R v Green - [2021] ACTSC 13

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Green
Citation:	[2021] ACTSC 13
Hearing Date:	3 February 2021
Decision Date:	3 February 2021
Before:	Murrell CJ
Decision:	The offender is sentenced to four years’ imprisonment, with an effective nonparole period of two years’ imprisonment.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Threat to kill – Unlawful confinement – Damage property – Assault occasioning actual bodily harm – Use carriage service to menace,
harass or offend
Legislation Cited:	Criminal Code 1995 (Cth) s 474.17(1) Criminal Code 2002 (ACT) s 403 Crimes (Sentencing) Act 2005 (ACT) s 35 Crimes Act 1900 (ACT) ss 24, 30, 34 Crimes Act 1914 (Cth) ss 16A(2), 19AC(4)(b)
Cases Cited:	R v Avery [2018] ACTSC 64; [2018] ACTCA 57 R v Ayuel [2020] ACTSC 213 R v Barlow [2017] ACTSC 90 R v Froome [2018] ACTSC 152 R v Sanderson [2016] ACTSC 277 R v Stott (Supreme Court of the Australian Capital Territory, Penfold J, 6 September 2011) Singh v The Queen [2015] ACTCA 65
Parties:	The Queen (Crown) Timothy James Green (Offender)
Representation:	Counsel
P Dixon (Crown) R Thomas (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown)
Paul Edmonds & Associates (Offender)
File Number(s):	SCC 127, 128 of 2020
MURRELL CJ:
Introduction

1. The offender is to be sentenced for the following offences:

(a) Count 1: Assault occasioning actual bodily harm, contrary to s 24 of the Crimes
Act 1900 (ACT). The maximum penalty is five years’ imprisonment.

(b) Count 2: Threat to kill, contrary to s 30 of the Crimes Act 1900 (ACT). The
maximum penalty is 10 years’ imprisonment.

(c) Count 3: Unlawful confinement, contrary to s 34 of the Crimes Act 1900 (ACT).
The maximum penalty is 10 years’ imprisonment.

(d) Count 4: Damaging property, contrary to s 403 of the Criminal Code 2002 (ACT).
The maximum penalty is a fine of $160,000, 10 years’ imprisonment, or both.

(e) Count 5: Use a carriage service to menace/harass/offend, contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth). The maximum penalty is three
years’ imprisonment.

2. The offender has been in custody since he was arrested on 17 April 2020.
3. On 19 August 2020, he entered pleas of guilty at a criminal case conference. Having regard to the factors in s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), the appropriate discount for the pleas is 20 per cent.

Facts.

4.       The complainant had known the offender for approximately four years, and they were friends.
5.       In February 2019, the complainant separated from his wife and, with his dog Rollo, moved to stay in the garage of a house in Gowrie where the offender lived with his mother and teenage daughter.
6.       On 12 April 2020, the offender discovered text messages between the complainant and his teenage daughter on the daughter's mobile telephone. The text messages suggested that the complainant had supplied the offender's daughter…

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 Green

Details

AGLC: R v Green [2021] ACTSC 13
Case: [2021] ACTSC 13
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, Timothy James Green was convicted of assault occasioning actual bodily harm, threat to kill, unlawful confinement, damaging property, and using a carriage service to menace, harass, or offend. The court had to decide the appropriate sentences for each of these offences, considering both the objective seriousness of the offences and the subjective features of the offender, including his criminal history, mental health, and prospects for rehabilitation. The court also had to determine the appropriate nonparole period for the total sentence.

The court found that the offences were objectively very serious. The assault occasioning actual bodily harm involved multiple blows inflicted with a weapon, causing substantial injuries. The threat to kill was made in the context of a lengthy unlawful confinement, with the offender wielding a knife and making irrational threats. The damaging property charge involved burning the complainant's clothing, which, while of limited financial value, had significant sentimental value to the complainant. The offender's use of a carriage service to menace, harass, or offend involved sending numerous threatening text messages to the complainant, which compounded the psychological injury experienced by the complainant.

In terms of the subjective features, the court noted that the offender had a longstanding drug problem and a history of drug-related offences. However, there was no history of violence. The offender had entered a guilty plea, which resulted in a 20% discount on the sentences. The offender also expressed remorse for his conduct and had good prospects for rehabilitation, given his apparent capacity and motivation to address his mental health and drug problems. The court found that sentences of imprisonment were necessary to reflect the seriousness of the offences and to serve the purposes of punishment, accountability, denunciation, and recognition of harm to the victim.

The court sentenced the offender to four years’ imprisonment, with an effective nonparole period of two years. The sentences for each offence were as follows: 24 months’ imprisonment for assault occasioning actual bodily harm, 19 months’ imprisonment for threat to kill, 32 months’ imprisonment for unlawful confinement, 12 months’ imprisonment for damaging property, and 14 months’ imprisonment for using a carriage service to menace, harass, or offend. The sentences were to run concurrently, with the offender being eligible for release to parole after serving 20 months’ imprisonment.

Orders