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R v Pahl (No 2)

R v Pahl (No 2)

Case [2017] ACTSC 155 9 June 2017

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Pahl (No 2)
Citation:	[2017] ACTSC 155
Hearing Dates:	6 April 2017; 9 June 2017
DecisionDate:	9 June 2017
Before:	Murrell CJ
Decision:	Sentenced to two years and 11 months' imprisonment suspended on 7 September 2017 upon the offender entering into a good behaviour order for two years and eight months.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Property offences – Recklessly cause damage to property – Burglary – Moral culpability of offender who offended while experiencing alcohol induced psychosis – Psychotic episode caused by voluntary consumption of alcohol – Whether sentence of imprisonment should be fully suspended – Claim for reparation order in favour of insurer
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 7, 11(3), 12, 19, 33, 35A Criminal Code2002 (ACT) ss 311, 403(1)
Cases Cited:	R v CA (No 2) [2016] ACTSC 371; 316 FLR 49 R v Gibson [2016] VSC 634 R v Halls [2008] NSWCCA 251 R v Martin [2007] VSCA 291; 20 VR 14
Parties:	The Queen (Crown) Kevin Pahl (Offender)
Representation:	Counsel Ms S Saikal-Skea (Crown) Mr S Whybrow (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Ben Aulich & Associates (Offender)
File Numbers:	SCC 279 of 2015; SCC 280 of 2015

MURRELL CJ:

In March 2017, I tried the offender without a jury. On 31 March 2017, I found him guilty of the offences that he:

(a)Count 1: Entered or remained in a building, 14–16 Brindabella Circuit, Canberra Airport, as a trespasser with intent to commit an offence in the building that was punishable by five years’ imprisonment or longer contrary to s 311 of the Criminal Code 2002 (ACT) (Criminal Code).
(b)Count 2: Recklessly caused damage to property belonging to Canberra Airport Group Pty Ltd (extensive damage within the building) contrary to s 403(1) of the Criminal Code.
(c)Count 3: Recklessly caused damage to property belonging to Canberra Airport Group Pty Ltd (a ticket machine) contrary to s 403(1) of the Criminal Code.
(d)Count 4: Recklessly caused damage to property belonging to Transfield Services (Australia) Pty Ltd (a Toyota HiLux utility vehicle) contrary to s 403 (1) of the Criminal Code.

The offences occurred in the course of the same incident on 10 February 2015.

The maximum penalty for an offence against s 311 of the Criminal Code is 14 years’ imprisonment, 1400 penalty units or both.

The maximum penalty for an offence against s 403(1) of the Criminal Code is 10 years’ imprisonment, 1000 penalty units or both.

The offender spent one day in custody in relation to these offences.

From the outset, the offender admitted the conduct and said that he had been in a delusional state at the time of the incident. The concessions made by the offender meant that, at the trial, it was not necessary to call any witnesses to the incident. The prosecution did not dispute…

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 Pahl (No 2)

Details

AGLC: R v Pahl (No 2) [2017] ACTSC 155
Case: [2017] ACTSC 155
Decision Date: 9 June 2017

CaseChat Overview and Summary

In the case of R v Pahl (No 2), the appellant, Pahl, was before the court to address the sentencing for his crime of recklessly causing damage to property and burglary. The incident in question occurred while Pahl was experiencing alcohol induced psychosis, a condition brought on by his voluntary consumption of alcohol. The court was tasked with determining the appropriate sentence for Pahl's actions, including whether his sentence of imprisonment should be fully suspended, and whether a reparation order should be made in favour of the insurer. The court also needed to consider the moral culpability of Pahl in light of his mental state at the time of the offence.

In assessing the appropriate sentence, the court examined the nature and circumstances of the offence, as well as the offender's background and personal circumstances. The court recognised that Pahl's actions were the result of alcohol induced psychosis, a condition that impaired his ability to understand the nature and quality of his actions. However, the court also noted that Pahl had voluntarily consumed the alcohol that led to his psychosis, and that his actions were still criminal in nature. The court concluded that while Pahl's moral culpability was diminished, it was not entirely negated. The court also considered the need for deterrence and rehabilitation, as well as the interests of the community and the insurer.

The court ultimately decided to suspend Pahl's sentence of two years and 11 months' imprisonment, subject to him entering into a good behaviour order for two years and eight months. The court found that a fully suspended sentence was appropriate in light of Pahl's personal circumstances and the need for rehabilitation. The court also declined to make a reparation order in favour of the insurer, finding that it was not necessary to achieve justice in the case. The final orders of the court were that Pahl's sentence be suspended on the condition that he enter into a good behaviour order for two years and eight months, and that no reparation order be made in favour of the insurer.

Orders

Orders of the court

Sentenced to two years and 11 months' imprisonment suspended on 7 September 2017 upon the offender entering into a good behaviour order for two years and eight months.

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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Citations

AGLC Citation

R v Pahl (No 2) [2017] ACTSC 155

Most Recent Citation

R v BC [2019] ACTSC 233

Cases citing this decision · 15 of 15 shown

Director of Public Prosecutions v Padreny
[2023] ACTSC 286

…oulanting [2015] ACTSC 172 R v Lyons (No 1) [2020] ACTSC 358 R v Markarian [2005] HCA 25; 228 CLR 357 R v McLaughlin [2015] ACTSC 201 R v Pahl (No 2) [2017] ACTSC 155 R v Pearson [2020] ACTSC 375 R v Qutami [2001] NSWCCA 353; 2001 A Crim R 369 R v Rogers [2021] ACTSC 355 R v Smith (No 2) [2022] ACTSC 246 R v Stanle…
R v Porter (No 3)
[2022] ACTSC 236

…Michalopoulos [2020] ACTSC 27 R v Mooney (unreported, Victorian Court of Criminal Appeal, 21 June 1978 R v Mumberson [2011] NSWCCA 54 R v Pahl (No 2) [2017] ACTSC 155 R v Payne-Moore [2021] ACTSC 125 R v Peter [2019] ACTSC 22 R v Pham [2015] HCA 39; 256 CLR 550 R v Porter (No 2) [2022] ACTSC 50 R v Rossi (1988) 142…
R v Fleury
[2022] ACTSC 103 Para 1

…s to have been spontaneous and largely fuelled by intoxication. While this apparent lack of premeditation is a mitigating factor (see R v Pahl (No 2) [2017] ACTSC 155 at [15]), it does little to detract from the seriousness of breaking into a home with a dangerous weapon while the occupant is known to be present. T…
R v Watson
[2022] ACTSC 95

…97 R v Hancock [2021] ACTSC 52 R v Kilic [2016] HCA 48; 259 CLR 256 R v Lockwood [2018] ACTSC 288 R v McMahon (No 2) [2017] ACTSC 299 R v Pahl (No 2) [2017] ACTSC 155…
R v Dawson
[2022] ACTSC 64

…2017] ACTSC 333 R v John [2017] ACTSC 144 R v Leighton [2016] ACTSC 354 R v Massey (No 1) [2020] ACTSC 256 R v Moore [2021] ACTSC 333 R v Pahl (No 2) [2017] ACTSC 155 R v Parker [2018] ACTSC 55 R v Parker [2020] ACTSC 38 R v Tran [1999] NSWCCA 109 R v Wallace [2007] NSWCCA 63 R v Williams-Savage [2021] ACTSC 271 Si…
R v Loeschnauer
[2022] ACTSC 30

…Kekalainen [2014] ACTSC 132 R v Kilic [2016] HCA 48; 259 CLR 256 R v Langi (No 2) [2021] ACTSC 239 R v Livas (No 2) [2020] ACTSC 116 R v Pahl (No 2) [2017] ACTSC 155 R v Peter [2019] ACTSC 22 R v Richardson [2016] ACTSC 133 R v Smith [2019] ACTSC 65 R v Swift [2007] VSCA 52; 15 VR 497 R v Whyte and Ors [2002] NSWC…
R v Carpenter
[2022] ACTSC 6

…2 December 1996) R v McMahon (No 2) [2017] ACTSC 299 R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 R v Osenkowski (1982) 30 SASR 212 R v Pahl (No 2) [2017] ACTSC 155 R v Pham [2015] HCA 39; 256 CLR 550 R v SP [2004] ACTCA 16; 149 A Crim R 48 R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 R v Tran [1999] NSWCCA 109 R v…
MT v The Queen
[2021] ACTCA 26 Para 1

…r to himself and others. This lack of foreknowledge mitigates his culpability: R v Martin [2007] VSCA 291; 20 VR 14 at [21]–[22], R v Pahl (No 2) [2017] ACTSC 155 at [18]–[19].…
R v MT
[2020] ACTSC 339 Para 1

…conclusion does not mean that I cannot take into account the fact that MT was acting under the influence of the drugs. Murrell CJ in R v Pahl (No 2) [2017] ACTSC 155 said this, from [16]:…
R v Pearson
[2020] ACTSC 375 Para 1

…ust be exercised judicially. A wide range of relevant considerations, when deciding to make such an order, were taken into account in R v Pahl (No 2) [2017] ACTSC 155 at [78].…
R v Crawford (No 1)
[2020] ACTSC 245 Para 1

…he offender’s motivation, damage to the premises entered, if not otherwise charged, and the level of premeditation or planning: see R v Pahl (No 2) [2017] ACTSC 155 at [15]; R v Horne [2017] ACTSC 36 at [18]-[22]. Other matters include the level of inconvenience caused and whether items of particular sentimental or…
R v KN
[2020] ACTSC 218 Para 1

…erty; and the level of premeditation or planning involved: Simonds v The Queen [2013] ACTCA 13; R v Forrest (No 2) [2017] ACTSC 83; R v Pahl (No 2) [2017] ACTSC 155; R v McMahon (No 2) [2017] ACTSC 299.…
R v Shearer
[2020] ACTSC 100 Para 1

…His moral culpability was unaffected by the fact that at the time of the offending he was suffering from substance induced psychosis: R v Pahl (No 2) [2017] ACTSC 155.…
R v Kumar
[2019] ACTSC 263 Para 1

…nduct seems to have been the effect of illicit drugs. This does not reduce his culpability as explained by Chief Justice Murrell in R v Pahl (No 2) [2017] ACTSC 155.…
R v BC
[2019] ACTSC 233 Para 1

…roperty and the level of premeditation (citing Simonds v The Queen [2013] ACTCA 13; R v Forrest (No 2) [2017] ACTSC 83 ( Forrest ); R v Pahl (No 2) [2017] ACTSC 155; R v McMahon (No 2) [2017] ACTSC 299).…

View all 15 citing cases →

Cases cited in this decision · 4 of 4 shown

R v CA (No 2)
[2016] ACTSC 371 Para 1

…In R v CA (No 2) [2016] ACTSC 371; 316 FLR 49 ( CA (No 2) ), I considered a virtually identical application. The question was whether an insurance company was entitled to reparation pursuant to s 19 of the Sentencing Act where it had reimbursed the victim of a burglary and theft pursuant to an insurance contract be…
R v Gibson
[2016] VSC 634 Para 1

…, at the time of the offence, the offender was experiencing a psychotic episode caused by the voluntary consumption of alcohol or drugs: R v Gibson [2016] VSC 634 at [95] ( Gibson ). An important consideration is whether the offender knew the effect that substances were likely to have upon them. In Gibson , Crouc…
R v Halls
[2008] NSWCCA 251 Para 1

…This is the most objectively serious offence because of the extent of the damage that was occasioned: s 33(1)(e) Sentencing Act ; R v Halls [2008] NSWCCA 251 at [35]. In addition to the monetary damage, the offence must have caused considerable commercial inconvenience to the victim. Further, the offence is objectiv…
R v Martin
[2007] VSCA 291 Para 1

…In relation to the moral culpability of an offender who offended when experiencing a substance induced psychosis, in R v Martin [2007] VSCA 291; 20 VR 14, the Court said that the question was whether and to what extent the offender foresaw the probable consequences of the drug taking. In that case, the appellate c…

Legislation cited in this decision · 1

Crimes (Sentencing) Act 2005 (ACT)
11(3), 12, 19, 33, 35A, 7 7 mentions (from Para 1)