R v Elliott - [2022] ACTSC 211

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Elliott
Citation:	[2022] ACTSC 211
Hearing Date:	5 August 2022
DecisionDate:	18 August 2022
Before:	Refshauge AJ
Decision:	1. The Director-General of Justice and Community Safety, through ACT Corrective Services, prepare and provide to the Court by 29 September 2022 an updated Intensive Correction Assessment Report and an updated Drug and Alcohol Treatment Assessment Report for Christopher David Elliot and consider whether, in an Intensive Correction Order, a program for perpetrators of family violence should be included as a condition. 2. The Director-General of Health, through the Alcohol and Drug Services, provide an updated Drug and Alcohol Sentencing List Suitability Assessment Report for Christopher David Elliot and provide it to the Court by 29 September 2022. 3. That the Registrar be requested to provide these updated Reports to the parties. 4. The proceedings be adjourned to 4 October 2022 at 10:00am for sentence. 5. Bail to continue until then.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application for bail – reports for sentencing alternatives
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 11, 12A, 78, 80G Crimes (Sentencing) Regulation 2006 (ACT) s 2 Family Violence Act 2016 (ACT) pt 3, s 14
Cases Cited:	Beniamini v Craig [2017] ACTSC 30 CM v TM and Anor [2011] ACTSC 53
Parties:	The Crown ( Crown) Christopher David Elliot ( Offender)
Representation:	Counsel S Whitfield ( Crown) J Robertson ( Offender)
Solicitors ACT Director of Public Prosecutions ( Crown) JDR Law ( Offender)
File Number:	SCC 215 of 2021

REFSHAUGE AJ:

Introduction

Christopher David Elliott has pleaded guilty to breaching a Family Violence Order. He has sought either an Intensive Correction Order under s 11 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) or a Drug and Alcohol Treatment Order under s 12A of the Sentencing Act.

Family violence is a serious issue, though it is only depressingly recently that it has been so recognised. There are many forms of family violence and it is, by no means, limited to physical violence. The Court described it and some challenges in Beniamini v Craig [2017] ACTSC 30 at [1]-[2].

One of the ways that a domestic partner can be protected from such violence is by the making by the courts of a Family Violence Order. The history, development, purpose and effectiveness of such orders is set out in CM v TM and Anor [2011] ACTSC 53; [22]-[28].

Family Violence Orders are a form of Personal Protection Orders and are now made under Part 3 of the Family Violence Act 2016 (ACT). They are made where there has been some previous violent conduct or currently alleged conduct and other matters set out in s 14 of that Act. They are designed to prevent a recurrence of family violence and ensure the safety of people, particularly children, who fear, experience or witness family violence and to encourage perpetrators to be accountable for their conduct.

Thus, compliance with them…

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 Elliott

Details

AGLC: R v Elliott [2022] ACTSC 211
Case: [2022] ACTSC 211
Decision Date

CaseChat Overview and Summary

The case before the Supreme Court of the Australian Capital Territory was an application for bail by Christopher David Elliot, who has pleaded guilty to breaching a Family Violence Order. The Crown sought either an Intensive Correction Order under section 11 of the Crimes (Sentencing) Act 2005 (ACT) or a Drug and Alcohol Treatment Order under section 12A of the Sentencing Act. The primary legal issue the court had to decide was whether to grant bail to the offender and, if so, under what conditions. The court also had to consider the appropriate sentencing alternatives, including the possibility of including a program for perpetrators of family violence as a condition in an Intensive Correction Order.

The court considered the offender's criminal history, which included a significant number of violence offences related to family violence. The court also noted that the offender had been able to successfully complete an Intensive Correction Order recently. However, the court found that the reports provided were outdated, and it was necessary to have updated assessments to make an informed decision. The court ordered updated Intensive Correction Order Assessment Reports, Drug and Alcohol Treatment Assessment Reports, and a Drug and Alcohol Sentencing List Suitability Assessment Report for the offender. The court further ordered that the Registrar provide these updated reports to the parties and adjourned the proceedings to allow time for the preparation of these reports.

The court granted bail to the offender until the next hearing on 4 October 2022 at 10:00 am, with the condition that the offender comply with any requests from the authors of the reports to assist them. The court also instructed the offender to avoid any interaction with his previous partners, family violence, driving offences, and any other offending in general during the bail period. The court emphasized that this was an opportunity for the offender to demonstrate his commitment to rehabilitation and compliance with the law.

Orders