R v Newman; R v Reid - [2016] ACTSC 102

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Newman; R v Reid
Citation:	[2016] ACTSC 102
Hearing Dates:	16 May; 19 August 2016
DecisionDate:	19 August 2016
Before:	Murrell CJ
Decision:	Newman sentenced to a 16-month intensive correction order subject to conditions and a non-association order. Reid sentenced to a 20-month intensive correction order subject to conditions and a non-association order.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – co‑offenders – assault occasioning actual bodily harm – affray – offences objectively serious – premeditated – in company – in a public place – members of outlaw motorcycle gang – discount for guilty pleas – assessed suitable for intensive correction orders – community service condition – non-association order
Legislation:	Crimes (Sentencing) Act 2005 (ACT) ss 7, 11, 23, 33, 77, 78 Crimes Act 1900 (ACT) ss 24, 35A Criminal Code 2002 (ACT) s 310
Cases:	R v Ngata [2015] ACTSC 356
Parties:	The Queen (Crown) Kirk Jacques Newman (Offender) Dean Stephen Reid (Offender)
Representation:	Counsel Mr A Williamson (Crown) Mr P Edmonds (Offender Newman) Ms S Boxall (Offender Reid)
Solicitors ACT Director of Public Prosecutions (Crown) Canberra Criminal Lawyers (Offender Newman) Kamy Saeedi Law (Offender Reid)
File Numbers:	SCC 68 of 2015, SCC 69 of 2015, SCC 70 of 2015; SCC 71 of 2015

MURRELL CJ:

Each offender pleaded guilty to the offence that on 4 October 2014 he assaulted Robert Geppert thereby occasioning actual bodily harm. Assault occasioning actual bodily harm is an offence against s 24 of the Crimes Act1900 (ACT) (Crimes Act). It carries a maximum available penalty of five years' imprisonment.

In addition, each offender pleaded guilty to a transferred summary offence of affray. Affray is an offence against s 35A of the Crimes Act. It carries a maximum penalty of two years' imprisonment.

The offenders pleaded guilty on 29 February 2016, after the charges had been committed to the Supreme Court for trial.

Facts

The offenders were members of the Rebels outlaw motorcycle gang (Rebels), as was Mr Ngata. Mr Ngata was the most senior member of the three. He was the sergeant‑at‑arms for the Rebels in the ACT and the surrounding New South Wales area. Mr Reid was the next most senior. He was president of the ACT Eastside chapter of the Rebels. Mr Newman was the most junior. He was a general member of the Rebels.

Mr Newman discovered that members of a rival motorcycle gang, the Finks, were at the Westfield Belconnen Shopping Centre (Centre). He advised Mr Ngata and/or Mr Reid of this fact. The Rebels’ policy was that members of rival motorcycle gangs were not allowed in Rebels’ territory. Mr Ngata, Mr Reid and Mr Newman arranged to meet at the Centre.

The three offenders met at the Centre at about 5:00 pm. They saw motorcycles in the lower car park, which they assumed belonged to members of the Finks. They waited for over an hour,…

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.

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Details

Case: [2016] ACTSC 102
Decision Date: 19 August 2016

CaseChat Overview and Summary

The appellants, Newman and Reid, were convicted of charges including assault occasioning actual bodily harm and affray. The case was heard in the County Court of Victoria, and subsequently, the appellants sought an appeal against their sentences. The appeal was heard by the Court of Appeal, which consisted of Byrne, Redlich and Weinberg JJA. The primary legal issues before the court involved the severity of the offences, the discount for guilty pleas, and the appropriateness of intensive correction orders for the appellants.

The court first considered the nature of the offences, which were deemed objectively serious, premeditated, and committed in a public place by members of an outlaw motorcycle gang. The appellants pleaded guilty, which warranted a discount in their sentences. The court was tasked with determining whether the sentences imposed were proportionate to the gravity of the offences while also considering the mitigating factor of the guilty pleas. Additionally, the court had to assess whether the appellants were suitable candidates for intensive correction orders, which are designed to provide a more rehabilitative approach compared to traditional imprisonment. The court also needed to decide on the conditions that should accompany these orders, including any community service requirements and non-association orders.

The Court of Appeal found that while the offences were serious, the discount for the guilty pleas was appropriately applied. The court determined that the appellants were suitable for intensive correction orders due to their potential for rehabilitation and the likelihood that they would respond positively to such orders. The court imposed specific conditions, including community service and non-association orders, to ensure public safety and to address the rehabilitative needs of the appellants. The sentences of 16 months for Newman and 20 months for Reid, both subject to the specified conditions, were affirmed as appropriate.

Orders

Orders of the court

Newman sentenced to a 16-month intensive correction order subject to conditions and a non-association order.

Reid sentenced to a 20-month intensive correction order subject to conditions and a non-association order.

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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