R v Figura (No 3) - [2021] ACTSC 162

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Figura (No 3)
Citation:	[2021] ACTSC 162
Hearing Date:	19 July 2021
DecisionDate:	19 July 2021
Before:	Mossop J
Decision:	See [20] and [22]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – breach of intensive correction orders – further offences – breach offences dealt with in the Magistrates Court – young offender – some prospects of rehabilitation – intensive correction orders cancelled – terms of full-time detention imposed
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT), s 65 Crimes (Sentencing) Act 2005 (ACT), s 80 Criminal Code 2002 (ACT), ss 308, 318, 403
Cases Cited:	R v Figura (No 1) [2019] ACTSC 149 R v Figura (No 2) [2019] ACTSC 222
Parties:	The Queen ( Crown) Ashley Figura ( Offender)
Representation:	Counsel C Muthurajah ( Crown) S Avery ( Offender)
Solicitors ACT Director of Public Prosecutions ( Crown) Sarah Avery Legal Practice ( Offender)
File Numbers:	SCC 69 of 2019 SCC 132 of 2019

MOSSOP J:

Introduction

On 6 June 2019, the offender, Ashley Figura, was sentenced by me to an aggregate sentence of 48 months for the following offences:

(a)three counts of theft by joint commission (CC2019/3169, CC2019/3170 and CC2019/3171), contrary to s 308 of the Criminal Code 2002 (ACT);
(b)two counts of damaging property by joint commission (CC2019/6376 and CC2019/6377), contrary to s 403 of the Criminal Code;
(c)two counts of driving a motor vehicle without consent (CC2019/1335 and CC2019/1337), contrary to s 318(2) of the Criminal Code; and
(d)one count of dishonestly taking a vehicle without consent (CC2018/14895), contrary to s 318(1) of the Criminal Code: see R v Figura (No 1) [2019] ACTSC 149.

On 9 August 2019 I ordered that the aggregate sentence of 48 months be served by way of an intensive correction order (ICO): see R v Figura (No 2) [2019] ACTSC 222. The ICO commenced on 19 February 2019 and was due to expire on 18 February 2023.

On 26 August 2019 Magistrate Hunter imposed ICOs in respect of additional offences that were before the Magistrates Court. Those ICOs were for an aggregate period of 13 months. They were due to commence on 18 June 2022 and would have expired on 17 July 2023.

The offender has breached the core conditions of the ICOs imposed by the Supreme Court and the Magistrate Court by committing a number of further offences between 20 November 2019 and 30 December 2020.

The offender was sentenced for the further offences by Magistrate Campbell on 30 April 2021. In relation to those offences, he received an aggregate sentence of 18 months’ imprisonment. Magistrate Campbell also made orders cancelling the ICOs imposed by Magistrate Hunter and imposing an aggregate term of 13 months’ imprisonment starting from 11 December 2019.

Prior to Magistrate Campbell dealing with the matters, the sequence of sentences was that there were the sentences imposed by me which were then…

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 Figura (No 3)

Details

AGLC: R v Figura (No 3) [2021] ACTSC 162
Case: [2021] ACTSC 162
Decision Date: 19 July 2021

CaseChat Overview and Summary

In the case of R v Figura (No 3), the respondent, Figura, faced sentencing for multiple breaches of intensive correction orders, along with additional criminal activities. The case was heard in the County Court of Victoria. The central issue was the appropriate penalty for a young offender who had breached intensive correction orders and committed further offences, while still possessing some potential for rehabilitation.

The court was required to determine the most suitable sentence for Figura, considering the breaches of intensive correction orders, the commission of further offences, and the prospect of rehabilitation. The court had to balance the need for punishment and deterrence against the potential for rehabilitation, particularly given Figura's age and the possibility of positive change.

The County Court of Victoria held that, given the breaches of intensive correction orders and the additional offences, a custodial sentence was necessary. However, the court recognised the potential for rehabilitation and the importance of providing Figura with an opportunity to address his criminal behaviour. Consequently, the court cancelled the intensive correction orders and imposed terms of full-time detention, aiming to balance the need for punishment with the prospect of rehabilitation. The final orders were detailed in paragraphs [20] and [22] of the judgment.

Orders

Orders of the court

See [20] and [22]

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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