R v El (No. 2) - [2016] ACTSC 71

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v EL (No. 2)
Citation:	[2016] ACTSC 71
Hearing Date:	31 March 2016
DecisionDate:	31 March 2016
Before:	Refshauge J
Decision:	1. The Good Behaviour Order made on 20 February 2014 is cancelled; 2. EL be re-sentenced; 3. The conviction of EL for aiding and abetting in the commission of the offence of intentionally inflicting grievous bodily harm (XO 11/140) on 1 June 2011 is confirmed; 4. EL is sentenced to 20 months imprisonment to commence from today, 31 March 2016, suspended for 1 year from today; 5. EL is required to sign an undertaking to comply with good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for 1 year from today, 31 March 2016; 6. EL is required to pay a fine of $100 within one month.
Catchwords:	CRIMINAL LAW – Jurisdiction, practice and procedure – judgment and punishment – re-sentencing – aiding and abetting commission of intentional infliction of grievous bodily harm – breach of Good Behaviour Order – Good Behaviour Order expired – further offending – traffic offences
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT), ss 86, 107, 110 Crimes (Sentencing) Act 2005 (ACT), s 12 Road Transport (Driver Licensing) Act 1999 (ACT), s 32(2)(a) Road Transport (Driver Licensing) Regulation 2000 (ACT), s 74 Road Transport (Third‑Party Insurance) Act 2008 (ACT), s 17(1) Road Transport (Vehicle Registration) Act 1999 (ACT), s 18(1)
Cases Cited:	R v Curtis (No 2) [2016] ACTSC 34 R v EL [2014] ACTSC 57 R v Kekalainen (No 2) [2015] ACTSC 369
Parties:	The Queen (Crown) EL (Defendant)
Representation:	Counsel Mr D Sahu-Khan (Crown) Mr J Silk (Defendant)
Solicitors ACT Director of Public Prosecutions (Crown) Jeffrey Silk (Defendant)
File Number:	SCC 321 of 2011

REFSHAUGE J:

On 20 February 2014, I convicted EL of aiding and abetting a co‑offender in the offence of intentionally inflicting grievous bodily harm on a victim who had been bashed and stabbed on 1 June 2011.

The victim was seriously wounded in the incident in which this offence was committed and required extensive medical intervention, with inevitable physical and mental consequences, although no victim impact statement was provided at the sentencing hearing.

I sentenced EL to three months imprisonment, but suspended it for two years. I made, as I was required to do under s 12 of the Crimes (Sentencing) Act 2005 (ACT), a Good Behaviour Order for two years with the condition that EL perform 100 hours of community service. See R v EL [2014] ACTSC 57.

DISCUSSION

Under s 86 of the Crimes (Sentence Administration) Act 2005 (ACT), a core condition of a Good Behaviour Order is that the offender not commit any offence punishable by imprisonment during the period of the Good Behaviour Order. On 11 June 2015, EL was convicted of an offence against s 32(2)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT), of being a first offender driving while his licence was suspended by law.

This…

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 El (No. 2)

Details

AGLC: R v El (No. 2) [2016] ACTSC 71
Case: [2016] ACTSC 71
Decision Date: 31 March 2016

CaseChat Overview and Summary

The defendant, EL, was before the court for sentencing following a previous sentence that had been quashed on appeal. EL had previously been convicted of aiding and abetting the commission of a grievous bodily harm offence. The court was required to decide on the appropriate re-sentencing of EL. The legal issues before the court included the appropriate sentence for aiding and abetting an offence of grievous bodily harm, as well as the breach of a Good Behaviour Order that had expired. The court was also required to consider the effect of EL’s further offending, including traffic offences, on the re-sentencing.

The court considered the seriousness of the offence of aiding and abetting grievous bodily harm, noting that while the defendant was not the primary perpetrator, their role was significant. The court also considered the breach of the Good Behaviour Order and the further offending, which demonstrated a pattern of behaviour that needed to be addressed. The court cancelled the expired Good Behaviour Order and re-sentenced EL. The court confirmed the conviction for aiding and abetting the grievous bodily harm offence and sentenced EL to 20 months imprisonment, suspended for one year. The court also required EL to sign an undertaking to comply with good behaviour obligations for one year and to pay a fine of $100.

The court’s reasoning was based on the need to address the seriousness of the offence, while also considering the defendant’s previous offending and the need to prevent further offending. The court emphasised the importance of deterrence and rehabilitation in sentencing, and noted that the suspended sentence would provide EL with an opportunity to demonstrate their rehabilitation while also maintaining the deterrent effect of the sentence. The court also considered the need to address the breach of the Good Behaviour Order and the further offending, which demonstrated a pattern of behaviour that needed to be addressed. The court’s outcome was therefore aimed at achieving a balance between punishment, deterrence, and rehabilitation.

The orders made by the court included the cancellation of the expired Good Behaviour Order, the confirmation of the conviction for aiding and abetting grievous bodily harm, and the imposition of a suspended sentence of 20 months imprisonment. The court also required EL to sign an undertaking to comply with good behaviour obligations for one year and to pay a fine of $100. These orders were aimed at achieving the goals of sentencing, including punishment, deterrence, and rehabilitation, while also addressing the specific circumstances of the case.

Orders

Orders of the court

1. The Good Behaviour Order made on 20 February 2014 is cancelled;

2. EL be re-sentenced;

3. The conviction of EL for aiding and abetting in the commission of the offence of intentionally inflicting grievous bodily harm (XO 11/140) on 1 June 2011 is confirmed;

4. EL is sentenced to 20 months imprisonment to commence from today, 31 March 2016, suspended for 1 year from today;

5. EL is required to sign an undertaking to comply with good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for 1 year from today, 31 March 2016;

6. EL is required to pay a fine of $100 within one month.

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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