R v Hart - [2016] ACTSC 16

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	The Queen v Hart
Citation:	[2016] ACTSC 16
Hearing Date(s):	2 February 2016
DecisionDate:	2 February 2016
Before:	Refshauge J
Decision:	1. The conviction for aggravated robbery, committed on 10 August 2010 be confirmed. 2. It be confirmed that Justin Hart has been referred to this Court because you were unable to complete the periodic detention ordered in the sentence on 7 December 2012. 3. That Justin Hart be re-sentenced. 4. Justin Hart be sentenced to three years and seven months imprisonment to commence on 23 April 2015, to take in to account pre-sentence custody, including the periods of periodic detention that completed. 5. That sentence be suspended today, 2 February 2016, for a period of two years. 6. Justin Hart be required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT), to be of good behaviour for a period of two years with the following conditions: (a) A probation condition that he be under the supervision of the Director-General or her delegate for two years or such lesser period as the person supervising him deems appropriate; (b) A community service condition that he complete 350 hours of community service work within 24 months from today, 2 February 2016.
Catchwords:	CRIMINAL LAW – Jurisdiction, practice and procedure – judgment and punishment – sentencing – re-sentencing – aggravated robbery – remitted from the Sentence Administration Board – unable to complete periodic detention – physical injury – delay – delay caused by offender – offender absconded – surrendered to police – no further offending – rehabilitation during intervening period – pro-social life
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT), ss 75(5), 75(1)(f), 82A Crimes (Sentencing) Act 2005 (ACT), ss 7, 33, Pt 4.2 Criminal Code 2002 (ACT), s 310
Cases Cited:	Alt (2013) 236 A Crim R 486 Blanco (1999) 106 A Crim R 303 Hogan v Hinch (2011) 243 CLR 506 R v Hart (Unreported, Australian Capital Territory Supreme Court, Refshauge J, SCC 84 of 2011, 7 December 2012) R v Hart (Unreported, Australian Capital Territory Supreme Court, Refshauge J, SCC 84 of 2011, 17 December 2012) R v McMahon [2014] ACTSC 280 R v Whyte [2004] VSCA 5 Shore (1992) 66 A Crim R 37 Thompson (1987) 37 A Crim R 97 Wong v The Queen (2001) 207 CLR 584
Parties:	The Queen (Crown) Justin Hart (Defendant)
Representation:	Counsel Ms P Burgoyne-Scutts (Crown) Mr R Davies (Defendant)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid (ACT) (Defendant)
File Number(s):	SCC 84 of 2011

REFSHAUGE J:

The sentencing of offenders for very serious offences can be a difficult exercise, for it requires a court to have regard to the need for deterrent sentences, so as to protect the community by punishing those who commit such crimes, as a clear mark of society’s disapproval of such conduct, and to vindicate the victims who have suffered great harm and invasion…

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 Hart

Details

AGLC: R v Hart [2016] ACTSC 16
Case: [2016] ACTSC 16
Decision Date: 2 February 2016

CaseChat Overview and Summary

Justin Hart was convicted for aggravated robbery and sentenced to a term of imprisonment, with a requirement to serve periodic detention. Hart was unable to complete the periodic detention and the matter was remitted to the sentencing court. The court was required to determine the appropriate sentence in light of Hart’s inability to complete the periodic detention, the delay in the proceedings, and the intervening circumstances, including Hart’s rehabilitation and change in lifestyle. The court had to weigh the seriousness of the offence, the delay in the proceedings, Hart’s rehabilitation, and his prospects for reintegration into society.

The court noted that the offence of aggravated robbery was serious and that the delay in the proceedings was caused by Hart. However, the court also considered that Hart had shown rehabilitation during the intervening period, had led a pro-social life, and had no further offending. The court held that a sentence of imprisonment would not be appropriate in the circumstances and decided to suspend the sentence for two years with conditions. The court considered that a suspended sentence would allow Hart to continue his rehabilitation and reintegration into society without the negative consequences of a period of imprisonment.

Justin Hart’s conviction for aggravated robbery was confirmed. The court remitted the matter to itself for re-sentencing in light of Hart’s inability to complete the periodic detention. The court sentenced Hart to three years and seven months imprisonment, to commence on 23 April 2015, to take into account pre-sentence custody, including the periods of periodic detention that were completed. The sentence was suspended for two years, subject to Hart complying with certain conditions, including supervision, community service, and good behaviour.

Orders

Orders of the court

1. The conviction for aggravated robbery, committed on 10 August 2010 be confirmed.

2. It be confirmed that Justin Hart has been referred to this Court because you were unable to complete the periodic detention ordered in the sentence on 7 December 2012.

3. That Justin Hart be re-sentenced.

4. Justin Hart be sentenced to three years and seven months imprisonment to commence on 23 April 2015, to take in to account pre-sentence custody, including the periods of periodic detention that completed.

5. That sentence be suspended today, 2 February 2016, for a period of two years.

6. Justin Hart be required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT), to be of good behaviour for a period of two years with the following conditions:

(a) A probation condition that he be under the supervision of the Director-General or her delegate for two years or such lesser period as the person supervising him deems appropriate;

(b) A community service condition that he complete 350 hours of community service work within 24 months from today, 2 February 2016.

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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