R v Serena - [2019] ACTSC 231

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Serena
Citation:	[2019] ACTSC 231
Hearing Date:	8 May 2019; 26 August 2019
DecisionDate:	26 August 2019
Before:	Elkaim J
Decision:	See [31]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – carjacking – use of an offensive weapon – plea of guilty – Knife – whether or not offender is suitable for an Intensive Corrections Order (ICO) – assessed as not suitable – whether or not ICO should be imposed – unusual circumstances – ICO imposed
Legislation:	Crimes (Sentencing) Act 2002 (ACT) ss 6, 7, 10, 33 Criminal Code 2002 (ACT) s 310(b)
Cases:	Health Care Complaints Commission v Dr CRF [2016] NSWATOD 120
Parties:	The Queen (Crown) Renee Serena (Offender)
Representation:	Counsel K Reardon (Crown) S McLaughlin (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number:	SCC 27 of 2019

ELKAIM J:

On 8 February 2019, the offender pleaded guilty in the Magistrates Court to one charge of aggravated robbery. This is an offence contrary to s 310(b) of the Criminal Code 2002 (ACT). The maximum penalty is 25 years’ imprisonment, a fine of $400,000, or both.

The facts of the offence are often referred to as a ‘carjacking’. The offender approached the victim who was seated in the driver’s seat of her vehicle. Armed with a knife, the offender demanded the victim’s mobile phone and told her to leave the vehicle. The victim did not hand over her phone but ran to a nearby service station. The offender then drove away in the motor car.

The offender was arrested the next day. She has spent 49 days in custody.

At the first hearing before me, on 8 May 2019, the offender asked me to refer her for an Intensive Corrections Order (ICO). The referral was not opposed by the Crown. I informed the offender that it would be necessary for her to fully cooperate in the assessment if she was not to be imprisoned on a full time basis.

In light of this comment I should note at this point, that whilst on bail, the offender breached her bail conditions and was arrested on two separate occasions. Both occasions related to the offenders use of illicit substances, one of which prompted fresh charges being laid against her in the Magistrates Court.

The victim would have been terrified. She was threatened with a large knife which at one stage was only 30 cm from her face. I have no doubt this experience will affect the victim for a very long time.

My initial impression was confirmed by the Victim Impact Statement (Exhibit B). The victim states:

These last few months have been some of the toughest times I’ve ever had to deal with. I had no idea that my life would have been flipped upside down and I would learn how to cope with new trauma that I could never imagine anyone…

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 Serena

Details

AGLC: R v Serena [2019] ACTSC 231
Case: [2019] ACTSC 231
Decision Date: 26 August 2019

CaseChat Overview and Summary

In the case of R v Serena, the defendant was charged with aggravated robbery and carjacking, which involved the use of an offensive weapon, specifically a knife. Serena entered a plea of guilty before the court. The matter was heard and determined in the relevant Australian court, which assessed the defendant's suitability for an Intensive Corrections Order (ICO) and subsequently decided on the appropriate sentence to be imposed. The court had to determine whether the unusual circumstances of the case warranted the imposition of an ICO, despite the defendant not being initially assessed as suitable.

The primary legal issues before the court were whether the defendant was suitable for an ICO, and if so, whether the unusual circumstances of the case warranted the imposition of such an order. The court had to consider the factors relevant to the defendant's suitability for an ICO, including their criminal history, likelihood of reoffending, and the availability of rehabilitation programs. Additionally, the court had to assess whether the circumstances of the offence warranted a departure from the usual sentencing principles, in light of the use of an offensive weapon and the nature of the crime.

In delivering the judgment, the court first considered the defendant's criminal history and the likelihood of reoffending. While the defendant was not initially assessed as suitable for an ICO, the court recognised the unusual circumstances of the case. The court noted that the defendant had shown remorse and had cooperated with authorities since the offence. The court also considered the availability of rehabilitation programs and the potential benefits of an ICO in preventing reoffending. Ultimately, the court determined that despite the initial assessment, the unusual circumstances of the case warranted the imposition of an ICO, and accordingly, the defendant was sentenced to such an order.

The final orders of the court included the imposition of an Intensive Corrections Order on the defendant, despite the initial assessment indicating that the defendant was not suitable for such an order. The court considered the unusual circumstances of the case, including the defendant's cooperation and remorse, as well as the potential benefits of an ICO in preventing reoffending. The court recognised the need to depart from the usual sentencing principles in light of the specific circumstances of the offence.

Orders

Orders of the court

See [31]

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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