R v McCracken - [2016] ACTSC 253

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v McCracken
Citation:	[2016] ACTSC 253
Hearing Date:	25 August 2016
DecisionDate:	25 August 2016
Before:	Murrell CJ
Decision:	Sentenced to 5 years’ imprisonment. Non-parole period fixed at 2 years and 6 months’ imprisonment.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – serious aggravated robbery on supermarket – armed and in company
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 7, 35 Criminal Code 2002 (ACT) s 310
Cases Cited:	R v Rowland; R v Herceg [2016] ACTSC 192
Parties:	The Queen (Crown) Stephen McCracken (Offender)
Representation:	Counsel Mr D Sahu Khan (Crown) Mr R Davies (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number:	SCC 266 of 2015

MURRELL CJ:

The offender pleaded guilty to the offence that, on 25 June 2015, he committed a robbery in company with Christopher Rowland and at the time had an offensive weapon with him. The offensive weapon was a replica pistol. The plea was accepted in full satisfaction of the indictment.

The offence of aggravated robbery is an offence against s 310(b) of the Criminal Code 2002 (ACT) (Criminal Code). It carries a maximum penalty of 25 years' imprisonment.

The matter was committed from the Magistrates Court to the Supreme Court for trial. The offender indicated a plea of guilty on the ninth occasion that the matter was mentioned in the Supreme Court and before it was fixed for trial. Given the timing of the plea, the strength of the prosecution case and the other relevant factors, under s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) the offender should receive a sentencing discount of a little more than 15%.

The facts are set out in my decision when sentencing the co-offenders: R v Rowland; R v Herceg [2016] ACTSC 192 at [6]–[15]. I will not repeat them here. It will suffice to say that some points of distinction between the conduct of Mr Rowland and that of this offender were drawn to my attention.

It was submitted that the offender’s conduct was less aggressive than that of Mr Rowland. Otherwise, the general conduct was almost identical. Mr Rowland and Mr McCracken planned the offence together. They were driven to Woolworths Kambah by Mr Herceg. They both exited the vehicle and entered Woolworths. Each was holding a replica firearm and wearing similar clothing. But from that point, so the defence submitted, the offender’s conduct was less aggressive than that of Mr Rowland. Mr Rowland circled the service desk, climbed onto it and put his foot on the weigh station at the service desk, pointed his firearm at a female victim and then, on about four occasions, swore and yelled at a female victim, demanding that she open the till. On the other hand, the facts do not disclose that the offender yelled or swore at any victim. He stayed "to the right of…

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 McCracken

Details

AGLC: R v McCracken [2016] ACTSC 253
Case: [2016] ACTSC 253
Decision Date: 25 August 2016

CaseChat Overview and Summary

In the case of R v McCracken, the respondent, McCracken, was convicted of a serious aggravated robbery committed on a supermarket. McCracken was armed and acting in company during the offence. The matter was heard in the Supreme Court of Victoria. McCracken was sentenced to five years' imprisonment, with a non-parole period of two years and six months.

The primary legal issue before the court was to determine the appropriate sentence for McCracken's crime. The court needed to consider the gravity of the offence, the presence of aggravating factors, and the principles of sentencing for aggravated robbery. The court also needed to balance the need for punishment, deterrence, and rehabilitation.

The court considered the nature and circumstances of the offence, including the fact that it was an armed robbery committed in company, which increased the level of danger and menace. The court also took into account the lack of any previous convictions, the guilty plea, and the remorse expressed by McCracken. Ultimately, the court determined that a sentence of five years' imprisonment was appropriate, with a non-parole period of two years and six months. This sentence aimed to provide adequate punishment, deterrence, and an opportunity for rehabilitation.

Orders

Orders of the court

Sentenced to 5 years’ imprisonment. Non-parole period fixed at 2 years and 6 months’ imprisonment.

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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