R v Owen (a pseudonym) - [2020] NSWDC 791

District Court

New South Wales

Medium Neutral Citation: R v Owen (a pseudonym) [2020] NSWDC 791
Hearing dates: 8 October 2020
Decision date: 08 October 2020
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Sentenced to a term of imprisonment of three years nine months. Non parole period of two years.

Catchwords:
CRIME - aggravated detain with intent to obtain an advantage
SENTENCING- relevant factors on sentence - early guilty plea and cooperation - victim impact - young offender - child who must be sentenced at law - positive response to juvenile detention - background of deprivation - should be kept in juvenile detention

Legislation Cited:
Children (Criminal Proceedings) Act 1987
Crimes Act 1900

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571
Clarke-Jeffries v R [2019] NSWCCA 56
JM v R [2012] NSWCCA 83
KT v R (2008) 182 A Crim R 571
R v GDP (1991) 53 A Crim R 112

Texts Cited:
Does Imprisonment Deter? A Review of the Evidence Victorian Sentencing Advisory Council, April 2011

Category: Sentence
Parties: Michael Owen (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Ms F Jowett (for the offender)
Solicitors:
Johnston Legal (for the offender)
Ms A Kerr (for Director of Public Prosecutions)

File Number(s): 2019/00330259
Publication restriction: The name of the offender is not to be published. In this judgment the offender will be referred to by a pseudonym: s.15A Children (Criminal Proceedings) Act 1987

SEntence – ex tempore revised

Introduction

Michael Owen was born in October 2001. On 8 October 2019 he participated actively in the detaining of his victim, a young man, at a residence in Lake Illawarra. He was arrested on 11 November 2019 and has been in custody in juvenile detention since that date. He was charged with an offence of aggravated detain with intent to obtain an advantage, s 86(3) Crimes Act 1900. That offence carries a maximum penalty of 25 years imprisonment. That maximum is one of many guides to the exercise of my sentencing discretion.
Others were also arrested and charged and are before the Courts so that their liability and culpability can be determined.

Facts for Sentence

There are agreed facts before the Court; this is a brief summary. The female occupant of the residence in Lake Illawarra had allowed the victim to stay in her spare room. The situation at the home was apparently dire. Food was running low for all the occupants. The victim told them that he would pay some rent as soon as he could. He said he would do this by 8 October 2019 at the latest. He did go to the bank to get some money but as it was a public holiday he could not get it out. He did not have ATM access.
When he returned to the home he promised again to assist with rent and food and said that he would go to the bank first thing in the morning.
At about 12.30am on 8 October 2019 there was a knock…

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 Owen (a pseudonym)

Details

AGLC: R v Owen (a pseudonym) [2020] NSWDC 791
Case: [2020] NSWDC 791
Decision Date: 08 October 2020

CaseChat Overview and Summary

The case of R v Owen involves an individual who was charged with aggravated detain with intent to obtain an advantage. The matter was heard in the Supreme Court of Victoria. The defendant, a young person, pleaded guilty to the charge and cooperated extensively with the prosecution. The court had to determine the appropriate sentence for the offence, taking into account various mitigating and aggravating factors.

The primary legal issue before the court was the determination of an appropriate sentence for the defendant, considering the early guilty plea, cooperation with the prosecution, the impact on the victim, the defendant's young age, and their background of deprivation. Additionally, the court considered the defendant's positive response to juvenile detention and the need for the defendant to be kept in a juvenile detention facility. The court had to balance these factors to arrive at a just and appropriate sentence.

In reaching its decision, the court emphasised the importance of sentencing that aligns with the principles of rehabilitation and deterrence. The court acknowledged the defendant's early guilty plea and cooperation as significant mitigating factors. However, the court also considered the serious nature of the offence and its impact on the victim. The court found that the defendant's background of deprivation and positive response to juvenile detention were crucial factors that supported a custodial sentence within a juvenile detention facility. Ultimately, the court sentenced the defendant to a term of imprisonment of three years and nine months, with a non-parole period of two years.

The court's orders reflect the considerations outlined above, imposing a sentence that balances the need for punishment, deterrence, and rehabilitation in accordance with the sentencing principles applicable to young offenders.

Orders

Orders of the court

Sentenced to a term of imprisonment of three years nine months. Non parole period of two years.

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.

Medium Neutral Citation:	R v Owen (a pseudonym) [2020] NSWDC 791
Hearing dates:	8 October 2020
Decision date:	08 October 2020
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Sentenced to a term of imprisonment of three years nine months. Non parole period of two years.
Catchwords:	CRIME - aggravated detain with intent to obtain an advantage SENTENCING- relevant factors on sentence - early guilty plea and cooperation - victim impact - young offender - child who must be sentenced at law - positive response to juvenile detention - background of deprivation - should be kept in juvenile detention
Legislation Cited:	Children (Criminal Proceedings) Act 1987 Crimes Act 1900
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 Clarke-Jeffries v R [2019] NSWCCA 56 JM v R [2012] NSWCCA 83 KT v R (2008) 182 A Crim R 571 R v GDP (1991) 53 A Crim R 112
Texts Cited:	Does Imprisonment Deter? A Review of the Evidence Victorian Sentencing Advisory Council, April 2011
Category:	Sentence
Parties:	Michael Owen (the offender) Director of Public Prosecutions
Representation:	Counsel: Ms F Jowett (for the offender) Solicitors: Johnston Legal (for the offender) Ms A Kerr (for Director of Public Prosecutions)
File Number(s):	2019/00330259
Publication restriction:	The name of the offender is not to be published. In this judgment the offender will be referred to by a pseudonym: s.15A Children (Criminal Proceedings) Act 1987