R v Kaihea (No 2) - [2020] ACTSC 82

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Kaihea (No 2)
Citation:	[2020] ACTSC 82
Hearing Date(s):	3 April 2020
DecisionDate:	3 April 2020
Before:	Walker AJ
Decision:	The Drug and Alcohol Treatment Order is cancelled. The remaining sentence of imprisonment of 12 months and 16 days is imposed with a non-parole period of eight months.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – drug and alcohol treatment order cancellation
Legislation Cited:	Crimes (Sentencing) Act2005 (ACT) ss 65, 80O, 80ZE
Parties:	The Queen (Crown) Katalina Ruth Lotiola Kaihea (Offender)
Representation:	Counsel H Roberts (Crown) C Duffy (Offender)
Solicitors Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number(s):	SCC 252 of 2018 SCC 253 of 2018

WALKER AJ (ex tempore)

Summary of matter

This matter was listed for a cancellation hearing pursuant to the Crimes (Sentencing) Act2005 (ACT) (the ‘Sentencing Act’) in relation to a drug and alcohol treatment order. Whilst the Court may make an order of its own instigation, on this occasion the Crown has put an application that the order in place for Ms Kaihea should be cancelled. This is opposed by Ms Kaihea.

The offence for which the order was in place was one of aggravated robbery, being a theft from a David Jones department store and the use of an offensive weapon in the form of syringe with the intention to escape. This offence occurred on 25 May 2018 and carried, on conviction, a maximum prison sentence of up to 25 years and/or a financial penalty. At the time this offence was committed, Ms Kaihea was subject to a suspended sentence of imprisonment for resisting a public official and escaping arrest. In relation to matters pending in the Court, she spent a period of time in custody and then was released by the Court to attended residential rehabilitation in Sydney on 21 November 2018.

In July of 2019, approximately the 16th, Ms Kaihea was suspended from the Wayback residential rehabilitation program for failing to attend a meeting. She did not re‑attend at Court and the Supreme Court issued a warrant for her arrest for breach of bail. However, she later attended before the warrant was executed and she was remanded in custody whilst further rehabilitation was explored. On 16 October 2019, it was confirmed that Wayback would not accept Ms Kaihea back into the program.

On 2 December 2019, Ms Kaihea was referred to this list for an eligibility screening assessment and was released on bail to allow that assessment, and ultimately a suitability assessment, to take place. Whilst on that bail, the last use reported by Ms Kaihea of heroin and methamphetamine was 19 January 2020. Ms Kaihea was facing her first sentence of full‑time imprisonment. However, on 28 January 2020, she was sentenced to a drug and alcohol treatment order by the Chief Justice. The sentenced imposed was two years' imprisonment reduced from two years and six months in…

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 (No 2)

Details

AGLC: R v Kaihea (No 2) [2020] ACTSC 82
Case: [2020] ACTSC 82
Decision Date: 3 April 2020

CaseChat Overview and Summary

The case of R v Kaihea (No 2) was heard in a court where the defendant, Kaihea, challenged the cancellation of a drug and alcohol treatment order. The dispute involved the legality of the order's cancellation and the appropriate sentence to be imposed on the defendant. The court was tasked with determining whether the cancellation of the treatment order was justified and what sentence should be imposed in lieu of the treatment order.

The legal issues before the court included whether the defendant's non-compliance with the treatment order was sufficient grounds for its cancellation, and if so, what sentence should replace the treatment order. The court needed to consider the circumstances surrounding the defendant's non-compliance and whether it warranted the cancellation of the order, as well as the appropriate sentence to be imposed on the defendant in light of the cancellation.

The court found that the defendant's non-compliance with the treatment order was indeed sufficient to justify its cancellation. The court noted that the defendant had failed to engage with the treatment program and had not shown any effort to comply with the order. The court concluded that the cancellation of the treatment order was appropriate and imposed a sentence of imprisonment of 12 months and 16 days, with a non-parole period of eight months. The court determined that the sentence was appropriate given the defendant's history of non-compliance and the need to protect the community.

Orders

Orders of the court

The Drug and Alcohol Treatment Order is cancelled. The remaining sentence of imprisonment of 12 months and 16 days is imposed with a non-parole period of eight months.

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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