilitate herself and her responsibilities as a parent warranted a re-sentencing approach that included a further suspended sentence. The new sentence imposed was seven months' imprisonment, suspended for 12 months, with a Good Behaviour Order requiring the respondent to accept supervision, undertake counselling or treatment, and submit to urinalysis as directed by the Director-General.

The court's decision reflects a balanced approach that takes into account both the need for punishment and the respondent's efforts towards rehabilitation. By imposing a further suspended sentence with specific conditions for rehabilitation, the court aims to support the respondent in addressing the underlying issues that contributed to her offending behaviour. The final orders include the cancellation of the original suspended sentence order and the imposition of a new sentence with a Good Behaviour Order that aligns with the respondent's ongoing rehabilitation efforts.

Orders