R v Kaihea - [2020] ACTSC 17

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Kaihea
Citation:	[2020] ACTSC 17
Hearing Date:	17 April, 16 July, 22 July, 16 October, 2 September, 2 December 2019 and 28 January 2020
DecisionDate:	17 April 2019 and 28 January 2020
Before:	Murrell CJ
Decision:	Sentenced to imprisonment from 28 January 2020 to 11 March 2021, fully suspended for a drug and alcohol treatment order.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Offence of aggravated robbery – When the offence was committed while the offender was on conditional liberty – Good behaviour order cancelled and offender resentenced – Drug and alcohol treatment order
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT) ss 107(1), 110 Crimes (Sentencing) Act 2005 (ACT) ss 7, 12A, 33 Criminal Code 2002 (ACT) s 310(b)
Parties:	The Queen (Crown) Katalina Ruth Lotiola Kaihea (Offender)
Representation:	Counsel V Conliffe / J Hiscox (Crown) J De Bruin (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Numbers:	SCC 252 of 2018 SCC 253 of 2018

Murrell CJ

Offences

The offender was committed for sentence for the offence that, on 25 May 2018, she dishonestly appropriated property of David Jones Pty Ltd, and that immediately after doing so she threatened to use force with the intention of escaping the scene and that she had an offensive weapon (a syringe) with her.

The offence of aggravated robbery is contrary to s 310(b) of the Criminal Code 2002 (ACT) (Criminal Code). It carries a maximum penalty of 25 years’ imprisonment and/or a fine.

The offence was committed while the offender was on conditional liberty as she was subject to good behaviour orders imposed by the Magistrates Court on 1 June 2017. Pursuant to ss 107(1) and 110 of the Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act), the Court is also to deal with those breaches.

The offender spent 181 days in custody (25 May 2018 to 21 November 2018, which I will treat as six months) before being released on bail to attend Wayback, a residential rehabilitation facility.

On 16 July 2019, counsel for the offender informed me that the offender had been suspended from Wayback after she had failed to attend a meeting. I issued a warrant for her arrest for breach of bail conditions.

On 22 July 2019, the offender attended Court before the warrant had been executed. I withdrew the warrant and adjourned the sentence proceedings, bail refused. I indicated that the offender would be remanded in custody until further information about rehabilitation options could be obtained.

On 16 October 2019, the offender indicated that she had not been accepted back into the Wayback program.

On 2 December 2019, I referred the offender for a DASL eligibility screening assessment. The following day, Walker AJ granted her bail to undergo a DASL suitability assessment.

The offender spent 140 days in custody following her suspension from Wayback. She has…

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 Kaihea

Details

AGLC: R v Kaihea [2020] ACTSC 17
Case: [2020] ACTSC 17
Decision Date: 17 April 2019 and 28 January 2020

CaseChat Overview and Summary

The case of R v Kaihea involved the defendant, Kaihea, who was charged with the offence of aggravated robbery. The incident occurred while Kaihea was on conditional liberty, leading to the cancellation of his good behaviour order and the need for resentencing. The matter was heard in the relevant court which determined the appropriate sentence. The primary legal issue before the court was to decide the appropriate punishment for Kaihea's crime, taking into account his prior conditional liberty status and the nature of the offence.

In addressing the sentencing, the court considered various factors, including the circumstances surrounding the offence, Kaihea's criminal history, and the impact of the offence on the victim. The court also examined the necessity for a sentence that would address Kaihea's underlying issues, such as substance abuse, to prevent future criminal behaviour. The court concluded that a suspended sentence combined with a drug and alcohol treatment order would be the most suitable approach. This decision aimed to rehabilitate Kaihea while ensuring public safety.

The court found that the original good behaviour order was no longer appropriate due to Kaihea's commission of the aggravated robbery while on conditional liberty. Instead, the court opted for a sentence that would impose a period of imprisonment from 28 January 2020 to 11 March 2021, which would be fully suspended for the duration of a drug and alcohol treatment order. This order was intended to address the root causes of Kaihea's criminal behaviour and provide him with the support needed for rehabilitation.

Orders

Orders of the court

Sentenced to imprisonment from 28 January 2020 to 11 March 2021, fully suspended for a drug and alcohol treatment 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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