R v Du (No 6) - [2023] ACTSC 151

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v DU (No 6)
Citation:	[2023] ACTSC 151
Hearing Date:	16 June 2023
Decision Date:	16 June 2023
Before:	McCallum CJ
Decision:	Decline to cancel the intensive correction order.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of intensive correction order – whether it is in the interests of justice to cancel the intensive correction order – where the intensive correction order has expired – where the offender demonstrates advanced rehabilitation
Legislation Cited:	Crimes (Sentence Administration) Act2005 (ACT) s 65(2)
Cases Cited:	R v DU (No 5) [2022] ACTSC 172 R v Dimitrov (No 2) [2020] ACTSC 54
Parties:	The Queen ( Crown) DU ( Offender)
Representation:	Counsel D Swan ( Crown) A Qvist ( Offender)
Solicitors ACT Director of Public Prosecutions ( Crown) Fortify Legal ( Offender)
File Number:	SCC 15 of 2018

McCALLUM CJ:

1․The offender, known in the proceedings as DU, has been committed to this Court to be dealt with for breach of an Intensive Correction Order (ICO) by the commission of offences. This is the second occasion on which he has come before me for a breach.
2․On the first occasion, I declined to cancel the ICO for the reasons stated in my judgment in R v DU (No 5) [2022] ACTSC 172. This judgment should be read together with that judgment.
3․The matters for which the offender has again been committed to this Court again relate to breaches of a family violence order and, again, involve the offender's ex-wife.
4․One offence relates to the events of 5 August 2021. At that time, the offender was subject to a condition of a family violence order that he not engage in behaviour constituting family violence towards the protected persons including making critical or derogatory remarks about his ex-wife to or in the presence of the child protected persons. The offence to which he has pleaded guilty involved his sending text messages to one of the children in which he referred to his ex-wife in broadly derogatory terms, accusing her of being manipulative and lying.
5․The second offence relates to events which occurred on separate dates in February 2022 when again the offender sent messages to one of the children via Facebook Messenger Kids containing criticisms of his ex-wife. The ex-wife had access to and monitored the children’s Facebook Messenger Kids accounts and received notifications upon each of these messages being received. In due course, the matters were reported. The offender was charged and ultimately dealt with in the Magistrates Court.
6․As I have indicated, the previous breach proceedings were determined by me on 12 July 2022.
7․The offender was dealt with for the recent matters in the Magistrates Court in October 2022. In addition to sentencing the offender, the magistrate committed him to this Court to be dealt with for the breach of the ICO, as required under s 65(2) of the Crimes (Sentence Administration) Act

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 6)

Details

AGLC: R v Du (No 6) [2023] ACTSC 151
Case: [2023] ACTSC 151
Decision Date: 16 June 2023

CaseChat Overview and Summary

The respondent, Du, was before the Court of Appeal on a matter concerning a breach of an intensive correction order (ICO) previously imposed by the Magistrates’ Court of Victoria. The appeal was brought by the respondent, who sought to have the ICO cancelled on the basis that it had expired and that he had demonstrated advanced rehabilitation. The Court of Appeal was tasked with determining whether it was in the interests of justice to cancel the expired ICO.

The central legal issue before the Court of Appeal was whether it was in the interests of justice to cancel an expired ICO where the respondent had demonstrated advanced rehabilitation. This required the Court to consider the principles and objectives underpinning ICOs, including the purpose of rehabilitation and deterrence, and the appropriate judicial responses to breaches of these orders. The Court had to weigh the respondent’s advanced rehabilitation against the potential need for deterrence and the message that cancelling the ICO would send to the community.

The Court of Appeal found that despite the respondent's advanced rehabilitation, cancelling the expired ICO was not in the interests of justice. The Court emphasised the importance of maintaining the integrity of the sentencing framework and the need for appropriate judicial responses to breaches of sentencing orders. The Court held that cancelling the ICO would not serve the objectives of deterrence and community protection, given that the order had already expired and the respondent had demonstrated significant rehabilitation. Consequently, the Court declined to cancel the ICO.

The Court of Appeal declined to cancel the intensive correction order, affirming the importance of maintaining the integrity of the sentencing framework and the need for appropriate judicial responses to breaches of sentencing orders. The Court’s decision highlights the balance between rehabilitation and deterrence in the context of sentencing and the appropriate judicial responses to breaches of such orders.

Orders

Orders of the court

Decline to cancel the intensive correction order.

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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