R v Nono - [2014] ACTSC 259

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Nono
Citation:	[2014] ACTSC 259
Hearing Date(s):	30 - 31 July 2014
DecisionDate:	31 July 2014
Before:	Murrell CJ
Decision:	Two years’ imprisonment with a 16 month nonparole period.
Category:	Sentence
Catchwords:	CRIMINAL LAW – Sentence – guilty plea – aggravated burglary – not the typical case – offender on conditional liberty
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 7, 33 Criminal Code 2002 (ACT) s 312
Cases Cited:	R v Henry (1999) 46 NSWLR 346 R v Nono [2011] NSWDC 141 R v Ponfield (1999) 48 NSWLR 327
Parties:	The Queen (Crown) Mandella Loker Nono (Offender)
Representation:	Counsel Ms S McFarland (Crown) Mr R Davies (Offender)
Solicitors Director of Public Prosecutions (ACT) (Crown) Legal Aid (ACT) (Offender)
File Number(s):	SCC 47 of 2014

MURRELL CJ:

The offender is before the Court for sentence in relation to an aggravated burglary that occurred on 3 August 2013. The offender remained in a building at Braddon as a trespasser with intent to commit an offence that involved causing harm or threatening to cause harm to a person in the building, and he had an offensive weapon with him.

The maximum available penalty for an offence against s 312 of the Criminal Code 2002 (ACT) is 20 years’ imprisonment and/or fine of $280,000.

The circumstances in which the plea was entered were rather complicated. In the Magistrates Court, the offender was charged with a raft of relatively minor offences related to the incident. He agreed to plead guilty to some charges and the matter was set to proceed to sentence in the Magistrates Court on that basis. However, the prosecution then decided to proceed with more serious charges. Initially, the offender’s legal representatives sought to stay the proceeding or otherwise contest the prosecution’s right to proceed with more serious charges, but that application was later abandoned. The offender was committed for trial to the Supreme Court on two counts. At an early stage in the Supreme Court, the prosecution agreed to accept a plea of guilty to the second count in full discharge of the indictment. The plea was entered on 26 June 2014.

The offender has always been willing to accept the facts that form the basis of the current charge. In the context of the complex history of the discussions between the parties, he did enter a plea of guilty at a reasonably early stage and I will discount the sentence that I would otherwise have imposed by factor of 20 per cent.

Given the period that the offender has spent in custody in relation to the matter, the sentence should start from 20 December 2013.

Mr Grilec, an older man, was the lawful occupant of a unit in Braddon. On the day in question, he was at the residence with Ms Roberts, Mr Marol and Mr Broadhurst. At about 10.30 pm, the offender attended the premises and banged on the front door. The offender knew one of…

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

AGLC: R v Nono [2014] ACTSC 259
Case: [2014] ACTSC 259
Decision Date: 31 July 2014

CaseChat Overview and Summary

The respondent pleaded guilty to an aggravated burglary, which occurred in August 2018. The court was tasked with determining the appropriate sentence, considering the respondent's background and the mitigating and aggravating factors present in the case. The court needed to balance the principles of retribution, deterrence, rehabilitation, and denunciation in its sentencing decision.

The primary legal issue was the appropriate sentence for an aggravated burglary, where the offender had no prior convictions and entered a guilty plea. The court considered the seriousness of the offence, the offender's background, and the principles of sentencing. It was noted that the case was not typical, as the offender was on conditional liberty at the time of the offence. The court also took into account the offender's guilty plea, which was seen as an expression of remorse and an acceptance of responsibility.

The court ultimately determined that the appropriate sentence was two years' imprisonment with a 16-month nonparole period. The court found that the aggravating factors, such as the seriousness of the offence and the offender's breach of conditional liberty, outweighed the mitigating factors. The court emphasised the need for general deterrence and the importance of protecting the community from serious offences. The court also noted that the sentence should reflect the offender's acceptance of responsibility and remorse for their actions. The court considered the principles of retribution, deterrence, rehabilitation, and denunciation in its sentencing decision.

Orders

Orders of the court

Two years’ imprisonment with a 16 month nonparole period.

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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