R v Kristiansen - [2020] ACTSC 14

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Kristiansen
Citation:	[2020] ACTSC 14
Hearing Dates:	29 January 2020 and 7 April 2020
DecisionDates:	29 January 2020 and 7 April 2020
Before:	Mossop J
Decision:	See [45] and [51]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – aggravated attempted burglary – possessing drug of dependence – committed whilst subject to good behaviour orders – context of significant illicit substance use – good prospects for rehabilitation – good family support – custodial sentence to be served by intensive correction order
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT), ss 108, 110 Crimes (Sentencing) Act 2005 (ACT), ss 63, 80 Criminal Code 2002 (ACT), s 310 Drugs of Dependence Act 1989 (ACT), s 169
Cases Cited:	R v Lock [2016] ACTSC 319
Parties:	The Queen (Crown) Lee Alexander Kristiansen (Offender)
Representation:	Counsel C Wanigaratne (Crown) J Robertson (Offender)
Solicitors ACT Director of Public Prosecution (Crown) Sharman Robertson (Offender)
File Numbers:	SCC 297 of 2019 SCC 298 of 2019

Mossop J:

Introduction

The offender, Lee Alexander Kristiansen, pleaded guilty in the Magistrates Court to the following offence: one count of attempt aggravated robbery using force contrary to s 310(b) of the Criminal Code 2002 (ACT), the maximum penalty being 25 years’ imprisonment, 2500 penalty units or both (CC2019/10081).

He also pleaded guilty to the following related summary offence: one count of possessing a drug of dependence contrary to s 169(1) of the Drugs of Dependence Act 1989 (ACT), the maximum penalty being two years’ imprisonment, 50 penalty units or both.

Facts

On 12 September 2019, the victim of the offending, who I will refer to as DB, attended Lonsdale Street in Braddon and chain-locked his Trek electric bike to a bicycle stand. He then went to Rye Café across the road.

Attempt aggravated robbery using force

At approximately 9.25am, whilst still at the café, DB observed a male riding his bicycle near where the Trek bike was parked. The male then stopped his bike and pulled out a pair of bolt cutters and attempted to cut the chain lock. The male was Caucasian and wore dark blue track suit pants and a high-vis orange hooded jacket. He was later identified as the offender.

DB ran towards the offender and yelled at him to stop. The offender got back on his bicycle and rode south along Lonsdale Street. DB followed him on foot and shouted to members of the public to call the police. He caught up to the offender near the BP Service Station, located on the corner of Lonsdale Street and Cooyong Street. A physical altercation subsequently ensued. DB pushed the offender off his bicycle, and the offender then swung the bolt cutters towards DB and struck him in the mouth. This caused DB to receive a small cut to the inside of his bottom lip, and he suffered pain and minor bleeding. During this altercation the offender’s wallet fell out of…

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 Kristiansen

Details

AGLC: R v Kristiansen [2020] ACTSC 14
Case: [2020] ACTSC 14
Decision Date: 29 January 2020 and 7 April 2020

CaseChat Overview and Summary

The case of R v Kristiansen involved the defendant, Kristiansen, who was found guilty of aggravated attempted burglary and possessing a drug of dependence. The case was heard in the relevant Australian court. The core of the dispute revolved around the sentencing of Kristiansen for these offences, particularly in light of his history of significant illicit substance use, the presence of good prospects for rehabilitation, and his family support system. The court was tasked with determining an appropriate sentence that balanced the need for punishment with the potential for rehabilitation, particularly in the context of his good behaviour orders.

The legal issues before the court included the appropriate weight to give to Kristiansen's history of substance abuse and his prospects for rehabilitation, as well as the need to consider his family support and good behaviour orders. The court had to assess whether a custodial sentence would be appropriate and, if so, how it should be structured to facilitate rehabilitation. Additionally, the court needed to ensure that the sentence was proportionate to the severity of the offences committed while considering the mitigating factors presented.

In reaching its decision, the court considered the nature and circumstances of the offences, which were serious and involved breach of good behaviour orders. It also weighed Kristiansen's history of illicit substance use, which was a significant contributing factor to his criminal behaviour. The court acknowledged the defendant's prospects for rehabilitation, the support from his family, and the need for a sentence that could help him reintegrate into society. Ultimately, the court decided that a custodial sentence was necessary but should be structured with an intensive correction order to maximise the chances of rehabilitation. The court ordered Kristiansen to serve his sentence under this order, reflecting the balance between punishment and rehabilitation.

Orders

Orders of the court

See [45] and [51]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.