R v TI [No. 3] - [2015] ACTSC 405

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v TI [No. 3]
Citation:	[2015] ACTSC 405
Hearing Dates:	26 October 2015; 12 November 2015, 4 December 2015
DecisionDate:	9 December 2015
Before:	Penfold J
Decision:	See [120] – [134] below.
Catchwords: .	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offender to be sentenced for 31 offences – most offences committed as juvenile – pleas of guilty to offences involving dishonesty and property damage – guilty verdicts in jury trial relating to acts of indecency – sexual comments made in course of some dishonesty offences – psychological reports assessed risk of sexual re-offending on different bases and reached different conclusions – parity – where custodial sentence to be served – all immediate custodial time related to juvenile offending – recommendations about psychological help for offender and support for family – offender sentenced.
Legislation Cited:	Children and Young People Act 2008 (ACT) Crimes Act 1900 (ACT), ss 26, 60(1), 61(2) Crimes (Sentence Administration) Act 2005 (ACT), s 108 Crimes (Sentencing) Act 2005 (ACT), ss 20, 35A, 133H, Chapter 8A Criminal Code 2002 (ACT), ss 308, 311, 312, 318, 321, 403 Magistrates Court Act 1930 (ACT), s 90B Road Transport (Driver Licensing) Act 1999 (ACT), s 31(2) Supreme Court Act 1933 (ACT), s 68D
Parties:	The Queen (Crown) TI (Offender)
Representation:	Counsel Ms K Mackenzie (Crown) Mr R Livingston (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Numbers:	SCC 246 of 2014; SCC 247 of 2014; SCC 248 of 2014; SCC 221 of 2015; SCC 240 of 2015; SCC 241 of 2015

The offences

TI is to be dealt with today for 31 offences. He has pleaded guilty to 26 offences, and has been found guilty by a jury of another four offences. There is also a scheduled offence to be taken into account.

TI has pleaded guilty to the following offences:

(a)eight burglaries and one attempted burglary arising under s 311 of the Criminal Code 2002 (ACT) and carrying a maximum penalty including 14 years imprisonment;
(b)three thefts under s 308 of the Criminal Code, carrying a maximum penalty including 10 years imprisonment;
(c)one aggravated burglary under s 312 of the Criminal Code, carrying a maximum penalty including 20 years imprisonment;
(d)five offences of taking, riding in or driving a motor vehicle dishonestly and without consent under s 318 of the Criminal Code, carrying a maximum penalty including five years imprisonment;
(e)four offences of damaging property under s 403 of the Criminal Code, with a maximum penalty including 10 years imprisonment;
(f)two minor thefts under s 321 of the Criminal Code, carrying a maximum penalty including six months imprisonment;
(g)one offence of being an unlicensed driver, never having held a licence and as a first offender, under s 31(2) of the Road Transport (Driver Licensing) Act 1999 (ACT), carrying a maximum penalty including a fine of $2,200; and
(h)one common assault under…

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 TI [No. 3]

Details

AGLC: R v TI [No. 3] [2015] ACTSC 405
Case: [2015] ACTSC 405
Decision Date: 9 December 2015

CaseChat Overview and Summary

The appellant, TI, faced sentencing in the Supreme Court for 31 offences, which included acts of dishonesty, property damage, and indecency. Most of the offences were committed when the offender was a juvenile. The court was required to consider the offender's age at the time of the offences, the nature of the offences, and the risk of re-offending. The appellant had pleaded guilty to the majority of the offences and had also been found guilty by a jury for acts of indecency. The court had to weigh the psychological reports that assessed the risk of sexual re-offending, which provided differing conclusions. The legal issues were whether the risk of re-offending warranted a custodial sentence, and if so, whether the sentence should be served in a juvenile or adult facility, given that the immediate custodial time related to juvenile offending.

The court addressed the issue of parity in sentencing by considering the juvenile age of the offender at the time of the offences. It also took into account the differing conclusions from the psychological reports on the risk of re-offending. The court found that the offender's age at the time of the offences warranted consideration in determining the sentence. It also considered the recommendations from the psychological reports for psychological help for the offender and support for the offender’s family. The court ultimately decided that a custodial sentence was appropriate but noted that the immediate custodial time would relate to the juvenile offending. It balanced these factors with the need for deterrence and protection of the community.

The court sentenced the offender to a term of imprisonment, with specific conditions related to the juvenile nature of the offending. The custodial sentence was to be served in an appropriate facility, considering the offender's age at the time of the offences. The court also ordered that the offender receive psychological help and that support be provided to the offender’s family. The court's reasoning was based on the need to address the risk of re-offending while also considering the offender's age and the specific circumstances of the offences. The final orders included the custodial sentence, conditions for the sentence, and recommendations for psychological and family support.

Orders

Orders of the court

See [120] – [134] 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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