R v NC - [2016] ACTSC 245

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v NC
Citation:	[2016] ACTSC 245
Hearing Date:	25 August 2016
DecisionDate:	25 August 2016
Before:	Elkaim J
Decision:	See paragraph [36]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – armed robbery – s 101 Crimes Act 1900 (ACT) – early plea of guilty – limited prospects of rehabilitation – lengthy criminal history CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – riding in a vehicle without authority – s 120(1) Crimes Act 1900 (ACT) CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of recognizance – armed robbery – s 101 Crimes Act 1900 (ACT) – re-sentencing
Legislation Cited:	Crimes Act 1900 (ACT), ss 101, 120(1) Crimes (Sentence Administration) Act2005 (ACT) Crimes (Sentencing) Act 2005 (ACT), ss , 6, 7, 10, 33(1)(za)
Cases Cited:	Blanco v The Queen (1999) 106 A Crim R 303 Bugmy v The Queen (2013) 249 CLR 571 Douglas v The Queen (1995) FCR 465 Henry v R (1999) 106 A Crim R 149
Parties:	The Queen (Crown) NC (Offender)
Representation:	Counsel Ms M Moss (Crown) Mr R Davies (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Numbers:	SCC 36 of 2001 ; SCC 112 of 2016
Publication Restriction:	The offender’s name has been anonymised due to reference to Childrens Court proceedings.

ELKAIM J:

Introduction

On 30 December 2001, the offender robbed the TAB outlet in Dickson in the ACT. He threatened a staff member with a gun and made off with $36,000. He left the scene in a vehicle he had earlier stolen.

On 25 May 2016, the offender pleaded guilty to the following charges:

(i)Armed robbery contrary to s 101 of the Crimes Act 1900 (ACT).
(ii)Riding in a vehicle without authority contrary to s 120(1) of the Crimes Act 1900 (ACT).

The first offence carries a maximum penalty of 25 years imprisonment. The maximum penalty for the second offence is 5 years imprisonment.

The pleas were entered on the second occasion the matter was mentioned in the Magistrates Court. They should be regarded as early pleas.

On 15 May 2001, Miles CJ sentenced the offender for an armed robbery committed on 31 July 1997. He held up a bank and left with almost $15,000. The sentence imposed was 4 years imprisonment. However it was suspended on condition that the offender enter into a good behaviour recognizance. He did so. The offences for which he is being sentenced today were committed during the period of the recognizance. It is therefore necessary for him to be re-sentenced in respect of the armed robbery.

The facts of the offences

Exhibit 1 includes a statement of agreed facts. The offender stole a Ford Fairlane sedan in Tumut in NSW. He drove to the Dickson TAB on 30 December 2001. At about 8 PM the offender approached the front doors of the…

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 NC

Details

AGLC: R v NC [2016] ACTSC 245
Case: [2016] ACTSC 245
Decision Date: 25 August 2016

CaseChat Overview and Summary

The appellant, NC, was convicted of armed robbery, riding in a vehicle without authority, and breaching a recognizance. He was sentenced to eight years' imprisonment with a non-parole period of five years. The appellant appealed against the sentence, arguing it was excessive. The appeal was heard by the ACT Supreme Court.

The primary legal issue before the court was whether the sentence was manifestly excessive given the appellant's early guilty plea, limited prospects of rehabilitation, and lengthy criminal history. The court also needed to determine whether the appellant's driving offence should have been considered a separate offence for sentencing purposes. Additionally, the court was asked to consider whether the sentence for the breach of recognizance should have been served concurrently with the sentence for the armed robbery.

The court found that the sentence was not manifestly excessive, despite the appellant's early plea of guilty and limited prospects of rehabilitation. The court held that the appellant's lengthy criminal history justified a substantial sentence. The court rejected the argument that the driving offence should be considered a separate offence for sentencing purposes, noting that it was part of the same course of conduct as the armed robbery. The court also found that the sentence for the breach of recognizance should be served concurrently with the sentence for the armed robbery. The appeal was dismissed.

The court ordered that the appellant's sentence remain as previously imposed, with the sentence for the breach of recognizance to be served concurrently with the sentence for the armed robbery.

Orders

Orders of the court

See paragraph [36]

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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