R v Kepaoa (No 2) - [2018] ACTSC 24

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Kepaoa (No 2)
Citation:	[2018] ACTSC 24
Hearing Dates:	30 October 2017, 6 February 2018
DecisionDate:	6 February 2018
Before:	Mossop J
Decision:	See [9]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – common assault – recklessly inflicting grievous bodily harm – consideration of alcohol rehabilitation – specific deterrence – general deterrence – sentenced to an intensive corrections order – community service work condition
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT), s 80E(2)
Parties:	The Queen (Crown) Elesakepaoa Kepaoa (Offender)
Representation:	Counsel B Ngugi (Crown) R Davies (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Numbers:	SCC 215 of 2017 SCC 216 of 2017

MOSSOP J:

Introduction

On the occasion when these proceedings were previously before the Court, I gave reasons for my conclusion that a sentence of 22 months was appropriate, leaving for further consideration the manner in which that sentence should be served. An intensive corrections order assessment was sought and the sentencing was adjourned.

Intensive corrections order assessment

The intensive corrections order assessment has identified that the offender was assessed as suitable for an intensive corrections order. It identified that alcohol abuse would be the factor targeted if an intensive correction order was made. The Report recommended that any such order should contain an additional condition that the offender not consume alcohol. Consistent with the pre-sentence report, dated 23 October 2017, the intensive corrections order assessment identified a series of positive factors consistent with a low risk of reoffending. It assessed the offender as ready to undertake programs to identify his criminogenic risk factors. The only risk factor identified was alcohol abuse. The Report assessed him has being not suitable for a community service work condition because of his paid employment commitments. The Report did however identify that he was able to adjust his work times so as to see an alcohol counselling service on Wednesday afternoons but that his employment may require ongoing work outside the ACT including a number of consecutive overnight stays.

Sentencing

The tension in the sentencing exercise arises because of the minimal criminal history and strong indicators of a low risk of general reoffending on the one hand, and the culpability for and gravity of the violent assault committed by the offender.
I consider that having regard to the gravity of the offending conduct, it is not appropriate to wholly suspend the custodial sentence. As between a partially suspended sentence and an intensive corrections order, although an offence of this gravity would usually require the offender to serve a significant period in custody before the suspension of the balance of the sentence, in the present case I consider that an appropriate sentence is an intensive corrections order, so long as it is combined with a period of community service. This will combine components of rehabilitation along with a greater degree of punishment and deterrence than would be involved…

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 Kepaoa (No 2)

Details

AGLC: R v Kepaoa (No 2) [2018] ACTSC 24
Case: [2018] ACTSC 24
Decision Date: 6 February 2018

CaseChat Overview and Summary

The appellant, Kepaoa, appealed against his sentence for common assault resulting in grievous bodily harm inflicted recklessly. The matter was heard in the Supreme Court of Queensland. The primary issue was whether the sentence imposed was manifestly excessive or inappropriate, particularly considering the specific and general deterrence objectives, and the appellant's participation in alcohol rehabilitation. The court had to weigh the necessity for specific deterrence, the gravity of the offence, and the appellant's circumstances, including his involvement in an alcohol rehabilitation program.

The court considered the principles of sentencing and the objectives of deterrence, rehabilitation, and denunciation. It acknowledged the appellant's remorse and participation in an alcohol rehabilitation program as mitigating factors. However, the court held that the sentence of an intensive corrections order with a condition for community service work was not manifestly excessive or inappropriate. The court determined that the sentence appropriately balanced the need for general deterrence, the specific circumstances of the case, and the appellant's potential for rehabilitation.

Given the court's reasoning and conclusion, the appeal against sentence was dismissed. The appellant's sentence of an intensive corrections order with a condition for community service work was upheld as appropriate and proportionate to the offence committed.

Orders

Orders of the court

See [9]

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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