R v McIntosh - [2022] ACTSC 185

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v McIntosh
Citation:	[2022] ACTSC 185
Hearing Date:	21 July 2022
DecisionDate:	21 July 2022
Before:	Mossop J
Decision:	See [29]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – breach of good behaviour order – further offence – possessing offensive weapon with intent – substantial period in custody prior to suspension of sentence and breach – period of community service completed – good behaviour order cancelled – resentenced to period of imprisonment to be served by way of intensive correction order
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT), s 110 Crimes (Sentencing) Act 2005 (ACT), s 80(1) Crimes Act 1900 (ACT), s 381(1)
Cases Cited:	Guy v Anderson [2013] ACTSC 5 R v Beniamini(No 2) [2017] ACTSC 32 R v Bennett [2017] ACTSC 104 R v McIntosh [2020] ACTSC 208 The Queen v PM (No 2) [2015] ACTSC 358
Parties:	The Queen ( Crown) Brett McIntosh ( Offender)
Representation:	Counsel L Etheredge ( Crown) S Robinson ( Offender)
Solicitors ACT Director of Public Prosecutions ( Crown) Tim Sharman Solicitors ( Offender)
File Number:	SCC 6 of 2020

MOSSOP J:

Introduction

On 6 August 2020 the offender was sentenced by Robinson AJ to 19 months’ imprisonment for the offence of causing grievous bodily harm (SCCAN2020/67) and a further two months’ imprisonment for the offence of common assault (SCCAN2020/68) (R v McIntosh [2020] ACTSC 208). The sentence of imprisonment was partially suspended upon the offender entering into a good behaviour order (GBO) for a period of 24 months from 6 August 2020. At the date of sentence the offender had served five and a half months in custody.

On 23 December 2021 the offender was arrested and charged with possessing an offensive weapon with intent, contrary to s 381(1) of the Crimes Act 1900 (ACT) (CC2021/12080).

On 17 March 2022 Magistrate Theakston convicted the offender of that charge and sentenced him to two months’ imprisonment to commence on 17 March 2022 and end on 16 May 2022. As a result of the conviction, the offender was in breach of the suspended sentence and GBO made by Robinson AJ on 6 August 2020. Magistrate Theakston committed the offender to this court to deal with the breach of the suspended sentence and GBO.

Facts

The facts relevant to the sentence imposed by Robinson AJ are set out in his Honour’s reasons: R v McIntosh at [7]-[12]. In short, on 11 July 2019 the offender accosted the victim when the victim came to the offender’s mother’s house. The offender punched him in the face three or four times, then in the company of his mother, kicked Mr Smith while he was on the ground, then chased him, threw him on the ground and kicked him in the face causing his jaw to break. He subsequently slapped another man across the face but this sentence was fully served and hence is not…

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 McIntosh

Details

AGLC: R v McIntosh [2022] ACTSC 185
Case: [2022] ACTSC 185
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the Crown prosecuted Brett McIntosh for breach of a good behaviour order (GBO) resulting from his earlier conviction for causing grievous bodily harm and common assault. McIntosh had been sentenced in August 2020 to 19 months' imprisonment, suspended on conditions including a 24-month GBO. McIntosh breached the GBO by committing a new offence of possessing an offensive weapon with intent in December 2021. The court had to decide whether to impose the previously suspended sentence or resentence McIntosh for the breach offence. The court considered factors such as the proportion of the GBO served, McIntosh's prospects of rehabilitation, the nature of the breach offence, and the need for deterrence. The court found that imposing the full suspended sentence would be disproportionate given McIntosh had already served substantial time in custody and completed community service. Instead, the court resentenced McIntosh to a period of ten months' imprisonment to be served by way of an intensive correction order, including 50 hours of community service. The court's decision balanced the need for punishment and deterrence with McIntosh's prospects of rehabilitation and the substantial time he had already served.

The court's reasoning was that while imposing the full suspended sentence would have been appropriate if McIntosh had not served any prior custody time or completed community service, the substantial period McIntosh had already spent in custody and the completion of community service meant imposing the full sentence would be disproportionate. The court found that resentencing McIntosh to a period of imprisonment served by way of an intensive correction order, along with additional community service, would better achieve the purposes of sentencing, namely punishment, deterrence, and rehabilitation. The court also noted McIntosh's history of alcohol abuse and mental health issues as factors warranting some greater intervention to assist with his rehabilitation. The orders effectively reflected the balance of the original sentence while accounting for McIntosh's prior custody time and completed community service.

Orders