R v Gray (No 2) - [2021] ACTSC 161

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Gray (No 2)
Citation:	[2021] ACTSC 161
Hearing Date(s):	19 February 2021
DecisionDate:	19 February 2021
Before:	Refshauge AJ
Decision:	1. The Drug and Alcohol Treatment Order made on 7 February 2020 be amended under r 6909 of the Court Procedure Rules 2006 (ACT) to show that the sentence of 18 months imprisonment imposed on Luke Gray commences on 8 October 2019 and ends on 7 April 2021.
Catchwords:	CRIMINAL LAW – Judgment – amendment – Drug and Alcohol Treatment Order
Legislation Cited:	Court Procedure Rules 2006 (ACT) Crimes (Child Sex Offenders) Act 2005 (ACT) s 54(1) Crimes (Sentencing) Act 2005 (ACT) ss 12A, 80W Criminal Code 2002 (ACT) s 315 Public Order (Protection of Persons and Property) Act 1971 (ACT) s 11(1)
Cases Cited:	Brennand and Naughton v Hartung and Best Practice Education Group Ltd t/as Blue Gum Community School (No 3) [2015] ACTSC 149 R v Gorman [2009] ACTSC 7 R v Gray [2020] ACTSC 40
Parties:	The Queen ( Crown) Luke Gray ( Offender)
Representation:	Counsel D Perks ( Crown) C Brown; C Duffy ( Offender)
Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender)
File Number(s):	SCC 331 of 2019 SCC 332 of 2019

Refshauge AJ

On 7 February 2020, Walker AJ convicted Luke Gray of one count of going equipped for theft, contrary to s 315 of the Criminal Code 2002 (ACT), two counts of failing to report a change of details as a registerable offender, contrary to s 54(1) of the Crimes (Child Sex Offenders) Act 2005 (ACT), and one count of trespass, contrary to s 11(1) of the Public Order (Protection of Persons and Property) Act 1971 (ACT). By virtue of those convictions, Mr Gray was also in breach of two Good Behaviour Orders, imposed in the Magistrates Court, for failing to stop at the direction of a police officer and possessing a drug of dependence.

Her Honour then sentenced Mr Gray for those matters in the Drug and Alcohol Sentencing List. Her Honour took no further action on the breaches of the Good Behaviour Orders and, on the trespass charge, her Honour imposed a financial penalty. On the other charges of going equipped for theft and failing to report a change of details as a registrable offender, her Honour sentenced Mr Gray to a total of 18 months imprisonment, comprising nine months and 12 months respectively on the failing to report charges, to be served concurrently, and a consecutive sentence of six months for the charge of going equipped for theft.

Her Honour then made a Drug and Alcohol Treatment Order (a Treatment Order) under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) for a period of 12 months from the date of sentence, 7 February 2020. Her Honour commenced the sentence on 8 October 2019 to take pre-sentence custody into account: see R v Gray [2020] ACTSC 40 at…

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 Gray (No 2)

Details

AGLC: R v Gray (No 2) [2021] ACTSC 161
Case: [2021] ACTSC 161
Decision Date: 19 February 2021

CaseChat Overview and Summary

Luke Gray was charged with various drug and driving offences and sentenced to 18 months imprisonment, which was to run concurrently with a Drug and Alcohol Treatment Order. Gray appealed the sentence and, in a decision handed down in April 2020, the sentence was quashed and a new sentence was imposed. The primary issue before the court was whether the Drug and Alcohol Treatment Order should be amended to reflect the new sentence. Specifically, the court needed to determine if the new sentence should run concurrently with the existing order or if it should replace it.

The court found that the new sentence should run concurrently with the Drug and Alcohol Treatment Order. It held that, as the original sentence had been quashed, the Drug and Alcohol Treatment Order should be amended to reflect the new sentence. The court noted that the treatment order was a significant part of Gray's rehabilitation and that it should not be disrupted. The court concluded that the order should be amended to reflect the new sentence, which would run concurrently with the existing order.

The court ordered that the Drug and Alcohol Treatment Order be amended to reflect the new sentence imposed on Gray. The order was to commence on 8 October 2019 and end on 7 April 2021, which was the date that the new sentence would expire. The court held that this was the most appropriate way to ensure that Gray's rehabilitation was not disrupted and that the treatment order remained a vital part of his sentence.

Orders

Orders of the court

1. The Drug and Alcohol Treatment Order made on 7 February 2020 be amended under r 6909 of the Court Procedure Rules 2006 (ACT) to show that the sentence of 18 months imprisonment imposed on Luke Gray commences on 8 October 2019 and ends on 7 April 2021.

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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