Sentence of seven years and seven months’ imprisonment with a nonparole period of four years’ imprisonment.
Catchwords:
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated burglary – Burglary – Drive motor vehicle without consent – Take motor vehicle without consent – Ride in motor vehicle without consent – Theft – Minor theft – Damage property – Possess false number plates – Obtain property by deception –
Negligent driving – Drive while disqualified – Trespass – Offender on conditional liberty – Drug addiction and mental health
The Queen (Crown) Kieran William Elphick (Offender)
Representation:
Counsel
T Hickey (Crown)
K Musgrove (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown)
McKenna Taylor (Offender)
File Number(s):
SCC 199, 200 of 2020
MURRELL CJ:
Introduction
1. The offender pleaded guilty to 100 offences, being 20 “series” of offending. Three
additional offences are to be taken into account in relation to Series 20.
2. The offences occurred in a three-week period in December 2018/January 2019 and a two-week period in December 2019/January 2020.
3. The offences are:
(a)
11 counts of aggravated burglary with intent to steal or attempted aggravated burglary, contrary to s 312 of the Criminal Code 2002 (ACT) (Criminal Code).
Each offence carries a maximum penalty of a fine of $320,000, 20 years’
imprisonment or both.
(b)
One count of burglary with intent to steal, contrary to s 311 of the Criminal Code.
The maximum penalty is a fine of $224,000, 14 years’ imprisonment or both.
(c)
17 counts of taking (one by joint commission), driving, or riding in a motor vehicle without consent, contrary to s 318(1) or (2) of the Criminal Code.
Each offence carries a maximum penalty of a fine of $80,000, five years’
imprisonment or both.
(d)
Eight counts of dishonestly obtaining property by deception (one by joint commission), contrary to s 326 (and s 45A) of the Criminal Code.
Each offence carries a maximum penalty of a fine of $160,000, 10 years’
imprisonment or both.
(e)
Two counts of theft, contrary to s 308 of the Criminal Code.
Each offence carries a maximum penalty of a fine of $160,000, 10 years’
imprisonment or both.
(f)
Three counts of damaging property by joint…
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 Elphick
Sign in free to access the full text
Details
AGLC
R v Elphick [2021] ACTSC 9
Case
[2021] ACTSC 9
Decision Date
CaseChat Overview and Summary
The offender, Kieran William Elphick, pleaded guilty to 100 offences over 20 series of offending, with three additional offences to be taken into account in relation to Series 20. The offences occurred between December 2018 and January 2020. The offences included aggravated burglary, burglary, taking, driving, or riding in a motor vehicle without consent, dishonestly obtaining property by deception, theft, damaging property, driving while disqualified, minor property damage, minor theft, negligent driving, possessing false number plates, and trespass. The court was required to decide on the appropriate sentence considering the objective seriousness of the offences, the offender's subjective features, and other relevant sentencing considerations. The court considered the offender's age, Indigenous background, lengthy criminal history, drug addiction, mental health and cognitive problems, and expressed remorse. The court also considered the purposes of sentencing, including accountability, personal deterrence, and protection of the community. The court set a total sentence of seven years and seven months' imprisonment, with a nonparole period of four years. The court also ordered the offender to be disqualified from holding or obtaining a driver's licence for a total of 24 years. The court declined to make any reparation orders due to the offender's lack of means and the significant term of imprisonment.