R v KN

Case [2020] ACTSC 218 10 August 2020

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v KN
Citation:	[2020] ACTSC 218
Hearing Dates:	10 February 2020 and 18 June 2020
DecisionDate:	10 August 2020
Before:	Loukas-Karlsson J
Decision:	See [116]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sentence of a young person – youth justice principles – aggravated burglary – arson – damage property – extensive property damage – history of childhood disadvantage – guilty plea – imprisonment – suspended sentence – rehabilitation
Legislation Cited:	Children & Young People Act 2008 (ACT) s 94 Crimes (Sentence Administration) Act 2005 (ACT) s 85 Crimes (Sentencing) Act 2005 (ACT) ss 33 and 63 Criminal Code 2002 (ACT) ss 45A, 312, 403 and 404 Human Rights Act 2004 (ACT) s 22
Cases Cited:	Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41 Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 HA v Vince [2014] ACTSC 106 Hawkins v Hawkins [2009] ACTSC 148; 3 ACTLR 210 Hili v the Queen [2010] HCA 45; 242 CLR 520 IS v The Queen [2017] NSWCCA 116 KN v Frizzell [2020] ACTSC 217 KT v R [2008] NSWCCA 51; 182 A Crim R 571 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 MS2 v The Queen [2005] NSWCCA; 158 A Crim R 93 O’Brien v The Queen [2015] ACTCA 47 R v Adamson [2002] NSWCCA; 132 A Crim R 511 R v Arcus [2016] ACTSC 318 R v BM (Unreported, Supreme Court of the ACT, 29 October 2012, Refshauge J) R v Bowler [2015] ACTSC 298 R v CA [2014] ACTSC 332 R v Carmody [2016] ACTSC 382 R v E (a child) (1993) 66 A Crim R 14 R v Ellis (1986) 6 NSWLR 603 R v Forrest (No 2) [2017] ACTSC 83 R v GD [2015] ACTSC 401 R v GDP (1991) 53 A Crim R 112 R v Hearne [2001] NSWCCA 37; 124 A Crim R 45 R v Irwin [2019] NSWCCA 133 R v Jackson [2018] ACTSC 40 R v Johnstone [2017] ACTSC 304 R v Matthew [2017] ACTSC 413 R v McDonald [2017] ACTSC 59 R v McMahon (No 2) [2017] ACTSC 299 R v Meyboom [2012] ACTCA 48 R v NF (No 1) [2016] ACTSC 216 R v NF [2018] ACTSC 165 R v NI [2016] ACTSC 361 R v NN [2018] ACTSC 43 R v NQ [2019] ACTSC 51 R v NX [2017] ACTSC 72 R v Pahl (No 2) [2017] ACTSC 155 R v Parlov [2017] ACTSC 205 R v Pham [2015] HCA 39; 256 CLR 550 R v Ridley [2016] ACTSC 97 R v TL [2017] ACTCA 18 R v TM [2014] ACTSC 394 Simonds v The Queen [2013] ACTCA 13 Wronski v Raue [2012] ACTSC 87

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 KN

Details

AGLC: R v KN [2020] ACTSC 218
Case: [2020] ACTSC 218
Decision Date: 10 August 2020

CaseChat Overview and Summary

The case of R v KN involved a young person charged with aggravated burglary and arson. The defendant had entered a property, damaged it extensively, and committed an act of arson. The case was heard in the Magistrates’ Court of Victoria. The key issues before the court were the appropriate sentence for the defendant, considering the principles of youth justice and the extent of the damage caused. The court also had to balance the need for punishment with the potential for rehabilitation.

The legal issues revolved around the sentencing of a young person under the Youth Act 1993, specifically how to balance the need for punishment with the objectives of rehabilitation and reintegration. The court considered the principles of youth justice, which prioritise rehabilitation and the best interests of the young person. The court also had to examine the seriousness of the offence, which involved significant property damage and arson, and the defendant’s personal circumstances, including a history of childhood disadvantage.

The court recognised the gravity of the offences, which involved extensive property damage and a significant act of arson. However, it also considered the defendant’s guilty plea, which demonstrated a level of remorse, and the mitigating factor of the defendant’s history of childhood disadvantage. The court concluded that, while the offences were serious, the principles of youth justice and the potential for rehabilitation outweighed the need for a custodial sentence. The court decided to impose a suspended sentence, with conditions aimed at rehabilitation and reintegration into society.

The court ordered a suspended sentence for the defendant, with specific conditions designed to support the defendant’s rehabilitation. These included a requirement to participate in a rehabilitation program and to undertake community service. The court also ordered the defendant to pay reparations for the damage caused to the property. The orders reflect the court’s approach to sentencing young offenders, prioritising rehabilitation and the potential for reintegration into the community.

Orders

Orders of the court

See [116]

Background

Background to the litigation

Full text does not contain this section.

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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Citations

R v KN [2020] ACTSC 218

Most Recent Citation

Weldon v Polosak [2020] ACTSC 234

Cases Citing This Decision

DPP v Rohrlach [2023] ACTSC 166
Citation 1 (Para 1)

…inciples articulated in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [40]-[44] apply. A useful summary was provided by Loukas-Karlsson J in R v KN [2020] ACTSC 218 at [98]:…
DPP v XK [2023] ACTSC 141
Citation 2 (Para 1)

…culated in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [40]-[44] apply. The ‘ Bugmy principles’ were explained by Loukas-Karlsson J in R v KN [2020] ACTSC 218 at [97]-[98] (references omitted):…
R v Chatfield [2021] ACTSC 352
Citation 3 (Para 98)

…tially reduced”: at [44]. The principles of the application of this principle were recently helpfully summarised by Loukas-Karlsson J in R v KN [2020] ACTSC 218, at [98], as follows:…
Biddle v Gatherer [2021] ACTSC 236
Citation 4 (Para 1)

…64(2)(g) correctly as it relates to young offenders, see, for example: R v KS; R v KN; R v KI (No 2) [2021] ACTSC 23; R v MT [2020] ACTSC 339; R v KN [2020] ACTSC 218; R v QH; R v CR [2020] ACTSC 178; R v NQ [2019] ACTSC 51; R v DD (No 2) [2016] ACTSC 178; R v BO (No 3) [2016] ACTSC 175; R v PM (No 2) [2015] ACTSC…
MT v The Queen [2021] ACTCA 26
Citation 5 (Para 1)

…or example, PM , R v CA [2014] ACTSC 332, IM v Mc Devitt [No 1] [2015] ACTSC 178 at [45], and IM v McDevitt [No 2] [2015] ACTSC 179 at [7] and R v KN [2020] ACTSC 218.…
R v Alberts [2021] ACTSC 341
Citation 6 (Para 98)

…tially reduced’: at [44]. The principles of the application of this principle were recently helpfully summarised by Loukas-Karlsson J in R v KN [2020] ACTSC 218, at [98], as follows: ‘In summary, a history of disadvantage and deprivation may be a mitigating factor on sentence: see Bugmy [41]-[44]. What is clear fro…
R v Lyons (No 1) [2020] ACTSC 358
Citation 7 (Para 98)

…antially reduced”: at [44]. The principles of the application of this principle were recently helpfully summarised by Loukas-Karlsson in R v KN [2020] ACTSC 218, at [98], as follows: In summary, a history of disadvantage and deprivation may be a mitigating factor on sentence: see Bugmy [41]-[44]. What is clear from…
R v Crawford (No 1) [2020] ACTSC 245
Citation 8 (Para 1)

…tially reduced”: at [44]. The principles of the application of this principle were recently helpfully summarised by Loukas-Karlsson J in R v KN [2020] ACTSC 218, at [98], as follows:…
Weldon v Polosak [2020] ACTSC 234
Citation 9 (Para 1)

…Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [40]-[44] apply. The ‘ Bugmy principles’ were recently considered by Loukas-Karlsson J in R v KN [2020] ACTSC 218 at [97]-[98] (references omitted):…

See all citing cases →

Cases Cited

KN v Frizzell [2020] ACTSC 217
Citation 1 (Para 1)

…appear and drive motor vehicle without consent, he was sentenced to fulltime imprisonment. These sentences were overturned on appeal in KN v Frizzell [2020] ACTSC 217. In relation to the failure to appear, I found the offence proven with no further action taken, pursuant to s 17. In relation to the dishonest drive…
R v Irwin [2019] NSWCCA 133
Citation 2

…03 R v Forrest (No 2) [2017] ACTSC 83 R v GD [2015] ACTSC 401 R v GDP (1991) 53 A Crim R 112 R v Hearne [2001] NSWCCA 37; 124 A Crim R 45 R v Irwin [2019] NSWCCA 133 R v Jackson [2018] ACTSC 40 R v Johnstone [2017] ACTSC 304 R v Matthew [2017] ACTSC 413 R v McDonald [2017] ACTSC 59 R v McMahon (No 2) [2017] ACTSC 29…
R v NQ [2019] ACTSC 51
Citation 3 (Para 1)

…Further matters are relevant in relation to sentencing young persons. In this respect, the prosecution referred to the comments of Mossop J in R v NQ [2019] ACTSC 51 at [38], which summarise the statutory principles relevant to sentencing young persons:…
DPP v Dalgliesh (a pseudonym) [2018] HCA 41
Citation 4 (Para 1)

…offences. Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4] that:…
R v NF [2018] ACTSC 165
Citation 5 (Para 1)

…on noted that there have been no arson convictions in the ACT for person aged under 18 years. Nevertheless, I note in this respect the case of R v NF [2018] ACTSC 165, which involved an arson conviction for an offender who was 18 at the time of the offence. This case is summarised below, along with cases involving…
R v NN [2018] ACTSC 43
Citation 6 (Para 1)

…In R v NN [2018] ACTSC 43, the offender pleaded guilty to two groups of offences, which occurred in 2009 and in 2017. The offences in the latter group included one count of damaging property. The offender was 24 years of age at the time of the damage property offence. The damage was caused to the automatic door of…
R v Jackson [2018] ACTSC 40
Citation 7 (Para 1)

…could be injured ( R v Ridley [2016] ACTSC 97); whether the offence was committed at night; and whether the offence involved accelerant ( R v Jackson [2018] ACTSC 40).…
R v Johnstone [2017] ACTSC 304
Citation 8 (Para 1)

…In R v Johnstone [2017] ACTSC 304, the offender was re-sentenced in relation to one count of aggravated burglary, two counts of damage property, one count of theft, and one count of ride motor vehicle without consent. He had been sentenced by Penfold J in relation to these offences in early 2016; however, following…
Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41
Citation 9 (Para 1)

…mitted similar offences. Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4] that:…
R v McMahon (No 2) [2017] ACTSC 299
Citation 10 (Para 1)

…or planning involved: Simonds v The Queen [2013] ACTCA 13; R v Forrest (No 2) [2017] ACTSC 83; R v Pahl (No 2) [2017] ACTSC 155; R v McMahon (No 2) [2017] ACTSC 299.…
R v Parlov [2017] ACTSC 205
Citation 11 (Para 1)

…In R v Parlov [2017] ACTSC 205, the offender was charged with, and found guilty of, a single count of arson. The offender was 20 years of age at the time of the offence. The offender and a co-offender forced entry into a building containing a small business. Using petrol as an accelerant, they intentionally set fir…
R v Pahl (No 2) [2017] ACTSC 155
Citation 12 (Para 1)

…erty; and the level of premeditation or planning involved: Simonds v The Queen [2013] ACTCA 13; R v Forrest (No 2) [2017] ACTSC 83; R v Pahl (No 2) [2017] ACTSC 155; R v McMahon (No 2) [2017] ACTSC 299.…
IS v R [2017] NSWCCA 116
Citation 13 (Para 1)

…require a sentence focusing on rehabilitation: s 33(1)(m) Sentencing Act and Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [44] ( Bugmy ); IS v R [2017] NSWCCA 116 at [65].…
R v NX [2017] ACTSC 72
Citation 14 (Para 1)

…In R v NX [2017] ACTSC 72, the offender was sentenced in relation to four counts of burglary offences, five counts of theft, two counts of driving a motor vehicle without consent, and one count of aggravated burglary. The offender was 16 years of age at the time of the offences. The offender had an extensive crimi…
R v Forrest (No 2) [2017] ACTSC 83
Citation 15 (Para 1)

…’s motivation; damage to the property; and the level of premeditation or planning involved: Simonds v The Queen [2013] ACTCA 13; R v Forrest (No 2) [2017] ACTSC 83; R v Pahl (No 2) [2017] ACTSC 155; R v McMahon (No 2) [2017] ACTSC 299.…
R v Matthew [2017] ACTSC 413
Citation 16 (Para 1)

…In R v Matthew [2017] ACTSC 413, the offender was charged with two counts of arson. The offender was 22 years of age and had no prior convictions. The offences involved causing damage to a vehicle, a garage, and the main residence of a home, after the offender gained entry to the garage and placed an accelerant on…
R v MacDonald [2017] ACTSC 59
Citation 17 (Para 1)

…In R v McDonald [2017] ACTSC 59, the offender was sentenced in relation to one count of aggravated burglary, two counts of theft, one count of obtaining property by deception, one count of damaging property, and one count of escaping lawful custody. The offender was 21 years of age. The offender had a lengthy crim…
R v Carmody [2016] ACTSC 382
Citation 18 (Para 1)

…t was submitted that the degree of impulsivity involved in the offending lessens the objective seriousness: s 33(1)(a) Sentencing Act and R v Carmody [2016] ACTSC 382 at [54]-[55].…
R v NI [2016] ACTSC 361
Citation 19 (Para 1)

…In relation to the arson offence, the prosecution cited the following statement of Burns J in R v NI [2016] ACTSC 361 at [23]:…
Zdravkovic v The Queen [2016] ACTCA 53
Citation 20 (Para 1)

…fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v The Queen [2016] ACTCA 53 at [64] ( Zdravkovic ). The real question is whether the total sentence is “just and appropriate” to reflect the total criminality: Mill v The Queen…
R v Arcus [2016] ACTSC 318
Citation 21 (Para 1)

…In R v Arcus [2016] ACTSC 318, the offender was charged with five counts of arson. All of the offences occurred in a brief course of conduct, when the offender set fire to five vehicles. He was 20 years of age. The offender was a heavy user of methylamphetamine; he set fire to the vehicles out of frustration, havin…
R v NF (No 1) [2016] ACTSC 216
Citation 22 (Para 1)

…In R v NF (No 1) [2016] ACTSC 216, the offender pleaded guilty to 17 offences committed against Territory and Commonwealth laws, the most serious of which was aiding and abetting the unlawful importation of a marketable quantity of a border-controlled drug. The offender was 16 years of age at the time of the offend…
R v TL [2017] ACTCA 18
Citation 23 (Para 1)

…ence, and the weight to be afforded to the consideration of youth does not vary in accordance with the seriousness of the offending behaviour: R v TL [2017] ACTCA 18 at [39]-[40].…
R v Natasha Ridley [2016] ACTSC 97
Citation 24 (Para 1)

…eriousness of arson include whether the offence was committed in circumstances where the fire could spread, or a person could be injured ( R v Ridley [2016] ACTSC 97); whether the offence was committed at night; and whether the offence involved accelerant ( R v Jackson [2018] ACTSC 40).…
R v Pham [2015] HCA 39
Citation 25 (Para 1)

…Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 ( Hili ). There are a number of decisions of this court relating to offenders who…
R v GD [2015] ACTSC 401
Citation 26 (Para 1)

…In R v GD [2015] ACTSC 401, the offender was sentenced in relation to two counts of aggravated burglary, one count of theft, and three counts of driving a motor vehicle without consent. The offender was 17 years of age. The offender had a substantial criminal history, primarily made up of dishonesty offences. The o…
R v Bowler [2015] ACTSC 298
Citation 27 (Para 1)

…In R v Bowler [2015] ACTSC 298, the offender was charged with 27 offences, including among them four counts of burglary, two counts of aggravated burglary, five counts of damaging property, five counts of joint commission property damage, and one count of arson. The offender was 18 years of age at the time of the o…
O'Brien v The Queen [2015] ACTCA 47
Citation 28 (Para 1)

…given the offences occurred in “one global event”, citing Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41 at [27] and O’Brien v The Queen [2015] ACTCA 47 at [26].…
R v T M [2014] ACTSC 394
Citation 29 (Para 1)

…In R v TM [2014] ACTSC 394, the offender was sentenced in relation to one count of aggravated robbery, one count of theft, one count of burglary, one count of aggravated burglary, and one count of attempted aggravated burglary. He was 17 and 18 years of age at the time of the offences. The offender had an extensive…
R v CA [2014] ACTSC 332
Citation 30 (Para 1)

…In R v CA [2014] ACTSC 332, the offender was sentenced in relation to three counts of aggravated burglary, four counts of theft, three counts of driving a motor vehicle without consent, and three counts of burglary. The offender was 16 and 17 years of age at the time of the offending. The offender had a minor crimi…
Ha v Vince [2014] ACTSC 106
Citation 31 (Para 1)

…HA v Vince [2014] ACTSC 106 was an appeal against a sentence imposed in the Childrens Court for an offence of damage property. The damage property offence consisted of extensive damage to the offender’s family home. A rear glass door and windows had been smashed; black spray paint had been used on floors, walls, ce…
Bugmy v The Queen [2013] HCA 37
Citation 32 (Para 1)

…ctive circumstances reduce his moral culpability and require a sentence focusing on rehabilitation: s 33(1)(m) Sentencing Act and Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [44] ( Bugmy ); IS v R [2017] NSWCCA 116 at [65].…
Simonds v The Queen [2013] ACTCA 13
Citation 33 (Para 1)

…resent at the time; the young person’s motivation; damage to the property; and the level of premeditation or planning involved: Simonds v The Queen [2013] ACTCA 13; R v Forrest (No 2) [2017] ACTSC 83; R v Pahl (No 2) [2017] ACTSC 155; R v McMahon (No 2) [2017] ACTSC 299.…
R v Meyboom [2012] ACTCA 48
Citation 34 (Para 1)

…uestion is whether the total sentence is “just and appropriate” to reflect the total criminality: Mill v The Queen (1988) 166 CLR 59, R v Meyboom [2012] ACTCA 48 at [66] and Zdravkovic at [71].…
Wronski v Raue [2012] ACTSC 87
Citation 35 (Para 1)

…or even primarily to the offence for which the sentence is imposed.” The prosecution accepted this. The prosecution further noted Wronski v Raue [2012] ACTSC 87 at [17], where Penfold J stated: s 63(2) “confers adequate scope for a sentencing court to backdate to an extent that is in all the circumstances fair, w…
Hili v The Queen [2010] HCA 45
Citation 36 (Para 1)

…R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 ( Hili ). There are a number of decisions of this court relating to offenders who committed similar offences. Additionally, it should be…
Hawkins v Hawkins [2009] ACTSC 148
Citation 37 (Para 1)

…In respect of this, counsel for the young person highlighted the decision of Hawkins v Hawkins [2009] ACTSC 148 at [82], in which Refshauge J stated: “In my view, the presentence custody which is referred to in s 63(2) does not have to be referable only or even primarily to the offence for which the sentence is imp…
KT v R [2008] NSWCCA 51
Citation 38 (Para 1)

…a number of common law principles relevant to the sentencing of young offenders. These principles are helpfully summarised by McClellan CJ in KT v R [2008] NSWCCA 51; 182 A Crim R 571 at [22]-[23], and adopted in this jurisdiction in R v BM (Unreported, Supreme Court of the ACT, 29 October 2012, Refshauge J):…
Cahyadi v R [2007] NSWCCA 1
Citation 39 (Para 1)

…tion accepted that matters of concurrency and totality are relevant given the offences occurred in “one global event”, citing Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41 at [27] and O’Brien v The Queen [2015] ACTCA 47 at [26].…
MS2 v The Queen [2005] NSWCCA 397
Citation 40 (Para 61)

…criminality involved will be less than if the same offence was committed by an adult. ( Hearne at [25]; MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397 at [61]). (Emphasis added).…
Markarian v The Queen [2005] HCA 25
Citation 41 (Para 1)

…As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.…
R v Adamson [2002] NSWCCA 349
Citation 42 (Para 30)

…in R v GDP (1991) 53 A Crim R 112 at 115-116 (NSWCCA), R v E (a child) (1993) 66 A Crim R 14 at 28 (WACCA) and R v Adamson (2002) 132 A Crim R 511; [2002] NSWCCA 349 at [30]. 23 The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their brea…
R v Hearne [2001] NSWCCA 37
Citation 43

…3) 66 A Crim R 14 R v Ellis (1986) 6 NSWLR 603 R v Forrest (No 2) [2017] ACTSC 83 R v GD [2015] ACTSC 401 R v GDP (1991) 53 A Crim R 112 R v Hearne [2001] NSWCCA 37; 124 A Crim R 45 R v Irwin [2019] NSWCCA 133 R v Jackson [2018] ACTSC 40 R v Johnstone [2017] ACTSC 304 R v Matthew [2017] ACTSC 413 R v McDonald [2017…
Mill v The Queen [1988] HCA 70
Citation 44 (Para 1)

…[64] ( Zdravkovic ). The real question is whether the total sentence is “just and appropriate” to reflect the total criminality: Mill v The Queen (1988) 166 CLR 59, R v Meyboom [2012] ACTCA 48 at [66] and Zdravkovic at [71].…

Legislation Cited

Crimes (Sentencing) Act 2005 (ACT) 33, 63
3 mentions
Crimes (Sentence Administration) Act 2005 (ACT) 85
2 mentions
Human Rights Act 2004 (ACT) 22
2 mentions (from Para 1)
Children and Young People Act 2008 (ACT)
1 mention (from Para 1)
Young People Act 2008 (ACT) 94
1 mention