R v Payne - [2021] ACTSC 221

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Payne
Citation:	[2021] ACTSC 221
Hearing Date:	1 September 2021
DecisionDate:	1 September 2021
Before:	Mossop J
Decision:	See [64]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – unlawful confinement – intentionally and unlawfully choke, suffocate or strangle – assault occasioning actual bodily harm – common assault – assault a frontline worker – borderline personality traits – medium to high risk of reoffending – conviction recorded – sentence of imprisonment imposed
Legislation Cited: Cases Cited:	Crimes Act 1900 (ACT), ss 24, 26, 26A, 28(2)(a), 34 Crimes (Sentencing) Act 2005 (ACT), s 10 Magistrates Court Act 1930 (ACT), s 90B(3) Le Clair v The Queen [2017] ACTCA 19 R v Ayuel [2020] ACTSC 213 R v Barlow [2017] ACTSC 90 R v Hatzis (Unreported, Supreme Court of the Australian Capital Territory, Acting Justice Nield, 4 September 2012) R v Klickovic [2018] ACTSC 141 R v Laipato [2019] ACTSC 386 R v Le Clair; R v Yeboah [2016] ACTSC 126 R v O’Brien [2014] ACTSC 156
Parties:	The Queen ( Crown) Warwick Payne ( Offender)
Representation:	Counsel A Chatterton ( Crown) J Sabharwal ( Offender)
Solicitors ACT Director of Public Prosecutions ( Crown) David Healey Solicitors ( Offender)
File Numbers:	SCC 212 of 2020 SCC 213 of 2020

MOSSOP J:

Introduction

The offender, Warwick Payne, has pleaded guilty to the following charges:

(a)Count 1: unlawful confinement, contrary to s 34 of the Crimes Act 1900 (ACT). The maximum penalty is 10 years’ imprisonment;
(b)Count 2: intentionally and unlawfully choke, suffocate or strangle another person, contrary to s 28(2)(a) of the Crimes Act. The maximum penalty is five years’ imprisonment; and
(c)Count 3: assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act. The maximum penalty is five years’ imprisonment.

The offender has also pleaded guilty to the following two charges transferred to the Supreme Court under s 90B(3) of the Magistrates Court Act 1930 (ACT):

(a)a count of common assault, contrary to s 26 of the Crimes Act. The maximum penalty is two years’ imprisonment; and
(b)a count of assaulting a frontline worker, contrary to s 26A of the Crimes Act. The maximum penalty is two years’ imprisonment.

Facts

The facts were agreed and are in summary as follows.

Between approximately 3pm and 4pm on Friday, 26 June 2020 the victim, a woman in her 30s, was with her friend, who I will refer to as EI. EI was visiting Canberra for work at the time.

The victim and EI were at Woolworths in Hawker where they saw the offender. EI knew the offender because he had met him several times while staying at the Belconnen Way Motor Inn. The offender appears to have been having an adverse interaction with staff when approached by the victim. The victim tried to calm him down and make sure that he was okay. She said that she had some…

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 Payne

Details

AGLC: R v Payne [2021] ACTSC 221
Case: [2021] ACTSC 221
Decision Date

CaseChat Overview and Summary

Warwick Payne was convicted of various serious offences against a woman, including unlawful confinement, choking, assault occasioning actual bodily harm, common assault, and assault on a frontline worker. The offender unlawfully confined the woman for approximately eight hours, during which time he choked her multiple times, punched her, threw knives at her, cut her hand with a knife, and forced her to put her hand in hot salted water. The Supreme Court of the Australian Capital Territory was required to decide the appropriate sentence for the offender, taking into account the objective seriousness of the offences, the subjective circumstances of the offender, and the other relevant sentencing considerations.

The court found that the offences were of mid-range to high objective seriousness, with the unlawful confinement and assault occasioning actual bodily harm charges being in the mid-range and the choking charge being at the upper end of the mid-range. The subjective circumstances of the offender included his borderline personality traits, substance abuse issues, and history of disciplinary problems in custody. The offender's age, criminal history, and identified risks of reoffending were also considered. The court discounted the offender's plea of guilty by approximately 10% due to its late entry. The court also took into account the offender's time spent in custody and compared the case to other similar cases.

The court found that specific and general deterrence, denunciation, and holding the offender accountable were the most significant sentencing considerations. The court imposed a sentence of 32 months imprisonment for the unlawful confinement charge, reduced to 32 months due to the plea of guilty, with a non-parole period of 27 months. The court imposed a sentence of 18 months imprisonment for the assault occasioning actual bodily harm charge, reduced to 18 months due to the plea of guilty, with a concurrent sentence of 12 months and 15 days imprisonment for the choking charge. The court imposed concurrent sentences of 10 days and 7 days imprisonment for the common assault and frontline worker assault charges, respectively. The sentences were ordered to be served concurrently, with a total sentence of 39 months and 10 days imprisonment.

Orders