R v Laipato

[2019] ACTSC 386

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Laipato

Citation:

[2019] ACTSC 386

Hearing Date:

10 December 2019

DecisionDate:

20 December 2019

Before:

Burns J

Decision:

See [26]–[31]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – burglary – unlawful confinement – unlawfully choking, suffocating or strangling a person – finding of guilt by jury – where offences occurred in a family violence context – guarded prospects for rehabilitation – consideration of deterrence and incapacitation

Legislation Cited:

Crimes Act 1900 (ACT), ss 28(2)(a), 34

Criminal Code 2002 (ACT), s 311

Cases Cited:

R v Laipato (Unreported, Supreme Court of the Australian Capital Territory, Acting Justice Neild, 16 September 2010)

Parties:

The Queen (Crown)

David Christopher Laipato (Offender)

Representation:

Counsel

A Williamson (10 December 2020); B Atkinson (20 December 2020) (Crown)

K Musgrove (10 December 2020); A McKenna (20 December 2020) (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

McKenna Taylor (Offender)

File Numbers: 

SCC 39 of 2019

BURNS J:

1. David Laipato, on 17 September 2019 you were found guilty by a jury of the following offences: 

· 

First, an offence of burglary (Count 1 – CC 2019/725) contrary to

s 311 of the Criminal Code2002 (ACT), punishable by 14 years’ imprisonment, a fine of 1,400 penalty units or both;

· 

Second, an offence of unlawful confinement (Count 2 – CC 2019/721) contrary to

s 34 of the Crimes Act1900 (ACT) (the Crimes Act), punishable by 10 years’ imprisonment; and

· 

Finally, an offence of unlawfully choking, suffocating or strangling a person

(Count 3 – CC 2019/726) contrary to s 28(2)(a) of the Crimes Act, punishable by five years’ imprisonment.

1. You were acquitted of six other charges.

1. Following a finding of guilt at a trial by jury, it is for the Court to determine the facts upon which an offender is to be sentenced.  Any such finding must be consistent with the jury’s verdicts and must be arrived at to the standard of beyond reasonable doubt. At your trial, you denied, through your Counsel, any wrongdoing. Clearly, this was rejected by the jury.

1. I am satisfied that you and the victim, your former partner, were engaged in conversation via SMS text messages about your relationship in the hours leading up to these offences. The victim was adamant that your relationship was over and that she wanted to be left alone. I am satisfied that you were angry as a result of this conversation.

1. Some time after midnight on 8 January 2019, you attended the victim’s residence, entered the premises and dragged the victim from her bed into the neighbouring room.  Once in that room you choked her. On multiple occasions you placed your hands around her throat and also covered her nose and mouth such that she could not breathe. The victim resisted for a while but stopped doing so when she thought that her resistance was only aggravating you. At one point the victim was on the…