R v Kinsela - [2021] ACTSC 265

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Kinsela
Citation:	[2021] ACTSC 265
Hearing Date:	13 October 2021
DecisionDate:	13 October 2021
ReasonsDate:	15 October 2021
Before:	Murrell CJ
Decision:	34 months’ imprisonment, suspended after 16 months’ imprisonment with a two-year good behaviour order
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflict grievous bodily harm – theft – possess a prohibited substance – possess more than 50 grams of dried cannabis – where offender experienced dysfunctional upbringing – where prospects of re-offending are low – where increased hardship associated with incarceration during COVID-19 pandemic
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) s 35 Crimes Act 1900 (ACT) s 20 Criminal Code 2002 (ACT) s 308 Drugs of Dependence Act 1989 (ACT) ss 171, 171AA
Cases Cited:	R v Bandy [2018] ACTSC 261 R v Hallam [2021] ACTSC 141 R v Torbet [2015] ACTSC 331 Worboyes v The Queen [2021] VSCA 169
Parties:	The Queen (Crown) Jamie Stewart Kinsela (Offender)
Representation:	Counsel S Janackovic (Crown) K Archer (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Andrew Byrnes Law Group (Offender)
File Numbers:	SCC 283 of 2020, 158 of 2021

MURRELL CJ:

Introduction

The offender is to be sentenced for two offences that were committed on 4 September 2020:

(a)Count 1: Recklessly inflict grievous bodily harm (by way of joint commission), contrary to s 20(1) of the Crimes Act 1900 (ACT).
The maximum penalty is 13 years’ imprisonment.
(b)Count 2: Theft, contrary to s 308 of the Criminal Code 2002 (ACT).
The maximum penalty is a fine of $160,000, 10 years’ imprisonment, or both.

He is to be sentenced for two transferred offences that were committed between 28 August and 6 September 2020:

(a)Count 3: Possess prohibited substance, namely tetrahydrocannabinol (THC), contrary to s 171(1) of the Drugs of Dependence Act 1989 (ACT).
The maximum penalty is a fine of $8,000, two years’ imprisonment, or both.
(b)Count 4: Possess more than 50 grams of dried cannabis, contrary to s 171AA(2) of the Drugs of Dependence Act 1989 (ACT).
The maximum penalty is a fine of $8,000, two years’ imprisonment, or both.

The offender pleaded guilty to Counts 1 and 2 several months after a criminal case conference and several weeks before the trial was scheduled to commence. For some months, the parties engaged in discussions concerning the agreed facts. The prosecution case was strong. The appropriate discount under s 35 of the Crimes (Sentencing) Act2005 (ACT) (Sentencing Act) is up to 15 per cent.

The offender undertook to participate in a record of interview with police regarding the possible whereabouts of the co-offender and the events surrounding the commission of the offence, and to give evidence at any trial without the need for a subpoena. As it is not known whether and when the co-offender may be located or the evidence that the offender may give, the value of the promised assistance to authorities is somewhat speculative.…

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 Kinsela

Details

AGLC: R v Kinsela [2021] ACTSC 265
Case: [2021] ACTSC 265
Decision Date

CaseChat Overview and Summary

The case of R v Kinsela involves the sentencing of Jamie Stewart Kinsela for four offences committed between August and September 2020. Count 1 relates to the offence of recklessly inflicting grievous bodily harm (GBH) by way of joint commission, contrary to section 20(1) of the Crimes Act 1900 (ACT). Count 2 concerns theft, contrary to section 308 of the Criminal Code 2002 (ACT). Count 3 is for possessing a prohibited substance, namely tetrahydrocannabinol (THC), contrary to section 171(1) of the Drugs of Dependence Act 1989 (ACT). Finally, Count 4 relates to possessing more than 50 grams of dried cannabis, contrary to section 171AA(2) of the Drugs of Dependence Act 1989 (ACT).

The legal issues the court needed to decide involved the appropriate penalties for each offence and whether any discount should be applied for the offender's early guilty plea. The court also needed to consider the offender's background and prospects of rehabilitation.

The court found that Kinsela's offences were objectively serious, with the GBH offence involving a prolonged and multifaceted assault in a public place. However, the court also considered Kinsela's background, which included a dysfunctional upbringing and a history of substance abuse. The court found that Kinsela had taken steps to address his issues, including completing anger management and substance abuse programs.

After considering the relevant sentencing principles and authorities, the court imposed a sentence of 34 months’ imprisonment, suspended after 16 months’ imprisonment, for Count 1. The court also imposed two-year good behaviour orders for Counts 2, 3 and 4. The court reduced the sentence by 20% to reflect Kinsela's early guilty plea and the hardships associated with incarceration during the COVID-19 pandemic.

In summary, the court imposed a partly suspended sentence of imprisonment for the most serious offence, along with good behaviour orders for the other offences, taking into account the objective seriousness of the crimes, Kinsela's background and prospects of rehabilitation, and the appropriate discount for his early guilty plea.

Orders