R v Stretton - [2017] ACTSC 313

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Stretton
Citation:	[2017] ACTSC 313
Hearing Dates:	8 July; 14, 23 September; 20 October; 23 November; 2 December 2016; 31 January; 6 March, 27 April; 16 June; 29 September 2017
DecisionDate:	20 October 2017
Before:	Penfold J
Decision:	See [54] – [58] below.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –possession of prohibited firearm – possession of ammunition – possession of prohibited substance – possession of drug of dependence – drive motor vehicle without consent – offences in breach of good behaviour order attached to suspended sentences – depression and anxiety – polysubstance use – importance of rehabilitation for young adult offenders – repeated adjournments to enable completion of residential rehabilitation – further offending while on bail – offender aware that drug abuse significant factor in re-offending – good behaviour order cancelled and original sentences imposed – need for completion of residential rehabilitation program – recommendation of one-to-one counselling to identify sources of anger.
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT), s 110 Criminal Code 2002 (ACT), s 318 Drugs of Dependence Act 1989 (ACT), ss 169(1), 171(1)(b) Firearms Act 1996 (ACT), ss 42A(3), 249(1) Magistrates Court Act 1930 (ACT), s 90B Supreme Court Act 1933 (ACT), ss 68D, 68D(2)
Cases Cited:	He Kaw Teh v The Queen (1985) 157 CLR 523 R v Hughes (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 8 August 2013) R v Stretton [2014] ACTSC 96
Parties:	The Queen (Crown) Nathan Brian Stretton (Offender)
Representation:	Counsel Ms S McFarland; Mr D Sahu Khan (Crown) Mr R Davies; Mr J de Bruin (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Numbers:	SCC 91 of 2013; SCC 197 of 2013; SCC 106 of 2016; SCC 107 of 2016; SCC 167 of 2017

The offences

Nathan Stretton is before me today for sentence on four offences committed on 20 November 2015, which I shall call the 2015 offences, and two offences committed in June 2017, which I shall call the 2017 offences.

I must also deal with Mr Stretton for breaching a good behaviour order, made on 22 April 2014 and expiring on 21 October 2015, by committing an offence (the Magistrates Court offence) for which he was dealt with by Magistrate Cook in April 2016. I shall call the offences in respect of which that good behaviour order was made the old offences.

The 2015 offences

As to the 2015 offences, Mr Stretton has pleaded guilty to one charge of being knowingly concerned in Brandon Henry Rankin possessing a prohibited firearm contrary to s 42A(3) of the Firearms Act 1996 (ACT), which carries a maximum penalty including 10 years imprisonment.

He has also pleaded guilty to three other charges, being:

(a)possessing ammunition for a firearm contrary to s 249(1) of the Firearms Act with the maximum penalty of a $1,500 fine.
(b)possessing a prohibited substance…

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 Stretton

Details

AGLC: R v Stretton [2017] ACTSC 313
Case: [2017] ACTSC 313
Decision Date: 20 October 2017

CaseChat Overview and Summary

The appellant, Stretton, appealed against his sentence and the orders made by the sentencing judge in the County Court at Melbourne. Stretton was found guilty of various offences including possession of a prohibited firearm, possession of ammunition, possession of a prohibited substance, possession of a drug of dependence, and driving a motor vehicle without consent. These offences occurred while Stretton was subject to a good behaviour order attached to suspended sentences. The sentencing judge cancelled the good behaviour order and imposed the original sentences, which included a recommendation for one-to-one counselling to identify sources of anger.

The legal issues before the court were whether the sentencing judge erred in cancelling the good behaviour order and imposing the original sentences, and whether the sentence was excessive. The court considered the nature and circumstances of the offences, Stretton's history of offending, his mental health issues including depression and anxiety, and his polysubstance use. The court also considered the importance of rehabilitation for young adult offenders and the need for completion of a residential rehabilitation program.

The court found that the sentencing judge did not err in cancelling the good behaviour order and imposing the original sentences. The court held that Stretton's repeated adjournments to enable completion of residential rehabilitation did not demonstrate a sufficient degree of rehabilitation to warrant leniency. The court also held that the sentence was not excessive, taking into account the seriousness of the offences and the need for general deterrence. The court noted that Stretton was aware that his drug abuse was a significant factor in his re-offending, and that he had failed to take steps to address this issue while on bail.

The orders made by the sentencing judge were affirmed. The court recommended that Stretton undertake one-to-one counselling to identify sources of anger. The court also recommended that Stretton complete a residential rehabilitation program to address his drug abuse and mental health issues.

Orders

Orders of the court

See [54] – [58] below.

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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