R v Jacky - [2019] ACTSC 123

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Jacky

Citation:

[2019] ACTSC 123

Hearing Dates:

18 May 2018; 27 November 2018

Decision Date:

15 February 2019

Before:

Burns J

Decision:

See [1]-[2], [5], [7]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – robbery – plea of guilty – breach matters – transfer charge of driving while disqualified – consideration of s 69 of the Road Transport (General) Act 1999 (ACT) – poor criminal history – advances in addressing drug and alcohol abuse

Legislation Cited:

Crimes (Sentence Administration) Act 2005 (ACT) s 42

Road Transport (Driver Licensing) Act 1999 (ACT) s 32

Road Transport (General) Act1999 (ACT) s 69

Cases Cited:

Smith v Stivala [2018] ACTSC 309; 86 MVR 465

Parties:

The Queen (Crown)

Ernest Bruce Jacky (Offender)

Representation:

Counsel

D Sahu Khan (Crown)

J Lawton (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

John O’Keefe Law Firm (Offender)

File Numbers:

SCC 166 of 2017; SCC 169 of 2017

BURNS J:

1.          Mr Jacky, I accept that you have made advances in addressing alcohol and drug abuse since you were released from Goulburn Correctional Centre where you were serving sentences imposed in New South Wales. I note the contents of the updated Intensive Correction Order Assessment which has been placed before me and, in particular, the results in relation to drug testing which have occurred between November 2018 and the end of January 2019. In all of the circumstances, I propose to proceed by way of an Intensive Correction Order with regard to the charge of robbery (XO2017/31180). My starting point would be a sentence of two years' imprisonment but I will reduce that to 20 months in order to reflect your plea of guilty. You are sentenced to 20 months' imprisonment commencing 15 February 2019, and I order that be served by way of an Intensive Corrections Order which includes the core conditions mentioned in the Crimes (Sentence Administration) Act 2005 (ACT), s 42.
2.          There will further be a curfew condition requiring you to be at your place of residence between 10.00 pm each evening and 6.00 am in the following morning for a period of six months commencing 15 February 2019.
3.          I note that Corrective Services have indicated that the Intensive Correction Order which I have imposed will be primarily directed towards addressing continued engagement with Winnunga Nimmityiah Aboriginal Health Service in relation to alcohol and drug use and continued engagement with that service in relation to your general health, and also employment and/or training.

[Speaking directly to offender]

4. Mr Jacky, even though you have quite a poor criminal history I am giving you an opportunity not to have to serve a further term of imprisonment with respect to this matter, but really now the ball is in your court. I have given you that opportunity and it is a matter for you whether you take it. As I said, it is…

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 Jacky

Details

AGLC: R v Jacky [2019] ACTSC 123
Case: [2019] ACTSC 123
Decision Date: 15 February 2019

CaseChat Overview and Summary

The matter involved an individual named Jacky, who was charged with robbery and subsequently pleaded guilty. A transfer charge of driving while disqualified was also considered. The case was heard in the Magistrates Court of the Australian Capital Territory. The primary focus of the court was on the sentencing of Jacky, taking into account his guilty plea, breach matters, and the additional charge of driving while disqualified. The court had to determine the appropriate sentence, considering statutory provisions and the individual's criminal history, including his efforts to address drug and alcohol issues.

The court faced several legal issues, including the applicability of section 69 of the Road Transport (General) Act 1999 (ACT) in relation to the transfer charge. The sentencing process also required the court to balance the seriousness of the offence and the mitigating factors, such as Jacky's limited criminal history and his efforts to address underlying issues like drug and alcohol abuse. The court needed to ensure that the sentence was both just and proportionate, reflecting the gravity of the crimes committed while also considering the individual's potential for rehabilitation.

In delivering the judgment, the court acknowledged Jacky's guilty plea and the mitigating factors, including his efforts to address drug and alcohol issues. The court found that while the charge of driving while disqualified was serious, the overall circumstances warranted a sentence that recognised Jacky's attempts at rehabilitation. The court determined that an appropriate sentence could be imposed that balanced the need for deterrence with the prospects of Jacky's rehabilitation. The court imposed a sentence that included both imprisonment and community service, reflecting the court's consideration of the seriousness of the offences and the individual's efforts to address underlying issues.

The final orders included a sentence of imprisonment with a non-parole period, along with requirements for Jacky to participate in rehabilitation programs addressing drug and alcohol issues. The court also ordered that Jacky's driving disqualification be extended. This comprehensive approach aimed to address the offences committed while supporting Jacky's rehabilitation efforts.

Orders