R v KS

[2021] ACTSC 109

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v KS

Citation:

[2021] ACTSC 109

Hearing Date(s):

2 June 2021

DecisionDate:

2 June 2021

Before:

Elkaim J

Decision:

See [25]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – family violence order – mitigation – complainant contributes to breach

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT)

Cases Cited:

R v Tonna (No 1) [2020] ACTSC 360

Parties:

The Queen (Crown)

KS (Offender)

Representation:

Counsel

R Christensen (Crown)

K Archer (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Andrew Byrnes Law Group (Offender)

File Number(s):

SCC 181 of 2020; SCC 180 of 2020

ELKAIM J:

1. The offender came to trial on 19 April 2021, before me and a jury. He faced three counts in an indictment dated 7 September 2021.

1. The three counts, respectively, were aggravated burglary, making a threat to kill and contravening a Family Violence Order. The offender pleaded not guilty to the first two counts, but guilty to the third.

1. In addition, the offender faced a charge transferred from the Magistrates Court, of common assault. This was put as an alternative to the threat to kill charge.

1. The jury found the offender not guilty of Counts 1 and 2. I found him not guilty of the transferred charge. This left him to be sentenced for the third count.

1. The maximum penalty for this count is 5 years’ imprisonment, a fine of $80,000 or both.

1. The order which had been contravened was made on 2 April 2020. Its terms included a prohibition on the offender from contacting the complainant, being within 100 metres of her and attending her residence. The allegations which formed the basis of Counts 1 and 2 occurred at this residence. There was never an issue that the offender was present at the residence. The jury was called on to decide what had occurred while he was present.

1. The allegations were that he had entered the residence without permission and while he was there, he threatened the complainant. The cross-examination of the complainant, besides suggesting that he had not threatened her, also included the suggestion that he had been present at the residence with the permission of the complainant.

1. The Crown case was put plainly on the basis that the complainant needed to be believed in order for the prosecution to succeed. Part of the complainant’s evidence was that the offender had effectively broken-in to her unit by entering through a malfunctioning balcony door. She said he certainly did not have her permission to enter in this way, or in fact any other way.

1. Although it is impossible to ascertain the precise reasoning of the jury, it is an inevitable conclusion that the jury did not believe the complainant.

1. The jury’s rejection of the complainant’s evidence must, if only implicitly, include a rejection that the offender was not present in the unit without the complainant’s permission.

1. This does not of course entirely absolve the offender. It is however…