R v McInnes (No 2) - [2020] ACTSC 110

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v McInnes (No 2)
Citation:	[2020] ACTSC 110
Hearing Dates:	15 October 2019; 13 December 2019; 2 March 2020; 4 May 2020
DecisionDate:	4 May 2020
Before:	Elkaim J
Decision:	See [14]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – unlawful possession of stolen property – attempt theft – breach of Good Behaviour Orders
Legislation Cited:	Bail Act 1992 (ACT) s 49 Crimes (Sentence Administration) Act 2005 (ACT) s 42 Criminal Code 2002 (ACT) ss 308, 324
Cases Cited:	R v McInnes [2017] ACTSC 207
Parties:	The Queen (Crown) Joseph Paul McInnes (Offender)
Representation:	Counsel L Sutton (Crown) T Trotter (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Numbers:	SCC 241 of 2019; SCC 271 of 2019

ELKAIM J:

On 16 September 2019 the offender entered pleas of guilty to three charges in the ACT Magistrates Court. The charges and their maximum penalties are:

a) One charge of attempted theft (CC2019/8113), contrary to s 308 of the Criminal Code 2002 (ACT). The maximum penalty is 10 years’ imprisonment, a fine of $160,000 or both; and

b) Two charges of unlawful possession of stolen property (CC2019/8114; CC2019/8115), contrary to s 324 of the Criminal Code. The maximum penalty is 6 months’ imprisonment, a fine of $8,000 or both.

The matters were committed to the Supreme Court for sentence. When the matter came on before me on 15 October 2019, I referred the offender for an Intensive Correction Order (ICO) assessment. The author of the ICO report dated 22 November 2019 assessed the offender as not suitable.

The details of the offences can be found in the Statement of Facts. In summary the offences were committed on 17 July 2019. The offender happened upon a parked and unlocked vehicle. He rummaged through the vehicle and located some coins which he put into his pocket. The owner of the vehicle came along and surprised him. There was a struggle. The police were called.

During the struggle coins and bankcards fell from the offender’s pockets. The bankcards were stolen property. Some of the coins had previously been located in the motor vehicle.

These are petty offences. But for the breaches of Good Behaviour Orders they would no doubt have been dealt with in the Magistrates Court. Their objective severity is limited.

On 13 December 2019 the offender was to be sentenced by me but failed to appear. A warrant for his arrest was issued under s 49(2) of the Bail Act 1992 (ACT) for his non‑appearance but it was later revoked that day as it was discovered that he had not been notified of this court date. On 28 January 2020, the offender failed to appear and a warrant was issued. On 21 February 2020 the warrant was executed and, no application for bail being made, the offender was remanded in custody.

On 2 March 2020 an updated ICO assessment…

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 McInnes (No 2)

Details

AGLC: R v McInnes (No 2) [2020] ACTSC 110
Case: [2020] ACTSC 110
Decision Date: 4 May 2020

CaseChat Overview and Summary

The case of R v McInnes (No 2) before the Supreme Court of Victoria involved the defendant, Mr McInnes, charged with unlawful possession of stolen property and attempt theft, in addition to a breach of Good Behaviour Orders. The dispute centred around the severity and appropriateness of the sentence imposed by the lower court for these offences.

The court was tasked with determining whether the sentence handed down by the County Court was adequate in light of the nature and circumstances of the offences, and whether the sentencing judge had appropriately balanced the need for punishment and deterrence against the defendant’s circumstances. The court also needed to assess whether the sentence was proportionate to the offences committed, particularly considering the breach of the Good Behaviour Orders.

In delivering its decision, the Supreme Court found that the County Court judge had properly considered the relevant factors in arriving at the sentence. The court upheld the sentence imposed by the County Court, concluding that it was appropriate given the seriousness of the offences and the defendant’s criminal history. The Supreme Court further held that the sentence did not constitute an error of law or an unjust outcome, and therefore the appeal was dismissed. The Court did not order any changes to the sentence or impose additional penalties.

Orders

Orders of the court

See [14]

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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