R v KS - [2022] ACTSC 133

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v KS
Citation:	[2022] ACTSC 133
Hearing Date:	29 April 2022
DecisionDate:	20 May 2022
Before:	McCallum CJ
Decision:	(1) Stand the matter over to 3.00 pm on 18 November 2022; (2) The offender’s bail is continued to 18 November 2022 on the following conditions: [REDACTED]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Breach of Good Behaviour Order – Griffiths remand – deferred sentence – whether the Court has the power to order Griffiths remand – whether s 27 of the Crimes (Sentencing) Act 2005 displaced the common law power to order Griffiths remands
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT) ss 108, 110 Crimes (Sentencing) Act 2005 (ACT) ss 10(2), 12(3), 12A, 27 Criminal Code 2002 (ACT) s 324(1) Firearms Act 1996 (ACT) s 43(1)(a)(iii) Legislation Act 2001 (ACT)
Cases Cited:	Griffiths v The Queen [1977] HCA 44; 137 CLR 293 High v Willis [2008] ACTSC 88 R v Kelly [2021] ACTSC 143 R v KS; R v KN; R v KI (No 2) [2021] ACTSC 23
Texts Cited:	Explanatory Statement, Crimes (Sentencing) Bill 2005 (ACT)
Parties:	The Queen (Crown) KS (a pseudonym) (Offender)
Representation:	Counsel K Lee (Crown) P Edmonds (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Paul Edmonds (Offender)
File Numbers:	SCC 108 of 2020 SCC 109 of 2020 SCC 110 of 2020 SCC 59 of 2022 SCC 60 of 2022

McCallum CJ:

KS has pleaded guilty in the Magistrates Court to two offences: an offence of possessing two firearms whilst not authorised by a licence or permit to possess or use the firearms, contrary to s 43(1)(a)(iii) of the Firearms Act 1996 (ACT), and an offence of having property on premises that is reasonably suspected of being stolen or otherwise unlawfully obtained, contrary to s 324(1) of the Criminal Code 2002 (ACT). Upon conviction for those offences, he will be in breach of five good behaviour orders imposed by Loukas-Karlsson J on 15 February 2021: R v KS; R v KN; R v KI (No 2) [2021] ACTSC 23. Three of those are good behaviour orders simpliciter which, in the event of their breach, are governed by s 108 of the Crimes (Sentence Administration) Act 2005 (ACT). The other two, however, were good behaviour orders made upon the suspension of a sentence in accordance with the requirement of s 12(3) of the Crimes (Sentencing) Act 2005 (ACT). Those orders are governed, in the event of their breach, by s 110 of the Crimes (Sentence Administration) Act.

It is not necessary for present purposes to rehearse the facts of the offences for which Loukas-Karlsson J dealt with the offender save to say, in short, that it involved a conspiracy on the part of a number of inmates at Bimberi detention centre to escape from their detention. What is more pertinent for today's purposes is to record something of what her Honour said as…

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 KS

Details

AGLC: R v KS [2022] ACTSC 133
Case: [2022] ACTSC 133
Decision Date: 20 May 2022

CaseChat Overview and Summary

In the matter of the Queen versus KS, the defendant was charged with breaching a Good Behaviour Order. The dispute centred on the sentencing options available to the court, specifically whether the court could impose a Griffiths remand and defer sentencing, and whether this power had been displaced by section 27 of the Crimes (Sentencing) Act 2005. The matter was heard in the Local Court of New South Wales.

The legal issues the court needed to address were whether the Local Court had the authority to order a Griffiths remand for the defendant and, if so, whether this common law power had been superseded by section 27 of the Crimes (Sentencing) Act 2005. The defendant argued that the statutory provision had effectively replaced the common law power, while the prosecution contended that the common law power remained intact and was not displaced by the statutory provisions.

The court held that the Local Court retains the common law power to order a Griffiths remand even in cases where a statutory option exists. The court found that section 27 of the Crimes (Sentencing) Act 2005 did not displace the common law power to order Griffiths remands. The court reasoned that the statutory provision was concerned with the imposition of sentences and did not address the issue of remand powers. Consequently, the court concluded that it had the discretion to order a Griffiths remand in this instance.

The court ordered that the matter be stood over to 3.00 pm on 18 November 2022. The defendant’s bail was continued to the same date, subject to specified conditions.

Orders

Orders of the court

(1) Stand the matter over to 3.00 pm on 18 November 2022;

(2) The offender’s bail is continued to 18 November 2022 on the following conditions:

[REDACTED]

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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