R v JJ - [2014] ACTSC 311

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v JJ
Citation:	[2014] ACTSC 311
Hearing Date(s):	31 July 2014
DecisionDate:	31 July 2014
Before:	Refshauge J
Decision:	1. JJ be sentenced to seventeen years’ imprisonment, to commence on 6 April 2011 and to end on 5 August 2028. 2. The sentence be suspended from 5 February 2022. 3. JJ be required to sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentence Administration) Act2005 (ACT) for six years and six months from 6 February 2022 until 5 August 2028, with a probation condition that, for that period, he be on probation subject to the supervision of the Director‑General or her delegate and obey all reasonable directions of the person delegated to supervise him.
Category:	Principal Judgment
Catchwords:	CRIMINAL LAW – Judgment and Punishment – Re-sentencing following Court of Appeal decision – Probation condition to a good behaviour order
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT), s 133V, 133W, Ch 8, Dictionary Crimes (Sentence Administration) Act2005 (ACT)
Cases Cited:	Marshall v Smith (1907) 4 CLR 1617 The Queen v JJ [2014] ACTCA 23
Parties:	The Queen (Crown) JJ (Offender)
Representation:	Counsel Ms S McMurray (Crown) Mr J Maher (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Lawyers (Offender)
File Number(s):	SCC 23 of 2012

Refshauge J:

On 4 August 2011, JJ and Taylor Schmidt murdered Liang Zhao. They both ultimately pleaded guilty to that offence and were sentenced, but sentenced separately and by me on both occasions.

On 8 October 2013, I sentenced JJ. The course of sentencing was not smooth. It was described by the Court of Appeal, in The Queen v JJ [2014] ACTCA 23 at [2]-[3] as follows:

2.When the respondent came to be sentenced on 8 October 2013, Refshauge J initially sentenced him to 17 years’ imprisonment and purported to set a nonparole period of 10 years and 6 months. When it was pointed out to his Honour that the legislative scheme makes no provision for the setting of a nonparole period for a sentence of imprisonment imposed on a young offender, his Honour amended the sentence to suspend the sentence after 10 years 6 months, upon the respondent entering into a good behaviour order for 6 and a half years, with a probation condition that the respondent obey all reasonable directions of the director-general.
3.On the Court reconvening on 14 October 2013 at the request of the Crown, it was pointed out to his Honour that a supervision condition could not exceed 3 years, and his Honour then re-sentenced the respondent by amending the condition in the good behaviour order. The sentence thus became one of 17 years’ imprisonment, to be released after 10 years 6 months on a good behaviour order of 6 years 6 months with a probation condition that the respondent be subject to the supervision of the Director-General or her delegate for 3 years or such lesser period as considered…

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 JJ

Details

AGLC: R v JJ [2014] ACTSC 311
Case: [2014] ACTSC 311
Decision Date: 31 July 2014

CaseChat Overview and Summary

The case of R v JJ involved JJ, who had previously been sentenced by the Supreme Court of the Australian Capital Territory to imprisonment, which was then quashed by the Court of Appeal. The Court of Appeal remitted the matter to the Supreme Court for resentencing. The legal issues before the Supreme Court were to determine the appropriate sentence, taking into account the nature and circumstances of the offence, the principles of sentencing, and the effect of the earlier sentence. The Court was also required to consider the recommendations of the Court of Appeal regarding the imposition of a probation condition to a good behaviour order.

The Court, in determining the sentence, considered the seriousness of the offence, JJ's age at the time of the offence, and the impact of the previous sentence on JJ. The Court also considered the principles of sentencing, including deterrence, rehabilitation, and denunciation. The Court found that the appropriate sentence was seventeen years' imprisonment, with the sentence to be suspended from a specified date. The Court also imposed a probation condition to a good behaviour order for a specified period, subject to the supervision of the Director-General or her delegate.

The Court concluded that the appropriate sentence was one of imprisonment, with a suspension date, and the imposition of a probation condition to a good behaviour order. The Court found that the principles of sentencing required a sentence that reflected the seriousness of the offence, while also providing an opportunity for JJ's rehabilitation. The Court also found that the imposition of a probation condition to a good behaviour order was appropriate, given the nature and circumstances of the offence.

The final orders of the Court were that JJ be sentenced to seventeen years' imprisonment, to commence on a specified date and to end on a specified date. The sentence was to be suspended from a specified date. JJ was also required to sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a specified period, with a probation condition that he be on probation subject to the supervision of the Director-General or her delegate and obey all reasonable directions of the person delegated to supervise him.

Orders

Orders of the court

1. JJ be sentenced to seventeen years’ imprisonment, to commence on 6 April 2011 and to end on 5 August 2028.

2. The sentence be suspended from 5 February 2022.

3. JJ be required to sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for six years and six months from 6 February 2022 until 5 August 2028, with a probation condition that, for that period, he be on probation subject to the supervision of the Director‑General or her delegate and obey all reasonable directions of the person delegated to supervise him.

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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