R v CR (No 3) - [2022] ACTSC 170

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v CR (No 3)
Citation:	[2022] ACTSC 170
Hearing Date:	12 July 2022
DecisionDate:	12 July 2022
Before:	Elkaim J
Decision:	(i) The good behaviour orders imposed by Murrell CJ on 14 May 2021 are cancelled. (ii) The offender is re-sentenced as follows: (iii) For offence CC1116 of 2019, joint commission aggravated robbery, the offender is sentenced to 15 months’ imprisonment to commence today and end on 11 October 2023. (iv) For offence CC1121 of 2019, dishonestly ride or drive a motor vehicle without consent, the offender is sentenced to 4 months’ imprisonment to commence today and end on 11 November 2022. (v) The above terms of imprisonment are suspended with immediate effect on condition that the offender enter into a good behaviour order, on core conditions, for a period of 15 months commencing today.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – breach of good behaviour orders – where offending in breach of good behaviour orders dealt with in Magistrates Court – whether offender should be re-sentenced to a term of full-time custody or suspended sentence with a good behaviour order
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) s 29
Cases Cited:	R v CR [2021] ACTSC 93 R v CR (No 2) [2022] ACTSC 96 R v QH; R v CR [2020] ACTSC 178
Parties:	The Queen ( Crown) CR ( Offender)
Representation:	Counsel ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender)
Solicitors J Epstein ( Crown) B Rutzou ( Offender)
File Numbers:	SCC 94, 95 of 2020

Elkaim J:

On 7 July 2020 CR was sentenced by Murrell CJ to 18 months’ imprisonment, suspended after four months and two weeks (R v QH; R v CR [2020] ACTSC 178).

As can be seen from the case name he was sentenced together with another young person. The sentences arose from a disturbance generated by detainees at Bimberi Youth Justice Centre on 26 August 2019.

The specific offences and the sentences imposed are set out at [109] of the above reasons for sentence:

109. I impose the following sentences:
(a)   Count 1: joint commission of aggravated robbery—14 months’ imprisonment (reduced from 18 months’ imprisonment), from 11 August 2020 to 10 October 2021, suspended from 24 August 2020 on entering into a good behaviour order until 24 February 2022.
(b)   Count 2: damage property—$300 fine.
(c)   Count 3: aid attempt to escape—three months’ imprisonment (reduced from four months’ imprisonment) from 11 April 2020 to 10 July 2020.
(d)   Count 4: dishonestly ride in motor vehicle—three months’ imprisonment (reduced from four months’ imprisonment) from 11 June 2020 to 10 September 2020, suspended from 24 August 2020 on entering into a good behaviour order until 24 February 2021.
(e)   Count 5: common assault—six-month good behaviour order.
(f)    Count 6: common assault—12-month good behaviour order.
(g)   Count 7: common assault—12-month good behaviour order.
(h)   Count 8: unlawful possession of stolen property—$100…

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: [2022] ACTSC 170
Decision Date: 12 July 2022

CaseChat Overview and Summary

The case of R v CR (No 3) involved the offender, CR, who was before the court due to breaches of good behaviour orders previously imposed by Murrell CJ on 14 May 2021. The court had to determine whether CR should be re-sentenced for his prior offences, specifically the joint commission of aggravated robbery and the offence of dishonestly riding or driving a motor vehicle without consent, given the breaches of the aforementioned good behaviour orders. The court considered the severity of the initial offences and the failure to adhere to the good behaviour orders in its sentencing decision.

The court needed to decide if CR should be re-sentenced to a term of full-time custody or if a suspended sentence with a new good behaviour order would be more appropriate. This decision hinged on the nature and extent of the breaches, the original sentences, and the likelihood of CR adhering to any new conditions. The court balanced the need for punishment and deterrence with the possibility of rehabilitation through a suspended sentence and new behavioural conditions.

In its judgment, the court cancelled the good behaviour orders imposed on 14 May 2021 and re-sentenced CR to suspended sentences for both offences, with conditions attached. The court opted for a suspended sentence to provide an opportunity for CR to reform, considering the breaches as a failure of the previous conditions rather than an indication of irreformability. The sentences were suspended on the condition that CR enter into a new good behaviour order for a period of 15 months. This decision reflected the court’s view that while CR had failed to adhere to the previous orders, a chance for rehabilitation was still warranted.

The final orders of the court were to cancel the existing good behaviour orders, impose a 15-month suspended sentence for the aggravated robbery offence, and a 4-month suspended sentence for the motor vehicle offence, both to commence immediately and subject to the new good behaviour order conditions. This outcome allowed for the enforcement of penalties while also offering CR an opportunity to comply with new behavioural expectations.

Orders

Orders of the court

(i) The good behaviour orders imposed by Murrell CJ on 14 May 2021 are cancelled.

(ii) The offender is re-sentenced as follows:

(iii) For offence CC1116 of 2019, joint commission aggravated robbery, the offender is sentenced to 15 months’ imprisonment to commence today and end on 11 October 2023.

(iv) For offence CC1121 of 2019, dishonestly ride or drive a motor vehicle without consent, the offender is sentenced to 4 months’ imprisonment to commence today and end on 11 November 2022.

(v) The above terms of imprisonment are suspended with immediate effect on condition that the offender enter into a good behaviour order, on core conditions, for a period of 15 months commencing today.

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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