R v So - [2014] ACTSC 316

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v SO
Citation:	[2014] ACTSC 316
Hearing Date(s):	31 October and 14 November 2014
DecisionDate:	14 November 2014
Before:	Murrell CJ
Decision:	Conviction recorded. Sentenced to 13 months and two weeks’ imprisonment, suspended upon entering into a two year good behaviour order.
Category:	Sentence
Catchwords:	CRIMINAL LAW – Sentence – early guilty plea – cause grievous bodily harm by negligent act – harm to infant – suspended sentence – good behaviour order – discount of 25% for early guilty plea
Legislation Cited:	Crimes (Sentencing) Act2005 (ACT) ss , 7, 12 33, 35 Crimes Act1900 (ACT) s 25
Cases Cited:	Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 Monfries v The Queen [2014] ACTCA 46 Muldrockv The Queen (2011) 244 CLR 120 R v Verdins (2007) 16 VR 269
Parties:	The Queen (Crown) SO (Offender)
Representation:	Counsel Mr M Fernandez (Crown) Mr J Pappas (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Ben Aulich & Associates (Offender)
File Number(s):	SCC 22 of 2013

MURRELL CJ:

Introduction

The offender was committed for trial on the offence that between 3 and 28 December 2010 he recklessly inflicted grievous bodily harm on his daughter, B. When he appeared for trial on 2 September 2014, the Crown accepted a plea of guilty to the alternative offence (charged ex officio) that between 3 and 28 December 2010 the offender caused grievous bodily harm to his daughter by a negligent act.

At the relevant time, an offence against s 25 of the Crimes Act1900 (ACT) (Crimes Act) carried a maximum available penalty of 2 years’ imprisonment. It is now five years’ imprisonment. The offence with which the offender was originally charged carried a significantly higher maximum penalty.

The Crown’s acceptance of the plea to the lesser charge in full satisfaction of the indictment is a practical acknowledgement of the unique factors (primarily relating to the offender’s mental condition) that are present in this case.

In the Magistrates Court, there were discussions about the possibility that the offender would plead guilty to a lesser charge. The offender pleaded guilty as soon as the Crown indicated that it was prepared to proceed under s 25 of the Crimes Act. The Crown agreed that the offender had pleaded guilty at the first opportunity. The offender will receive a discount of 25% to recognise the utilitarian value of the plea and the other considerations under s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).

The facts

The offender was 19 years old at the time of the offence. He had no prior experience with infants.

The accused and R were in a de facto relationship. R became pregnant to the offender. In late 2010, R gave birth to B at the Canberra Hospital. Two days later, R and B were discharged from hospital. Thereafter, the offender, R and B resided at the home of…

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 So

Details

AGLC: R v So [2014] ACTSC 316
Case: [2014] ACTSC 316
Decision Date: 14 November 2014

CaseChat Overview and Summary

The defendant, So, was convicted of causing grievous bodily harm by a negligent act to an infant. The case was heard in a higher court in Australia. The prosecution alleged that So had caused significant harm to the infant through a negligent act, leading to a criminal charge. So pleaded guilty at an early stage, which led to a discussion about the appropriate sentence considering the early guilty plea.

The court had to determine the appropriate sentence for So, taking into account the nature of the offence and the discount for the early guilty plea. The court considered various factors, including the harm caused, the circumstances of the offence, and the defendant's culpability. It was noted that So had shown remorse and cooperated with authorities, which was a mitigating factor. The court also had to balance the need for punishment with the potential deterrent effect on others.

The court decided that a suspended sentence was appropriate, with So to serve 13 months and two weeks' imprisonment, which would be suspended if So entered into a two-year good behaviour order. The court applied a 25% discount to the sentence for the early guilty plea, resulting in the final sentence. The court emphasised the importance of rehabilitation and the prevention of reoffending in its reasoning. The orders included recording the conviction and imposing the suspended sentence, contingent upon So complying with the good behaviour order.

Orders

Orders of the court

Conviction recorded. Sentenced to 13 months and two weeks’ imprisonment, suspended upon entering into a two year good behaviour order.

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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