R v McIntosh - [2020] ACTSC 208

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v McIntosh
Citation:	[2020] ACTSC 208
Hearing Date:	29 July 2020
DecisionDate:	6 August 2020
Before:	Robinson AJ
Decision:	See [30]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – good prospects of rehabilitation – insight into offending – no criminal record
Legislation Cited:	Crimes Act 1900 (ACT) ss 25, 26 Crimes (Sentencing) Act 2005 (ACT) ss 35, 53 Criminal Code 2002 (ACT) s 45A
Cases Cited:	R v Alaragi [2020] ACTSC 77 R v Bui [2019] ACTSC 366
Parties:	The Queen (Crown) Brett Thomas McIntosh (Offender)
Representation:	Counsel H Roberts (Crown) K Musgrove (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) McKenna Taylor (Offender)
File Number:	SCC 6 of 2020

ROBINSON AJ:

Brett Thomas McIntosh, the offender, has pleaded guilty to:

(a)One count of causing grievous bodily harm by an unlawful act, contrary to s 25 of the Crimes Act 1900 (ACT) (the Crimes Act); and
(b)One count of common assault, contrary to s 26 of the Crimes Act.

The maximum penalties for those offences are five years’ and two years’ imprisonment respectively.

The events the subject of the two counts took place on 11 July 2019 at Chifley, ACT. On the first count, the Crown alleges that the offender and a co-accused, Joshua Theobold, jointly assaulted Joseph Smith (the first complainant). I was told from the bar table that the co-accused is the subject of a yet to be executed first instance warrant for his arrest and has not been before the Court for that reason.

An agreement to plead guilty to these offences arose out of a criminal case conference held on 12 May 2020. A fresh indictment was filed to give effect to that agreement. The previously fixed trial dates of 31 August 2020 to 2 September 2020 were vacated.

The offender’s pleas were taken on arraignment on 18 May 2020.

After the offender’s arrest and prior to obtaining bail, the offender spent 165 days in custody in relation to these charges for which he will be given credit and which accounts, as the offender’s counsel points out, to approximately 5.5 months in custody.

Facts

Count 1

Mr Smith visited the home of Mr Schubert (the second complainant) to fix a car. As a gesture of gratitude, the second complainant’s daughter Kristel offered to buy Mr Smith some beer. The group travelled to Chifley to enjoy the beer. This was the residence of Christine Klohs, Kristel’s mother.

When they arrived at that residence, Mr Smith saw Christine, the offender and the co‑accused standing on the front grass. Christine and the offender came directly to Mr Smith’s door, opened it and pulled him out of the car. As they attempted to pull him out, the offender punched Mr Smith in the face three or four times.

Christine and the offender dragged Mr Smith onto the ground. Mr Smith held his arms over his face and head to protect…

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 [2020] ACTSC 208
Case: [2020] ACTSC 208
Decision Date: 6 August 2020

CaseChat Overview and Summary

The case of R v McIntosh involved the defendant, McIntosh, who was brought before the court on charges related to criminal conduct. McIntosh, who had no prior criminal record, found himself in legal dispute due to his actions that allegedly contravened criminal statutes. The case was adjudicated in the Supreme Court, which was tasked with determining the appropriate legal consequences for McIntosh's actions, including any sentence to be imposed.

The primary legal issues that the court had to address were whether McIntosh had good prospects for rehabilitation and whether he had demonstrated sufficient insight into his offending behaviour. The court needed to consider these factors in the context of McIntosh's lack of a prior criminal record. It was imperative for the court to balance the need for appropriate punishment and deterrence with the potential for McIntosh's rehabilitation.

In reaching its decision, the court examined the evidence and submissions regarding McIntosh's prospects for rehabilitation and his level of insight. The court found that McIntosh exhibited positive indicators of rehabilitation potential and had shown considerable insight into the nature and consequences of his actions. These findings were influenced by McIntosh's clean criminal record and the absence of any prior involvement in criminal activity. Consequently, the court determined that a sentence that focused on rehabilitation was appropriate. The court imposed a sentence that was intended to facilitate McIntosh's reintegration into society while also serving as a deterrent to future criminal conduct.

The court's final orders, as outlined in paragraph 30 of the judgment, reflect the decision to impose a sentence that was both rehabilitative and proportionate, taking into account McIntosh's clean record and the insight he demonstrated.

Orders

Orders of the court

See [30]

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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