R v Sikounnabouth - [2018] ACTSC 296

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Sikounnabouth
Citation:	[2018] ACTSC 296
Hearing Date:	29 August 2018
DecisionDate:	26 October 2018
Before:	Loukas-Karlsson J
Decision:	See [44].
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – burglary – theft – custodial sentence – offences committed whilst on conditional liberty.
Legislation Cited:	Criminal Code 2002 (ACT) ss 308, 311 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33
Cases Cited:	Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Bandy [2018] ACTSC 261 R v Booth [2016] ACTSC 365 R v Coogan [2017] ACTSC 238 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Lockwood [2018] ACTSC 288 R v Martin [2017] VSCA 291; 20 VR 14 R v Meyboom [2012] ACTCA 48 R v Parker [2018] ACTSC 55 Smith v The Queen [2011] NSWCCA 163 Veen v The Queen(No 2) (1988) 164 CLR 465 Zdravkovic v The Queen [2016] ACTCA
Parties:	The Queen (Crown) Phouthakone Sikounnabouth (Offender)
Representation:	Counsel Mr M Howe (Crown) Mr J Sabharwal (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal on London (Offender)
File Numbers:	SCC 32 of 2018

LOUKAS-KARLSSON J

Introduction

On 25 May 2018, Phouthakone Sikounnabouth (the offender) pleaded guilty to an offence of burglary with intent to commit theft of any property in the building per section 311 of the Criminal Code 2002 (ACT), and an offence of theft per section 308 of the Criminal Code 2002 (ACT).

The maximum penalty for an offence of burglary is 14 years imprisonment, a fine of $210,000, or both. The maximum penalty for an offence of theft is 10 years imprisonment, a fine of $150,000, or both.

Agreed Facts

The agreed facts are set out in the Crown Tender Bundle, which forms Exhibit 1. The facts in summary follow.

At about 2:45pm on 28 June 2017, the victim secured his house in Nicholls, before leaving in his car to pick up his children from school.

At some time between 2:45pm and 3:05pm the offender arrived at the house in a black VT Commodore and parked on the grass verge next door. The offender went to the back of the house and forced entry via a rear glass door. As a result the locking mechanism and metal frame were damaged.

At about 3:05pm, the victim returned with his children. He noticed the black Commodore, and that the car did not have any registration plates and all four windows were down.

The victim parked to the side of the garage, opened the roller door, and entered the house through an internal door. Once inside, the victim’s children told him there were a number of items scattered throughout the front foyer. The victim approached and saw the front door was wide open. At about this time, the victim…

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.

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Details

Case: [2018] ACTSC 296
Decision Date: 26 October 2018

CaseChat Overview and Summary

The case before the court involved the appellant, Sikounnabouth, who was charged with several offences, including burglary and theft, committed while he was on conditional liberty. The Crown sought a custodial sentence, arguing that the appellant's history of criminal activity and the gravity of the current offences warranted imprisonment. The court was tasked with determining the appropriate sentence for the appellant, considering his circumstances and the nature of the offences.

The legal issues before the court included whether the appellant's criminal history and the seriousness of the current offences justified a custodial sentence, and if so, what the appropriate length of the sentence should be. The court had to weigh the appellant's background, including his previous convictions and the circumstances of the current offences, against the principles of sentencing and the need to deter future criminal behaviour.

The court found that the appellant's criminal history, coupled with the seriousness of the current offences, warranted a custodial sentence. The court considered the appellant's repeated breaches of his conditional liberty and his failure to comply with court orders as significant factors in the sentencing decision. The court determined that a sentence of imprisonment was necessary to protect the community and to deter the appellant from reoffending. After considering the totality of the circumstances, the court sentenced the appellant to a term of imprisonment, with specific details provided in the judgment.

The final orders included the sentence imposed on the appellant, with specific details regarding the length of the custodial sentence and any conditions that applied. The court's decision was based on a comprehensive assessment of the appellant's criminal history, the nature of the current offences, and the need to ensure public safety and deterrence. The court's reasoning was grounded in the principles of sentencing, ensuring that the sentence was proportionate to the offences committed and reflected the appellant's repeated failure to adhere to legal obligations.

Orders

Orders of the court

See [44].

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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