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R v McHughes (No 3)

R v McHughes (No 3)

Case [2021] ACTSC 344 17 November 2021

Riding in a Motor Vehicle Without the Owner’s Consent

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v McHughes (No 3)
Citation:	[2021] ACTSC 344
Hearing Dates:	12 November 2021
DecisionDate:	17 November 2021
Before:	Refshauge AJ
Decision:	1. Walter Robert McHughes be convicted of burglary and be sentenced to 15 months imprisonment, to commence on 10 November 2020 and end on 9 February 2022. 2. Walter Robert McHughes be convicted of theft and be sentenced to 4 months imprisonment, to commence on 10 January 2021 and end on 9 May 2021. 3. Walter Robert McHughes be convicted of dishonestly riding in a motor vehicle without the owner’s consent and be sentenced to 6 months imprisonment, to commence on 10 November 2021 and end on 9 May 2022. 4. The sentence be suspended from today, 17 November 2021, for 12 months. 5. Walter Robert McHughes be required to sign an undertaking to comply with the offender’s Good Behaviour Obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for 12 months from today, 17 November 2021, with a probation condition that he be subject to the supervision of the Commissioner of ACT Corrective Services or his delegate for 12 months from today, 17 November 2021, and obey all reasonable directions of the person supervising him, including directions determined by the person supervising him given after careful consultation with any person funded by the National Disability Insurance Agency to support him in the National Disability Insurance Scheme, especially directions as to rehabilitation for alcohol and drug use and for mental health treatment or counselling and including for reasonable co-operation with that person in the support she or he provides him. 6. Walter Robert McHughes be directed to attend the Court Registry before he leaves the Court precincts today to sign a copy of the offender’s good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for the period of 12 months.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Burglary – Theft – Riding in a Motor Vehicle Without the Owner’s Consent – Rehabilitation – Mental Impairment – Disadvantage – Good Behaviour Order
Legislation Cited:	Criminal Code 2002 (ACT) ss 308, 311, 318 Crimes (Sentence Administration) Act 2005 (ACT) s 85 Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 12A, 33, 35, 46J, 52, 63
Cases Cited:	Allred v The Queen [2015] ACTCA 21 Beniamini v Stormon [2014] ACTSC 2 Bugmy v The Queen (2013) HCA 37; 249 CLR 571 Channon v The Queen (1978) 20 ALR 1 Cooper v Corvisy [2010] ACTSC 165 Cotter v Covisy [2008] ACTSC 64; 1 ACTLR 299 Director of Public Prosecutions (Vic) v O’Neill [2015] VSCA 325; 47 VR 395 Douglas v The Queen (1995) 56 FCR 465 Freeman v The Queen [2011] VSCA 349 R v Bennett; R v Simonds [2020] ACTSC 221 R v Bessant [2020] ACTSC 365 R v Carmody (No 3) [2017] ACTSC 60 R v Elphick [2021] ACTSC 9 R v…

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 McHughes (No 3)

Details

AGLC: R v McHughes (No 3) [2021] ACTSC 344
Case: [2021] ACTSC 344
Decision Date: 17 November 2021

CaseChat Overview and Summary

The case of R v McHughes (No 3) involved the defendant, Walter Robert McHughes, facing charges of burglary, theft, and riding in a motor vehicle without the owner’s consent. The court was required to consider the appropriate sentencing for these offences, taking into account factors such as McHughes’ rehabilitation, mental impairment, disadvantage, and good behaviour. The matter was heard in the ACT Magistrates Court.

The legal issues that the court had to address included determining the appropriate sentences for each of the charges, whether to impose a suspended sentence, and what conditions should be attached to a potential suspension. The court needed to balance the need for punishment and deterrence with the potential for rehabilitation and the circumstances of the defendant’s background.

In delivering the judgment, the court considered the defendant’s personal circumstances, including his mental impairment, disadvantaged background, and efforts towards rehabilitation. The court found that a suspended sentence would be appropriate, given the potential for rehabilitation and the need to avoid unnecessary imprisonment. The court imposed a range of conditions on the suspended sentence, including supervision by the Commissioner of ACT Corrective Services, compliance with good behaviour obligations, and participation in rehabilitation programs for alcohol and drug use, mental health treatment, and counselling.

The court ordered that Walter Robert McHughes be convicted of burglary and sentenced to 15 months imprisonment, of theft and sentenced to 4 months imprisonment, and of riding in a motor vehicle without the owner’s consent and sentenced to 6 months imprisonment. The sentences were suspended for 12 months, with a requirement for McHughes to sign an undertaking to comply with the offender’s Good Behaviour Obligations and be subject to supervision by the Commissioner of ACT Corrective Services. McHughes was also directed to attend the Court Registry to sign a copy of the offender’s good behaviour obligations for the period of 12 months.

Orders

Orders of the court

1. Walter Robert McHughes be convicted of burglary and be sentenced to 15 months imprisonment, to commence on 10 November 2020 and end on 9 February 2022.

2. Walter Robert McHughes be convicted of theft and be sentenced to 4 months imprisonment, to commence on 10 January 2021 and end on 9 May 2021.

3. Walter Robert McHughes be convicted of dishonestly riding in a motor vehicle without the owner’s consent and be sentenced to 6 months imprisonment, to commence on 10 November 2021 and end on 9 May 2022.

4. The sentence be suspended from today, 17 November 2021, for 12 months.

5. Walter Robert McHughes be required to sign an undertaking to comply with the offender’s Good Behaviour Obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for 12 months from today, 17 November 2021, with a probation condition that he be subject to the supervision of the Commissioner of ACT Corrective Services or his delegate for 12 months from today, 17 November 2021, and obey all reasonable directions of the person supervising him, including directions determined by the person supervising him given after careful consultation with any person funded by the National Disability Insurance Agency to support him in the National Disability Insurance Scheme, especially directions as to rehabilitation for alcohol and drug use and for mental health treatment or counselling and including for reasonable co-operation with that person in the support she or he provides him.

6. Walter Robert McHughes be directed to attend the Court Registry before he leaves the Court precincts today to sign a copy of the offender’s good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for the period of 12 months.

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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Citations

AGLC Citation

R v McHughes (No 3) [2021] ACTSC 344

Most Recent Citation

R v George [2021] ACTSC 361

Cases citing this decision · 9 of 9 shown

Director of Public Prosecutions v Tate
[2025] ACTSC 327

…SASR 303 R v Curtis (No 2) [2016] ACTSC 34 R v Elphick [2021] ACTSC 9 R v Garay (No 4) [2022] ACTSC 138 R v Hancock [2021] ACTSC 52 R v Hughes (No 3) [2021] ACTSC 344 R v Kilic [2016] HCA 48; 259 CLR 256 R v Lindsay [2020] ACTCA 25 R v Miller [2019] ACTCA 25; 279 A Crim R 232 R v Newby [2022] ACTCA 20; 367 FLR 122…
R v Rowlands (No 2); Director of Public Prosecutions v Rowlands
[2024] ACTSC 143 Para 1

…otor vehicle is the least serious of the types of offences that establish an offence pursuant to s 318 of the Criminal Code : see R v McHughes (No 3) [2021] ACTSC 344 at [34].…
Director of Public Prosecutions v Smith (No 2)
[2024] ACTSC 126

…] ACTSC 144 R v Jones [2004] VSCA 68 R v Loulanting [2015] ACTSC 172 R v Lovelock [2020] ACTSC 376 R v McFarlane (1993) Tas R 201 R v McHughes (No 3) [2021] ACTSC 344 R v Parker [2018] ACTSC 55 R v Po’oi [2021] ACTSC 151 R v Steen [2015] ACTSC 259 R v Tonna (No 2) [2020] ACTSC 362 R v Verdins [2007] VSCA 102; 16 VR…
R v West
[2023] ACTSC 412 Para 11

…event, the relevant factors for consideration have been set out for offence of burglary , which includes aggravated burglary, in R v McHughes (No 3) [2021] ACTSC 344 at [28]. See also R v Rosewarne [2021] ACTSC 217 at [119]. Many of the elements were not in evidence or at least not clear in this case. Thus, for ex…
R v Blundell
[2022] ACTSC 379 Para 7

…it can be committed in a variety of ways and the courts have identified relevant factors. The Court set out those for burglary in R v McHughes (No 3) [2021] ACTSC 344 at [28], after an analysis of the relevant cases. As aggravated burglary is a burglary offence committed in specified circumstances of aggravation, t…
R v Massey
[2022] ACTSC 3

…v Kourpanidis [2021] ACTSC 112 R v Lindley-Jones [2014] ACTSC 296 R v Massey (No 2) [2016] ACTSC 278 R v McCauley [2020] ACTSC 12 R v McHughes (No 3) [2021] ACTSC 344 R v Minnis [2014] ACTSC 268 R v Palmer [2020] ACTSC 13 R v Parker [2018] ACTSC 55 R v Pearson [2020] ACTSC 375 R v Roux [2015] ACTSC 307 R v Seears […
R v Burge
[2022] ACTSC 376 Para 1

…As to the aggravating and mitigating features of a burglary, these have been set out in detail in R v McHughes (No 3) [2021] ACTSC 344 at [28]. It is not necessary to repeat them, but reference will be made to the relevant ones.…
R v Bower
[2022] ACTSC 382 Para 1

…In R v McHughes (No 3) [2021] ACTSC 344 at [27]–[28], the Court reviewed a number of cases and set out the relevant factors to be considered when assessing the seriousness of a burglary offence. The matters that were there identified do not need to be set out. The following are relevant.…
R v George
[2021] ACTSC 361

…rne [2017] ACTSC 36 R v John [2017] ACTSC 144 R v Kilic [2016] HCA 48; 259 CLR 256 R v Mathews [2020] ACTSC 364 R v McHughes (No 3) [2021] ACTSC 344 R v Molina (1984) 2 FCR 508 R v Seymour [2021] ACTSC 152 R v Slattery [2020] ACTSC 154 R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 R v Valentini (1989) 46 A Crim R 23 R…

View all 9 citing cases →

Cases cited in this decision · 30 of 30 shown

R v McHughes
[2021] ACTSC 92 Para 1

…Report dated 13 April 2021 and a Drug and Alcohol Treatment Assessment dated 28 April 2021. These were prepared as ordered by the Court: R v McHughes [2021] ACTSC 92. There was no objection to the tender of this material and no challenge to the contents of any of the documents.…
R v Hancock
[2021] ACTSC 52 Para 1

…18]–[22] , R v McMahon (No 2) [2017] ACTSC 299 at [51] , R v Bessant [2020] ACTSC 365 at [16] , R v Elphick [2021] ACTSC 9 at [113] and R v Hancock [2021] ACTSC 52 at [33].…
R v Elphick
[2021] ACTSC 9 Para 1

…at [74] , R v Horne [2017] ACTSC 36 at [18]–[22] , R v McMahon (No 2) [2017] ACTSC 299 at [51] , R v Bessant [2020] ACTSC 365 at [16] , R v Elphick [2021] ACTSC 9 at [113] and R v Hancock [2021] ACTSC 52 at [33].…
R v Fry
[2021] ACTSC 138 Para 1

…,000, or both. It is, therefore, the least serious of the three offences. That does not mean, of course, that it is not a serious offence. In R v Fry [2021] ACTSC 138 at [49] the Court, by reference to the relevant cases, set out the factors that might aggravate the offence. They are:…
R v Bennett; R v Simonds
[2020] ACTSC 221 Para 1

…includes an assessment of the current sentences that are imposed to gain an insight into the collective wisdom of judges. In R v Bennett; R v Simonds [2020] ACTSC 221 at [85], Murrell CJ said:…
R v Bessant
[2020] ACTSC 365 Para 1

…mple, R v Roux (No 2) [2015] ACTSC 361 at [74] , R v Horne [2017] ACTSC 36 at [18]–[22] , R v McMahon (No 2) [2017] ACTSC 299 at [51] , R v Bessant [2020] ACTSC 365 at [16] , R v Elphick [2021] ACTSC 9 at [113] and R v Hancock [2021] ACTSC 52 at [33].…
R v Massey (No 1)
[2020] ACTSC 256 Para 1

…As to the offence of dishonestly driving in a motor vehicle without the owner's consent, the offence was considered in R v Massey (No 1) [2020] ACTSC 256 at [76]–[79]. The sentences considered there showed a range from 6 to 12 months imprisonment. The offence of dishonestly riding in a motor vehicle without the own…
R v Irwin
[2019] NSWCCA 133 Para 1

…is moral culpability for the offending: Bugmy v The Queen (2013) HCA 37; 249 CLR 571. There is no necessity for a causal link to be proved: R v Irwin [2019] NSWCCA 133 at [30]. In the circumstances, it is appropriate to take this disadvantage into account as moderating the sentence to be imposed.…
R v Massey
[2018] ACTSC 221 Para 1

…s, despite the same maximum penalty, of lesser seriousness than the actual taking of the motor vehicle or its driving (see, for example, R v Massey [2018] ACTSC 221 at [9], R v NN [2018] ACTSC 43 at [19]), though it does continue the deprivation of the motor vehicle from the owner and is part of its misuse.…
R v Summerfield
[2018] ACTCA 20 Para 1

…in Director of Public Prosecutions (Vic) v O’Neill [2015] VSCA 325; 47 VR 395 at 412; [68], as applicable by the Court of Appeal in R v Summerfield [2018] ACTCA 20; 273 A Crim R 45 at 72–4; [88]–[91] and 76–7; [98]–[102], with the important requirement that the principles (especially the first four) are only appli…
R v NN
[2018] ACTSC 43 Para 1

…lty, of lesser seriousness than the actual taking of the motor vehicle or its driving (see, for example, R v Massey [2018] ACTSC 221 at [9], R v NN [2018] ACTSC 43 at [19]), though it does continue the deprivation of the motor vehicle from the owner and is part of its misuse.…
R v McMahon (No 2)
[2017] ACTSC 299 Para 1

…factors to be considered. See, for example, R v Roux (No 2) [2015] ACTSC 361 at [74] , R v Horne [2017] ACTSC 36 at [18]–[22] , R v McMahon (No 2) [2017] ACTSC 299 at [51] , R v Bessant [2020] ACTSC 365 at [16] , R v Elphick [2021] ACTSC 9 at [113] and R v Hancock [2021] ACTSC 52 at [33].…
R v Carmody (No 3)
[2017] ACTSC 60 Para 1

…ny. See also Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 , Beniamini v Stormon [2014] ACTSC 2 , R v Hagen [2014] ACTSC 129 and R v Carmody (No 3) [2017] ACTSC 60.…
R v Horne
[2017] ACTSC 36 Para 1

…alendar. Many decisions have identified the relevant factors to be considered. See, for example, R v Roux (No 2) [2015] ACTSC 361 at [74] , R v Horne [2017] ACTSC 36 at [18]–[22] , R v McMahon (No 2) [2017] ACTSC 299 at [51] , R v Bessant [2020] ACTSC 365 at [16] , R v Elphick [2021] ACTSC 9 at [113] and R v Hanco…
R v King (No 2)
[2016] ACTSC 121 Para 1

…It does not appear that Mr McHughes intended to permanently deprive the owner of this property he left behind ( R v King (No 2) [2016] ACTSC 121 at [45]), though this would not always be the case for recovered property (see R v Huynh [2005] NSWCCA 220 at [27]).…
DPP v O'Neill
[2015] VSCA 325 Para 1

…ry in Cooper v Corvisy [2010] ACTSC 165 at [37] and more recently accepted, as further explained in Director of Public Prosecutions (Vic) v O’Neill [2015] VSCA 325; 47 VR 395 at 412; [68], as applicable by the Court of Appeal in R v Summerfield [2018] ACTCA 20; 273 A Crim R 45 at 72–4; [88]–[91] and 76–7; [98]–[10…
R v Roux (No 2)
[2015] ACTSC 361 Para 1

…ot the most serious in the criminal calendar. Many decisions have identified the relevant factors to be considered. See, for example, R v Roux (No 2) [2015] ACTSC 361 at [74] , R v Horne [2017] ACTSC 36 at [18]–[22] , R v McMahon (No 2) [2017] ACTSC 299 at [51] , R v Bessant [2020] ACTSC 365 at [16] , R v Elphick […
Allred v The Queen
[2015] ACTCA 21 Para 1

…l Courts and the Courts of many Pacific Island jurisdictions. In this jurisdiction, it has been accepted by the Court of Appeal in Allred v The Queen [2015] ACTCA 21 at [54]–[56] and is embodying the principle of parsimony. See also Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 , Beniamini v Stormon [2014] ACTSC 2…
R v Williams
[2015] ACTSC 15 Para 1

…He has some limited alcohol and other drugs treatment. In about 2018–19 he went to Oolong House (as to which, see R v Williams [2015] ACTSC 15 at [8]–[10]), but was only there for about five days. Later, in early 2020, he was, for about nine to 10 months, on a methadone program.…
R v Hagen
[2014] ACTSC 129 Para 1

…nd is embodying the principle of parsimony. See also Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 , Beniamini v Stormon [2014] ACTSC 2 , R v Hagen [2014] ACTSC 129 and R v Carmody (No 3) [2017] ACTSC 60.…
Beniamini v Stormon
[2014] ACTSC 2 Para 1

…15] ACTCA 21 at [54]–[56] and is embodying the principle of parsimony. See also Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 , Beniamini v Stormon [2014] ACTSC 2 , R v Hagen [2014] ACTSC 129 and R v Carmody (No 3) [2017] ACTSC 60.…
Bugmy v The Queen
[2013] HCA 37 Para 1

…is is likely to have affected his development. This disadvantage can affect his moral culpability for the offending: Bugmy v The Queen (2013) HCA 37; 249 CLR 571. There is no necessity for a causal link to be proved: R v Irwin [2019] NSWCCA 133 at [30]. In the circumstances, it is appropriate to take this disa…
Freeman v The Queen
[2011] VSCA 349 Para 1

…In Freeman v The Queen [2011] VSCA 349 at [27]–[28], the Victorian Court of Appeal indicated the way in which these matters need to be addressed. It said:…
Cooper v Corvisy
[2010] ACTSC 165 Para 1

…This approach was accepted in this territory in Cooper v Corvisy [2010] ACTSC 165 at [37] and more recently accepted, as further explained in Director of Public Prosecutions (Vic) v O’Neill [2015] VSCA 325; 47 VR 395 at 412; [68], as applicable by the Court of Appeal in R v Summerfield [2018] ACTCA 20; 273 A Crim R…
Cotter v Corvisy
[2008] ACTSC 64 Para 1

…ed by the Court of Appeal in Allred v The Queen [2015] ACTCA 21 at [54]–[56] and is embodying the principle of parsimony. See also Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 , Beniamini v Stormon [2014] ACTSC 2 , R v Hagen [2014] ACTSC 129 and R v Carmody (No 3) [2017] ACTSC 60.…
R v Verdins
[2007] VSCA 102 Para 1

…tual impairment. These raise for consideration the need in sentencing to have regard to his mental issues. These have been set out in R v Verdins [2007] VSCA 102; 16 VR 269 at 276; [32] as follows:…
R v Huynh
[2005] NSWCCA 220 Para 1

…s property he left behind ( R v King (No 2) [2016] ACTSC 121 at [45]), though this would not always be the case for recovered property (see R v Huynh [2005] NSWCCA 220 at [27]).…
Douglas v The Queen
[1995] FCA 411 Para 1

…it was before he could have made an informed choice to do so. This is a matter that moderates his moral culpability and should be taken into account: Douglas v The Queen (1995) 56 FCR 465 at 470.…
Channon v The Queen
[1978] FCA 16 Para 1

…llustrated by the comments made as long ago as 1978 by Brennan J when his Honour was a judge of the Federal Court of Australia in Channon v The Queen (1978) 20 ALR 1 at 4-5 as follows:…
DPP v O’Neill
[2015] VSCA 32554 Para 1

…rvisy [2010] ACTSC 165 at [37] and more recently accepted, as further explained in Director of Public Prosecutions (Vic) v O’Neill [2015] VSCA 325; 47 VR 395 at 412; [68], as applicable by the Court of Appeal in R v Summerfield [2018] ACTCA 20; 273 A Crim R 45 at 72–4; [88]–[91] and 76–7; [98]–[102], with th…

Legislation cited in this decision · 2

Crimes (Sentencing) Act 2005 (ACT)
10, 12A, 33, 35, 46J, 52, 63, 7 9 mentions (from Para 1)
Crimes (Sentence Administration) Act 2005 (ACT)
85 2 mentions