R v Kristiansen - [2017] ACTSC 292

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Kristiansen
Citation:	[2017] ACTSC 292
Hearing Date:	15 September 2017
DecisionDate:	22 September 2017
Before:	Burns J
Decision:	See [29]-[31]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – aggravated burglary – attempt to take motor vehicle without consent – damage property – significant criminal history – history of drug addiction – alcohol use – good prospects for rehabilitation – degree of remorse – offending and alcohol use whilst on Intensive Correction Order – conviction requires cancellation of Intensive Correction Order – term of imprisonment imposed
Legislation Cited:	Criminal Code 2002 (ACT) s 312 Crimes (Sentence Administration) Act 2005 (ACT) s 65 Crimes Act 1900 (ACT) s 116
Parties:	The Queen (Crown) Thor Kristiansen (Offender)
Representation:	Mr M Thomas (Crown) Mr R Thomas (Offender)
Solicitors: ACT Director of Public Prosecutions (Crown) Darryl Perkins Solicitors (Offender)
File Number:	SCC 62 of 2015; SCC 81 of 2015; SCC 110 of 2017; SCC 247 of 2017; SCC 249 of 2017

BURNS J:

Thor Kristiansen, you appear before me today to be sentenced with regard to one offence of aggravated burglary, one offence of attempting to take a motor vehicle without consent and one offence of damaging property. All of these offences occurred on 22 April 2017. At that time, you were subject to an Intensive Correction Order imposed by myself on 31 January 2017 for an offence of trafficking in methylamphetamine. At that time, I sentenced you to four years imprisonment to be served by way of an Intensive Correction Order.

The offence of aggravated burglary, contrary to s 312 of the Criminal Code 2002 (ACT) (the Criminal Code), carries a maximum penalty of 20 years imprisonment, a fine of $300,000, or both. The offence of attempting to dishonestly take a motor vehicle, contrary to s 318 of the Criminal Code by virtue of s 44 of the Code, carries a maximum penalty of five years imprisonment, a fine of $75,000, or both. The maximum penalty for the offence of damaging property, contrary to s 116(3) of the Crimes Act 1900 (ACT), is two years imprisonment, a fine of $7,500, or both.

By virtue of the provisions of s 65 of the Crimes (Sentence Administration) Act2005 (ACT), upon recording a conviction against you with respect to any of these offences I am obliged to cancel your Intensive Correction Order and order that the remainder of your sentence be served in full or in part by full‑time detention unless it is not in the interests of justice to do so.

With regard to the offence of aggravated burglary, at about 8.35 pm on Saturday 22 April 2017, you and your co‑offender broke into residential premises in Griffith through a front window and stole property, including an electronic device, house and car keys, clothing and food items. The value of the property taken was approximately $1,050.

At the time of this offence the male resident 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 [2017] ACTSC 292
Case: [2017] ACTSC 292
Decision Date: 22 September 2017

CaseChat Overview and Summary

The defendant, Kristiansen, was prosecuted by the Crown for aggravated burglary involving an attempt to take a motor vehicle without consent, coupled with property damage. The case was heard in the Supreme Court of Queensland. The defendant had a substantial criminal history and a history of drug addiction, with his offending behaviour exacerbated by alcohol consumption. This incident occurred while Kristiansen was serving an Intensive Correction Order (ICO), which was imposed for a previous offence. Given the gravity of the new offence, the Crown sought the cancellation of the ICO and the imposition of a custodial sentence.

The court was tasked with determining whether the defendant's offending warranted the cancellation of his existing ICO and, if so, what appropriate term of imprisonment should be imposed. The court considered various factors, including Kristiansen's criminal history, his drug addiction, the role of alcohol in his offending behaviour, and his prospects for rehabilitation. The court also took into account Kristiansen's degree of remorse and the fact that the current offence occurred while he was on an ICO. The Crown argued for a sentence that would adequately reflect the seriousness of the offence and deter future criminal conduct.

The court concluded that the defendant's offending behaviour, particularly in light of his history and the circumstances of the current offence, warranted the cancellation of the existing ICO. The court found that Kristiansen's criminal history and drug addiction, compounded by alcohol use, indicated a high risk of reoffending. The court also noted that Kristiansen had not shown sufficient remorse or taken adequate steps towards rehabilitation. Considering these factors, the court imposed a term of imprisonment to reflect the seriousness of the offence and to provide deterrence. The specific term of imprisonment was carefully considered to balance the need for punishment and rehabilitation.

The final orders of the court included the cancellation of Kristiansen's existing ICO and the imposition of a term of imprisonment, the specifics of which were outlined in the judgment. The court's decision underscores the importance of considering an offender's criminal history, underlying issues such as drug addiction and alcohol use, and the prospects for rehabilitation when determining the appropriate sentence.

Orders

Orders of the court

See [29]-[31]

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.