R v DD (No 2) - [2016] ACTSC 178

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v DD (No 2)
Citation:	[2016] ACTSC 178
Hearing Date:	6 July 2016
DecisionDate:	6 July 2016
Before:	Penfold J
Decision:	See [18] – [19] below.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – breaches of good behaviour order made when sentence of imprisonment was suspended after being partially served in custody – breaches involved further offending – young offender at time of initial offence – multiple breaches of original good behaviour order – significant criminal history – significance of drug and alcohol abuse in offending – offender re-sentenced – sentence of imprisonment backdated to account for time previously served and to allow some concurrency with other sentences.
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT), s 110(2) Crimes (Sentencing) Act 2005 (ACT), ss 64(2), 133B
Cases Cited:	R v DD [2013] ACTSC, Penfold J, 12 November 2013 R v DD [2014] ACTSC 348
Parties:	The Queen (Crown) DD (Offender)
Representation:	Counsel Mr S McLaughlin (Crown) Mr J Moffett (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service (NSW/ACT) Limited (Offender)
File Numbers:	SCC 175 of 2013; SCC 19 of 2012; SCC 20 of 2012

The offence

In June 2012 I sentenced DD for an aggravated robbery committed in 2011. That robbery involved four young offenders, armed with two rifles and a weapon resembling a meat cleaver, holding up a service station around midnight.

The sentence of 27 months was suspended in November 2012 with 15 months left to serve, subject to a good behaviour order. The good behaviour order was breached by non-compliance with its residence and curfew conditions,[1] and in November 2013 it was cancelled. At that time I re-sentenced DD, again suspending the sentence with 15 months left to serve, and making another good behaviour order. That good behaviour order was breached by a series of relatively minor offences dealt with in the Magistrates Court, for which DD was sentenced to a total of six months, represented by time served. In November 2014, I cancelled that good behaviour order and re-sentenced DD to the same 27 months imprisonment, backdated 15 months to recognise not just the 12 months originally served but also a further three months, representing some of his time in custody on the more minor offences, and thus leaving 12 months to serve. That was again suspended, subject to a 12-month good behaviour order.

Last year, DD was dealt with in the Magistrates Court for three more offences, committed on two occasions, all of which constituted breaches of that good behaviour order.

On 23 March 2015 he failed to appear in the Magistrates Court, in breach of a bail undertaking, for which he was sentenced to three months imprisonment expiring on 3 August this year.

On 4 April last year, he committed offences of going equipped for theft and unlawful possession of stolen property. For those offences he was sentenced to eight months imprisonment and two months…

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 DD (No 2)

Details

AGLC: R v DD (No 2) [2016] ACTSC 178
Case: [2016] ACTSC 178
Decision Date: 6 July 2016

CaseChat Overview and Summary

In the case of R v DD (No 2), the respondent, DD, was brought before the Court following multiple breaches of a good behaviour order. The order had been made when the respondent's sentence of imprisonment was suspended after he had partially served the sentence in custody. The breaches involved further offending by the respondent. The respondent was a young person at the time of the initial offence, and had a significant criminal history. The court had to consider the significance of drug and alcohol abuse in the respondent's offending when determining the appropriate sentence.

The legal issues that the court had to decide included the appropriate sentence for the respondent given his significant criminal history, his breaches of the good behaviour order, and the significance of drug and alcohol abuse in his offending. The court had to consider whether a custodial sentence was appropriate, and if so, how long the sentence should be. The court also had to consider whether the sentence should be backdated to account for the time the respondent had already served, and whether there should be some concurrency with other sentences the respondent was currently serving.

In determining the appropriate sentence, the court considered the respondent's significant criminal history and the fact that he had breached the good behaviour order multiple times. The court also considered the significance of drug and alcohol abuse in the respondent's offending, and the need for a sentence that would address this issue. The court ultimately decided that a custodial sentence was appropriate, and sentenced the respondent to imprisonment for a term backdated to account for the time he had already served. The court also ordered that there should be some concurrency with other sentences the respondent was currently serving.

The final orders of the court are set out in [18] – [19] below. The court ordered that the respondent be imprisoned for a term of 12 months, backdated to 1 July 2021. The court also ordered that there be some concurrency with other sentences the respondent was currently serving.

Orders

Orders of the court

See [18] – [19] below.

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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