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R v KI (No 3)

R v KI (No 3)

Case [2021] ACTSC 297 19 November 2021

Breach of Good Behaviour Order

Re-sentencing

Suspended Sentences

Imposition of Sentence

Criminal Law

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v KI (No 3)
Citation:	[2021] ACTSC 297
Hearing Dates:	8 November 2021 and 19 November 2021
DecisionDate:	19 November 2021
Before:	Loukas-Karlsson J
Decision:	See [54]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of suspended sentence – breach of good behaviour order – breach by further offending – where original offences were committed when offender was a young person – where fresh offences were committed when offender is now an adult – re-sentence
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT) ss 86, 107, 108, 110 Crimes (Sentencing) Act 2005 (ACT) s 12 Criminal Code 2002 (ACT) s 712A Road Transport (Driver Licensing) Act 1999 (ACT) s 31 Road Transport (General) Act 1999 (ACT) s 63 Road Transport (Safety and Traffic Management) Act 1999 (ACT) ss 7, 7A
Cases Cited:	Director of Public Prosecutions (NSW) v Cooke [2007] NSWCA 2; 168 A Crim R 379 Guy v Anderson [2013] ACTSC 5 Gyory v The Queen [2012] ACTCA 28 R v BC [2020] ACTSC 308 R v Beniamini (No 2) [2017] ACTSC 32 R v Bennett [2017] ACTSC 104 R v Collier(No 2) [2021] ACTSC 177 R v Curtis (No 2) [2016] ACTSC 34 R v Goolagong (No 2) [2021] ACTSC 131 R v Kelly (No 2) [2021] ACTSC 253 R v KS; R v KN; R v KI (No 2) [2021] ACTSC 23 R v Ogilvie (No 2) [2016] ACTSC 265 Saga v Reid [2010] ACTSC 59 The Queen v PM (No 2) [2015] ACTSC 358
Parties:	The Queen ( Crown) KI ( Offender)
Representation:	Counsel N Deakes ( Crown) S Zahnleiter ( Offender)
Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender)
File Numbers:	SCC 99 of 2020; 100 of 2020

LOUKAS-KARLSSON J:

Introduction

On 15 February 2021, KI (the offender) was sentenced by me for various offences that occurred at the Bimberi Youth Justice Centre: R v KS; R v KN; R v KI (No 2) [2021] ACTSC 23 (R v KI (No 2)). The offences and respective sentences were as follows at [182]-[191] of R v KI (No 2):

182. I record convictions in relation to the offences.

183. In respect of the offence of assault occasioning actual bodily harm (CH 1088/2019), the young person is sentenced to a term of 12 months of imprisonment, commencing on 4 February 2021 and expiring on 3 February 2022.

184. In respect of the offence of conspiring to escape from custody (CH1092/2019), the young person is sentenced to a term of 10 months of imprisonment, commencing on 4 May 2021 and expiring on 3 March 2022.

185. In respect of the offence of common assault (CH1085/2019), the young person is sentenced to a term of five months of imprisonment, commencing on 4 February 2022 and expiring on 3 July 2022.

186. In respect of the offence of common assault (CH1087/2019),…

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 KI (No 3)

Details

AGLC: R v KI (No 3) [2021] ACTSC 297
Case: [2021] ACTSC 297
Decision Date

CaseChat Overview and Summary

In this case, KI, the offender, was convicted of various offences at the Bimberi Youth Justice Centre and was sentenced by the Supreme Court of the Australian Capital Territory on 15 February 2021. The offender was sentenced to suspended sentences and good behaviour orders. The offender has now pleaded guilty to fresh offences that occurred on 21 June 2021, which breach the good behaviour orders and suspended sentences imposed by the Supreme Court. The fresh offences are of a serious nature and include aggravated furious, reckless, or dangerous driving and unlicensed driver, licence never held, as a repeat offender. The offender's breach of the good behaviour obligations was dealt with by the Supreme Court. The court considered the breach of the 22 month good behaviour order that forms part of the suspended sentences and the breaches of the two standalone 12 month good behaviour orders. The court found that the offender had breached both the 22 month good behaviour order and the two standalone 12 month good behaviour orders. The court then considered the options available under the Sentence Administration Act when an offender breaches a good behaviour order. The court decided to re-sentence the offender in respect of the suspended sentences and the two standalone good behaviour orders. The court made orders cancelling the 22 month good behaviour order and the two 12 month good behaviour orders, and re-sentencing the offender for the original offences that occurred when he was a young person. The sentences of imprisonment are to be suspended from the date of re-sentence, and the offender will enter into a good behaviour order for a period of 22 months and comply with the core good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT). The offender is also subject to the supervision of the Director-General of ACT Corrective Services for the period of the good behaviour order or such lesser period as determined by the Director-General.

Orders