R v OI (No 2) - [2022] ACTSC 8

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v OI (No 2)
Citation:	[2022] ACTSC 8
Hearing Date:	31 January 2022
DecisionDate:	31 January 2022
Before:	Mossop J
Decision:	See [14]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – breach of good behaviour order – further offences – breach offences dealt with in the Magistrates Court – young offender – mental illness diagnosis – offender has largely ceased illicit substance use and made progress with employment and family relationships – reasonable prospects of rehabilitation – importance of not undermining rehabilitative progress – resentenced to imprisonment – wholly suspended upon entry into a good behaviour order
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT), ss 86, 110 Crimes (Sentencing) Act 2005 (ACT), s 133B
Cases Cited:	R v OI [2020] ACTSC 286
Parties:	The Queen ( Crown) OI ( Offender)
Representation:	Counsel E Wren ( Crown) J Maher ( Offender)
Solicitors ACT Director of Public Prosecutions ( Crown) Kamy Saeedi Law ( Offender)
File Number:	SCC 201 of 2020

MOSSOP J:

Introduction

On 14 October 2020 I sentenced OI, who was then under the age of 18, on a single count of aggravated robbery: see R v OI [2020] ACTSC 286. The aggravated robbery involved threatening a taxi driver with a knife and taking $45 from him. I imposed a sentence of four months and 15 days’ imprisonment which was wholly suspended upon entering into a good behaviour order. The good behaviour order operated from 14 October 2020 until 13 October 2021. Unfortunately, during that time OI committed further offences. Some of those offences were punishable by imprisonment and, as a consequence, involved a breach of his good behaviour obligations under s 86 of the Crimes (Sentence Administration) Act 2005 (ACT).

The relevant breaches of the offender’s good behaviour obligations were:

(a)on 1 March 2021 he drove while disqualified;
(b)on 13 March 2021 he drove while disqualified;
(c)on 22 March 2021 he drove while disqualified and had a prescribed drug in his oral fluid (as a repeat offender);
(d)on 3 April 2021 he drove while disqualified; and
(e)on 7 July 2021 he drove while disqualified.

The offender did commit other offences during the time of the good behaviour order but those were not punishable by imprisonment and hence did not involve a breach of his good behaviour obligations.

The issue before the court arising from these breaches is that under s 110 of the Crimes (Sentence Administration) Act, namely, whether to impose the suspended sentence or resentence the offender.

The circumstances of the initial offending and the offender are set out in the reasons that I gave at the time of the original sentence: see R v OI.

Current circumstances

Information about the offender and his progress since the imposition of the sentence and the further offending are provided by a Child and Youth Protection Services (CYPS) pre‑sentence report and an ACT Corrective Services pre-sentence report. Additional information…

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 OI (No 2)

Details

AGLC: R v OI (No 2) [2022] ACTSC 8
Case: [2022] ACTSC 8
Decision Date

CaseChat Overview and Summary

The case of R v OI (No 2) involved the offender, OI, who was sentenced by Mossop J in the Supreme Court of the Australian Capital Territory on 14 October 2020 for aggravated robbery, resulting in a four-month and 15-day imprisonment sentence that was wholly suspended upon entering into a good behaviour order. During the term of this order, OI committed further offences, primarily driving while disqualified, which led to the current proceedings to determine whether the suspended sentence should be imposed or if OI should be resentenced.

The court had to decide whether to impose the original suspended sentence or resentence OI, considering his age at the time of the original offence, his progress since the initial sentence, and the nature of the further offending. The court needed to balance the need for punishment and deterrence with the importance of not undermining OI's rehabilitative progress. This involved assessing his employment status, relationship with family, and his efforts to cease illicit drug use.

Mossop J decided that re-imposing the original sentence would be counter-productive and would undermine the progress OI had made towards rehabilitation. The court noted that OI had largely ceased illicit substance use and made progress with employment and family relationships, indicating reasonable prospects of rehabilitation. The court emphasised the importance of not undermining this progress. Therefore, OI was resentenced to the same custodial sentence, which was suspended upon him entering into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the same period.

The court cancelled the existing good behaviour order and resentenced OI to imprisonment for a period of four months and 15 days, but that sentence was wholly suspended forthwith upon him entering into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of four months and 15 days. The good behaviour order was to be subject to the core conditions only. This decision recognised OI's progress and the need to support his ongoing rehabilitation.

Orders