R v Ogilvie (No 3) - [2016] ACTSC 381

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Ogilvie (No 3)
Citation:	[2016] ACTSC 381
Hearing Dates:	12 December 2016
DecisionDate: Reasons Date:	12 December 2016 22 December 2016
Before:	Refshauge J
Decision:	1. The Good Behaviour Order made for Dillon Ogilvie on 15 July 2016 be cancelled. 2. The conviction of aggravated burglary on 18 June 2014 be confirmed. 3. Dillon Ogilvie be sentenced to two years and one month imprisonment to commence on 5 December 2016. 4. The conviction of dishonestly driving somebody else’s motor vehicle without consent on 18 June 2015 be confirmed. 5. Dillon Ogilvie be sentenced to 10 months imprisonment to commence on 5 December 2016. 6. The conviction for burglary on 19 June 2014 be confirmed. 7. Dillon Ogilvie be sentenced to 18 months imprisonment to commence on 5 July 2018. 8. The conviction of dishonestly taking somebody else’s motor vehicle without consent on 19 June 2014 be confirmed. 9. Dillon Ogilvie be sentenced to 10 months imprisonment to commence on 5 February 2019. 10. The conviction for theft on 19 June 2014 be confirmed. 11. Dillon Ogilvie be sentenced to 10 months imprisonment to commence on 5 April 2019. 12. The sentences be suspended on 12 December 2016 for two years. 13. Dillon Ogilvie be required to sign an undertaking to comply with the offender’s Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a two year period from 12 December 2016 with the following conditions: (a) a probation condition that he accept supervision of the Director-General or her delegate for a period of two years or such lesser period as the person supervising him considers appropriate, and obey all reasonable directions of the person supervising him, including as to counselling for anger management; and (b) a community service work condition that he perform 150 hours of community service work within two years from 12 December 2016. 14. Dillon Ogilvie be directed to attend ACT Corrective Services at Level 1, 249 London Circuit, Canberra City by 4:00 pm on 12 December 2016 to make arrangements to continue supervision and performing community service work. 15. It be recommended to ACT Corrective Services that Dillon Ogilvie be considered for work, such as making cages to capture Myna birds, which work will not cause a problem to his knee injury and which will not risk him having contact with persons who may injure him.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Sentencing – breach of Good Behaviour Order – consideration of breach – offender ambivalent regarding obligations – cancellation of Good Behaviour Order – suspended sentence – community service work direction – construction of Myna bird cages recommended as the community service work direction
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT), ss 86(1)(f), 112 Crimes (Sentencing) Act 2005 (ACT), ss 7, 33 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 98(2), 98(3)
Cases Cited:	Banning v Looney 213 F.2d 771 (1954) Burchell (1987) 34 A Crim R…

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 Ogilvie (No 3)

Details

AGLC: R v Ogilvie (No 3) [2016] ACTSC 381
Case: [2016] ACTSC 381
Decision Date: 22 December 2016

CaseChat Overview and Summary

Dillon Ogilvie was convicted of various criminal offences including aggravated burglary, theft, dishonestly taking a motor vehicle, and dishonestly driving a motor vehicle. He was subject to a Good Behaviour Order, which he breached, leading to his sentencing. The court had to decide on the appropriate sentence considering the breach and his ambivalence about his obligations under the Good Behaviour Order. The court also had to determine the appropriate form of community service work, considering Ogilvie’s knee injury and the risk of contact with potentially harmful individuals. The court concluded that the Good Behaviour Order should be cancelled due to the breach and sentenced Ogilvie to various terms of imprisonment for each offence, all of which were suspended for two years. The court also required Ogilvie to comply with Good Behaviour Obligations, including probation and 150 hours of community service work. It was recommended that Ogilvie be assigned to work capturing Myna birds, which would accommodate his knee injury and minimise the risk of contact with potentially harmful individuals.

Orders

Orders of the court

1. The Good Behaviour Order made for Dillon Ogilvie on 15 July 2016 be cancelled.

2. The conviction of aggravated burglary on 18 June 2014 be confirmed.

3. Dillon Ogilvie be sentenced to two years and one month imprisonment to commence on 5 December 2016.

4. The conviction of dishonestly driving somebody else’s motor vehicle without consent on 18 June 2015 be confirmed.

5. Dillon Ogilvie be sentenced to 10 months imprisonment to commence on 5 December 2016.

6. The conviction for burglary on 19 June 2014 be confirmed.

7. Dillon Ogilvie be sentenced to 18 months imprisonment to commence on 5 July 2018.

8. The conviction of dishonestly taking somebody else’s motor vehicle without consent on 19 June 2014 be confirmed.

9. Dillon Ogilvie be sentenced to 10 months imprisonment to commence on 5 February 2019.

10. The conviction for theft on 19 June 2014 be confirmed.

11. Dillon Ogilvie be sentenced to 10 months imprisonment to commence on 5 April 2019.

12. The sentences be suspended on 12 December 2016 for two years.

13. Dillon Ogilvie be required to sign an undertaking to comply with the offender’s Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a two year period from 12 December 2016 with the following conditions:

(a) a probation condition that he accept supervision of the Director-General or her delegate for a period of two years or such lesser period as the person supervising him considers appropriate, and obey all reasonable directions of the person supervising him, including as to counselling for anger management; and

(b) a community service work condition that he perform 150 hours of community service work within two years from 12 December 2016.

14. Dillon Ogilvie be directed to attend ACT Corrective Services at Level 1, 249 London Circuit, Canberra City by 4:00 pm on 12 December 2016 to make arrangements to continue supervision and performing community service work.

15. It be recommended to ACT Corrective Services that Dillon Ogilvie be considered for work, such as making cages to capture Myna birds, which work will not cause a problem to his knee injury and which will not risk him having contact with persons who may injure him.

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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