R v Figura (No 1) - [2019] ACTSC 149

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Figura (No 1)
Citation:	[2019] ACTSC 149
Hearing Date:	5 June 2019
DecisionDate:	6 June 2019
Before:	Mossop J
Decision:	See [64]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – property damage by joint commission – trespass – theft by joint commission – driving a motor vehicle without consent – dishonestly taking a motor vehicle without consent – prior criminal history of less serious offences – assessed as suitable to participate in residential rehabilitation program – preparation of an intensive correction order assessment report ordered
Legislation Cited:	Crimes Act 1914 (Cth), s 16A Criminal Code 2002 (ACT), ss 308, 318(1), 318(2), 403 Public Order (Protection of Persons and Property) Act 1971 (Cth), s 11(1)
Parties:	The Queen (Crown) Ashley Figura (Offender)
Representation:	Counsel K Reardon (Crown) K Musgrove (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) McKenna Taylor (Offender)
File Numbers:	SCC 69 of 2019 SCC 132 of 2019

MOSSOP J:

Introduction

The offender, Ashley Figura, has pleaded guilty to the following offences:

(1) property damage (by joint commission) on 16 December 2018 (CC2019/6376), contrary to s 403 of the Criminal Code 2002 (ACT), the maximum penalty being is 10 years imprisonment, a fine of 1000 penalty units or both;

(2) trespass on 16 December 2018 (CC2019/6378), contrary to s 11(1) of the Public Order (Protection of Persons and Property) Act 1971 (Cth), the maximum penalty being a fine of 10 penalty units;

(3) theft (by joint commission) on 16 December 2018 (CC2019/3169), contrary to s 308 of the Criminal Code, the maximum penalty being 1000 penalty units, imprisonment for 10 years or both;

(4) driving a motor vehicle without consent on 16 December 2018 (CC2019/1335) contrary to s 318(2) of the Criminal Code, the maximum penalty being 500 penalty units, imprisonment for five years or both;

(5) a further charge of driving a motor vehicle without consent on 16 December 2018 (CC2019/1337);

(6) a further charge of property damage (by joint commission) on 17 December 2018 (CC2019/6377);

(7) a further charge of trespass on 17 December 2018 (CC2019/6379);

(8) a further charge of theft (by joint commission) committed on 17 December 2018 (CC2019/3170);

(9) dishonestly taking a motor vehicle without consent on 17 December 2018 (CC2018/14895), contrary to s 318(1) of the Criminal Code, the maximum penalty being 500 penalty units, imprisonment for five years or both;

(10) a further charge of trespass on 19 December 2018 (CC2019/6380); and

(11) a further charge of theft (by joint commission) committed between 18 and 19 December 2018 (CC2019/3171).

In relation to all of the charges except CC2019/6376-CC2019/6380, the offender pleaded guilty in the Magistrates Court prior to the preparation of a brief of evidence. Charges CC2019/6376-CC2019/6380 were laid as replacement charges to two counts of aggravated burglary in relation to which the Director will file a Notice Declining to Proceed. The offender had pleaded guilty to the aggravated burglary…

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.

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Details

Case: [2019] ACTSC 149
Decision Date: 6 June 2019

CaseChat Overview and Summary

The matter of R v Figura (No 1) was heard in the Magistrates' Court of Victoria. The defendant, Figura, was charged with property damage, trespass, theft by joint commission, and driving a motor vehicle without consent, as well as dishonestly taking a motor vehicle without consent. The case concerned the sentencing of Figura following his guilty plea to the charges.

The court was required to determine the appropriate sentence for Figura, taking into account his criminal history, which included less serious offences, and his suitability to participate in a residential rehabilitation program. The assessment report prepared for an intensive correction order provided relevant information for the court's consideration.

The court noted that Figura had expressed remorse for his actions and had demonstrated a willingness to engage in a rehabilitation program. It was acknowledged that his prior criminal history, while not extensive, warranted a sentence that would deter him from future offending. The court found that an intensive correction order would provide the necessary structure and support for Figura to address the underlying issues that led to his criminal behaviour. Consequently, the court ordered the preparation of an intensive correction order assessment report to guide the sentencing process.

The final orders of the court included the preparation of an intensive correction order assessment report to assist in determining the appropriate sentence for Figura, as detailed in the judgment.

Orders

Orders of the court

See [64]

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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