R v UD
[2020] ACTSC 60
•18 March 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v UD |
Citation: | [2020] ACTSC 60 |
Hearing Date: | 18 March 2020 |
DecisionDate: | 18 March 2020 |
Before: | Elkaim J |
Decision: | See [12] |
Catchwords: | CRIMINAL LAW – DISPUTED FACTS – Judicial Determination of Agreed Statement of Facts – sentencing - inclusion of matters suggesting an element of pre-planning prior to the commission of the offence – relevance to assessing objective seriousness – lack of evidence of involvement of accused |
Cases Cited: | R v TF [2020] ACTSC 50 |
Parties: | The Queen (Crown) UD (Accused) |
Representation: | Counsel R Christensen (Crown) B Morrisroe (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Numbers: | SCC 280 of 2019 |
ELKAIM J:
UD, TF and another person were accused of the aggravated robbery of the Lanyon Vikings Club on 16 August 2010. The trial of UD and TF was known as Trial D in a series of trials relating to a number of robberies across the Australian Capital Territory, allegedly involving one or both of these two accused.
On 2 March 2020 UD pleaded guilty to his involvement in the robbery. TF is still to face trial, which may be delayed because he is intent on challenging my interlocutory ruling on a tendency application (R v TF [2020] ACTSC 50).
Following UD’s plea of guilty the parties attempted to finalise an Agreed Statement of Facts for purposes of sentencing. They were generally successful, but one issue remains at large. It is not a disputed fact in the normally understood sense but is an argument about whether certain portions of the proposed statement should be included, as advocated by the Crown.
The draft statement is Exhibit A. The two challenged portions of the statement are as follows:
(a)From [7]: The witnesses recall that two of the offenders spoke with accents, with a witness describing hearing a ‘possible Asian or Middle Eastern, but not European’ accent and another witness describing a ‘really ethnic European’ accent that then ‘changed to almost an Asian accent’.
(b)From [10]: The security guard recalls that male one had a New Zealand Maori or Samoan accent.
The question posed by the parties for my adjudication is as follows: Is it relevant for the sentencing judge to take into account that the offenders spoke with accents, and the description by the witnesses as to the nature of the accents?
The Crown accepted that the second part of the above question was of less relevance than the first part.
The Crown submitted that the use of foreign accents was an integral part of the assessment of the objective seriousness of the offence because it was an indication of the degree of planning that preceded the robbery.
The Crown is obviously correct in this submission to the extent that it suggests that robbers who make a decision to use foreign accents in the performance of their crime have engaged in a degree of planning.
I do not think UD disagreed with the above proposition. The point made by him is that there were three robbers involved but only two of them spoke with foreign accents. There was no evidence that he was either of these two culprits.
In turn, submitted UD, it could not be said that he had been involved in any pre-planning involving the use of foreign accents. Further, he said, it could not be discounted that there had not been any planning about foreign accents, and their use had been at the last-minute whim of his two colleagues.
In my view the above passages from [7] and [10] should be excluded. As I have said above, I accept that a planned use of foreign accents can, and should, be taken into account in assessing the objective seriousness of a crime. However, in this case, there is no evidence that UD used an accent or was involved in any discussion prior to the robbery about the use of accents.
The order of the Court is that the quoted passages from [7] and [10] are not to be included in the Agreed Statement of Facts.
| I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: 7 December 2020 |
0
0
0