R v Elphick (No 2)

Case [2015] ACTSC 23

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

The Queen v Todd Elphick (No 2)

Citation:

[2015] ACTSC 23

Hearing Date(s):

12 February 2015

DecisionDate:

16 February 2015

Before:

Refshauge J

Decision:

1.   Todd Elphick be convicted of threatening, between 31 December 2012 and 25 June 2013, to damage, by fire, a motor vehicle belonging to another person, intending to cause, or being reckless about causing, another person to fear that the threat would be carried out.

2.   That he be sentenced to eighteen months imprisonment to commence on 10 December 2013, to be concurrent as to approximately five months on the sentence imposed in the Magistrates Court on 21 October 2013. 

3.   Todd Elphick be convicted of stalking between 20 June and 11 July 2013.

4.   That he be sentenced to twelve months imprisonment to commence on 10 December 2014, to be cumulative as to six months on the charge of threatening to cause damage by fire.

5.   Todd Elphick be convicted of breaching a Domestic Violence Order on 11 June 2013.

6.   That he be sentenced to four months imprisonment to commence on 10 October 2015, to be cumulative to two months on the sentence for stalking. 

7.   Todd Elphick be convicted of breaching a Domestic Violence Order on 30 June 2013.

8.   For that offence, I sentence you to five months imprisonment to commence on 10 December 2015, to be cumulative as to two months on the sentence for the first charge of breaching a Domestic Violence Order.

9.   The total sentence of two years and four months is suspended from 16 February 2015 for a period of two years.

10.   Todd Elphick sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years with the following conditions:

(a)    That he be subject to the supervision of the Director-General or her delegate for two years, or such lesser period as the person supervising him considers appropriate, and obey all reasonable directions of the person supervising him, especially as to counselling or treatment for abuse of drugs, anger management and mental health issues;

(b)    That he not contact, directly or indirectly, including by any electronic means, Natasha Smith, Wayne Smith, Champika Smith, Melissa Smith and Jennifer Smith except, if required, through lawyers and that he not approach within 100 metres of them except at Court or as authorised by any court;

(c)    That he report by 4pm on 16 February 2015 to ACT Corrective Services, Eclipse House, London Circuit, to arrange supervision.

Category:

Principal Judgment

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Sentencing - Threat to commit arson – Stalking – Breach of Personal Protection Order – Offending whilst on Conditional Liberty

CRIMINAL LAW – SENTENCING – Concurrency – Culmination – Totality – Backdating of sentence – Consideration of pre-sentence incarceration

Legislation Cited:

Crimes Act 1900 (ACT), s 35

Crimes (Sentence Administration) Act 2005 (ACT), s 116ZP
Crimes (Sentencing) Act

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Details
AGLC
R v Elphick (No 2) [2015] ACTSC 23
Case
[2015] ACTSC 23
Decision Date

CaseChat Overview and Summary

In the case of R v Elphick (No 2), the respondent, Todd Elphick, faced several charges including threatening to commit arson, stalking, and breaching a Personal Protection Order. The case was heard and determined in the Supreme Court of the Australian Capital Territory. The primary dispute centred on the appropriate sentencing for Elphick’s various criminal activities, given the context of his conditional liberty at the time of the offences and his prior incarceration.

The court had to address several legal issues, including the calculation of concurrent and cumulative sentences, the consideration of pre-sentence incarceration, and the application of backdating in sentencing. The court also needed to determine the total sentence and its effect on Elphick’s period of conditional liberty. Furthermore, the court examined the principles of totality and proportionality in sentencing, ensuring that the aggregate punishment did not exceed what was just and appropriate for the crimes committed.

The court determined that the sentences for the various offences should be served concurrently and cumulatively, taking into account the period Elphick had already spent in custody. It ruled that the total sentence of two years and four months should be suspended for two years, commencing from 16 February 2015. The court also imposed specific conditions on Elphick's conditional liberty, including mandatory supervision and restrictions on contact with certain individuals. The court’s reasoning was grounded in the need to balance the deterrence and rehabilitation objectives of sentencing with the protection of the community and the rights of the victims.

Orders

Orders of the court

1. Todd Elphick be convicted of threatening, between 31 December 2012 and 25 June 2013, to damage, by fire, a motor vehicle belonging to another person, intending to cause, or being reckless about causing, another person to fear that the threat would be carried out.

2. That he be sentenced to eighteen months imprisonment to commence on 10 December 2013, to be concurrent as to approximately five months on the sentence imposed in the Magistrates Court on 21 October 2013.

3. Todd Elphick be convicted of stalking between 20 June and 11 July 2013.

4. That he be sentenced to twelve months imprisonment to commence on 10 December 2014, to be cumulative as to six months on the charge of threatening to cause damage by fire.

5. Todd Elphick be convicted of breaching a Domestic Violence Order on 11 June 2013.

6. That he be sentenced to four months imprisonment to commence on 10 October 2015, to be cumulative to two months on the sentence for stalking.

7. Todd Elphick be convicted of breaching a Domestic Violence Order on 30 June 2013.

8. For that offence, I sentence you to five months imprisonment to commence on 10 December 2015, to be cumulative as to two months on the sentence for the first charge of breaching a Domestic Violence Order.

9. The total sentence of two years and four months is suspended from 16 February 2015 for a period of two years.

10. Todd Elphick sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years with the following conditions:

(a) That he be subject to the supervision of the Director-General or her delegate for two years, or such lesser period as the person supervising him considers appropriate, and obey all reasonable directions of the person supervising him, especially as to counselling or treatment for abuse of drugs, anger management and mental health issues;

(b) That he not contact, directly or indirectly, including by any electronic means, Natasha Smith, Wayne Smith, Champika Smith, Melissa Smith and Jennifer Smith except, if required, through lawyers and that he not approach within 100 metres of them except at Court or as authorised by any court;

(c) That he report by 4pm on 16 February 2015 to ACT Corrective Services, Eclipse House, London Circuit, to arrange supervision.

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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