R v Foster (No 2) - [2025] ACTSC 241

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Foster (No 2)
Citation:	[2025] ACTSC 241
Hearing Date:	3 June 2025
Decision Date:	11 June 2025
Before:	Christensen AJ
Decision:	See [51]
Catchwords:	CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – burglary – theft – dishonestly obtain property by deception – offending occurred in 2020 – significant delay in finalisation of proceedings – offender has graduated and completed drug and alcohol treatment order in interim – significance of totality principle in sentencing exercise – fully suspended sentence imposed
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT) s 85 Crimes (Sentencing) Act 2005 (ACT) ss 19, 80ZB Criminal Code 2002 (ACT) s 308, 311, 326
Cases Cited:	Kola v The King [2025] SASCA 38 Mill v The Queen [1988] HCA 70; 166 CLR 59 R v Foster [2021] ACTSC 229 R v Foster (Supreme Court of the Australian Capital Territory, Refshauge AJ, 3 June 2022) R v Foster (Supreme Court of the Australian Capital Territory, Refshauge AJ, 31 March 2023) R v Foster (Supreme Court of the Australian Capital Territory, Hopkins AJ, 17 May 2024) R v Hanson [2022] ACTSC 107 R v Novakovic [2018] ACTSC 331 R v Todd [1982] 2 NSWLR 517 R v Ware [2016] ACTSC 264 RK v Mirik [2009] VSC 14; 21 VR 623
Texts Cited:	Refshauge AJ, ‘Speech of Acting Justice Refshauge on the occasion of the graduation of Stephen Foster’ (Speech, Supreme Court of the Australian Capital Territory, 24 March 2023)
Parties:	Director of Public Prosecutions ( Crown) Stephen Foster ( Offender)
Representation:	Counsel G Meikle ( Crown) C Duffy ( Offender)
Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Offender)
File Numbers:	SCC 291, 292 of 2020; SCC 64, 85 of 2022

CHRISTENSEN AJ:

Introduction

1․Stephen Foster comes before the Court to be sentenced. The sentencing exercise is an unusual one as it involves charges for offending that occurred in March and August 2020, and which were not the subject of sentence earlier due to Mr Foster’s engagement with a drug and alcohol treatment order (treatment order). The significance of delay and the totality principle in the sentencing exercise are such that, unusually, it is appropriate that fully suspended sentences are imposed for what are serious offences.
2․An additional aspect to the current sentencing exercise is a breach proceeding relating to a contended breach of a good behaviour order for a failure to engage with supervision. For the reasons that will become apparent, it is appropriate to adjourn the breach proceeding to a later date.

Procedural background

3․On 29 March 2021, Mr Foster was sentenced in relation to burglary and driving offences committed in June and October 2020: R v Foster [2021] ACTSC 229 (R v Foster). He was sentenced to a total term of 3 years and 10 months imprisonment and a treatment order was imposed. The treatment and supervision part of the order was for a…

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 Foster (No 2)

Details

AGLC: R v Foster (No 2) [2025] ACTSC 241
Case: [2025] ACTSC 241
Decision Date: 11 June 2025

CaseChat Overview and Summary

The respondent, Foster, was charged with burglary, theft, and obtaining property by deception. The charges stemmed from incidents that occurred in 2020. The case was eventually heard in the relevant court, which had to consider the appropriate sentence given the delay in finalising the proceedings and the respondent's completion of a drug and alcohol treatment order. The court's task was to weigh the totality principle against the need to balance justice with the respondent's rehabilitation.

The central legal issue the court had to address was the appropriate sentence for the respondent, taking into account the delay in the proceedings and the respondent's completion of a drug and alcohol treatment order. The court had to determine how much weight to give the delay in finalising the case and the rehabilitation efforts made by the respondent in the interim period. It also needed to consider the totality principle, which requires that the overall punishment should be proportionate to the gravity of the offences committed.

The court emphasised the importance of the totality principle in the sentencing exercise. It acknowledged the delay in finalising the proceedings but found that the respondent's completion of a drug and alcohol treatment order in the interim period was a significant factor in favour of a more lenient sentence. The court took into account the respondent's rehabilitation efforts and the delay in proceedings, ultimately deciding that a fully suspended sentence was the most appropriate outcome. The court believed this sentence would adequately address the offences while also providing an opportunity for the respondent to continue on a path of rehabilitation.

The court ordered that the sentence be a fully suspended sentence. This decision recognises the importance of the totality principle in sentencing and the respondent's efforts towards rehabilitation, while also ensuring that the sentence remains proportionate to the gravity of the offences committed.

Orders

Orders of the court

See [51]

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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