R v DU (No 5) - [2022] ACTSC 172

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v DU (No 5)
Citation:	[2022] ACTSC 172
Hearing Dates:	9 September 2021; 6 May 2022; 11 May 2022; 12 July 2022
DecisionDate:	12 July 2022
Before:	McCallum CJ (12 July 2022 only)
Decision:	Decline to cancel the Intensive Correction Order.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Breach of Intensive Correction Order – where breach is a result of further offending – whether it is in the interests of justice to cancel the Intensive Correction Order – where the offender is on a positive path of rehabilitation
Legislation Cited:	Crimes Act 1900 (ACT), s 55A Crimes (Sentence Administration) Act 2005 (ACT), s 65 Family Law Act1975 (Cth) Family Violence Act 2016 (ACT), s 43(2)
Cases Cited:	R v DU (No 4) [2020] ACTSC 174 R v XH [2017] ACTSC 236
Parties:	The Queen ( Crown) DU ( Offender)
Representation:	Counsel R Christensen SC ( Crown) A Qvist ( Offender)
Solicitors ACT Director of Public Prosecutions ( Crown) Fortify Legal ( Offender)
File Number:	SCC 15 of 2018

McCallum CJ:

DU has been committed to this Court by the Magistrates Court in accordance with s 65(4)(b) of the Crimes (Sentence Administration) Act 2005 (ACT) to be dealt with under s 65(2) of the Act following his conviction of an offence while he was subject to an Intensive Correction Order (ICO).

The ICO was imposed by Burns J on 20 February 2020 after the offender entered pleas of guilty to four counts of engaging in sexual intercourse with a young person who was under his special care, contrary to s 55A of the Crimes Act 1900 (ACT). The detail of those offences is set out in his Honour’s judgment: R v DU (No 4) [2020] ACTSC 174. His Honour imposed sentences of imprisonment, each of 18 months but with a measure of accumulation resulting in an aggregate sentence of imprisonment for three years commencing on 20 February 2020 and expiring on 19 February 2023. His Honour then ordered that those sentences be served by way of ICO, the term of which was the same.

The breach offence was committed on 25 January 2021, almost a year into the three-year ICO. The offender was dealt with for that offence on 22 July 2021 in the Magistrates Court.

The Statement of Facts in respect of that offence is before this Court. In brief summary, the offence was one of contravening a Family Violence Order, contrary to s 43(2) of the Family Violence Act 2016 (ACT). The Family Violence Order was for the protection of the offender’s now ex-wife. The order prohibited the offender from contacting her with certain common exceptions such as contact through a legal practitioner, at court, at a counselling or mediation session or in accordance with a parenting plan made under the Family Law Act1975 (Cth). Finally, there was an exception for contact with the protected person in…

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 DU (No 5)

Details

AGLC: R v DU (No 5) [2022] ACTSC 172
Case: [2022] ACTSC 172
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the case of R v DU (No 5) was heard before Chief Justice McCallum. The case involved the offender, DU, who was subject to an Intensive Correction Order (ICO) imposed by Burns J. The offender had breached the terms of the ICO by committing a new offence, leading to a hearing in the Magistrates Court where he was fined. The breach proceedings were subsequently committed to the Supreme Court as required by law. The central legal issue was whether it was in the interests of justice to cancel the ICO, considering the offender's subsequent conduct and rehabilitation efforts.

The court examined the evidence provided by the offender and his partner, which demonstrated a significant commitment to rehabilitation. The offender testified about his emotional state during the breach offence, his engagement in counselling, and the insights gained from discussions with his partner, who is a survivor of trauma. The court also considered a report from Corrective Services indicating the offender's compliance with the ICO and ongoing support. Chief Justice McCallum concluded that cancelling the ICO would interfere with the offender's positive rehabilitation path, supported by his partner's testimony and Corrective Services' assessment.

Accordingly, the court decided not to cancel the Intensive Correction Order, recognising the offender's efforts towards rehabilitation and the support he has received. The decision highlighted the importance of considering individual rehabilitation efforts when determining the consequences of breaching an ICO. The final order was to decline the cancellation of the ICO, allowing the offender to continue his rehabilitation under the existing order.

Orders