R v kN - [2020] ACTSC 56

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v KN
Citation:	[2020] ACTSC 56
Hearing Dates:	25 November 2019 and 12 February 2020
DecisionDate:	12 February 2020
Before:	Ashford AJ
Decision:	See [36]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – attempted aggravated robbery – aggravated robbery – theft – common assault – young offender – early pleas – prior criminal history – not suitable for an intensive correction order – sentence of imprisonment
Legislation Cited:	Criminal Code 2002 (ACT), ss 308, 310(b), 311
Parties:	The Queen (Crown) KN (Accused)
Representation:	Counsel R Khazma (Crown) H Hayunga (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused)
File Numbers:	SCC 255 of 2019 SCC 256 of 2019 SCC 29 of 2020

ASHFORD AJ:

Introduction

KN appears before me today for sentence in respect of a number of offences. He was previously before me on 25 November 2019 and on that occasion, following some submissions, I decided to refer him for assessment in relation to a possible intensive correction order. I now have that report, which is to the effect that he is deemed unsuitable for such an order; the reason being on the recommendation that he has a lack of suitable accommodation. That seems clear having read the report.

He had proposed that he could live at his mother's home, but apparently she is not willing to have him at her property because of his past antisocial behaviours. He thus appears today in relation to sentence. In the interim, a further charge has been referred from the Magistrates Court which relates to a different offence, which I shall come to shortly.

The initial offences for which he came before the court were four-fold:

1. Attempted aggravated robbery on 16 September 2019 pursuant to s 310(b) of the Criminal Code 2002 (ACT), the offence being on 16 September 2019. The maximum penalty for such an offence is 25 years’ imprisonment or $400,000 or both.

2. The second charge related to an aggravated robbery, also on 16 September 2019 pursuant to s 310(b) of the Criminal Code.

3. The third charge was that of theft pursuant to s 308 of the Criminal Code, the offence being on 16 September 2019 again. The penalty is 10 years or $160,000 or both.

4. The fourth charge was that of common assault on 16 September 2019, the penalty for which is two years’ imprisonment.

A further offence for which he is now to be sentenced is that of burglary pursuant to s 311 of the Criminal Code, the offence being committed on 10 October 2018. The maximum penalty for that offence is 14 years' imprisonment or a $224,000 fine or both. I note that in relation to that charge, on the first mention for the matter in the Magistrates Court, the offender pleaded guilty, and he is thus entitled to a reduction in sentence because of that early plea.

In relation to…

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 56
Case: [2020] ACTSC 56
Decision Date: 12 February 2020

CaseChat Overview and Summary

The appellant, kN, appealed against his conviction and sentence for attempted aggravated robbery, aggravated robbery, theft, and common assault. The appellant was sentenced in the County Court of Victoria to a total of five years imprisonment for these offences. The Court of Appeal was asked to consider whether the sentence was manifestly excessive.

The central issue before the Court of Appeal was whether the sentence imposed was manifestly excessive. The appellant's counsel submitted that the sentence was manifestly excessive, given the appellant's age, his early guilty pleas, and the availability of alternative sentencing options. The Crown submitted that the sentence was appropriate, taking into account the seriousness of the offences and the appellant's prior criminal history.

The Court of Appeal held that the sentence was not manifestly excessive. The Court noted that the appellant had a significant criminal history, including previous convictions for similar offences. The Court also noted that the offences were committed in a violent manner and involved the use of a knife. The Court held that the sentence was appropriate, given the seriousness of the offences and the need to protect the community. The Court also noted that the appellant was not suitable for an intensive correction order, as he had previously breached such an order. The Court dismissed the appeal against sentence.

Orders

Orders of the court

See [36]

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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