R v John

Case [2017] ACTSC 144 4 May 2017

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v John
Citation:	[2017] ACTSC 144
Hearing Dates:	15, 17 February and 4 May 2017
DecisionDate:	4 May 2017
Before:	Refshauge J
Decision:	1. Hayley Maree John be convicted of aggravated burglary at Macquarie on 25 July 2015. 2. Hayley Maree John be convicted of damaging property on 25 July 2015, being nine motor vehicles. 3. Hayley Maree John be convicted of theft from nine motor vehicles on 25 July 2015. 4. Hayley Maree John be convicted of theft from six motor vehicles at Nicholls on 25 July 2015. 5. Hayley Maree John be convicted of burglary at Chisholm on 25 July 2015. 6. Hayley Maree John be convicted of theft from a residence at Chisholm on 25 July 2015. 7. The sentencing be adjourned to 11 July 2017 at 10:00am for the Director General to assess Hayley Maree John’s suitability under s 78 of the Crimes (Sentencing) Act 2005 (ACT) for an Intensive Correction Order. 8. Bail for Hayley Maree John be continued with the additional condition that she report to ACT Corrective Services, Level 1, 249 London Circuit, Canberra City, by 4:00pm 5 May 2017, to make arrangements for an assessment as to her suitability for an Intensive Correction Order.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – aggravated burglary – burglary – damaging property – theft – plea of guilty – rolled up counts – restorative justice – remorse demonstrated by offender – consideration of subjective circumstances – general deterrence – sentencing adjourned for offender to be assessed for suitability for an Intensive Corrections Order
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT), ss 7, 33, 78 Criminal Code 2002 (ACT), ss 45A, 308, 311, 312, 403
Cases Cited:	Fusimalohi v The Queen [2012] ACTCA 49 Halden (1983) 9 A Crim R 30 Muldrock v the Queen [2011] HCA 39; 244 CLR 120 R v Coombes (Unreported, Victorian Court of Criminal Appeal, Young CJ, Lush and Southwell JJ, 3 September 1979) R v Forrest [2016] ACTSC 321; 11 ACTLR 311 R v Forrest (No 2) [2017] ACTSC 83 R v Jones [2004] VSCA 68 R v Kelly [2016] ACTSC 281 R v Kilic [2016] HCA 48; 339 ALR 229 R v McGrail [2016] ACTSC 142 R v McMahon [2014] ACTSC 280 R v Newham [2000] VSCA 138 R v Ngerengere (No 3) [2016] ACTSC 299 R v Roux (No 2) [2015] ACTSC 361 R v Wright (Unreported, Victorian Court of Criminal Appeal, Gowans, Nelson and Anderson JJ, 13 May 1974) Saga v Reid [2010] ACTSC 59 Simonds v The Queen [2013] ACTCA 13
Parties:	The Queen (Crown) Hayley Maree John (Defendant)
Representation:	Counsel Ms T Skvortsova (Crown) Mr J Lawton (Defendant)
Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Lawyers (Defendant)
File Number:	SCC 17 of 2016

REFSHAUGE J:

As I have remarked before in R v Kelly [2016] ACTSC 281 at [1], underground or…

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 John

Details

AGLC: R v John [2017] ACTSC 144
Case: [2017] ACTSC 144
Decision Date: 4 May 2017

CaseChat Overview and Summary

In the case of R v John, the defendant, Hayley Maree John, pleaded guilty to multiple counts of aggravated burglary, damaging property, and theft. The charges related to incidents that occurred on 25 July 2015, where John was involved in breaking into several motor vehicles and a residence, causing damage and stealing items. The case was heard in a relevant court, which will not be named as per the text, but likely to be the Magistrates Court of the Australian Capital Territory, given the reference to the Crimes (Sentencing) Act 2005 (ACT). The court was tasked with determining the appropriate sentence for the defendant, considering the nature of the offences, the plea of guilty, and the circumstances surrounding the incidents.

The legal issues before the court included the appropriate application of sentencing principles to the facts of the case, particularly given the multiple counts and the nature of the offences as aggravated burglary and theft. The court also needed to consider the subjective circumstances of the offender, including her demonstration of remorse and her suitability for a specific type of sentencing option known as an Intensive Corrections Order (ICO). The court's decision was influenced by the need to balance the principles of general deterrence with the potential rehabilitative benefits of an ICO.

The court found the defendant guilty on all counts and acknowledged her expression of remorse and the absence of a prior criminal record. However, due to the serious nature of the offences and the need to consider options that could potentially rehabilitate the offender, the sentencing was adjourned. The court directed that an assessment be made to determine John's suitability for an ICO, which is a type of sentence that involves intensive supervision and rehabilitation programs. The court also continued her bail with conditions to facilitate this assessment.

The final orders included convictions on all counts and an adjournment of sentencing to allow for the assessment of John's suitability for an ICO. Additionally, her bail was continued with conditions to ensure she complied with the requirements for this assessment. The adjournment aimed to provide an opportunity for the court to impose a sentence that was both punitive and rehabilitative, taking into account the defendant's personal circumstances and the broader objectives of the criminal justice system.

Orders

Orders of the court

1. Hayley Maree John be convicted of aggravated burglary at Macquarie on 25 July 2015.

2. Hayley Maree John be convicted of damaging property on 25 July 2015, being nine motor vehicles.

3. Hayley Maree John be convicted of theft from nine motor vehicles on 25 July 2015.

4. Hayley Maree John be convicted of theft from six motor vehicles at Nicholls on 25 July 2015.

5. Hayley Maree John be convicted of burglary at Chisholm on 25 July 2015.

6. Hayley Maree John be convicted of theft from a residence at Chisholm on 25 July 2015.

7. The sentencing be adjourned to 11 July 2017 at 10:00am for the Director General to assess Hayley Maree John’s suitability under s 78 of the Crimes (Sentencing) Act 2005 (ACT) for an Intensive Correction Order.

8. Bail for Hayley Maree John be continued with the additional condition that she report to ACT Corrective Services, Level 1, 249 London Circuit, Canberra City, by 4:00pm 5 May 2017, to make arrangements for an assessment as to her suitability for an Intensive Correction Order.

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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Citations

R v John [2017] ACTSC 144

Most Recent Citation

R v Forrest (No 3) [2017] ACTSC 168

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Citation 8 (Para 1)

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…is is known as a ‘rolled up’ charge, or count, or plea. I discussed such charges and the appropriate approach to their sentencing in the R v John [2017] ACTSC 144 at [106]-[107]. Briefly, it requires the sentencing Court to treat the offences as one offence, reflecting the single maximum penalty, but noting the gre…
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Citation 19 (Para 1)

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See all citing cases →

Cases Cited

R v Forrest (No 2) [2017] ACTSC 83
Citation 1 (Para 1)

…articular target for those who wish to commit burglary by entering private premises as trespassers and to steal property. See also R v Forrest (No 2) [2017] ACTSC 83 at [78].…
R v Kilic [2016] HCA 48
Citation 2 (Para 1)

…the statutory maximum and moderated by sentencing principle. I also acknowledge the limitation of such statistics which, as pointed out in R v Kilic [2016] HCA 48; 339 ALR 229 at 236; [22], does not fix the boundaries within which future sentences must be passed, but does assist the Court in trying to meet the…
R v Forrest [2016] ACTSC 321
Citation 3 (Para 1)

…s noted above (at [73]-[74]), Ms John participated in a restorative justice process. I have described the basis of restorative justice in R v Forrest [2016] ACTSC 321; 11 ACTLR 311 at 312-3; [4]-[8].…
R v Ngerengere (No 3) [2016] ACTSC 299
Citation 4 (Para 1)

…I have described that option in some detail in R v Ngerengere (No 3) [2016] ACTSC 299 at [17]-[27]. I do not need to repeat or summarise what I there said, save to acknowledge that while it is a sentence of some leniency, the authorities make it clear that it has significant deterrent and punitive aspects, although…
R v Kelly [2016] ACTSC 281
Citation 5 (Para 1)

…As I have remarked before in R v Kelly [2016] ACTSC 281 at [1], underground or basement car parks for apartment buildings have become a particular target for those who wish to commit burglary by entering private premises as trespassers and to steal property. See also R v Forrest (No 2) [2017] ACTSC 83 at [78].…
R v McGrail [2016] ACTSC 142
Citation 6 (Para 1)

…ng the SMART Recovery program. She has expressed an interest in the SMART Recovery course at Directions, a program I described in R v McGrail [2016] ACTSC 142 at [78]-[80]. As I understand it, she has been attending that program.…
R v Roux (No 2) [2015] ACTSC 361
Citation 7 (Para 1)

…mercial premises is less serious than that of residential premises. These are, of course, residential premises but, as I indicated in R v Roux (No 2) [2015] ACTSC 361 at [74], the fact that they were premises separately located from the residences and did not involve an actual invasion into living premises, appears…
R v McMahon [2014] ACTSC 280
Citation 8 (Para 1)

…e of burglary and the theft committed as a consequence is likely to be largely, if not wholly, concurrent with the sentence for burglary: R v McMahon [2014] ACTSC 280 at [94].…
Simonds v The Queen [2013] ACTCA 13
Citation 9 (Para 1)

…As has been made clear by the Court of Appeal in Simonds v The Queen [2013] ACTCA 13 at [54], the burglary of commercial premises is less serious than that of residential premises. These are, of course, residential premises but, as I indicated in R v Roux (No 2) [2015] ACTSC 361 at [74], the fact that they were pr…
Fusimalohi v The Queen [2012] ACTCA 49
Citation 10 (Para 1)

…In Fusimalohi v The Queen [2012] ACTCA 49 at [15], Burns and Lander JJ held that “there is no single correct sentence for offences of burglary and aggravated burglary”. There will, as their Honours stated, “always be a range of sentences that may legitimately be imposed for any particular offence of this type, tak…
Muldrock v The Queen [2011] HCA 39
Citation 11 (Para 1)

…ation is to be regarded as a yardstick against which the relative seriousness of an offence is to be assessed. See, for example, Muldrock v the Queen [2011] HCA 39; 244 CLR 120 at 133; [31]. By that yardstick, these are serious offences and should be so treated by the courts. They have the capacity to interfere…
Saga v Reid [2010] ACTSC 59
Citation 12 (Para 1)

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R v Jones [2004] VSCA 68
Citation 13 (Para 1)

…, Gowans, Nelson and Anderson JJ, 13 May 1974) at 1-2, for which, see R v Newham [2000] VSCA 138 at [2]. It has been carefully described in R v Jones [2004] VSCA 68 at [13], as follows:…
R v Newham [2000] VSCA 138
Citation 14 (Para 1)

…scribed in R v Wright (Unreported, Victorian Court of Criminal Appeal, Gowans, Nelson and Anderson JJ, 13 May 1974) at 1-2, for which, see R v Newham [2000] VSCA 138 at [2]. It has been carefully described in R v Jones [2004] VSCA 68 at [13], as follows:…

Legislation Cited

Crimes (Sentencing) Act 2005 (ACT) 33, 7, 78
4 mentions (from Para 1)