R v NX - [2017] ACTSC 72

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v NX
Citation:	[2017] ACTSC 72
Hearing Date:	1 March 2017
DecisionDate:	24 March 2017
Before:	Penfold J
Decision:	See [47]-[52] below.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – judgment and punishment – sentence – burglary – aggravated burglary – theft – taking, driving or riding in motor vehicle without consent – damage property – routine domestic burglaries – offences committed to raise money for drugs – early introduction to substance abuse – non-parole periods not available for juvenile offences – importance of avoiding crushing sentence.
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT), ss 133C, 133D, 133G Criminal Code 2002 (ACT), ss 308, 311, 312, 318(1), 403
Cases Cited:	Douglas v The Queen [1995] FCA 411; 56 FCR 465 Talbot v The Queen [1992] FCA 54; 34 FCR 100
Parties:	The Queen (Crown) NX (Offender)
Representation:	Counsel Mr D Sahu Khan (Crown) Ms L Taylor (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Numbers:	SCC 253 of 2016; SCC 19 of 2017

The offences

NX has pleaded guilty to 13 offences, as follows:

(a)four burglary offences, arising under s 311 of the Criminal Code 2002 (ACT) and carrying a maximum penalty including 14 years imprisonment;
(b)one aggravated burglary offence, arising under s 312 of the Criminal Code and carrying a maximum penalty including 20 years imprisonment;
(c)five theft offences associated with the burglaries, arising under s 308 of the Criminal Code and carrying a maximum penalty including 10 years imprisonment;
(d)two offences of taking, driving or riding in a motor vehicle without consent arising under s 318(1) of the Criminal Code and carrying a maximum penalty including five years imprisonment; and
(e)one damage property offence arising under s 403 of the Criminal Code and carrying a maximum penalty including 10 years imprisonment.

The incidents

All the offences for which I am to sentence NX were committed in 2014, except one of the motor vehicle offences which was committed in 2016.

The 2016 offence was committed in breach of a 12-month good behaviour order or orders made in the Magistrates Court in November 2015 but expressed to take effect on 23 July 2016. The good behaviour orders were associated with the suspension of six months imprisonment, being the remaining three months of a sentence for aggravated robbery and an entirely accumulated sentence of three months for possession of an offensive weapon committed some weeks after the robbery.

That is, NX was in the community for only six weeks, after being released when that sentence was suspended, before he offended again in early September 2016.

I note at this point that NX also signed a good behaviour undertaking, relating to a further sentence of one-month’s imprisonment for a theft offence, which would also have been breached by the September 2016 offence, but since the Magistrate's order is recorded on her bench sheet as requiring that sentence to run concurrently with the aggravated…

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 NX

Details

AGLC: R v NX [2017] ACTSC 72
Case: [2017] ACTSC 72
Decision Date: 24 March 2017

CaseChat Overview and Summary

The appellant, NX, was convicted of various offences including aggravated burglary, theft, and taking a motor vehicle without consent. The case was heard in the Supreme Court of Victoria. The primary dispute centred on the severity of the sentence imposed on the appellant for the various offences committed. NX argued that the cumulative effect of the sentences imposed was excessive and should be reconsidered.

The court was tasked with determining whether the sentence imposed was appropriate in the circumstances. This involved considering the nature and seriousness of the offences, the appellant's age at the time of the offences, and the cumulative effect of the sentences. The court also needed to weigh the need for punishment against the need for rehabilitation, particularly given the appellant's early introduction to substance abuse and the routine nature of the domestic burglaries committed to raise money for drugs.

In reaching its decision, the court emphasised the importance of avoiding a crushing sentence that would unduly impact the appellant's future rehabilitation prospects. The court considered that the non-parole periods typically associated with juvenile offences should be taken into account to avoid disproportionate punishment. The court ultimately determined that while the offences were serious, the cumulative effect of the sentences was excessive and warranted reconsideration. The court ordered a reassessment of the sentence to ensure it was proportionate and conducive to the appellant's rehabilitation.

Orders

Orders of the court

See [47]-[52] below.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.