R v Raftery - [2022] ACTSC 77

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Raftery
Citation:	[2022] ACTSC 77
Hearing Date:	19 April 2022
DecisionDate:	19 April 2022
Before:	Elkaim J
Decision:	See [24]–[25]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – theft – serious health condition
Legislation Cited:	Criminal Code 2002 (ACT) s 308 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 33
Cases Cited:	R v Cook [2018] ACTSC 302 R v Leighton [2016] ACTSC 354 R v NQ [2017] ACTSC 317
Parties:	The Queen ( Crown) James Laurence Michael Raftery ( Accused)
Representation:	Counsel R Christensen SC ( Crown) J De Bruin ( Accused)
Solicitors ACT Director of Public Prosecutions ( Crown) ACT Legal Aid ( Accused)
File Number:	SCC 160 of 2021

ELKAIM J:

On 4 March 2022 the offender pleaded guilty to theft contrary to s 308 of the Criminal Code 2002 (ACT). The maximum penalty is 10 years’ imprisonment, and/or a fine of $160,000.

Although there is only one count the offender stole $292,240.70 in 18 separate transactions over a period of about six months. Details of the offences are set out in the Agreed Statement of Facts.

The offender stole the money from an elderly lady, Ms Sterns. Unlike another thief who stole over $300,000 from the same victim, this offender has not paid any of the money back (but see [25] below).

The offender was born in 1988. He has a long criminal record which includes offences of deception. The offender sought to make a distinction between his actions and the actions of a person who steals by deception. It was submitted that there was no evidence of actual deception. I disagree. I do not think that there is a distinction in this case. There must have been a deception in order for the funds to be transferred to the offender’s account.

Previous Intensive Corrections Orders have not corrected him. Unsurprisingly the pre-sentence report says he is not suitable for another ICO and he has a medium to high risk of reoffending.

The offender grew up in Canberra. His parents separated when he was very young and he stayed with his mother until she was sent to prison when he was nine years of age. After a period with his paternal grandparents he went to live with his father. The household was replete with illicit drugs.

The offender’s mother gave evidence in which she expressed her sorrow and guilt at letting the offender down as a carer and a mother. Her evidence forms part of the overall tragedy that has consumed the offender’s upbringing.

The offender completed Year 12 and then obtained qualifications in plumbing and hospitality. He worked as a plumber for some years. He has an unfortunate history of alcohol and drug use. He started young and used a wide range of drugs. He says that he stopped drinking alcohol and using illicit drugs. This seems to have followed a diagnosis of a heart condition…

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 Raftery

Details

AGLC: R v Raftery [2022] ACTSC 77
Case: [2022] ACTSC 77
Decision Date

CaseChat Overview and Summary

In the case of R v Raftery, the offender, James Laurence Michael Raftery, pleaded guilty to theft of $292,240.70 from an elderly victim, Ms Sterns, in 18 separate transactions over six months. The court was required to consider the offender's extensive criminal history, his personal circumstances including drug abuse and a serious heart condition, and the impact of the theft on the victim. The primary legal issue was to determine an appropriate sentence that balanced the principles of deterrence, rehabilitation, and the specific circumstances of the theft.

Justice Elkaim considered the offender's background, which included a troubled upbringing and a history of substance abuse, as well as his current health condition. Despite acknowledging the offender's difficult personal history, the judge emphasised the gravity of stealing from a vulnerable elderly person. The court also took into account the offender's plea of guilty, albeit late, which warranted a discount in the sentence. After weighing these factors, the court decided that a prison sentence was necessary, aiming to be as brief as possible while ensuring adequate deterrence and protection of the community. The offender was sentenced to 12 months and 21 days imprisonment, suspended after four months on the condition of a Good Behaviour Order for two years.

The final orders included a direction for the offender's heart condition to be promptly communicated to Corrective Services upon his admission. The court also noted that the offender had returned $20,000 of the stolen funds, though this did not affect the sentencing considerations. The judge emphasised the need for appropriate medical care within the correctional facility to manage the offender’s health condition.

Orders