R v HD - [2015] ACTSC 246

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v HD
Citation:	[2015] ACTSC 246
Hearing Date:	29 July 2015
DecisionDate:	5 August 2015
Before:	Penfold J
Decision:	See [39] to [43] below
Category:	Sentence
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – 22-year-old offender to be sentenced for receiving stolen property and dishonestly riding in a motor vehicle – offences committed in breach of good behaviour orders – one good behaviour order made on suspension of sentence of 18 months imprisonment for being knowingly concerned in attempted armed robbery – good behaviour order cancelled – offender re-sentenced for earlier offence – sentences for new offences partly accumulated on re-sentence – need for extended period of supervision in the community – short non-parole period set.
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT), s 47 Criminal Code 2002 (ACT), ss 313 and 318(2)
Parties:	The Queen (Crown) HD (Offender)
Representation:	Counsel Ms A Jamieson-Williams (Crown) Ms S Saikal (Offender)
Solicitors ACT Director of Public Prosecution (Crown) Legal Aid ACT (Offender)
File Number:	SCC 96 of 2015

Introduction

HD has pleaded guilty to one offence each of dishonestly receiving stolen property and dishonestly riding in a motor vehicle. These offences arise under ss 313 and 318(2) of the Criminal Code 2002 (ACT) and carry maximum penalties respectively including imprisonment for 10 and 5 years.

Convictions for these offences will put HD in breach of two good behaviour orders, one of which I made in July 2014 in connection with a suspension of just over 18 months of a 20-month prison sentence for an offence of being knowingly concerned in an attempted aggravated robbery (59 days of that sentence had already been served in pre-sentence custody).

The other good behaviour order, for 12 months, was made by a Magistrate in August 2014 after convicting HD of an offence of possessing a drug of dependence being methamphetamine.

The offences

The current offences were committed in February this year. A house in Farrer was burgled and the key to the occupants’ Volvo, as well as the Volvo itself, were taken. About a week later the Volvo, with stolen number plates, was found parked in the back yard of a house in Richardson. HD was inside the house with the Volvo key in his pocket. He admitted to riding in the stolen car, and to taking possession of the car knowing that it was stolen. He also gave police the name of the person who he said had given him the car and the key. It is not clear whether this information facilitated any further progress in finding those responsible for the burglary and the damage to the vehicle.

There was some dispute at the hearing about whether HD had in fact only received the Volvo and its keys on the day police found him in possession of the car, but it seems to me that when he received the car makes no particular difference to his culpability, and…

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 HD

Details

AGLC: R v HD [2015] ACTSC 246
Case: [2015] ACTSC 246
Decision Date: 5 August 2015

CaseChat Overview and Summary

The accused, HD, was before the court to be sentenced for receiving stolen property and for dishonestly riding in a motor vehicle. Both offences were committed while HD was subject to good behaviour orders. The court was required to determine the appropriate sentence for the new offences, taking into account that HD had previously been sentenced to 18 months imprisonment, suspended for three years, for being knowingly concerned in an attempted armed robbery. The good behaviour order associated with that sentence had been cancelled, and HD had been re-sentenced for the earlier offence.

The court considered the need for an extended period of supervision in the community due to HD's persistent offending while subject to good behaviour orders. The court also considered the seriousness of the new offences, the need to deter HD and others from committing similar offences, and the need to protect the community. The court determined that HD should be sentenced to imprisonment, with a short non-parole period set to allow for an extended period of supervision in the community.

The court ordered that HD be imprisoned for a total of 12 months, with a non-parole period of four months. The sentences for the new offences were to be partly accumulated on the re-sentence for the earlier offence. HD was also subject to a supervision order for a period of two years following his release from prison.

The court emphasised the importance of ensuring that HD receives appropriate support and supervision in the community to reduce the risk of reoffending. The court also noted that HD had shown some remorse for his offending and had taken steps to address his drug and alcohol issues. However, the court concluded that HD's persistent offending while subject to good behaviour orders demonstrated a need for a period of imprisonment to deter him and others from committing similar offences.

Orders

Orders of the court

See [39] to [43] below

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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