R v Folauhola (No 2) - [2024] ACTSC 87

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Folauhola (No 2)
Citation:	[2024] ACTSC 87
Hearing Date:	2 April 2024
Decision Date:	2 April 2024
Reasons Date: Before:	4 April 2024 McWilliam J
Decision:	(1) In respect of the intensive correction order imposed on 16 December 2020, the Court notes the breach and makes no order.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – breach of intensive correction order – where breach was relatively less serious and majority of term had been served without incident – not in the interests of justice to cancel the intensive correction order
Legislation Cited:	Crimes Act 1900 (ACT) s 25 Crimes (Sentence Administration) Act2005 (ACT) ss 42(1)(a)(i), 65, 65(2), 65(2)(a), 65(4), 65(7), 79 Crimes (Sentencing) Act 2005 (ACT) s 17 Criminal Code 2002 (ACT) ss 308, 312 Road Transport (Driver Licensing) Act 1999 (ACT) ss 32(2)(a), 32(9)
Cases Cited:	R v Dimitrov (No 2) [2020] ACTSC 54 R v DU (No 5) [2022] ACTSC 172 R v Folauhola [2020] ACTSC 341 R v Gunner (No 2) [2021] ACTSC 300 R v Hanson (No 2) [2023] ACTSC 158 R v Kemppainen (No 3) [2023] ACTSC 323 R v XXL [2022] ACTSC 24
Parties:	Director of Public Prosecutions (Prosecution) Atunaisa Folauhola (Offender)
Representation:	Counsel T Kelliher ( Prosecution) T Taylor ( Offender)
Solicitors ACT Director of Public Prosecutions ( Prosecution) Hugo Law Group ( Offender)
File Number:	SCC 81 of 2020

McWILLIAM J:

1․On 2 April 2024, Atunaisa Folauhola, the offender, came before the Court in respect of a breach of an intensive correction order (ICO), which was imposed in respect of a sentence of imprisonment of 3 years by Elkaim J on 16 December 2020: R v Folauhola [2020] ACTSC 341 (initial sentence).
2․Following the hearing, I noted the breach and made no order in respect of the ICO. Where the Court does not consider that a cancellation of the ICO under s 65(2) of the Crimes (Sentence Administration) Act2005 (ACT) (CSA Act) is in the interests of justice, reasons must be given: s 65(7) of the CSA Act. These are the reasons.

The initial sentence

3․The initial sentence imposed was in respect of the following three offences:
(a)Aggravated burglary with intent to commit an offence and in company with another person (CC 2020/1426), contrary to s 312 of the Criminal Code 2002 (ACT) (Criminal Code), for which the offender was sentenced to 2 years’ imprisonment commencing on 16 December 2020 and ending on 15 December 2022;
(b)Occasioning grievous bodily harm (SCCAN 2020/124), contrary to s 25 of the Crimes Act 1900 (ACT), for which the offender was sentenced to 2 years’ imprisonment commencing on 16 December 2021 and ending on 15 December 2023; and
(c)Theft (CC 2020/1427), contrary to s 308 of the Criminal Code, for which the offender was sentenced to 6 months’ imprisonment commencing on 16 December 2020 and ending…

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 Folauhola (No 2)

Details

AGLC: R v Folauhola (No 2) [2024] ACTSC 87
Case: [2024] ACTSC 87
Decision Date: 2 April 2024

CaseChat Overview and Summary

In the case of R v Folauhola (No 2), the defendant, Folauhola, appeared before the Court to address a breach of an intensive correction order (ICO). The breach arose from a relatively minor infraction, and Folauhola had already served the majority of the ICO term without further issues. The court was tasked with determining an appropriate response to this breach, considering the nature and seriousness of the offence and the overall conduct of Folauhola during the ICO.

The primary legal issue before the court was whether cancelling the ICO was in the interests of justice. Given the relatively minor nature of the breach and Folauhola's otherwise compliant behaviour during the ICO term, the court had to weigh the punitive aspect of cancelling the order against the potential benefits of allowing Folauhola to complete the remainder of the ICO. The court considered the principles of sentencing and the objectives of the ICO, which include rehabilitation and deterrence.

The court concluded that cancelling the ICO was not in the interests of justice. The breach was relatively minor, and Folauhola had demonstrated a capacity for compliance for the majority of the ICO term. The court emphasised that cancelling the ICO would not serve the objectives of the order and would not be proportionate to the breach. Therefore, the court decided to make no order in respect of the breach of the ICO. The court noted the breach but determined that it was not necessary to cancel the ICO as it would not be just and appropriate in the circumstances.

Orders

Orders of the court

(1) In respect of the intensive correction order imposed on 16 December 2020, the Court notes the breach and makes no order.

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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