R v CN; R v SN; R v Rix - [2019] ACTSC 293

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v CN; R v SN; R v Rix
Citation:	[2019] ACTSC 293
Hearing Dates:	17 July and 10 October 2019
DecisionDate:	17 July and 10 October 2019
Before:	Murrell CJ
Decision:	See [101]–[111]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated burglary – Guilty verdict – Parity between co-offenders – Youth and rehabilitation are relevant sentencing considerations
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 12, 33, 35 Criminal Code 2002 (ACT) s 312
Cases Cited:	R v Jagjit Singh (Unreported, Supreme Court of the ACT, Nield AJ, 3 July 2012) R v Jones; R v AI [2015] ACTSC 264 R v Keir [2016] ACTSC 266 R v McKenna [2014] ACTSC 219; R v McKenna [2015] ACTSC 253 R v Salcedo; R v Stretton (No 3) [2018] ACTSC 305 R v Ruby Schrattenholz [2017] ACTSC 416 R v Schrattenholz [2017] ACTSC 247
Parties:	The Queen (Crown) CN (Offender) SN (Offender) Rosemary May Rix (Offender)
Representation:	Counsel C Muthurajah (Crown) M Hassel (Offender CN) J De Bruin (Offender SN) J Sabharwal (Offender Rix)
Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service (Offender CN) Legal Aid ACT (Offender SN) Sharman Robertson (Offender Rix)
File Numbers:	SCC 95 of 2018; SCC 98 of 2018; SCC 213 of 2018; SCC 214 of 2018

Murrell CJ

Introduction

On 18 April 2019, a jury found that the offenders CN, SN and Rosemary Rix were guilty of the offence of aggravated burglary in that, on 12 February 2018 at Canberra, they had entered a house at Griffith as trespassers with intent to commit an offence that involved causing harm or threatening to cause harm to a person in the building, and at the time they had been in the company of each other.

Pursuant to s 312 of the Criminal Code 2002 (ACT) (Criminal Code), the maximum penalty for aggravated burglary is 20 years' imprisonment and/or a substantial fine.

In relation to CN, a transferred charge of possessing an offensive weapon with intent to use it to commit an offence involving actual or threatened violence was withdrawn and is dismissed.

In relation to Ms Rix, in addition to the principal offence, I am asked to deal with a breach of good behaviour order associated with a partly suspended sentence.

On 18 April 2019, CN and Ms Rix were refused bail. On the same day, SN was granted bail and I ordered that she be assessed for an intensive correction order.

Facts

A few days prior to the offence, there was an altercation involving CN and LK, a victim of the offence. During the altercation, CN's jaw was injured. As a consequence, she was hospitalised.

Soon after CN was discharged from hospital, she suggested to Ms Rix (a close friend) and SN (CN’s younger sister) that they “go for a drive to see if [LK and her partner NB] are there”, i.e. were…

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.

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Details

Case: [2019] ACTSC 293
Decision Date: 10 October 2019

CaseChat Overview and Summary

The defendants, CN, SN, and Rix, were convicted of aggravated burglary and brought their appeals to the High Court. They argued that the sentences imposed on them were excessive and not in parity with each other. The legal issues before the court were whether the sentences were appropriate in light of the crime committed and whether the considerations of youth and rehabilitation were adequately addressed. The defendants contended that the trial judge did not sufficiently consider their youth and potential for rehabilitation, and that the disparity in their sentences was unjust.

The court examined the sentencing principles applicable to aggravated burglary, considering the gravity of the crime and the need for deterrence. It was noted that while youth and potential for rehabilitation are relevant factors, they must be balanced against the need to protect the community and ensure that the punishment fits the crime. The court found that the trial judge had appropriately considered these factors and had not erred in the imposition of the sentences. The court emphasised that the sentences were not disproportionate and that the trial judge had exercised proper discretion in determining the appropriate penalties for the defendants.

In conclusion, the court upheld the sentences imposed by the trial judge. It was determined that the trial judge had correctly applied the sentencing principles and had adequately considered the relevant factors, including the defendants' youth and potential for rehabilitation. The disparity in the sentences was found to be justified based on the individual circumstances of each defendant and the gravity of their involvement in the crime. The appeals were dismissed, and the sentences imposed by the trial court were affirmed.

Orders

Orders of the court

See [101]–[111]

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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