R v UD (No 3) - [2021] ACTSC 8

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v UD (No 3)
Citation:	[2021] ACTSC 8
Hearing Date:	3 February 2021
DecisionDate:	3 February 2021
Before:	Elkaim J
Decision:	See [24]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Reopening proceedings – nonparole period for young persons – young person and adult offences – whether sentence contrary to law
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 61, 64(2), 133B, 133G, Pt 5.2
Cases Cited:	R v JJ (unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 8 October 2013) R v MT [2020] ACTSC 339 R v Tully (No 3) [2014] ACTSC 275 Tully v R [2016] ACTCA 11
Parties:	The Queen (Crown) UD (Offender)
Representation:	Counsel R Christensen (Crown) B Morrisroe (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Numbers:	SCC 280 of 2019 SCC 140 of 2018; SCC 352 of 2019 SCC 277 of 2019; SCC 279 of 2019

ELKAIM J:

On 3 December 2020 I sentenced UD for a number of offences. The result was a term of imprisonment of 10 years commencing on 15 February 2018 and ending on 14 February 2028. I set a nonparole period of five years and six months which will end on 14 August 2023.

The offences for which UD was sentenced were spread over a long period of time commencing on 1 November 2009 and ending on 24 December 2017. There were six indictable offences and two offences of common assault that had been transferred from the Magistrates Court. The latter two offences were dealt with by me on a concurrent basis and did not affect the overall term of imprisonment.

The nonparole period generated an application by UD for his sentence to be changed through the reopening process permitted by s 61 of the Crimes (Sentencing) Act 2005 (ACT). All references to an Act in these reasons refers to this legislation.

Under s 61 sentencing proceedings may be reopened if the sentences imposed were “contrary to law”.

UD said that the nonparole period I imposed was contrary to law. He said this because a number of the offences for which he was imprisoned were committed when he was a young person, as defined by s 133B of the Act.

Four of the offences were committed by UD as a young person. The sentences for these offences extended from 15 February 2018 to 13 May 2025.

Nonparole periods are governed by Part 5.2 of the Act. In substance this Part says a nonparole period must be set for any term of imprisonment of 12 months or longer unless the term of imprisonment is an “excluded sentence of imprisonment”. Pursuant to s 64(2)(g) “a sentence of imprisonment imposed on a young offender” is an excluded sentence.

Lest there be any doubt about the effect of s 64(2), the note to s 133G states:

There is no provision for the setting of a nonparole period for a…

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 UD (No 3)

Details

AGLC: R v UD (No 3) [2021] ACTSC 8
Case: [2021] ACTSC 8
Decision Date: 3 February 2021

CaseChat Overview and Summary

In this case, the respondent, UD, appealed against the sentence imposed on him by the Supreme Court of New South Wales. The appellant had previously pleaded guilty to charges including robbery, deprivation of liberty, and aggravated break and enter. The court was tasked with determining whether the sentence was contrary to law and whether the nonparole period imposed was appropriate, particularly considering the appellant's age at the time of the offences. The respondent argued that the sentence was manifestly excessive and that the nonparole period was not justified given the nature of his involvement in the crimes as a young person.

The primary legal issue before the court was whether the sentence imposed on the respondent was contrary to law, with a particular focus on the appropriateness of the nonparole period in light of the respondent's age at the time of the offences. The court was required to consider the principles governing sentencing for young persons and the balance between deterrence, rehabilitation, and the imposition of a nonparole period. Additionally, the court had to examine whether the sentence adequately reflected the respondent's degree of culpability and the nature of his involvement in the crimes, particularly as it related to the distinction between offences committed as a young person and those committed as an adult.

The court found that the sentence was not manifestly excessive and that the nonparole period was appropriate. It held that while the respondent's age at the time of the offences was a relevant consideration, the severity of the crimes and the respondent's active participation warranted a significant custodial sentence. The court emphasised that the sentencing principles for young persons required a balanced approach that took into account both the rehabilitative needs of the offender and the need to protect the community. The appeal was dismissed, and the original sentence was upheld.

No further orders were made by the court beyond those specified at [24].

Orders

Orders of the court

See [24]

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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