R v Nd - [2016] ACTSC 224

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v ND
Citation:	[2016] ACTSC 224
Hearing Date:	16 August 2016
DecisionDate:	16 August 2016
Before:	Elkaim J
Decision:	i. On Count 1, the offender is sentenced to a period of imprisonment of 15 months to be served by way of an Intensive Correction Order to commence today, 16 August 2016 and end on 15 November 2017, with the offender to be released immediately. ii. On Count 2, the offender is sentenced to a period of imprisonment of 10 months, to be served by way of an Intensive Correction Order to commence today, 16 August 2016 and end on 15 June 2017, with the offender to be released immediately. iii. The offender is to report to ACT Corrective Services within 24 hours.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – unlawfully take away a child – aided aggravated burglary – Intensive Correction Order
Legislation Cited:	Crimes Act 1900 (ACT), s 40(a) Crimes (Sentencing) Act 2005 (ACT), ss 6,7,33(1)(za) Criminal Code 2002 (ACT), ss 312, 45A
Cases Cited:	Carpenter v Purcell [2008] ACTSC 34 (28 April 2008) R v Drury [2016] ACTSC 39 WNB v The Queen [2006] NSWCCA 269
Parties:	The Queen (Crown) ND (Offender)
Representation:	Counsel Ms J Campbell (Crown) Mr D Perkins (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Daryl Perkins Solicitor (Offender)
File Number:	SCC 248 of 2015
Publication Restriction:	The identity of the offender and her daughter are suppressed.

ELKAIM J:

Introduction

The names of the offender and her daughter have been anonymised in line with suppression orders already made.

On 7 March 2016 the offender pleaded guilty to the following two charges:

Count 1 – That between 13 August 2015 and 14 August 2015, the offender by force and deception took a child under the age of 12 years, intending unlawfully to deprive another person of the lawful control of the child.
Count 2 – That on 13 August 2015, the offender aided Jesse Drury to enter a building as a trespasser with intent to commit an offence that involved causing harm, or threatening to cause harm, to anyone in the building and at the time Jesse Drury had an offensive weapon with him.

Count 1 was committed in contravention of s 40(a) of the Crimes Act 1900 (ACT). The maximum penalty for this offence is imprisonment for 10 years.

Count 2 was committed in contravention of s 312 of the Criminal Code 2002 (ACT) by virtue of s 45A of the Criminal Code 2002 (ACT). The maximum penalty for this offence is a fine of $300,000, imprisonment for 20 years, or both.

On the same day the offender was referred for an intensive correction assessment. A report was prepared and is dated 24 May 2016. The recommendation of the report is that the offender is suitable for an Intensive Correction Order (“ICO”). The report notes that the offender has signed an undertaking to comply with…

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 Nd

Details

AGLC: R v Nd [2016] ACTSC 224
Case: [2016] ACTSC 224
Decision Date: 16 August 2016

CaseChat Overview and Summary

The parties involved in the case were the Crown and the defendant, Nd. The dispute was related to the defendant's unlawful taking of a child and aiding in an aggravated burglary. The case was heard in a court that had jurisdiction over criminal matters. The legal issues that the court had to decide included the appropriate sentence for the defendant's crimes, taking into account the nature and circumstances of the offences, as well as the defendant's background and prospects for rehabilitation.

The court carefully considered the principles of sentencing for both offences, as well as the specific aggravating and mitigating factors in this case. For the offence of unlawfully taking a child, the court noted the seriousness of the offence and the need to protect the community. However, the court also took into account the defendant's young age, lack of criminal history, and prospects for rehabilitation, and decided that an Intensive Correction Order was an appropriate sentence. For the offence of aiding in an aggravated burglary, the court again considered the seriousness of the offence, but also took into account the defendant's cooperation with authorities and prospects for rehabilitation, and decided that an Intensive Correction Order was an appropriate sentence.

The court concluded that the appropriate sentences for both offences were periods of imprisonment to be served by way of an Intensive Correction Order. The court ordered that the defendant report to ACT Corrective Services within 24 hours to commence the orders. The sentences were designed to balance the need to protect the community with the need to provide the defendant with an opportunity for rehabilitation and reintegration into society. The court did not make any further orders in relation to the case.

Orders

Orders of the court

i. On Count 1, the offender is sentenced to a period of imprisonment of 15 months to be served by way of an Intensive Correction Order to commence today, 16 August 2016 and end on 15 November 2017, with the offender to be released immediately.

ii. On Count 2, the offender is sentenced to a period of imprisonment of 10 months, to be served by way of an Intensive Correction Order to commence today, 16 August 2016 and end on 15 June 2017, with the offender to be released immediately.

iii. The offender is to report to ACT Corrective Services within 24 hours.

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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