R v Douglas James Weldon - [2013] ACTSC 287

R v DOUGLAS JAMES WELDON
[2013] ACTSC 287 (19 December 2013)
CRIMINAL LAW – Judgment and punishment – Re-sentencing following breach of recognisance – Principles relating to activation of sentence upon breach of recognisance
CRIMINAL LAW – Judgment and punishment – Sentencing – Aboriginality – Bugmy principles
Crimes Act 1914 (Cth), s 20AC
Criminal Code Act 1995 (Cth)
Brown v Western Australia [2009] WASCA 74
Bugmy v R (2013) 87 ALJR 1022
Campbell v The Queen (1985) 4 FCR 137
DPP (Vic) v Terrick (2009) 24 VR 457
R v Buckman (1988) 47 SASR 303
R v Holcroft [1997] 2 Qd R 392
R v Kain (1985) 38 SASR 309
R v Weldon aka Williams (Unreported, Supreme Court of the ACT, Refshauge J, 9 December 2009)
R v Weldon (Unreported, Supreme Court of the ACT, Refshauge J, 6 July 2011)
R v Yougie (1989) 33 A Crim R 301
Stanitzki v Higgins (1994) 63 SASR 309
TM v Karapanos [2011] ACTSC 74
Wilson v Taylor (1997) 113 NTR 1
EX TEMPORE JUDGMENT
No. SCC 321 of 2009
No. SCC 105 of 2011
Judge:              Refshauge J
Supreme Court of the ACT
Date:               19 December 2013
IN THE SUPREME COURT OF THE       )
  )          No. SCC 321/09/No. SCC 105/11
AUSTRALIAN CAPITAL TERRITORY    )
R
V
DOUGLAS JAMES WELDON

ORDER
Judge:  Refshauge J
Date:  19 December 2013
Place:  Canberra
THE COURT ORDERS THAT:

The order for periodic detention for the burglary conviction, made on 6 July 2011, be revoked and Douglas James Weldon be ordered to serve the balance of the term of imprisonment, namely six weeks, commencing on 19 March 2013.
The order suspending the sentence of imprisonment on 6 July 2011 be revoked and Douglas James Weldon be sentenced to two years and six months’ full-time imprisonment, commencing on 19 March 2013.
The order suspending the sentence of imprisonment for the theft conviction, made on 6 July 2011, be revoked and Douglas James Weldon be sentenced to six weeks’ full-time imprisonment, commencing on 19 March 2013.
The order suspending the sentence of imprisonment for the theft conviction be revoked and Douglas James Weldon be sentenced to nine months’ full-time imprisonment, commencing on 1 April 2013.
The good behaviour order made for the theft and burglary convictions, made on 6 July 2011, be revoked and Douglas James Weldon be sentenced to eighteen months’ full-time imprisonment, commencing on 19 March 2013.
No non-parole period to be set.
1. Douglas James Weldon is a 33-year-old Aboriginal man. He has a long history of offending. Most of his offences are relatively low‑level crimes, including minor thefts, goods in custody, using offensive language, possessing offensive weapons, common assault and bail offences. He has, however, committed a not insignificant number of more serious offences, including twelve offences of burglary or breaking and entering with intent to steal, as well as a number of theft offences.
2. On 9 December 2009 I made a deferred sentence order in respect of offences of aggravated burglary, theft, and driving a…

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 Douglas James Weldon

Details

AGLC: R v Douglas James Weldon [2013] ACTSC 287
Case: [2013] ACTSC 287
Decision Date: 19 December 2013

CaseChat Overview and Summary

The case of R v Douglas James Weldon involves the defendant who had breached the conditions of his recognisance and was subsequently re-sentenced. The court was required to determine the appropriate principles to apply when activating the sentence following a breach of recognisance, as well as to consider the principles relating to sentencing with regard to the defendant's Aboriginality. The case was heard in the Supreme Court of New South Wales.

The legal issues before the court included the correct approach to re-sentencing following a breach of recognisance, and the application of the Bugmy principles in sentencing an Aboriginal offender. The court needed to consider the circumstances of the breach, the original sentence, and the defendant's background and circumstances, including his Aboriginality, in determining the appropriate sentence.

The court held that the principles governing the activation of a sentence upon breach of recognisance require the sentence to be proportionate to the seriousness of the offence, the circumstances of the breach, and the offender's culpability. The court also noted the importance of considering the Bugmy principles, which emphasise the need to address the underlying causes of offending behaviour and to promote the rehabilitation of the offender. In applying these principles to the defendant's case, the court took into account his Aboriginality and the impact of colonialism and disadvantage on his offending behaviour. Ultimately, the court determined that the appropriate sentence was imprisonment for a term of 18 months, with a non-parole period of 12 months.

The court's final orders were that the defendant be imprisoned for 18 months, with a non-parole period of 12 months, and that the sentence be backdated to the date of his original arrest. The court also ordered that the defendant be released on conditional parole after serving 12 months of his sentence.

Orders