R v West

Case [2023] ACTSC 412 6 March 2023

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v West
Citation:	[2023] ACTSC 412
Hearing Date:	20 February 2023
Decision Date:	6 March 2023
Reasons Date:	2 and 6 March 2023
Before:	Refshauge AJ
Decision:	(1) Mitchell John West be convicted of attempted aggravated robbery (SCCAN 2021/123) and be sentenced to 3 years imprisonment to commence on 1 January 2022 and end on 31 December 2024. (2) Mitchell John West be convicted of aggravated burglary (CC 2021/4554) and be sentenced to 12 months imprisonment to commence on 1 July 2024 and end on 30 June 2025. (3) Mitchell John West be convicted of theft (CC 2021/4556) and be sentenced to 9 months imprisonment to commence on 1 November 2024 and end on 31 July 2025. (4) Mitchell John West be convicted of driving a motor vehicle without consent (CC 2021/4550) and be sentenced to 9 months imprisonment to commence on 1 February 2025 and end on 31 October 2025. (5) Mitchell John West be convicted of riding in a motor vehicle without consent (CC 2021/4551) and be sentenced to 6 months imprisonment to commence on 1 June 2025 and end on 30 November 2025. (6) Mitchell John West be convicted of failing to stop a motor vehicle for police as a first offender (CC 2021/4549) and be sentenced to 4 months imprisonment to commence on 1 September 2025 and end on 31 December 2025. It be noted that this offence also carries an automatic disqualification of 3 months, which commences on 6 November 2023. (7) A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for Mitchell John West in respect of the primary offence of attempted aggravated robbery (SCCAN 2021/123) of which he has been convicted and for which he has been sentenced to 3 years imprisonment. (8) That Order be extended to the offences of aggravated burglary (CC 2021/4554), theft (CC 2021/4556), driving a motor vehicle without consent (CC 2021/4550), riding in a motor vehicle without consent (CC 2021/4551) and failing to stop a motor vehicle for police as a first offender (CC 2021/4549), of which Mitchell John West has been convicted and for which he has been sentenced, and which are associated offences of the primary offence, and the sentences for which, with the sentences for the primary offence, is for a total period of 4 years imprisonment from 1 January 2022. (9) It be noted that convictions and sentences imposed for the primary and associated offences have been recorded and are hereby incorporated into the Drug and Alcohol Treatment Order in the Custodial Part of the Order. (10) The period of the Drug and Alcohol Treatment Order be for two years, 9 months and 26 days from today, 6 March 2023 to 31 December 2025. (11) The Treatment and Supervision Part of the Drug and Alcohol Treatment Order be for 2 years from today, 6 March 2023, until 5 March 2025. (12) The Custodial Part of…

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 West

Details

AGLC: R v West [2023] ACTSC 412
Case: [2023] ACTSC 412
Decision Date: 6 March 2023

CaseChat Overview and Summary

In the case of R v West, the respondent, Mitchell John West, was charged with multiple criminal offences and faced sentencing. The charges included attempted aggravated robbery, aggravated burglary, theft, driving and riding in a motor vehicle without consent, and failing to stop a motor vehicle for police. The respondent pleaded guilty to all charges. The court considered various factors, including the Bugmy principles and the impact on the victim, as evidenced by the Victim Impact Statements presented.

The legal issues the court had to decide included the appropriate sentences for each offence, the imposition of a Drug and Alcohol Treatment Order, and the terms and conditions of the order. The court also needed to consider the overlap between the sentences and how they would be served. The sentencing principles and the need to address the respondent’s drug and alcohol issues were central to the court’s deliberations.

The court found that the cumulative effect of the sentences for the primary and associated offences amounted to a total of four years imprisonment. It imposed a Drug and Alcohol Treatment Order to address the respondent's drug and alcohol issues. The order included a two-year residential rehabilitation program at Canberra Recovery Services and conditions for the Treatment and Supervision Part of the order, including regular reporting and compliance with treatment and testing requirements. The court also noted that the custodial part of the order was suspended until the end of the total sentence. The respondent was also required to sign an undertaking to comply with good behaviour obligations and accept supervision by ACT Corrective Services.

The final orders included convictions and sentences for each offence, a Drug and Alcohol Treatment Order, and specific conditions for the treatment and supervision part of the order. The court directed that the respondent attend the Court Registry to sign a sealed copy of the order and appear by electronic means on a specified date. The sentences and the terms of the Drug and Alcohol Treatment Order aimed to address the respondent’s criminal conduct and support his rehabilitation.

Orders

Orders of the court

(1) Mitchell John West be convicted of attempted aggravated robbery (SCCAN 2021/123) and be sentenced to 3 years imprisonment to commence on 1 January 2022 and end on 31 December 2024.

(2) Mitchell John West be convicted of aggravated burglary (CC 2021/4554) and be sentenced to 12 months imprisonment to commence on 1 July 2024 and end on 30 June 2025.

(3) Mitchell John West be convicted of theft (CC 2021/4556) and be sentenced to 9 months imprisonment to commence on 1 November 2024 and end on 31 July 2025.

(4) Mitchell John West be convicted of driving a motor vehicle without consent (CC 2021/4550) and be sentenced to 9 months imprisonment to commence on 1 February 2025 and end on 31 October 2025.

(5) Mitchell John West be convicted of riding in a motor vehicle without consent (CC 2021/4551) and be sentenced to 6 months imprisonment to commence on 1 June 2025 and end on 30 November 2025.

(6) Mitchell John West be convicted of failing to stop a motor vehicle for police as a first offender (CC 2021/4549) and be sentenced to 4 months imprisonment to commence on 1 September 2025 and end on 31 December 2025. It be noted that this offence also carries an automatic disqualification of 3 months, which commences on 6 November 2023.

(7) A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for Mitchell John West in respect of the primary offence of attempted aggravated robbery (SCCAN 2021/123) of which he has been convicted and for which he has been sentenced to 3 years imprisonment.

(8) That Order be extended to the offences of aggravated burglary (CC 2021/4554), theft (CC 2021/4556), driving a motor vehicle without consent (CC 2021/4550), riding in a motor vehicle without consent (CC 2021/4551) and failing to stop a motor vehicle for police as a first offender (CC 2021/4549), of which Mitchell John West has been convicted and for which he has been sentenced, and which are associated offences of the primary offence, and the sentences for which, with the sentences for the primary offence, is for a total period of 4 years imprisonment from 1 January 2022.

(9) It be noted that convictions and sentences imposed for the primary and associated offences have been recorded and are hereby incorporated into the Drug and Alcohol Treatment Order in the Custodial Part of the Order.

(10) The period of the Drug and Alcohol Treatment Order be for two years, 9 months and 26 days from today, 6 March 2023 to 31 December 2025.

(11) The Treatment and Supervision Part of the Drug and Alcohol Treatment Order be for 2 years from today, 6 March 2023, until 5 March 2025.

(12) The Custodial Part of the Drug and Alcohol Treatment Order for the primary and associated offences be hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 6 March 2023, until 31 December 2025.

(13) Under s 80ZA of the Crimes (Sentencing) Act 2005 (ACT), Mitchell John West be required to sign an undertaking to comply with the offender’s Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the Treatment and Supervision Part of the Drug and Alcohol Treatment Order, 6 March 2025, until the end of the total sentence, 31 December 2025, with a probation condition that he accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him including as to urinalysis, counselling and treatment.

(14) For the Treatment and Supervision Part of the Drug and Alcohol Treatment Order:

(a) The core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) be hereby imposed;

(b) Mitchell John West travel directly from this Court today to Canberra Recovery Services, Fyshwick, and admit himself to the residential drug rehabilitation program at that facility by 1:00 pm today, 6 March 2023;

(c) Mitchell John West be directed to complete the residential drug rehabilitation program at Canberra Recovery Services, to not leave the facility until he has completed the course and to comply with all the directions of the person in charge of the program and all the rules of the program and the facility;

(d) Should Mitchell John West leave or be discharged from the program before completing it, he report to ACT Corrective Services by 4 pm on the next business day with a view to having his Drug and Alcohol Treatment Order reviewed;

(e) Mitchell John West undertake any program, treatment or counselling, urinalysis or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of that Team about where he resides, with whom he associates and his attendance from time to time;

(f) Mitchell John West not return a positive test sample under alcohol and drug testing; and

(g) Mitchell John West comply with any directions of the Court from time to time about attendance at Court in person or by electronic means.

(15) Mitchell John West be directed to attend the Court Registry before he leaves the Court precincts to sign a sealed copy of this Order and an undertaking to comply with the Order and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that this Order is in force.

(16) Mitchell John West be directed to appear by electronic means in Court on Friday 17 March 2023 at 12:30 pm.

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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Citations

AGLC Citation

R v West [2023] ACTSC 412

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Cases cited in this decision · 35 of 35 shown

R v Todd
[2024] NZHC 897 Para 6

…ths of which was spent serving another sentence. As the High Court accepted in Mill v The Queen (1988) 166 CLR 59 at 65-66, what was said in R v Todd (1982) 2 NSWLR 517 at 519 about the considerations a Court must have in regard to this situation, this period of imprisonment is relevant where an offender “has been le…
R v Tonna (No 2)
[2020] ACTSC 362 Para 2

…Mr West was born in 1996 in Canberra. He is thus still just young enough to be given some consideration on account of his age: see R v Tonna (No 2) [2020] ACTSC 362 at [44]. He has an older half-sister and a younger brother. He suffered a chaotic childhood, with his father being violent to his mother and to the chi…
R v Connors
[2022] ACTSC 374 Para 4

…bbery is, as the maximum penalty shows, a very serious offence and this is part because it is an offence of both dishonesty and violence: R v Connors [2022] ACTSC 374 at [124]. The present offence was somewhat more serious because both circumstances of aggravation were part of the offending on this occasion. On the…
R v McHughes (No 3)
[2021] ACTSC 344 Para 11

…event, the relevant factors for consideration have been set out for offence of burglary , which includes aggravated burglary, in R v McHughes (No 3) [2021] ACTSC 344 at [28]. See also R v Rosewarne [2021] ACTSC 217 at [119]. Many of the elements were not in evidence or at least not clear in this case. Thus, for ex…
R v Cajina
[2021] ACTSC 353 Para 2

…A period of time in custody as a sentenced prisoner does not count as time for the pre-sentence custody that is to be taken into account: R v Cajina [2021] ACTSC 353 at [111]. Accordingly, a period of 426 days will need to be taken into account as pre-sentence custody when Mr West is sentenced.…
R v Chatfield
[2021] ACTSC 352 Para 8

…9 ALR 183 at 196. It is unsurprising that sentencing is, as far as has been widely said, a very difficult decision for a court to make: R v Chatfield [2021] ACTSC 352 at [36].…
R v Rosewarne
[2021] ACTSC 217 Para 11

…ve been set out for offence of burglary , which includes aggravated burglary, in R v McHughes (No 3) [2021] ACTSC 344 at [28]. See also R v Rosewarne [2021] ACTSC 217 at [119]. Many of the elements were not in evidence or at least not clear in this case. Thus, for example, while there was a clear entry into the gar…
R v Childs
[2021] ACTSC 170 Para 2

…cept what harms are well known as being caused by certain offences: R v Shepheard [2008] ACTSC 116; 189 A Crim R 165 at 172 [31]. See also R v Childs [2021] ACTSC 170 at [10]-[11].…
R v Weldon
[2021] ACTSC 348 Para 19

…mple R v Massey (No 3) [2021] ACTSC 156 at [29]. The driver has sometimes been likened to a receiver of stolen property: see, for example, R v Weldon [2021] ACTSC 348 at [54]. The other matters, as explained in R v Connors at [63], include whether the vehicle was recovered and whether there was any damage, the dist…
R v Donnelly
[2021] ACTSC 336 Para 16

…[2016] ACTSC 291 at [124]-[127], or credit cards which can then be used for financial gain well beyond the intrinsic value of the card: R v Donnelly [2021] ACTSC 336 at [65].…
R v Massey (No 3)
[2021] ACTSC 156 Para 19

…generally accepted that the driving of the motor vehicle is the more serious of the two versions of that offence: see, for example R v Massey (No 3) [2021] ACTSC 156 at [29]. The driver has sometimes been likened to a receiver of stolen property: see, for example, R v Weldon [2021] ACTSC 348 at [54]. The other mat…
R v Dowling (No 2)
[2021] ACTSC 200 Para 24

…e activating the emergency lights and sirens in pursuit of a motor vehicle. The Court explained the gravamen of the offence in R v Dowling (No 2) [2021] ACTSC 200 at [71] as follows: The offence is as serious as it is because, again, it is an important part of the regime for management of driving in our community a…
R v McHughes
[2021] ACTSC 92 Para 11

…es dated 11 November 2022 and Forensic Mental Health Services also dated 11 November 2022, being eligibility assessments as described in R v McHughes [2021] ACTSC 92 at [11].…
R v Crawford (No 1)
[2020] ACTSC 245 Para 12

…o be made, this does not prevent Mr West from serving the balance of his sentence by a Treatment Order for the reasons set out in R v Crawford (No 1) [2020] ACTSC 245 at [91]-[111]. (7)A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for Mitchell John West in respect…
R v Eichmann
[2019] ACTSC 212 Para 24

…is clear from the provision for an increased penalty for repeat offenders, the repeated failure to comply is an aggravating factor: R v Eichmann [2019] ACTSC 212 at [26].…
R v Hodge
[2019] ACTSC 15 Para 24

…igative tool for police, more widely, to assist in limiting suspects or offenders being able to evade arrest or hiding from the police: R v Hodge [2019] ACTSC 15 at [18]. As is clear from the provision for an increased penalty for repeat offenders, the repeated failure to comply is an aggravating factor: R v Eichm…
R v Salcedo; R v Stretton (No 3)
[2018] ACTSC 305 Para 6

…d the violation of the security that one’s home should provide and its privacy: see, for example, what was said in R v Salcedo; R v Stretton (No 3) [2018] ACTSC 305 at [116].…
R v BI (No 4)
[2017] ACTSC 71 Para 7

…As noted above (at [40]), that it was an attempt means that it was less serious than had the actual offence of robbery been committed: R v BI (No 4) [2017] ACTSC 71 at [40]. While there was no actual theft, the failure to complete the offence was only because there was no property of the victim available to take…
R v Kilic
[2016] HCA 48 Para 1

…e common law and the Sentencing Act require the Court, in sentencing him, to have regard to his personal and subjective circumstances : see R v Kilic [2016] HCA 48; 259 CLR 256; s 33(1)(m), (n), (o), (p), (r), (t), (u) and (v) of the Sentencing Act . The findings in this case come from the Pre-Sentence Report, t…
Law v Ilievski
[2016] ACTSC 291 Para 16

…e inconvenience caused by the loss of the property. Further, the consequences may be very serious, such as encouraging identity fraud: Law v Ilievski [2016] ACTSC 291 at [124]-[127], or credit cards which can then be used for financial gain well beyond the intrinsic value of the card: R v Donnelly [2021] ACTSC 336…
R v Ridley
[2014] ACTSC 382 Para 2

…erence about the harm suffered by a victim from the fact that no Victim Impact Statement has been given. Further, however, as explained in R v Ridley [2014] ACTSC 382 at [43], the Court can draw reasonable inferences from the evidence to assess some of the harm done to a victim. The Court can also accept what harms…
R v JM
[2014] ACTSC 380 Para 2

…From February to September 2020, he did attend the program of Wayback Limited (as to which agency, see R v JM [2014] ACTSC 380 at [44]). He remained abstinent while he was there and for some time after that. It was suggested in some evidence that was until May 2021, but that is contraindicated by his criminal recor…
R v Carney
[2013] ACTSC 266 Para 10

…It has to be remembered that any matters of aggravation have to be proved beyond reasonable doubt: R v Carney [2013] ACTSC 266 at [149].…
Bugmy v The Queen
[2013] HCA 37 Para 11

…ffences , having become dependent on drugs. It does not moderate over time and both counsel accepted that the principles set out in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at 594-595 [43]-[44] applied here. This explains his offending, identifies matters to be addressed and moderates his culpability. While…
Rees v The Queen
[2012] ACTCA 6 Para 16

…or both. The principal consideration in this offence, as well as in the underlying criminality, is the value of the property taken: Rees v The Queen [2012] ACTCA 6 at [3]. Of course, this is not limited to the monetary value of the property, but includes the personal or sentimental value of the property and the…
Green v The Queen; Quinn v The Queen
[2011] HCA 49 Para 1

…requires that co-offenders be treated equally so far as their circumstances are ‘relevantly identical’: see Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at 473; [28]. Mr Dawson committed the aggravated burglaries at Throsby and Casey and the theft jointly with Mr West, but he, however, was no…
R v Shepheard
[2008] ACTSC 116 Para 2

…e to assess some of the harm done to a victim. The Court can also accept what harms are well known as being caused by certain offences: R v Shepheard [2008] ACTSC 116; 189 A Crim R 165 at 172 [31]. See also R v Childs [2021] ACTSC 170 at [10]-[11].…
Cotter v Corvisy
[2008] ACTSC 64 Para 4

…especially after the abandonment and abolition of corporal and capital punishment, have been quite limited until fairly recently: Cotter v Corvisy [2008] ACTSC 64, 1 ACTLR 299, at 299 [1]-[2].…
Markarian v The Queen
[2005] HCA 25 Para 5

…oth, as it is accepted as a key measure of the seriousness of the offence and so what needs to be the severity of the sentence: Markarian v The Queen [2005] HCA 25; 228 CLR 357, 372; [31].…
R v Barton
[2001] NSWCCA 63 Para 8

…ordance with the principles set out by the Court of Appeal in R v Campbell [2010] ACTCA 20 at [47], substantially adopting the approach in R v Barton [2001] NSWCCA 63; 121 A Crim R 185 at 195 [64]. In this case, the overlaps between the offences of aggravated burglary and theft with the offence of attempted aggrava…
Pearce v The Queen
[1998] HCA 57 Para 6

…art of the rationale is the general description of the sentence and, indeed, how the offender often sees it, which is described in Pearce v The Queen [1998] HCA 57; 194 CLR 610 at 623 [45], as ‘the only relevant question may be “how long”’.…
Stafford v The Queen
[1998] HCATrans 112 Para 8

…e given greater weight than any other. Punishment is but only one of such purposes and has no primacy: see, though on somewhat different legislation: Stafford v The Queen (1997) 149 ALR 183 at 196. It is unsurprising that sentencing is, as far as has been widely said, a very difficult decision for a court to make: R v Chatfie…
Douglas v The Queen
[1995] FCA 411 Para 3

…’s drug use commenced at a relatively early age when he would not have been able to give informed consent. This is relevant to his culpability: see Douglas v The Queen (1995) 56 FCR 465 at 470. Clearly the sentences imposed on Mr Dawson are significant and unless there is a reason why not, there should be parity. No reason w…
Mill v The Queen
[1988] HCA 70 Para 6

…nuously for over a year and 10 months, about eight months of which was spent serving another sentence. As the High Court accepted in Mill v The Queen (1988) 166 CLR 59 at 65-66, what was said in R v Todd (1982) 2 NSWLR 517 at 519 about the considerations a Court must have in regard to this situation, this period of…
R v De Simoni
[1981] HCA 31 Para 25

…he offence beyond its terms , especially if it would encompass the criminality of a more serious offence, unless it is required by law: R v De Simoni (1981) 147 CLR 383 at 395-396 per Wilson J.…

Legislation cited in this decision · 4

Crimes (Sentence Administration) Act 2005 (ACT)
8 2 mentions (from Para 12)
Road Transport (General) Act 1999 (ACT)
63(2)(a) 2 mentions (from Para 23)
Road Transport (Safety and Traffic Management) Act 1999 (ACT)
5C 2 mentions (from Para 23)
Crimes (Sentencing) Act 2005 (ACT)
1 mention (from Para 8)