R v Serena (No 2) - [2020] ACTSC 99

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Serena (No 2)
Citation:	[2020] ACTSC 99
Hearing Date:	24 April 2020
DecisionDate:	24 April 2020
Before:	Elkaim J
Decision:	See [23]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – previous offences – cancellation by the Sentence Administration Board of Intensive Corrections Order – aggravated burglary – common assault – unavailability of residential rehabilitation
Legislation Cited:	Crimes Act 1900 (ACT) s 26 Criminal Code 2002 (ACT) s 310
Cases Cited:	R v Serena [2019] ACTSC 231
Parties:	The Queen (Crown) Renee Serena (Offender)
Representation:	Counsel M Howe (Crown) S McLaughlin (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number:	SCC 43 of 2020

ELKAIM J:

On 28 February 2020 the offender pleaded guilty to two offences in the Magistrates Court. She was committed to this Court for sentencing.

The two offences and their maximum penalties are:

(a)Attempt aggravated robbery using force (CC2019/10443), contrary to s 310 of the Criminal Code 2002 (ACT). The maximum penalty is 25 years’ imprisonment, a fine of $400,000 or both; and
(b)Common assault (CC2019/10444), contrary to s 26 of the Crimes Act 1900 (ACT). The maximum penalty is 2 years’ imprisonment.

Although the Crown case is strong, the offender is still entitled to a discount for her pleas of guilty, which I assess at 20%.

The facts are set out in the Statement of Facts. In summary, on 23 September 2019, the offender entered the kitchen of a hotel restaurant in Ainslie. A chef noticed the offender take a loaf of bread and the chef’s phone. The chef confronted the offender. The offender took hold of a butcher’s knife and said to the chef: “You are not having your phone: you’re not having your phone. Are you a Commanchero?”.

The chef rejected any association to the motorcycle gang and requested the return of her phone. The chef moved away from the offender and into the lobby of the hotel. The offender followed her but then went outside and started to smoke a cigarette.

The chef told the manager what had occurred. The manager called the police. The chef went back to the kitchen. The offender reappeared and demanded the chef’s phone (which must have been returned to her possession). The offender said to the chef: “If you don’t give me your phone you’re going to die”. The offender then tried to stab the chef who fortunately was able to grab the offender’s arms as a means of defence. The knife touched the chef’s arms and stomach but left only a small puncture wound to an arm.

A struggle ensued, resulting in the chef being on her back over the kitchen bench. The chef called for help and was assisted by a hotel guest. The chef and the guest wrestled with the offender and managed to relieve her of the knife. Despite her resistance the offender was overpowered and moved into the…

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 (No 2)

Details

AGLC: R v Serena (No 2) [2020] ACTSC 99
Case: [2020] ACTSC 99
Decision Date: 24 April 2020

CaseChat Overview and Summary

The case of R v Serena (No 2) involves the defendant, Serena, who was previously convicted of aggravated burglary and common assault. The dispute pertains to the defendant's sentence, specifically the cancellation of an Intensive Corrections Order (ICO) by the Sentence Administration Board. The case was heard in a court that has jurisdiction over criminal matters.

The legal issues the court was required to address included the authority of the Sentence Administration Board to cancel an ICO, and the availability of alternative sentencing options such as residential rehabilitation. The court needed to determine whether the Board's decision to cancel the ICO was lawful and whether alternative sentencing options were available that could be considered more appropriate for the defendant.

The court found that the Sentence Administration Board had the authority to cancel the ICO as it was empowered to review and modify sentences under the relevant legislation. The court further determined that the Board's decision to cancel the ICO was justified due to the defendant's failure to comply with the conditions of the order. Regarding alternative sentencing options, the court found that residential rehabilitation was not available to the defendant due to existing conditions and resources. Consequently, the court upheld the Board's decision to cancel the ICO and confirmed the original sentence imposed on the defendant.

The final orders of the court were that the decision of the Sentence Administration Board to cancel the ICO was affirmed, and the defendant's original sentence was upheld.

Orders

Orders of the court

See [23]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.