R v Eluga - [2016] ACTSC 304

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Eluga
Citation:	[2016] ACTSC 304
Hearing Date:	8, 28 July 2016
DecisionDate:	28 July 2016
Before:	Penfold J
Decision:	See [58]-[71] below.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offences of theft, obtain property by deception and unlawful possession of stolen property – pleas of guilty – significant criminal history – offending linked to use of illicit drugs – consideration under s 63 of the Crimes (Sentencing) Act of pre-sentence custody served as a sentenced prisoner – error in entry of earlier sentence orders by court staff – correction of earlier orders and re-sentencing.
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT), ss 19, 20, 61, 63(2), 105 Criminal Code 2002 (ACT), ss 308, 324, 326 Human Rights Act 2004 (ACT) Court Procedures Rules 2006 (ACT), r 6906
Cases Cited:	Mill v The Queen [1998] HCA 70; 166 CLR 59 Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v Verdins (2007) [2007] VSCA 102; 16 VR 269
Parties:	The Queen (Crown) Peter John Eluga (Offender)
Representation:	Counsel Ms P Burgoyne-Scutts (Crown) Mr R Davies and Ms H Hayunga (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT(Accused)
File Numbers:	SCC 84 of 2016; SCC 85 of 2016; SCC 185 of 2012

The offence

Peter Eluga has pleaded guilty to three offences as follows:

(a)theft, contrary to s 308 of the Criminal Code 2002 (ACT) and carrying a maximum penalty including 10 years imprisonment;
(b)obtain property by deception, contrary to s 326 of the Criminal Code and also carrying a maximum penalty including 10 years imprisonment; and
(c)unlawful possession of stolen property, contrary to s 324 of the Criminal Code and carrying a maximum penalty including 6 months imprisonment.

I shall refer to these as the new offences.

There was no need for these offences to be dealt with in the Supreme Court, except that they appeared to have been committed in breach of a good behaviour order I made in December 2013. As it turns out, the matter is not nearly so straightforward.

Evidence

As well as the statement of facts for the three new offences, the following material is in evidence before me:

(a)the statement of facts for offences on which I sentenced Mr Eluga in December 2013, and my sentencing remarks at that time;
(b)Mr Eluga's criminal history;
(c)the orders entered by the Court Registry in December 2013, including the good behaviour order itself, an Official Notice of Good Behaviour Order, and the undertaking signed by Mr Eluga in accordance with the good behaviour order;
(d)the Sentence Administration Board order cancelling the periodic detention order I made in December 2013 in relation to Mr Eluga's sentence;
(e)two compensation schedules relating to reparation orders sought arising out of the new offences;
(f)a pre-sentence report prepared for the Magistrates Court in April 2016;
(g)a CADAS report prepared…

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 Eluga

Details

AGLC: R v Eluga [2016] ACTSC 304
Case: [2016] ACTSC 304
Decision Date: 28 July 2016

CaseChat Overview and Summary

In the matter of R v Eluga, the defendant was charged with multiple offences including theft, obtaining property by deception, and unlawful possession of stolen property. The case was heard by the County Court of Victoria where the defendant had entered pleas of guilty to all charges. The defendant's criminal history was significant, and the offending was linked to the use of illicit drugs. The court had to consider the appropriate sentence taking into account the defendant’s criminal history and the nature of the offences. Notably, there was an error in the entry of earlier sentence orders by court staff which required correction.

The legal issues before the court involved determining the correct sentence for the defendant, considering the pre-sentence custody already served, and addressing the administrative error in the earlier sentence orders. The court needed to decide whether to correct the administrative error and re-sentence the defendant, and if so, how this should impact the overall sentence. The court was also required to balance the need for deterrence and rehabilitation with the principles of proportionality and justice.

The court held that the error in the entry of the earlier sentence orders should be corrected and that the defendant should be re-sentenced. The court found that the error did not prejudice the defendant and thus did not warrant a departure from the usual practice of correcting such errors. The court considered the defendant’s significant criminal history and the link between his offending and drug use. It was noted that the pre-sentence custody served should be taken into account, and the court imposed a sentence that reflected the totality of the offending and the need for both punishment and rehabilitation. The court ultimately sentenced the defendant to a term of imprisonment with specific details provided in the orders section of the judgment.

The court ordered that the earlier sentence orders be corrected to reflect the accurate details of the pre-sentence custody served. The defendant was sentenced to a term of imprisonment with specific parole conditions, reflecting the totality of the offending and the need for both punishment and rehabilitation. The court also made orders for the defendant to undergo drug treatment programs and other rehabilitative measures during his incarceration. The defendant was given credit for the pre-sentence custody already served.

Orders

Orders of the court

See [58]-[71] below.

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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