R v Van Duren - [2017] ACTSC 132

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Van Duren
Citation:	[2017] ACTSC 132
Hearing Date:	18 May 2017
DecisionDate:	18 May 2017
Before:	Murrell CJ
Decision:	Two years and six months’ imprisonment, suspended.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – assault occasioning actual bodily harm – assault on police officer – unlawful strangulation of RSPCA inspector – trespass and damage property on RSPCA premises – where offender’s dog seized – where offender has PTSD as a result of defence service – relevance of mental health condition to sentencing
Legislation Cited:	Crimes Act 1900 (ACT) ss 24, 28(2)(a), 116(3) Public Order (Protection of Persons and Property) Act 1971 (Cth) s 11(1) Crimes (Sentencing) Act 2005 (ACT) ss 7, 13, 33, 33(1)(m), 35
Parties:	The Queen (Crown) Shane Rene Van Duren (Offender)
Representation:	Counsel Mr A Williamson (Crown) Ms L Taylor (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Numbers:	SCC 119 of 2016; SCC 120 of 2016

MURRELL CJ:

The offender pleaded guilty to two offences committed on 30 December 2015:

(a)assault occasioning actual bodily harm (of Constable Damien Neit), an offence against s 24 of the Crimes Act 1900 (ACT) (Crimes Act) which carries a maximum penalty five years' imprisonment; and
(b)unlawful strangulation (of RSPCA Inspector Catherine Croatto), an offence against s 28(2)(a) of the Crimes Act which carries a maximum penalty of five years' imprisonment.

The Court is asked to deal with two transferred summary charges:

(a)trespass, an on offence against s 11(1) of the Public Order (Protection of Persons and Property) Act 1971 (Cth) which carries a maximum penalty of a fine of $1800; and
(b)damage property, an offence against s 116(3) of the Crimes Act which carries a maximum penalty two years' imprisonment.

The pleas of guilty were entered in the Supreme Court on 3 April 2017, the date when a trial was scheduled to commence. Under s 35 of the Crimes (Sentencing) Act 2005 (Sentencing Act), the offender will receive a discount of about 10 or 15 per cent for the pleas of guilty. Although they were entered extremely late, they had been foreshadowed about two weeks earlier. The prosecution had been able to advise witnesses. The running of the trial would have been very distressing to some witnesses, particularly the victim, Inspector Croatto. On the other hand, the Crown had a strong case.

The offender was arrested on 30 December 2015 and remained in custody until granted bail on 15 February 2016, having spent an estimated 46 days in custody.

Facts

On 11 November 2015, RSPCA Inspector Croatto attended the offender's premises and removed an Irish Wolfhound dog that was in poor condition. The offender was not home. Subsequently, Inspector Croatto spoke by telephone to the offender and told him that the dog had been seized.

The dog in question was not owned by the offender. He agrees that it was in poor…

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 Van Duren

Details

AGLC: R v Van Duren [2017] ACTSC 132
Case: [2017] ACTSC 132
Decision Date: 18 May 2017

CaseChat Overview and Summary

The case of R v Van Duren involved the defendant, who unlawfully strangled an RSPCA inspector, trespassed on RSPCA premises, and damaged property. The defendant was found guilty and sentenced by the court. The primary legal issues addressed by the court were the appropriate sentence for the defendant, taking into account the severity of the offenses and the defendant's mental health condition, which was diagnosed as post-traumatic stress disorder (PTSD) resulting from his time in the defence forces. The court was required to balance the need for punishment and deterrence with the need to consider the defendant's mental health and the circumstances of the offenses.

The court considered the severity of the offenses, including the assault on a police officer and the damage to property. It also acknowledged the defendant's mental health condition and its impact on his behavior. The court found that while the offenses were serious, the defendant's PTSD and other mitigating factors warranted a degree of leniency. The court ultimately decided that a suspended sentence would be appropriate, taking into account the defendant's mental health and the need for rehabilitation. The court imposed a two-year and six-month imprisonment sentence, which was suspended.

The final orders of the court were that the defendant was to serve a two-year and six-month imprisonment sentence, which was suspended. This decision reflects the court's consideration of both the severity of the offenses and the defendant's mental health condition, aiming to provide a sentence that is both just and rehabilitative.

Orders

Orders of the court

Two years and six months’ imprisonment, suspended.

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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