R v Robertson - [2022] ACTSC 34

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Robertson
Citation:	[2022] ACTSC 34
Hearing Date:	3 March 2022
DecisionDate:	3 March 2022
Before:	Norrish AJ
Decision:	See [62]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – theft – common assault – lengthy criminal history – parity with co‑offender – delay in sentencing – low level of objective seriousness – matters otherwise dealt with summarily – convictions recorded – sentences of imprisonment imposed – no action in relation to breaches of good behaviour orders
Legislation Cited:	Crimes (Sentencing) Act2005 (ACT), ss 7, 33 Crimes Act 1900 (ACT), s 26 Criminal Code 2002 (ACT) ss 45A, 308
Cases Cited:	Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Green v The Queen [2011] HCA 49; 244 CLR 462 Jimmy v The Queen [2010] NSWCCA 60; 77 NSWLR 540 Munda v Western Australia [2013] HCA 38; 249 CLR 600 R v Engert (1995) 84 A Crim R 67 R v Fuller-Cust [2002] VSCA 168; 6 VR 496 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Holder [1983] 3 NSWLR 245 R v Massey (No 3) [2021] ACTSC 156 R v Todd [1982] 2 NSWLR 517 R v Veen (No 2) (1988) 164 CLR 465 R v Williams-Savage [2021] ACTSC 271
Parties:	The Queen (Crown) Peter James Robertson (Offender)
Representation:	Counsel D Swan (Crown) D Berents (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Boxall Legal (Offender)
File Numbers:	SCC 56 of 2021; SCC 249 of 2021

NORRISH AJ:

The offender, Peter James Robertson, appears today for sentence in relation to two offences. The principal offence is an offence of theft. This is an offence brought pursuant to s 308 of the Criminal Code 2002 (ACT) (the Code), by virtue of s 45A of the Code, I am informed. In this court, it carries a maximum penalty of 10 years’ imprisonment and/or a fine of $160,000. However, it would appear to me to be agreed that, but for various reasons that have been explained from the bar table, if dealt with promptly, the matter would have been dealt with in the Magistrates Court.

The second offence is called a ‘transferred offence’, which I understand to be an offence transferred to this jurisdiction, ordinarily to be dealt with in the Magistrates Court. This is an offence of common assault. It is an offence related to and, in fact, intimately connected to the facts of the theft. Common assault, pursuant to s 26 of the Crimes Act 1900 (ACT), carries a maximum penalty of two years’ imprisonment. The offender has been in custody for a period of time unrelated to the specific matters with which I am concerned. It has not been submitted that there is any time in custody that I should take into account previously served directly related to this matter.

But notwithstanding the fact the offender is subject to various sentencing…

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 Robertson

Details

AGLC: R v Robertson [2022] ACTSC 34
Case: [2022] ACTSC 34
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, Peter James Robertson was sentenced for theft and common assault. The primary offence was theft, punishable by up to 10 years imprisonment and/or a fine of $160,000, while the transferred offence of common assault carried a maximum penalty of two years imprisonment. The court considered the offender's lengthy criminal history, the differing roles of the offender and his co-offender in the commission of the offence, and the relevance of Bugmy principles due to the offender being a First Nation's person. The court also considered the low level of objective seriousness of the offending and the delay in sentencing.

The court found that while the offender's background and drug usage were relevant factors, they were not significant in determining the appropriate sentence for the offending. The court considered the offender's disadvantaged background, criminal history, and prospects of rehabilitation in arriving at a sentence. The court imposed a sentence of six months imprisonment for the theft offence, reduced from eight months, and a sentence of three months imprisonment for the assault offence, reduced from four months. The sentences were partly concurrent and partly accumulative upon the current non-parole period, extending the minimum time the offender would spend in custody by almost a month. The court also directed no action in relation to breaches of good behaviour orders.

Orders