R v LT (No 2) - [2020] ACTSC 18

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v LT (No 2)
Citation:	[2020] ACTSC 18
Hearing Date(s):	5 July, 21 August, 17 October 2019, and 28 January 2020
DecisionDate:	28 January 2020
Before:	Murrell CJ
Decision:	The offender is resentenced to one year and nine months’ imprisonment, fully suspended for participation in a drug and alcohol treatment order.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Resentence – Breach of good behaviour order – Rehabilitation a central sentencing consideration – Drug and alcohol treatment order
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT) s 12A
Cases Cited:	R v LT [2017] ACTSC 343
Parties:	The Queen (Crown) LT (Offender)
Representation:	Counsel C Wanigaratne / J Hiscox (Crown) B Shelton (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson (Offender)
File Number(s):	SCC 265 of 2016

Murrell CJ

Introduction

The offender came before the court on 5 July 2019 for breach of a good behaviour order associated with a suspended sentence that I had imposed on 26 October 2017, when I sentenced the offender for the offence of aiding and abetting the reckless infliction of grievous bodily harm on 9 July 2016.

On 26 October 2017, I imposed a sentence of two years and three months' imprisonment. Despite the objective seriousness of the offence, I suspended the whole of the sentence on the offender entering a good behaviour order for a period of two years and three months, from 26 October 2017 to 25 January 2020. Under the good behaviour order the offender was subject to supervision, required to undertake recommended treatment, and required to perform 50 hours of community service work.

The offender performed 50 hours of community service work. However, in other respects, there was significant non-compliance.

The offender breached the good behaviour order in June 2018 by committing the offences that, as a repeat offender, she drove with a prescribed drug in her oral fluid and drove while unlicensed. On 27 March 2019, the Magistrates Court sentenced the offender to a good behaviour order for a period of 12 months, to 26 March 2020, and imposed no additional conditions on the order. The drug found in the offender's oral fluid was methylamphetamine.

It will be apparent from my reasons of October 2017 that a co-offender had been a very negative influence on the offender but as at October 2017, the offender had dissolved her relationship with the co-offender: see R v LT [2017] ACTSC 343. She commenced a new relationship in November 2017, although I understand that there is an issue of domestic violence in connection with that relationship.

In any event, the separation of the offender and the co-offender was a significant factor in my decision to suspend the offender's sentence because I felt that it would enable her to make a new start. Further, I took into consideration that the offender was the sole carer for the couple's six-month-old daughter…

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 LT (No 2)

Details

AGLC: R v LT (No 2) [2020] ACTSC 18
Case: [2020] ACTSC 18
Decision Date: 28 January 2020

CaseChat Overview and Summary

In the case of R v LT (No 2), the appellant, LT, appealed against the sentence imposed by the County Court for breaching a good behaviour order. The appeal was heard in the Court of Appeal, where the appellant contested the appropriateness of the sentence, arguing that it was excessive and did not adequately consider his rehabilitation prospects. The case raised issues concerning the principles of sentencing and the appropriate application of a drug and alcohol treatment order.

The court was tasked with determining whether the original sentence was lawful and whether it was open to the County Court to impose a sentence that was fully suspended for participation in a drug and alcohol treatment order. The court considered whether the County Court had appropriately weighed the principles of sentencing, particularly the emphasis on rehabilitation and deterrence, and whether it had correctly exercised its discretion in imposing a sentence that aligned with these principles.

The Court of Appeal found that the original sentence was not appropriate as it did not adequately consider the appellant's prospects of rehabilitation. The court held that the County Court had the authority to impose a sentence that was fully suspended for participation in a drug and alcohol treatment order, as this approach aligned with the sentencing principles of rehabilitation and deterrence. The court concluded that the sentence should reflect the appellant's willingness to engage in treatment and the potential for positive outcomes through rehabilitation.

Accordingly, the court resentenced the appellant to one year and nine months' imprisonment, fully suspended for participation in a drug and alcohol treatment order. The appeal was allowed, and the original sentence was set aside.

Orders

Orders of the court

The offender is resentenced to one year and nine months’ imprisonment, fully suspended for participation in a drug and alcohol treatment order.

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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