R v Sullivan - [2020] ACTSC 214

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Sullivan
Citation:	[2020] ACTSC 214
Hearing Date:	6 August 2020
DecisionDate:	7 August 2020
Before:	Mossop J
Decision:	See [54]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – aggravated robbery and attempted aggravated robbery – in joint commission with his brother – on parole at time of offences – extensive criminal history – illicit substance use – mental health diagnoses – sentence of imprisonment
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT), s 35(4) Criminal Code 2002 (ACT), ss 44, 45A, 310
Cases Cited:	R v Hawkins [2019] ACTSC 10 R v Sullivan (Unreported, ACT Supreme Court, Nield AJ, 3 May 2012) R v Sullivan [2019] ACTSC 38 R v Sullivan [2019] ACTSC 163 R v Sullivan (No 2) [2020] ACTSC 215 R v Williams [2018] ACTSC 325
Parties:	The Queen (Crown) Joshua Sullivan (Offender)
Representation:	Counsel M Howe (Crown) S McLaughlin (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number:	SCC 63 of 2020

MOSSOP J:

Introduction

The offender, Joshua Sullivan, has pleaded guilty to the following offences:

(a)Count 1: joint commission aggravated robbery, contrary to ss 310 and 45A of the Criminal Code 2002 (ACT), the maximum penalty being 25 years’ imprisonment, 2500 penalty units or both (CC2020/793).
(b)Count 2: attempted joint commission aggravated robbery, contrary to ss 310, 44 and 45A of the Criminal Code 2002 (ACT), the maximum penalty being 25 years’ imprisonment, 2500 penalty units or both (SCCAN2020/57).

His co-offender, Rhys Sullivan, who is also his brother, is being dealt with at the same time: see R v Sullivan (No 2) [2020] ACTSC 215. Rhys Sullivan is charged with the same offences, as well as a transfer charge of trespass.

Facts

The facts in relation to both offenders’ offending were agreed and are, in summary, as follows.

Count 1: Robbery of McDonald’s Wanniassa

During the early hours of 27 December 2019, the co-offenders entered the McDonald’s restaurant in Wanniassa. There were three employees working in the McDonald’s, which was open for business, and a number of customers were in the store.

The co-offenders entered the store through the front entrance. Each offender was carrying a silver-bladed knife with a silver handle and a red and white shopping bag. Both were wearing black face coverings and green and white gloves. Rhys Sullivan was also wearing a black head covering.

The co-offenders walked past the cash registers and into the kitchen area of the restaurant. Rhys Sullivan pointed a knife at one of the employees, who I will refer to as FE, and asked where the money was. She called for the help of another employee, who I will refer to as MS, who was counting money in the safe in the manager’s office.

The co-offenders walked towards MS and demanded he open the safe. He complied and Rhys Sullivan entered the manager’s office and emptied the cash from the cash register into…

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 Sullivan

Details

AGLC: R v Sullivan [2020] ACTSC 214
Case: [2020] ACTSC 214
Decision Date: 7 August 2020

CaseChat Overview and Summary

The court heard an appeal by the respondent against his conviction and sentence for aggravated robbery and attempted aggravated robbery, committed in conjunction with his brother. The respondent, at the time of the offences, was on parole following a prior conviction for armed robbery. The appellant argued that the sentence was excessive and did not adequately reflect the mitigating factors of his personal circumstances, including his extensive criminal history, substance abuse issues, and mental health conditions.

The legal issues before the court included whether the sentence was manifestly excessive, whether the sentencing judge had given appropriate weight to the mitigating factors, and whether the sentence could be reduced on appeal. The court needed to consider the principles of sentencing for aggravated robbery, the role of parole status, and the relevance of personal circumstances in determining an appropriate sentence.

The court held that the sentence was not manifestly excessive, as it was within the range of sentences typically imposed for such serious offences. While acknowledging the respondent's extensive criminal history, substance abuse, and mental health issues, the court found that these factors were appropriately considered by the sentencing judge. The court held that the sentence adequately reflected the seriousness of the crimes and the need for general deterrence. Consequently, the appeal against sentence was dismissed. The court did not order any changes to the sentence or the conviction.

Orders

Orders of the court

See [54]

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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