R v Robertson (No. 2) - [2016] ACTSC 65

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Robertson (No. 2)
Citation:	[2016] ACTSC 65
Hearing Dates:	18 February, 17 March, 20 April, 21 May, 11 November and 12 November 2015, 24 February and 31 March 2016
DecisionDate:	5 April 2016
Before:	Refshauge J
Decision:	1. The convictions of Michael John Robertson of four counts of aggravated burglary and theft entered on 1 November 2012 be confirmed. 2. Michael John Robertson is re-sentenced for those offences. 3. For the offence of aggravated burglary on 15 November 2010 (CC 11/9043), Michael John Robertson is sentenced to three years imprisonment to commence on 31 May 2014 to take into account pre-sentence custody. 4. On the charge of theft on 23 January 2011 (CC 11/9289), Michael John Robertson is sentenced to twelve months imprisonment to commence on 1 December 2016, that is to be cumulative as to six months on the sentence for aggravated burglary committed on 15 November 2010. 5. For the offence of aggravated burglary on 6 February 2011 (CC 11/9046), Michael John Robertson is sentenced to three years imprisonment, to commence on 31 January 2016, that is, to be cumulative as to fourteen months on the sentence for theft committed on 23 January 2011. 6. For the offence of aggravated burglary on 26 February 2011 (11/9049), Michael John Robertson is sentenced to three years imprisonment to commence on 31 March 2017, that is to be cumulative as to fourteen months on the sentence for aggravated burglary committed on 6 February 2011. 7. For the offence of aggravated burglary on 26 January 2011 (11/10037), Michael John Robertson is sentenced to three years imprisonment to commence on 31 May 2018, that is to be cumulative as to fourteen months on the sentence for the aggravated burglary committed on 26 February 2011. 8. The sentence is suspended today, 5 April 2016, for three years. 9. Michael John Robertson is required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of three years with the following conditions: a. A probation condition that he be under the supervision of the Director-General or her delegate for 2 years or such lesser period as the person supervising him considers to be appropriate and that he obey all reasonable directions of the person supervising him, especially as to drug and alcohol treatment and counselling and mental health treatment and counselling; b. That he perform 500 hours of community service work within two years. 10. Michael John Robertson report to Eclipse House, London Circuit, Canberra City by 4:00pm today, 5 April 2016. 11. It is recommended, for the consideration of the person supervising Michael John Robertson that, amongst the treatment he may be directed to attend, the following be included: continued counselling with SAMSSA, counselling at Directions, particularly attendance of and completion of the Smart Recovery Program, and continued attendance at Alcoholics Anonymous and Narcotics Anonymous.
Catchwords:	CRIMINAL LAW – JURISDICTION,…

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 (No. 2)

Details

AGLC: R v Robertson (No. 2) [2016] ACTSC 65
Case: [2016] ACTSC 65
Decision Date: 5 April 2016

CaseChat Overview and Summary

The Court heard an appeal by Michael John Robertson against his convictions and sentences for four counts of aggravated burglary and theft. The appeal was referred to the court by the Sentence Administration Board, following Robertson's failure to attend and complete periodic detention, due to mental health issues. The court was required to decide whether the original sentences were appropriate and whether resentencing was warranted, taking into consideration Robertson's mental health problems, including post-traumatic stress disorder, chronic anxiety, depression, and drug addiction.

The court confirmed Robertson's convictions and determined that resentencing was necessary. It found that the original sentences were not appropriate due to Robertson's mental health issues, which prevented him from attending and completing periodic detention. The court noted that the original sentences did not take into account Robertson's rehabilitation needs and the potential for treatment to address his mental health and drug addiction issues. The court also considered the recommendations of the Sentence Administration Board and the need for Robertson to comply with good behaviour obligations and undertake community service work.

The court re-sentenced Robertson for the four counts of aggravated burglary and theft, ordering that the sentences be cumulative. The court suspended the sentence for three years, subject to Robertson complying with the good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT). The court also ordered that Robertson be under the supervision of the Director-General or her delegate for two years, with conditions including drug and alcohol treatment, mental health treatment, and 500 hours of community service work within two years. The court recommended that Robertson attend continued counselling with SAMSSA, counselling at Directions, and continue attending Alcoholics Anonymous and Narcotics Anonymous.

The court ordered that Robertson report to Eclipse House, London Circuit, Canberra City by 4:00pm on 5 April 2016. The court's orders confirm Robertson's convictions, re-sentence him for the offences, and require him to comply with good behaviour obligations and undertake community service work, with recommendations for treatment to address his mental health and drug addiction issues.

Orders

Orders of the court

1. The convictions of Michael John Robertson of four counts of aggravated burglary and theft entered on 1 November 2012 be confirmed.

2. Michael John Robertson is re-sentenced for those offences.

3. For the offence of aggravated burglary on 15 November 2010 (CC 11/9043), Michael John Robertson is sentenced to three years imprisonment to commence on 31 May 2014 to take into account pre-sentence custody.

4. On the charge of theft on 23 January 2011 (CC 11/9289), Michael John Robertson is sentenced to twelve months imprisonment to commence on 1 December 2016, that is to be cumulative as to six months on the sentence for aggravated burglary committed on 15 November 2010.

5. For the offence of aggravated burglary on 6 February 2011 (CC 11/9046), Michael John Robertson is sentenced to three years imprisonment, to commence on 31 January 2016, that is, to be cumulative as to fourteen months on the sentence for theft committed on 23 January 2011.

6. For the offence of aggravated burglary on 26 February 2011 (11/9049), Michael John Robertson is sentenced to three years imprisonment to commence on 31 March 2017, that is to be cumulative as to fourteen months on the sentence for aggravated burglary committed on 6 February 2011.

7. For the offence of aggravated burglary on 26 January 2011 (11/10037), Michael John Robertson is sentenced to three years imprisonment to commence on 31 May 2018, that is to be cumulative as to fourteen months on the sentence for the aggravated burglary committed on 26 February 2011.

8. The sentence is suspended today, 5 April 2016, for three years.

9. Michael John Robertson is required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of three years with the following conditions:

a. A probation condition that he be under the supervision of the Director-General or her delegate for 2 years or such lesser period as the person supervising him considers to be appropriate and that he obey all reasonable directions of the person supervising him, especially as to drug and alcohol treatment and counselling and mental health treatment and counselling;

b. That he perform 500 hours of community service work within two years.

10. Michael John Robertson report to Eclipse House, London Circuit, Canberra City by 4:00pm today, 5 April 2016.

11. It is recommended, for the consideration of the person supervising Michael John Robertson that, amongst the treatment he may be directed to attend, the following be included: continued counselling with SAMSSA, counselling at Directions, particularly attendance of and completion of the Smart Recovery Program, and continued attendance at Alcoholics Anonymous and Narcotics Anonymous.

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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