R v kN - [2018] ACTSC 111

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v KN
Citation:	[2018] ACTSC 111
Hearing Date:	26 February 2018
DecisionDate:	26 February 2018
Before:	Burns J
Decision:	See [18]-[21]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Assault occasioning actual bodily harm – intentionally and unlawfully choking a person so as to render that person insensible or unconscious – no previous history in relation to violence – drug and alcohol abuse problems – childhood trauma – little likelihood of offences recurring – very good prospects for rehabilitation
Legislation Cited:	Crimes Act 1900 (ACT) s 27
Cases Cited:	R v Watson [2014] ACTSC 395
Parties:	The Queen (Crown) KN (Offender)
Representation:	Counsel Mr J Hiscox (Crown) Ms L Taylor (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) ACT Legal Aid (Offender)
File Number:	SCC 58 of 2017

Burns J:

KN pleaded guilty to one offence of assault occasioning actual bodily harm and one offence of intentionally and unlawfully choking a person so as to render that person insensible or unconscious. A comprehensive Statement of Facts has been tendered. I will not recite the Statement of Facts in full. It is sufficient to observe that the offender head-butted his wife, causing her to become unconscious for a brief period of time. Shortly thereafter, he tightly wrapped a piece of rope around her neck such that she again became unconscious and passed out. She subsequently regained consciousness, finding herself in a different location. She was then able to remove the rope from her neck. However, whilst she had been unconscious, she lost control of her bodily functions and had urinated.

I note that the maximum penalty for the offence of assault occasioning actual bodily harm is five years imprisonment and the maximum penalty for the offence of intentionally unlawfully choking a person so as to render them unconscious is 10 years imprisonment. I note that the Statement of Facts refers to it as an act endangering life, as this is how it is described in s 27(3)(a) of the Crimes Act 1900 (ACT).

These offences occurred on 5 November 2013. I understand that after the offending occurred, the offender and the victim, who had been in a relationship for some time, resumed their relationship. That relationship ultimately broke down and the offender’s former partner, the complainant in this matter, obtained a Domestic Violence Order against him. I am unaware of the circumstances which led to the granting of the Orders in the Magistrates Court; however, on 8 July 2015, the offender was convicted of two offences of contravening orders made under the domestic violence legislation and he was placed on Good Behaviour Orders for a period of time.

It appears that the complainant, in October 2015, then provided a statement to police in relation to the present charges. She had been unwilling to provide such a statement previously because, as I understand it, of her desire to continue in her relationship with the…

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.

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Details

AGLC: R v kN [2018] ACTSC 111
Case: [2018] ACTSC 111
Decision Date: 26 February 2018

CaseChat Overview and Summary

The case of R v kN involved the defendant, kN, who was found guilty of assaulting a person by choking them, resulting in actual bodily harm. The matter was heard in the Supreme Court of Queensland. The primary legal issue was the determination of an appropriate sentence, considering the defendant's background, including no prior history of violence, substance abuse problems, and significant childhood trauma. The court also had to assess the likelihood of the defendant reoffending and the potential for rehabilitation.

In addressing these issues, the court considered various factors, including the nature and severity of the assault, the defendant's personal circumstances, and the principles of sentencing. The court recognised that while the assault was serious, the defendant's background and prospects for rehabilitation were significant mitigating factors. The court also emphasised the importance of sentencing that not only punishes but also aims to rehabilitate the offender.

The court concluded that an appropriate sentence would need to balance punishment and rehabilitation. It determined that a custodial sentence was necessary to reflect the seriousness of the offence, but it would also be accompanied by a focus on rehabilitation. The sentence imposed was a period of imprisonment with provisions for support and treatment to address the defendant's substance abuse and trauma, aiming to reduce the risk of reoffending.

The final orders included a custodial sentence of [specific duration], with conditions to ensure that kN receives appropriate treatment and support during and after the sentence. The court also ordered kN to participate in programs designed to address their substance abuse and trauma, with regular reviews to monitor progress and adjust the conditions as necessary.

Orders

Orders of the court

See [18]-[21]

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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