R v Drury - [2016] ACTSC 39

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Drury
Citation:	[2016] ACTSC 39
Hearing Date:	24 February 2016
DecisionDate:	29 February 2016
Before:	Burns J
Decision:	See [27]-[29]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – aiding in the unlawful taking of a child – plan with co-accused to abduct co-accused’s child – assistance to authorities – early guilty plea – good prospects of rehabilitation – sentenced to terms of imprisonment.
Cases Cited:	Carpenter v Purcell [2008] ACTSC 34 R v Rubino (Unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 16 December 2013) WNB v R [2006] NSWCCA 269
Parties:	The Queen (Crown) Jesse Drury (Offender)
Representation:	Counsel Ms J Campbell (Crown) Mr D Rutherford (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service (NSW/ACT) (Offender)
File Number:	SCC 270 of 2015

BURNS J:

Jesse Drury, you appear before me today to be sentenced with respect to one charge of aggravated burglary and one charge of aiding NL to take a child, namely IL, who was then under the age of 12 years with the intention of unlawfully depriving another person, namely the Director-General of the Community Services Directorate, of the lawful control of the said child.

The aggravated burglary charge alleges that you entered an address in a Canberra suburb as a trespasser with the intent to commit an offence that involved threatening to cause harm to another person in the building. At the same time you had with you an offensive weapon, namely a knife and a black imitation pistol, and you were in the company of another person, namely NL.

You entered pleas of guilty to these charges on 15 December 2015 and you were committed to this Court for sentence. At the sentence hearing on 24 February this year, you adhered to your pleas of guilty. The maximum penalty for the offence of aggravated burglary is 20 years imprisonment, a fine of $300,000, or both. The maximum penalty for the offence of aiding another person to unlawfully take a child is 10 years imprisonment.

Background

As at 13 August 2015, you and NL were in a relationship and were living together. You had been in a relationship with NL since October 2014. NL is the biological mother of IL. On 18 December 2014, a Care and Protection Order was granted in the Childrens Court giving the Director-General of the Community Services Directorate supervision over IL for a period of one year. Since interim orders had been made in July 2014, NL had varying levels of contact with her daughter. In May 2015, NL’s contact with IL was reduced to one supervised weekly visit of two hours. The new conditions were a result of NL not abiding by previous conditions set by Care and Protection. These supervised visits were held at a Barnardos designated meeting house in a Canberra suburb. This Barnardos house is a house in a residential…

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 Drury

Details

AGLC: R v Drury [2016] ACTSC 39
Case: [2016] ACTSC 39
Decision Date: 29 February 2016

CaseChat Overview and Summary

In the case of R v Drury, the defendant was charged with aiding in the unlawful taking of a child, an offence that occurred as part of an aggravated burglary. The dispute involved the appropriate sentence for Drury, who had assisted in planning the abduction of the child, which was the co-accused’s daughter. Drury had shown cooperation with the authorities, which was considered a mitigating factor in his sentencing. The matter was heard in the Supreme Court of Victoria.

The primary legal issue before the court was to determine the appropriate sentence for Drury, taking into account the gravity of the offence, the defendant’s early guilty plea, and his prospects for rehabilitation. The court had to weigh these factors against the circumstances of the aggravated burglary and the defendant’s role in the abduction plan. Furthermore, the court had to consider the statutory guidelines and case law concerning aggravated burglary and aiding in the unlawful taking of a child.

The court considered the severity of the offence and the involvement of Drury in planning the abduction. However, it also noted Drury's cooperation with the authorities and his prospects of rehabilitation. The court acknowledged that Drury had shown remorse and had taken steps to assist the authorities, which were significant mitigating factors. After a thorough analysis of the aggravating and mitigating factors, the court determined that a custodial sentence was necessary. Ultimately, the court sentenced Drury to imprisonment, with specific terms outlined in the final orders.

In conclusion, the court ordered that Drury be sentenced to imprisonment, reflecting the balance of the aggravating and mitigating factors. The specific terms of the sentence were detailed in the final orders, taking into account the nature of the offence, Drury's plea, and his cooperation with authorities.

Orders

Orders of the court

See [27]-[29]

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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