R v Seears - [2015] ACTSC 109

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Seears
Citation:	[2015] ACTSC 109
Hearing Dates:	22 and 23 April 2015
DecisionDate:	23 April 2015
Before:	Murrell CJ
Decision:	Sentenced to three years and one month imprisonment with a non-parole period of 18 months.
Category:	Sentence
Catchwords:	CRIMINAL LAW – Sentence – aggravated burglary – assault occasioning actual bodily harm – damage property – specific deterrence – general deterrence
Legislation Cited:	Crimes Act 1900 (ACT) s 24 Crimes (Sentencing) Act 2005 (ACT) ss 7, 33, 35 Criminal Code 2002 (ACT) ss 312, 403
Cases Cited:	R v Lindley-Jones [2014] ACTSC 296 R v Minnis [2014] ACTSC 268
Parties:	The Queen (Crown) Gregory Bernard Seears (Offender)
Representation:	Counsel Ms A Jamieson-Williams (Crown) Mr A Doig (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Darryl Perkins Solicitors (Offender)
File Number:	SCC 114 of 2013

Murrell CJ:

The Offence

The offender entered a late plea of guilty to the offence that, on 26 May 2013, he committed an offence of aggravated burglary (he was armed and intended to cause harm to someone), contrary to s 312 of the Criminal Code 2002 (ACT) (the Criminal Code). The maximum penalty is 20 years' imprisonment and/or a fine of $300,000.

In sentencing the offender, I have been asked to take into account the additional offences:

(a)Intentionally cause damage to property (the act of breaking the victim’s bedroom window), contrary to s 403 of the Criminal Code.
(b)Assault occasioning actual bodily harm (to the victim of the burglary), contrary to s 24 of the Crimes Act 1900 (ACT).

The offender has spent two months and 28 days in custody. He was released to bail and has been on bail since August 2013.

The plea of guilty was entered five days before the trial was fixed for the third occasion. Given the history of the matter and the strength of the Crown case, pursuant to s 35 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), a discount of about 10% is appropriate.

Background to the Subject Offences

The offender married S in 1972. The couple was divorced in 1978. In 1979, they resumed cohabitation and lived together reasonably amicably for many years thereafter. They had three sons, who are now adults. In the late 1990s, there was an incident, described by the offender as infidelity, on the part of S. The offender volunteered in evidence that he used intimidation to break up that relationship.

The offender said that, some time before the subject offence, he joined the Rebels Motorcycle Gang, purely for the purpose of enjoying motorcycle riding. He remained a member until 2013. His membership of the Gang placed a considerable strain on his relationship with S because he devoted a lot of time to the Gang's activities.

As a consequence of fractures in the relationship, in March/April 2013, S left the offender and moved out of the home. It is the offender's understanding that, by that stage, S…

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 Seears

Details

AGLC: R v Seears [2015] ACTSC 109
Case: [2015] ACTSC 109
Decision Date: 23 April 2015

CaseChat Overview and Summary

In the Supreme Court of Queensland, the case of R v Seears involved the defendant, Seears, who was charged with aggravated burglary, assault occasioning actual bodily harm, and damage to property. The prosecution alleged that Seears entered a residence unlawfully, assaulted the occupant, and caused damage to the property. The court was required to determine the appropriate sentence for Seears, taking into account the seriousness of the offence, the need for specific and general deterrence, and the circumstances surrounding the incident.

The legal issues before the court included the assessment of the gravity of the offences, the factors that contributed to the commission of the crime, and the appropriate balance between punitive and rehabilitative elements of the sentence. The court needed to consider the principles of sentencing for aggravated burglary, assault occasioning actual bodily harm, and property damage, as well as the objectives of sentencing in general.

The court found that the offences committed by Seears were of significant gravity, particularly given the use of violence and the invasion of the victim's home. The court emphasised the importance of specific deterrence, to prevent Seears from reoffending, and general deterrence, to discourage others from committing similar crimes. In assessing the circumstances, the court took into account Seears' background, including his previous criminal history, and the mitigating factors presented by his legal representation. Ultimately, the court sentenced Seears to three years and one month imprisonment, with a non-parole period of 18 months. This sentence aimed to adequately address the seriousness of the offences while also providing an opportunity for Seears to be rehabilitated and reintegrated into society.

Orders

Orders of the court

Sentenced to three years and one month imprisonment with a non-parole period of 18 months.

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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