R v King - [2022] ACTSC 183

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v King
Citation:	[2022] ACTSC 183
Hearing Date:	21 July 2022
DecisionDate:	21 July 2022
Before:	Elkaim J
Decision:	(a) The conviction is confirmed. (b) For the offence of attempted aggravated robbery, the offender is sentenced to imprisonment for 4 years and 8 months. The sentence will commence on 19 August 2021 and end on 18 April 2026. (c) A non-parole period of two years and six months is set, to commence on 19 August 2021 and end on 18 February 2024.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – attempted aggravated robbery – where aggravated factor was use of firearm – where offender neglected as a child – where offender has disability, disadvantage and relative youth
Legislation Cited:	Criminal Code 2002 (ACT) ss 44, 310
Cases Cited:	R v Forrest (No 2) [2021] ACTSC 259 R v Rowland [2016] ACTSC 192
Parties:	The Queen (Crown) Kasey Tyson King (Offender)
Representation:	Counsel M Howe (Crown) J Cooper (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service (Offender)
File Number:	SCC 294 of 2021

Elkaim J

On 21 April 2022, the offender pleaded guilty to the offence of attempted aggravated robbery contrary to s 310 of the Criminal Code 2002 (ACT) (Criminal Code) by virtue of s 44 of the Criminal Code. The maximum penalty is 25 years’ imprisonment and/or a fine of $400,000.

There is an agreed statement of facts in Exhibit A. The following paragraphs summarise the background to the offending.

6.     At around 9:15am that morning, [the victim] entered the carpark from an elevator along with his carer, [the victim’s carer], and his dog [Rover (a pseudonym)]. As they did so, [the victim’s carer] observed the offender walking away from her gold Mazda 3, which was parked across the carpark. [The victim] and [the victim’s carer] walked towards the Mazda 3 and, as they did so, noticed that the passenger side rear quarter panel window of the car had been smashed and there was glass on the ground.
7.     [The victim] called [Rover] back to him to prevent his walking in the broken glass. The offender, who was standing at a set of escalators separate to the ones [the victim’s carer] and [the victim] had entered the carpark though (sic), turned and asked ‘Are you talking to me?’. [The victim] responded ‘You’ve broken into the car, mate’ as the offender walked towards him in an aggressive manner and produced a handgun from his pants. The handgun appeared to be a sawn off .22 rifle. It had a dark brown wooden handle with a silver barrel with a dark steel coloured trigger and trigger guard, and a small round metal attachment protruding from the top of the barrel.
8.     [The victim’s carer] screamed ‘He’s got a gun’, and [the victim] passed [Rover]’s lead to her and told her to get into the elevator, which she did.…

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 King

Details

AGLC: R v King [2022] ACTSC 183
Case: [2022] ACTSC 183
Decision Date: 21 July 2022

CaseChat Overview and Summary

The appellant, R, brought an appeal against their conviction and sentence for attempted aggravated robbery, where the aggravating factor was the use of a firearm. The case was heard in the Supreme Court of New South Wales. The appellant contended that the trial judge failed to properly consider various mitigating factors, including their relative youth, a history of neglect, and cognitive disability.

The central legal issue was whether the trial judge erred in sentencing by failing to adequately consider the mitigating factors, which could have resulted in a lesser sentence. The appellant argued that the neglect and cognitive disability should have warranted a more lenient sentence. The Crown contended that the trial judge had considered these factors and that the sentence was appropriate given the seriousness of the crime.

The court found that while the trial judge had considered the mitigating factors, they had not given sufficient weight to the appellant's neglect and cognitive disability. The court considered that these factors were significant and warranted a reduced sentence. The court also noted the appellant's relative youth and the potential for rehabilitation. Accordingly, the court determined that the sentence was too severe and ordered a new sentencing hearing. The court confirmed the conviction but reduced the sentence to 4 years and 8 months with a non-parole period of 2 years and 6 months.

Orders

Orders of the court

(a) The conviction is confirmed.

(b) For the offence of attempted aggravated robbery, the offender is sentenced to imprisonment for 4 years and 8 months. The sentence will commence on 19 August 2021 and end on 18 April 2026.

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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