R v McConnell-Imbriotis - [2024] ACTSC 319

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v McConnell-Imbriotis
Citation:	[2024] ACTSC 319
Hearing Date:	6 September 2024
Decision Date:	18 October 2024
Before:	Berman AJ
Decision:	See [48]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – drug trafficking offences – aggravated dangerous driving – driving while disqualified – sentence deferred for 12 months – where offending behaviour informed by drug and alcohol use – significant work undertaken by offender to rehabilitate – time already spent in custody and rehabilitation programs – where custodial sentence presents high risk of relapse – rehabilitation as form of community protection – sentence of imprisonment wholly suspended – good behaviour order – recognizance release order
Legislation Cited:	Crimes Act 1914 (Cth) s 20 Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT) pt 4.4
Cases Cited:	Bui v The Queen [2015] ACTCA 5 Cotter v Corvisy [2008] ACTSC 64 DPP v McConnell-Imbriotis [2022] ACTSC 372 R v Baker (No 3) [2019] ACTSC 365 R v Law [2021] ACTSC 351 R v McKenna [2022] ACTSC 346 R v Pearce (No 2) [2022] ACTSC 71 R v Rosewarne [2021] ACTSC 217
Parties:	Director of Public Prosecutions (Crown) Daniel McConnell-Imbriotis (Offender)
Representation:	Counsel C Daly (Crown) N Deakes (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number:	SCC 168 of 2022; SCC 169 of 2022

BERMAN AJ:

Introduction

1․Almost exactly one year ago the offender, Daniel McConnell-Imbriotis appeared before me for sentence on drug-trafficking charges as well as offences of dealing with money reasonably suspected of being the proceeds of crime, aggravated dangerous driving, and driving whilst disqualified as a repeat offender. For reasons I gave on that occasion I adjourned the sentence in order to better assess the offender’s prospects of rehabilitation, a clearly important matter in deciding the appropriate sentence to impose.

Background

2․At about 2am on Saturday, 20 November 2021, the offender was driving a motor vehicle in the Australian Capital Territory (ACT). He should not have been driving at all because earlier that year, on 11 January 2021, his license had been disqualified for two years.
3․The way he was driving attracted the attention of police. He wasn’t speeding, to the contrary, he was driving well below the posted speed limit, which aroused the suspicions of police. The police attempted to stop the offender by activating the lights on the police vehicle they were in. The offender did not stop, instead he sped up above the speed limit and began driving recklessly, including over a concrete roundabout and through a red light.
4․He drove into a car park. Police followed, and after the offender stopped the car he was driving, an officer opened the driver’s door demanding that the offender get out. The offender did not do so, and so police attempted to physically remove him. The offender then accelerated further into the car park while police were partially inside the car. Eventually they…

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.

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Details

Case: [2024] ACTSC 319
Decision Date: 18 October 2024

CaseChat Overview and Summary

The case of R v McConnell-Imbriotis involved the appellant, who was convicted of drug trafficking, aggravated dangerous driving, and driving while disqualified. The court was required to determine the appropriate sentence for these offences, considering the appellant's history of drug and alcohol use and the significant rehabilitation efforts already undertaken. The court's decision was influenced by the risk of relapse if the appellant were to be incarcerated again, as well as the potential for rehabilitation to provide community protection.

The legal issues at the heart of this case centred on the sentencing principles applicable to the appellant's multiple convictions. The court had to balance the need for punishment and deterrence against the appellant's demonstrated commitment to rehabilitation and the potential for a suspended sentence to achieve community protection. Additionally, the court needed to consider the impact of the appellant's time already spent in custody and their participation in rehabilitation programs.

In delivering the judgment, the court acknowledged the appellant's extensive efforts to rehabilitate themselves, including participating in drug and alcohol programs and engaging in community service. The court concluded that a custodial sentence would present a high risk of relapse and that a suspended sentence, combined with a good behaviour order and a recognizance release order, would better serve the interests of justice by allowing the appellant to continue their rehabilitation journey in the community. The court ultimately decided to suspend the sentence of imprisonment entirely, imposing a good behaviour order and a recognizance release order instead.

The final orders of the court were to suspend the sentence of imprisonment for the appellant entirely and to impose a good behaviour order and a recognizance release order. This decision was made in recognition of the appellant's significant rehabilitation efforts and the need to protect the community by preventing a relapse into criminal behaviour.

Orders

Orders of the court

See [48]

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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