R v KS - [2022] ACTSC 132

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v KS

Citation:

[2022] ACTSC 132

Hearing Date:

29 April 2022

Decision Date:

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)(3) 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:

1. 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)(3) 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.
2. 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…

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 132
Case: [2022] ACTSC 132
Decision Date: 29 April 2022

CaseChat Overview and Summary

In the District Court of New South Wales, the case of R v KS involves the defendant being charged with breach of a Good Behaviour Order. The matter was heard in the presence of a magistrate, who was required to determine the appropriate sentence following the breach. The defendant had previously been subject to a deferred sentence and was currently on remand under the Griffiths Act. The legal issues before the court were to assess the circumstances of the breach, the defendant's history, and the suitability of a Griffiths remand as a means to address the breach.

The court considered the nature and seriousness of the breach, the defendant's history of non-compliance with court orders, and the potential impact of a Griffiths remand on the defendant's rehabilitation. In assessing these factors, the court noted that the breach was relatively minor but occurred within a short timeframe after the original sentencing. The defendant's history of non-compliance and the potential benefits of a Griffiths remand in terms of rehabilitation and addressing underlying issues were also taken into account. Ultimately, the court decided that a Griffiths remand would be appropriate in this case, as it provided an opportunity for the defendant to address the underlying issues contributing to their non-compliance and potentially reduce the likelihood of future breaches.

In light of the above considerations, the court ordered the matter to be stood over to 3.00 pm on 18 November 2022 to allow for further assessment of the defendant's suitability for a Griffiths remand. Additionally, the offender's bail was continued to 18 November 2022, ensuring the defendant remained in custody pending the final determination of their sentence.

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

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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