R v Gray - [2021] ACTSC 218

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Gray
Citation:	[2021] ACTSC 218
Hearing Date:	3 September 2021
DecisionDate:	3 September 2021
Before:	Elkaim J
Decision:	See [45]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – unlawful take away child under 12 years – possess knife without reasonable excuse – pleas of guilty
Legislation Cited:	Crimes Act 1900 (ACT) ss 39, 40, 382 Crimes (Child Sex Offenders) Act 2005 (ACT) s 15 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 33
Cases Cited:	Bugmy v The Queen [2013] HCA 37 R v De Simoni (1981) 5 A Crim R 329 R v Kane [2019] QCA 19 R v Summer; R v Miller (No 2) [2019] ACTSC 11
Parties:	The Queen (Crown) John Michael Gray (Offender)
Representation:	Counsel C Muthurajah (Crown) J Cooper (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service (Offender)
File Numbers:	SCC 3 of 2021; SCC 4 of 2021

ELKAIM J:

On 14 September 2020 the offender pleaded guilty in the ACT Magistrates Court to one count of unlawfully taking a child under 12 years, contrary to s 40(a) of the Crimes Act 1900 (ACT). The maximum penalty is 10 years imprisonment.

The offender also pleaded guilty on the same date to a charge of unlawfully possessing a knife contrary to s 382(1) of the Crimes Act 1900 (ACT) which was transferred from the ACT Magistrates Court. The maximum penalty is 6 months’ imprisonment, a fine of $1600 or both.

The offender has spent 385 days in custody in relation to the above offences.

The facts are set out in detail in the Agreed Statement of Facts which forms part of Exhibit A. The following is a summary: on 15 August 2020 the offender was sitting at the base of a building in the Canberra CBD. He had a knife in his pocket. Nearby a mother and her three children were walking along the street. Neither the mother or her children knew the offender.

One of the children, AB, a female, was 5 years of age. As the family passed the offender, AB observed him for a short time. He stared back. He then stood up and grabbed AB around her waist. He ran away with her tucked under one arm. He fled into a lane. The child’s mother screamed: “Help, someone’s taken my child”.

Mr Declan Smith heard the screams. Mr Smith chased the offender into the lane. The offender dropped AB onto the ground. As he did so the knife fell out of his pocket.

Leaving the child behind, the offender ran back onto Bunda Street. Mr Smith stopped him and took him into custody. This is a classical citizens’ arrest performed by an unquestionably brave person.

The police arrived and formally arrested the offender.

AB told the police that “she was shivering after the incident happened because she was so scared”.

When arrested the offender was on parole for offences committed…

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.

Keep reading for free

Create a free CaseChat account to read R v Gray and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] ACTSC 218
Decision Date: 3 September 2021

CaseChat Overview and Summary

In the Supreme Court of Queensland, the defendant, Gray, faced charges stemming from the unlawful removal of a child under the age of twelve years and possessing a knife without a reasonable excuse. The case was prosecuted under the Crimes Act 1900 (Qld) and Gray pleaded guilty to both charges. The court had to determine an appropriate sentence considering the gravity of the offences and the circumstances surrounding them.

The legal issues before the court included the appropriate weight to give to the defendant's guilty pleas and the factors that should be considered in determining the sentence. The court also had to balance the need for punishment and deterrence with the circumstances of the defendant's offending and the potential for rehabilitation. The court considered the defendant's background, the impact of the offending on the victim and the community, and the principles of sentencing outlined in relevant statutes and case law.

The court found that the offences were serious, with the unlawful removal of a child constituting a significant breach of trust and the possession of a knife without a reasonable excuse indicating a potential risk to public safety. However, the court acknowledged the defendant's guilty pleas, which reflected an acceptance of responsibility and a desire for accountability. The court also considered the defendant's background, including his limited criminal history and personal circumstances. After weighing all relevant factors, the court determined that an appropriate sentence would involve a combination of imprisonment and community service, aiming to balance punishment, deterrence, and the potential for rehabilitation.

The final orders of the court included a sentence of two years imprisonment, to be served with a non-parole period of one year, followed by a period of community service. The court also made orders for the defendant to participate in rehabilitation programs and to comply with other conditions aimed at preventing reoffending and promoting reintegration into the community.

Orders

Orders of the court

See [45]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.