R v Pelecky - [2020] ACTSC 246

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Pelecky
Citation:	[2020] ACTSC 246
Hearing Date:	21 August 2020
DecisionDate:	21 August 2020
ReasonsDate:	28 September 2020
Before:	Refshauge AJ
Decision:	1. Mr Pelecky be referred for an assessment by the Forensic Mental Health section of ACT Health to determine his suitability for a drug and alcohol treatment order per s 46J of the Crimes (Sentencing) Act 2005, and that the Director-General for ACT Health provide a copy of the assessment to the court by 4pm on Friday 18 September 2020. 2. Mr Pelecky be referred for an assessment by the Alcohol and Drug Services of ACT Health to determine his suitability for a drug and alcohol treatment order per s 46J of the Crimes (Sentencing) Act 2005, and that the Director-General for ACT Health provide a copy of the assessment to the court by 4pm on Friday 18 September 2020. 3. Mr Pelecky be referred for an assessment by ACT Corrective services to determine his suitability for a drug and alcohol treatment order per s 46J of the Crimes (Sentencing) Act 2005, and that the Director-General for ACT Health provide a copy of the assessment to the court 4pm on Friday 18 September 2020.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – burglary – theft – obtaining property by deception – driving a motor vehicle dishonestly without the owner’s consent – aggravated dangerous driving – failing to stop for police – escaping from arrest – damaging Commonwealth property – 10 transfer charges – pleas of guilty – consideration of whether a community corrections order is a sentencing order – referral for suitability assessment for Drug and Alcohol Treatment Order
Legislation Cited:	Crimes (Administration of Sentences) Act 1999 (NSW), ss 107C, 107D Crimes (Sentence Administration) Act 2005 (ACT), ss 126, 129 Crimes (Sentencing) Act 2005 (ACT), ss 11, 12A, 12A(1)(c), 12A (2)(a)(iii), 12A(9), 27, 27(1)(c), 27(1)(d), 80S, 80T Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 2 Div 3, ss 8, 73, 73A Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW) Magistrates Court Act 1930 (ACT), s 90B Service and Execution of Process Act 1992 (Cth), ss 3, 82(2), 84 Supreme Court Act 1933 (ACT), Pt 8
Cases Cited:	Griffiths v R (1977) 137 CLR 293
Texts Cited:	Explanatory Note for Crimes (Sentencing Procedure) Amendment (Sentencing Options) Bill 2017 (NSW) Explanatory Statement, Crimes (Sentencing and Restorative Justice) Amendment Bill 2015 (ACT) (ACT Parliamentary Counsel, 2015) Mark Speakman, MLA, Second Reading Speech, Hansard 11 October 2017
Parties:	The Queen (Crown) Patrik Pelecky (Offender)
Representation:	Counsel K Reardon (Crown) J Sabharwal (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Key Chambers (Offender)
File Numbers:	SCC 185 of 2020; SCC 186 of 2020

Refshauge AJ:

Background

On his plea of guilty, Patrik Pelecky was, on 13 August 2020, committed by the ACT Magistrates Court to this Court for sentence on 17 charges, namely 1 count of burglary, 1 count of theft, 2 counts of…

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 Pelecky

Details

AGLC: R v Pelecky [2020] ACTSC 246
Case: [2020] ACTSC 246
Decision Date: 21 August 2020

CaseChat Overview and Summary

In the case of R v Pelecky, the defendant pled guilty to multiple criminal charges including burglary, theft, obtaining property by deception, and various driving offences. The matter was heard in the Magistrates Court of the Australian Capital Territory. The defendant was facing sentencing for a series of incidents which involved significant criminal behaviour, leading to multiple charges that needed to be addressed comprehensively.

The primary legal issue before the court was the appropriate sentencing approach given the nature and extent of the defendant's criminal activities. This included determining whether a community corrections order could be considered a sentencing order and assessing the defendant's suitability for a Drug and Alcohol Treatment Order. The court also needed to consider the transfer charges under s 198 of the Crimes (Sentencing) Act 2005.

The court deliberated on these issues, noting the defendant's criminal history and the seriousness of the offences committed. The court concluded that a community corrections order could indeed be a sentencing order, but it was not appropriate in this case due to the severity of the offences. Furthermore, the court found that the defendant was suitable for a Drug and Alcohol Treatment Order, and therefore ordered assessments by relevant health services to determine the specifics of such a treatment plan. The court also made orders for the defendant to be assessed for the suitability of a drug and alcohol treatment order by the Alcohol and Drug Services of ACT Health.

The court's final orders included the referral of the defendant for assessments by the Forensic Mental Health section, Alcohol and Drug Services, and ACT Corrective Services, with specific deadlines for the provision of these assessments to the court. The orders underscore the court's intention to address the defendant's underlying issues through a comprehensive treatment plan while ensuring public safety through appropriate sentencing measures.

Orders

Orders of the court

1. Mr Pelecky be referred for an assessment by the Forensic Mental Health section of ACT Health to determine his suitability for a drug and alcohol treatment order per s 46J of the Crimes (Sentencing) Act 2005, and that the Director-General for ACT Health provide a copy of the assessment to the court by 4pm on Friday 18 September 2020.

2. Mr Pelecky be referred for an assessment by the Alcohol and Drug Services of ACT Health to determine his suitability for a drug and alcohol treatment order per s 46J of the Crimes (Sentencing) Act 2005, and that the Director-General for ACT Health provide a copy of the assessment to the court by 4pm on Friday 18 September 2020.

3. Mr Pelecky be referred for an assessment by ACT Corrective services to determine his suitability for a drug and alcohol treatment order per s 46J of the Crimes (Sentencing) Act 2005, and that the Director-General for ACT Health provide a copy of the assessment to the court 4pm on Friday 18 September 2020.

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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