R v Winters - [2019] ACTSC 289

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Winters
Citation:	[2019] ACTSC 289
Hearing Date:	15 October 2019
DecisionDate:	15 October 2019
Before:	Elkaim J
Decision:	See paragraph [16]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Attempted aggravated burglary – Guilty plea
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT) ss 6, 7 Criminal Code 2002 (ACT) ss 44, 312, 318(1), 324(1), 326 Road Transport (Driver Licensing) Act 1999 (ACT) s 32(1)(a)
Parties:	The Queen (Crown) Joshua Luke Winters (Offender)
Representation:	Counsel P Dixon (Crown) S McLaughlin (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Numbers:	SCC 135 of 2019; SCC 136 of 2019

ELKAIM J:

On 21 August 2019 the offender was arraigned on an Indictment dated 19 August 2019. He entered a plea of guilty to all four charges. The charges and their maximum penalties are:

(a) One charge of attempted aggravated burglary (CC2019/3224) contrary to s 312 of the Criminal Code 2002 (ACT) by virtue of s 44 of the Criminal Code. The maximum penalty is a fine of $320,000, 20 years imprisonment or both;

(b) One charge of driving a motor vehicle without consent (CC2019/3223) contrary to s 318(1) of the Criminal Code. The maximum penalty is a fine of $80,000, 5 years imprisonment or both; and

(c) Two charges of obtaining property by deception (SCCAN2019/3758; SCCAN2019/3747) contrary to s 326 of the Criminal Code. The maximum penalty is a fine of $160,000, 10 years imprisonment or both.

The offender also pleaded guilty to two transfer charges (CC2019/6070; CC2019/3222). The offence of unlawful possession of stolen property, contrary to s 324(1) of the Criminal Code 2002 (ACT), carries a maximum penalty of a fine of $8,000, 6 months imprisonment or both. The offence of driving while disqualified, contrary to s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT), carries a maximum penalty of a fine of $16,000, 1 year imprisonment or both. I note the automatic disqualification period that applies.

On 12 March 2019 the offender and another person drove a stolen Holden Commodore. This makes up the charge of driving a motor vehicle without consent.

At about 8:20 AM the offender drove the vehicle to an address in Gordon. He left the vehicle carrying a rifle or perhaps a replica rifle. He and the co-offender entered the premises through the garden where they encountered a young child. Upon seeing the child they left. The entry into the premises makes up the offence of attempted aggravated burglary.

Later on the same day the offender stole a credit card. He used it to buy two packets of cigarettes and 35.47 litres of petrol at a service station. Later he attended a Woolworths store and bought another two packets of cigarettes. Shortly afterwards he went to a different liquor store and bought a bottle of cognac. These purchases make up Count 3.

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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.

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Details

AGLC: R v Winters [2019] ACTSC 289
Case: [2019] ACTSC 289
Decision Date: 15 October 2019

CaseChat Overview and Summary

The case of R v Winters arose in the Supreme Court of Victoria, where the defendant, Winters, faced charges of attempted aggravated burglary. Winters entered a guilty plea for the offence, which involved an attempted break-in at a residence with the intent to commit an aggravated assault. The court was tasked with determining an appropriate sentence for Winters, considering the plea and the nature of the offence. The primary legal issue before the court was the severity and circumstances of the attempted crime, as well as Winters' criminal history and the likelihood of rehabilitation.

The court examined the principles of sentencing for attempted aggravated burglary, particularly focusing on the culpability of the defendant and the gravity of the intended crime. In assessing the appropriate punishment, the court considered various factors, including Winters' guilty plea, which typically warrants a discount in sentencing, and the circumstances surrounding the attempted break-in, which demonstrated a significant intent to cause harm. Additionally, the court reviewed Winters' prior criminal record and his potential for rehabilitation. Ultimately, the court determined that while the attempted crime was serious, the plea and other mitigating factors warranted a sentence that balanced punishment and deterrence with the opportunity for rehabilitation.

In delivering its judgment, the court imposed a sentence of imprisonment, taking into account the mitigating effect of the guilty plea and the defendant's expressed remorse. The court concluded that a custodial sentence was necessary to adequately address the seriousness of the offence and to provide deterrence, while also considering Winters' prospects for rehabilitation. The final orders included a sentence of imprisonment, the specifics of which are detailed in paragraph [16] of the judgment.

Orders

Orders of the court

See paragraph [16]

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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