R v Jacky - [2017] ACTSC 392

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Jacky
Citation:	[2017] ACTSC 392
Hearing Dates:	14 July 2017 and 11 September 2017
DecisionDate:	11 September 2017
Before:	Mossop J
Decision:	See [59]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – recklessly inflict grievous bodily harm – threaten a witness in a criminal investigation – late plea of guilty – no sentence other than a sentence of imprisonment appropriate – significant time in custody attributable to the subject offences – offender in custody for other offences – offender the subject of other suspended – sentence orders – offender assessed as suitable for Intensive Corrections Order – cancel suspended sentence and resentence – imprisonment to be served by way of Intensive Corrections Order
Legislation Cited:	Crimes Act 1900 (ACT), s 20 Crimes (Sentencing) Act 2005 (ACT), ss 11(1), 11(3), 80 Criminal Code 2002 (ACT), s 709A
Cases Cited:	R v Pallier [2017] ACTSC 112
Parties:	The Queen (Crown) Ernest Bruce Jacky (Offender)
Representation:	Counsel S McLaughlin (Crown) J Lawton (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) John O’Keefe Law Firm (Offender)
File Numbers:	SCC 215 of 2016 SCC 166 of 2017 SCC 169 of 2017

MOSSOP J:

Introduction

Ernest Bruce Jacky has pleaded guilty to two charges:

(a)that on 26 June 2015 he recklessly inflicted grievous bodily harm on Samuel Wetzler; and
(b)that between 25 June 2015 and 19 July 2015 he threatened to cause a detriment to Natalia Boskovic with the intention that she would not participate in a criminal investigation or would withhold true evidence in a criminal investigation.

The maximum penalty for the offence of recklessly inflicting grievous bodily harm contrary to s 20 of the Crimes Act 1900 (ACT) is 13 years’ imprisonment. The maximum penalty for the offence of threatening a participant in a criminal investigation contrary to s 709A of the Criminal Code 2002 (ACT) is five years’ imprisonment, a fine of $75,000 or both.

The relevant facts

The facts were agreed and set out in a statement of facts which became Exhibit 1. Those facts was supplemented by two photographs of the wound inflicted on the victim (Exhibit 6) and a medical report describing in more detail the nature of the injuries and the treatment received. The relevant facts are as follows.

In the days leading up to 25 June 2016 the offender believed that Mr Wetzler was responsible for two separate home invasions at the residences of two of his friends. Both of these people were known drug dealers. One of them had a CCTV system installed at his house. The offender claimed to have seen footage of one of the home invasions which depicted Mr Wetzler as being involved.

The offender met with Mr Wetzler on 25 June 2015. He told him that there were a lot of people seeking retribution against him. The offender suggested that they may try to take his vehicle, a Toyota Prado, as compensation for property…

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 [2017] ACTSC 392
Case: [2017] ACTSC 392
Decision Date: 11 September 2017

CaseChat Overview and Summary

The case of R v Jacky involved the defendant, Jacky, who was convicted of recklessly inflicting grievous bodily harm and threatening a witness in a criminal investigation. The matter was heard and determined in the relevant court. The primary dispute centred on the appropriate sentencing for the defendant's offences, particularly considering the late plea of guilty and the various factors that needed to be taken into account, such as the defendant's pre-trial custody, other criminal charges, and suspended sentences.

The court was required to decide on the appropriate form and length of sentence, with a focus on whether imprisonment was the only suitable option. It was necessary to weigh the gravity of the offences, the circumstances of the defendant, and the potential for alternative sentencing options such as an Intensive Corrections Order (ICO). The court considered the substantial time already spent in custody due to the subject offences and other related charges, as well as the defendant's suitability for an ICO.

The court reasoned that given the nature and seriousness of the offences, imprisonment was indeed necessary. However, considering the defendant's eligibility for an ICO and the significant time already spent in custody, the court opted to cancel the existing suspended sentence and resentence the defendant. The court found that the appropriate sentence was imprisonment to be served by way of an Intensive Corrections Order, balancing the need for punishment with the potential for rehabilitation and reintegration into society. This decision was made in light of all the relevant factors and the court's discretion in sentencing.

Orders

Orders of the court

See [59]

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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