R v Hall (No 2) - [2022] ACTSC 22

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Hall (No 2)
Citation:	[2022] ACTSC 22
Hearing Dates:	14 February 2022
DecisionDate:	14 February 2022
Before:	Elkaim ACJ
Decision:	See [26]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – where offender asks the Court to take in account an attempted aggravated burglary – guilty plea
Legislation Cited:	Criminal Code 2002 (ACT) s 310
Cases Cited:	Bugmy v The Queen [2013] HCA 37; 249 CLR 571 R v Batcheldor [2021] ACTSC 208 R v Forrest (No 2) [2021] ACTSC 259 R v Hall (No 2) [2020] ACTSC 63 R v Sheather [2021] ACTSC 290
Parties:	The Queen ( Crown) Marley Hall ( Offender)
Representation:	Counsel P Dixon ( Crown) R Thomas ( Offender)
Solicitors ACT Director of Public Prosecutions ( Crown) Paul Edmonds & Associates ( Offender)
File Numbers:	SCC 141; 142; 143 of 2021

ELKAIM J:

On 24 November 2021 the offender plead guilty to the charge of aggravated robbery contrary to s 310(b) of the Criminal Code 2002 (ACT). This offence carries a maximum penalty of 25 years imprisonment and/or a fine of $400,000.

The offender has also asked me to take into account an attempted aggravated burglary [CC2021/5246]. In addition, there are two transfer charges.

The facts of the offending are set out in the Agreed Statement of Facts. The following is a summary. On 12 August 2020 the offender and two other persons tried to force their way into a premises in Narrabundah. They were armed with a shot gun, a sword and a knife. The attempt failed and they fled. This is the offence I am asked to take into account.

The effect of taking a matter into account is to diminish the degree of leniency that can be exercised in the primary sentencing. This is an important point here where the submissions on behalf of the offender primarily revolved around the exercise of leniency.

The primary offence occurred later on the same morning when the same three offenders entered a home unit in Gordon while the occupant was asleep. Once again, they were armed. They threatened to kill the occupant. They ransacked the unit and took a lot of property away with them.

There is a Victim Impact Statement from the occupant of the unit. She was then a 25-year-old woman, living alone in the unit. She was woken up by the offenders, one of whom, this offender, was threatening her dog with a long knife. After she pushed the knife away, he then held it to her neck. She says:

I still remember the cold sharp feeling of the metal against my skin and the voices of demands.

The victim goes on to describe what she has been through since the offence. She has spent months in therapy with psychiatrists and psychologists. She was unable to leave her home. At one stage she had to sleep in her parents’ bedroom.…

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 Hall (No 2)

Details

AGLC: R v Hall (No 2) [2022] ACTSC 22
Case: [2022] ACTSC 22
Decision Date

CaseChat Overview and Summary

In the case of R v Hall (No 2), the offender, Marley Hall, pleaded guilty to charges of aggravated robbery and two transfer charges. The court was required to determine the appropriate sentence for these offences, taking into account the offender's criminal history and the principles of sentencing. The offender had previously been convicted of similar offences and had failed to take advantage of opportunities for rehabilitation. The court had to balance the need for rehabilitation against the need to protect the public and deter future offending.

The court considered the principles set out in Bugmy v The Queen, which emphasised the importance of rehabilitation for offenders with disadvantaged backgrounds. However, the court also had to consider the seriousness of the current offences, which involved threats and terror against a young woman during a home invasion. The court found that the offences were of more than medium objective seriousness, and that the offender's criminal history and disregard for previous opportunities for rehabilitation were aggravating factors.

In determining the sentence, the court considered the need for general deterrence and the protection of the public. The court also took into account the fact that the offender had pleaded guilty shortly before the trial was due to begin, and that his co-offenders had been referred to the Drug and Alcohol List. The court ultimately decided to impose a sentence that was lengthy but not entirely cumulative upon the existing sentence, in order to avoid ignoring principles of totality.

The court ordered that the offender be sentenced to five years and one month imprisonment for the offence of aggravated robbery, with a non-parole period of three years and six months. The court also ordered that the offender be sentenced to three months imprisonment for each of the two transfer charges, to commence on the same day as the sentence for the aggravated robbery. The sentence for the aggravated robbery was reduced from six years to five years and one month to reflect the offender's guilty plea and the fact that the sentence was to commence immediately.

Orders