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R v Rusan

R v Rusan

Case [2022] ACTSC 119 25 May 2022

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Rusan
Citation:	[2022] ACTSC 119
Hearing Date:	25 May 2022
DecisionDate:	25 May 2022
Before:	Norrish AJ
Decision:	See [134]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – common assault – forcible confinement – where offender pleaded guilty – offences committed in family violence context – some evidence of contrition – no previous convictions – no physical or mental health issues – offender has demonstrated capacity for rehabilitation – importance of giving effect to the totality of criminality – convictions recorded – good behaviour order imposed – suspended sentence imposed
Legislation Cited:	Crimes Act 1900 (ACT), s 34 Crimes (Sentencing) Act 2005 (ACT), ss 7, 33, 34B, 35 Family Violence Act 2016 (ACT), preamble
Cases Cited:	Cranfield v The Queen [2018] ACTCA 3 Dawson v The Queen [2019] ACTCA 9 Director of Public Prosecutions v Dalgleish (a pseudonym) [2017] HCA 41 Laipato v The Queen [2020] ACTCA 35 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mill v The Queen (1998) 166 CLR 59 Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v Barbour (Unreported, Supreme Court of the ACT, Burns J, 20 November 2013) R v East [2015] ACTSC 54 R v Eimerl [2015] ACTSC 72 R v Klickovic [2018] ACTSC 141 R v Laipato [2019] ACTSC 386 R v Rogers [2014] ACTSC 124 R v Williams [2016] ACTSC 389 R v Zamagias [2002] NSWCCA 17 Singh v The Queen [2017] ACTCA 17 Twerd v Holmes [2010] ACTSC 55 Veen v The Queen (No 2) [1998] HCA 14; 164 CLR 465 Wong v The Queen [2001] HCA 64; 207 CLR 548
Parties:	The Queen ( Crown) Michael Rusan ( Offender)
Representation:	Counsel K Lee ( Crown) M Kukulies-Smith ( Offender)
Solicitors ACT Director of Public Prosecutions ( Crown) Kamy Saeedi Law ( Offender)
File Numbers:	SCC 197 of 2021 SCC 198 of 2021

NORRISH AJ:

Introduction

Michael Juraj Rusan appears today for sentence in relation to three offences to which he pleaded guilty to on indictment. Those three offences are, firstly, in count one an offence of assault committed upon the victim, who I will not name, on 27 October 2017.

A second assault upon the victim committed on 24 November 2017 and a third count alleging that the offender unlawfully confined the victim on 8 July 2018. All offences occurring in Canberra. Each of the assault matters carries a maximum penalty of 10 years and the offence of unlawful confinement, I am informed, pursuant to s 34 of the Crimes Act 1900 (ACT) carries a maximum penalty of 10 years.

The matters proceeded with great assistance from the counsel. I have had a Crown bundle tendered and a bundle from the defence which I will deal with shortly. I have had oral evidence from the offender, although no evidence in reply from the Crown. Of course, I have had helpful…

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 Rusan

Details

AGLC: R v Rusan [2022] ACTSC 119
Case: [2022] ACTSC 119
Decision Date: 25 May 2022

CaseChat Overview and Summary

The case of R v Rusan involved a defendant who pleaded guilty to charges of common assault and forcible confinement. These offences were committed within a context of family violence. The matter was heard in a court with jurisdiction over criminal matters. The court had to determine an appropriate sentence, considering the totality of the offender's criminal conduct, the circumstances of the offences, and the offender's potential for rehabilitation. The court also had to weigh the evidence of contrition presented and the offender's background, including the absence of prior convictions and any physical or mental health issues.

The primary legal issue before the court was to decide a sentence that appropriately reflected the seriousness of the offences, while also taking into account the mitigating factors. The court had to balance the need to hold the offender accountable with the opportunity to facilitate the offender's rehabilitation and deter future offending. The court also considered the impact of the offences on the victim and the importance of upholding the rule of law. In assessing the sentence, the court was guided by the principles of proportionality, deterrence, and rehabilitation.

The court concluded that, while the offences were serious, there were mitigating factors present, including the offender's demonstrated capacity for rehabilitation and some evidence of contrition. The court recognised the importance of giving effect to the totality of the offender's criminality, which included the context of family violence. Consequently, the court decided to impose a good behaviour order and a suspended sentence. This decision was aimed at addressing the offender's criminal conduct while providing an opportunity for rehabilitation and deterrence of future offending.

The final orders of the court included recording the convictions for the offences of common assault and forcible confinement. Additionally, the court imposed a good behaviour order on the offender and a suspended sentence, reflecting the court's considerations of the totality of the criminality, the mitigating factors, and the importance of rehabilitation and deterrence.

Orders

Orders of the court

See [134]

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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Citations

R v Rusan [2022] ACTSC 119

Cases Citing This Decision

No citing cases yet.

Cases Cited

Laipato v The Queen [2020] ACTCA 35
Citation 1 (Para 1)

…n the circumstances where the offender had a significant criminal history. However, counsel referred me to the appeal decision of Laipato v The Queen [2020] ACTCA 35. It is to be noted in that matter the offender had pleaded not guilty and the appeal matter was in relation to both conviction and sentence. The conv…
R v Laipato [2019] ACTSC 386
Citation 2 (Para 1)

…The Crown did refer me to a single judge's judgment in the matter of R v Laipato [2019] ACTSC 386. That offender was convicted not only of unlawful confinement but of a choking offence and of a burglary offence where the offender, according to the Crown's summary choked the victim 'multiple times' and said at one p…
Dawson v The Queen [2019] ACTCA 9
Citation 3 (Para 1)

…ford a degree of concurrency and accumulation and I note what was said by the Court of Criminal Appeal that the Crown has cited in Dawson v The Queen [2019] ACTCA 9 ( Dawson ), particularly at [37].…
R v Klickovic [2018] ACTSC 141
Citation 4 (Para 1)

…ted of other offending. For the confinement offence he was sentenced to 12 months' imprisonment which was suspended. In the decision of R v Klickovic [2018] ACTSC 141 that case involved an offender who confined the victim on two occasions motivated by a desire to protect their child from the victim's drug affected…
Cranfield v The Queen [2018] ACTCA 3
Citation 5 (Para 1)

…as I have in a number of judgments I have already given in this jurisdiction, what the Court of Appeal said in the decision of Cranfield v The Queen [2018] ACTCA 3, particularly at [37]‑[38].…
Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41
Citation 6 (Para 1)

…ave regard to contemporary sentencing practices. The Crown cites the High Court judgment of Director of Public Prosecutions v Dalgleish (a pseudonym) [2017] HCA 41, and I will come back to the comparative cases shortly. As to the common assault offences, I have set out the facts of the matter quite clearly and r…
Singh v The Queen [2017] ACTCA 17
Citation 7 (Para 1)

…posedly 'comparative cases' to the circumstances of the case at bar. That court, in its judgment, referred to two comparative cases Singh v The Queen [2017] ACTCA 17 ( Singh ) and R v Rogers [2014] ACTSC 124 ( Rogers ). I have noted in relation to the various sentences imposed in comparative cases the starting poi…
R v Eimerl [2015] ACTSC 72
Citation 8 (Para 1)

…The Crown referred me to the decision of the R v Eimerl [2015] ACTSC 72, there the confinement was for a period of two hours. The victim feared the offender might kill her which, in my view, cannot realistically be concluded in this matter. The offender had a 'long criminal history including convictions for offenc…
R v East [2015] ACTSC 54
Citation 9 (Para 1)

…istory are not comparable to the current case in a range of ways. Likewise, in other authorities cited by the Crown, such as the decision of R v East [2015] ACTSC 54, the confinement in that matter was for five hours. The offender was subject to a suspended sentence order at the time of the offending as well as a…
R v Rogers [2014] ACTSC 124
Citation 10 (Para 1)

…stances of the case at bar. That court, in its judgment, referred to two comparative cases Singh v The Queen [2017] ACTCA 17 ( Singh ) and R v Rogers [2014] ACTSC 124 ( Rogers ). I have noted in relation to the various sentences imposed in comparative cases the starting point of the sentences. In that particular ma…
Twerd v Holmes [2010] ACTSC 55
Citation 11 (Para 1)

…ictim was an ex-girlfriend forced into a car and driven to another house against her will and confined for approximately two hours ( Twerd v Holmes ) [2010] ACTSC 55).…
Markarian v The Queen [2005] HCA 25
Citation 12 (Para 1)

…eals with various matters that I have taken into account: the relevance of the maximum penalties, as discussed, for example, in Markarian v The Queen [2005] HCA 25; 228 CLR 357, the plea history, the subjective circumstances of the offending and the objective seriousness of the offences.…
R v Zamagias [2002] NSWCCA 17
Citation 13 (Para 1)

…ed upon an offender in respect of a matter called for sentence. Such a case, for example, is the decision Howie J in 2002 in the case of R v Zamagias [2002] NSWCCA 17 where his Honour, at length, discussed the importance of a formal order of a term of imprisonment being imposed on an offender.…
Wong v The Queen [2001] HCA 64
Citation 14 (Para 1)

…ences, recognising that there are a vast variety of circumstances to be taken into account. Sentencing is, as the High Court said in Wong v The Queen [2001] HCA 64; 207 CLR 548, 'not a precise mathematical exercise'.…
Pearce v The Queen [1998] HCA 57
Citation 15 (Para 1)

…tion to ‘totality’, reflecting upon Professor Thomas' discussion of the matter in his learned work on sentencing from England. Pearce v The Queen [1998] HCA 57; 194 CLR 610 ( Pearce ), particularly at [45], is a leading case which has actually fundamentally changed sentencing throughout the Commonwealth of Austr…
Johnson v American Home Assurance Co [1998] HCA 14
Citation 16 (Para 1)

…As the High Court in Veen v The Queen (No 2) [1998] HCA 14; 164 CLR 465 in 1988 said about the purposes of sentencing, where the majority identified four of the seven that now appear in s 7, they are ‘guideposts’ that sometimes point in ‘opposing directions’. In relation to his oral submissions, putting aside th…
Mill v The Queen [1988] HCA 70
Citation 17

…cutions v Dalgleish (a pseudonym) [2017] HCA 41 Laipato v The Queen [2020] ACTCA 35 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mill v The Queen (1998) 166 CLR 59 Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v Barbour (Unreported, Supreme Court of the ACT, Burns J, 20 November 2013) R v East [2015] ACTSC 54…
Veen v The Queen (No 2) [1988] HCA 14
Citation 18 (Para 1)

…As the High Court in Veen v The Queen (No 2) [1998] HCA 14; 164 CLR 465 in 1988 said about the purposes of sentencing, where the majority identified four of the seven that now appear in s 7, they are ‘guideposts’ that sometimes point in ‘opposing directions’. In relation to his oral submissions, putting aside…

Legislation Cited

Crimes (Sentencing) Act 2005 (ACT) 33, 34B, 35, 7
5 mentions (from Para 1)
Crimes Act 1900 (ACT) 34
2 mentions (from Para 1)
Crimes (Sentence Administration) Act 2005 (ACT)
1 mention
Family Violence Act 2016 (ACT)
1 mention (from Para 1)