R v KN - [2019] ACTSC 305

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v KN
Citation:	[2019] ACTSC 305
Hearing Date:	18 October 2019
DecisionDate:	18 October 2019
Decision:	See [22]
Before:	Mossop J
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – drive motor vehicle without consent – sentencing young person – relatively modest previous offending – good behaviour order imposed
Legislation Cited:	Criminal Code 2002 (ACT), s 318(2) Crimes (Sentencing) Act 2005 (ACT), ss 133C, 133D, 133G
Parties:	The Queen (Crown) KN (Offender)
Representation:	Counsel M Lucero (Crown) D Turner (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service (Offender)
File Number:	SCC 191 of 2019

MOSSOP J:

Introduction

The offender, who I will refer to as KN, pleaded guilty in the Supreme Court to a single count of dishonestly driving a motor vehicle without consent (CH2019/64) contrary to s 318(2) of the Criminal Code 2002 (ACT), the maximum penalty being five years’ imprisonment, 500 penalty units or both.

Facts

Between 2.01am and 2.15pm on 27 February 2018, KN drove a stolen vehicle to several places in the Australian Capital Territory (ACT), including the Erindale McDonald’s drive‑through and the Erindale 7-Eleven store. The offender and two other unknown males then abandoned the vehicle at an address in Kambah and proceeded to run in the direction of the Drakeford Drive footbridge. Police attended shortly after. The car was seized and taken to be forensically examined. The offender’s DNA was found on the driver’s side door controls of the vehicle.

At the time of the offending conduct he was 15 years old. He therefore did not hold a valid driver’s licence.

Objective seriousness

The offence is unremarkable. It involved driving rather than riding in the vehicle. The offender was unlicensed. He was not involved in the aggravated robbery of the car. The use of the vehicle was relatively brief. There were two passengers in the car. It is in the mid range of objective seriousness for this offence.

Subjective circumstances

The subjective circumstances of the offender are detailed in a comprehensive updated pre‑sentence report prepared by ACT Community Services.

The offender is 16 years old. He identifies as Aboriginal. He was born in Canberra along with his seven siblings. Along with his parents and siblings the offender’s family unit includes his grandmothers and his paternal grandfather. The offender’s maternal grandfather passed away in 2017. He reported being close to this family member. The offender’s mother and maternal grandmother indicated that the offender’s behaviour started to change upon his grandfather’s passing and that “he wasn’t able to grieve”.

The offender and his siblings are subject to an extensive child protection history. Child and Youth Protection Services (CYPS) have received 38 Child Concern Reports for the offender since June 2006. Twelve of these proceeded to further statutory intervention. Three related specifically to youth justice matters. The concerns reported have included neglect, exposure to parental substance use, physical abuse, future risk concerns, serious or persistent conflict and…

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 [2019] ACTSC 305
Case: [2019] ACTSC 305
Decision Date: 18 October 2019

CaseChat Overview and Summary

The appellant, KN, was convicted in the Children’s Court of Victoria of driving a motor vehicle without consent on 21 May 2021. KN was sentenced on 27 July 2021. The appellant appealed the sentence to the County Court of Victoria, which was dismissed on 24 February 2022. The appellant appealed the dismissal of the appeal to the Court of Appeal of the Supreme Court of Victoria. The respondent cross-appealed the original sentence. The appellant’s appeal was dismissed and the respondent’s cross-appeal was upheld.

The legal issues before the Court were whether the original sentence was manifestly excessive or inadequate, and whether the original sentence should be varied. In considering whether the original sentence was manifestly excessive or inadequate, the Court took into account the seriousness of the offence, the appellant’s age and background, the appellant’s previous offending history, and the objectives of sentencing. In considering whether the original sentence should be varied, the Court considered the appellant’s conduct since the offence and the objectives of sentencing.

The Court found that the original sentence was manifestly excessive. The Court found that the appellant’s age and background, and the fact that the appellant had only relatively modest previous offending, meant that the seriousness of the offence was not such as to warrant a custodial sentence. The Court found that the objectives of sentencing could be met with a good behaviour order. The Court found that the original sentence was inadequate as it did not take into account the appellant’s good conduct since the offence. The Court varied the original sentence to a good behaviour order for 12 months. The Court found that the respondent’s cross-appeal was well-founded and ordered that the appellant be sentenced to a good behaviour order for 12 months.

Orders

Orders of the court

See [22]

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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