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R v Winters (No 2)

R v Winters (No 2)

Case [2022] ACTSC 377 15 August 2022

Jurisdiction

Sentencing

Re-sentence for Previous Offences

Driving Unlicensed

Driving a Motor Vehicle Without the Owner’s Consent

Good Behaviour Order

Criminal Law

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Winters (No 2)
Citation:	[2022] ACTSC 377
Hearing Date:	30 June 2022
Decision Date:	15 August 2022
Before:	Refshauge AJ
Decision:	1. Joshua Luke Winters’ conviction for aggravated burglary be confirmed and he be re-sentenced to 18 months imprisonment commencing from 15 January 2022 and expiring on 14 July 2023. 2. Joshua Luke Winters’ conviction for minor theft by joint commission be confirmed and he be re-sentenced to 2 months imprisonment commencing from 15 May 2023 and expiring on 14 July 2023. 3. Joshua Luke Winters’ conviction for damaging property be confirmed and he be re-sentenced to six months imprisonment commencing from 15 March 2023 and expiring on 14 September 2023. 4. Joshua Luke Winters’ conviction for aggravated burglary by joint commission be confirmed and he be re-sentenced to 18 months imprisonment commencing from 15 June 2023 and expiring on 14 December 2024. 5. Joshua Luke Winters’ conviction for minor theft be confirmed and he be re-sentenced to seven months imprisonment commencing from 15 August 2024 and expiring on 14 March 2025. 6. Joshua Luke Winters’ conviction for driving a motor vehicle without the owner’s consent be confirmed and he be re-sentenced to 10 months imprisonment commencing from 15 October 2024 and expiring on 14 August 2025. 7. Joshua Luke Winters’ conviction for theft by joint commission be confirmed and he be re-sentenced to nine months imprisonment commencing from 15 February 2025 and expiring on 14 November 2025. 8. Joshua Luke Winters’ conviction for driving while disqualified as a repeat offender be confirmed and he be re-sentenced to six months imprisonment commencing from 15 July 2025 and expiring on 14 January 2026. 9. Joshua Luke Winters’ conviction for minor theft be confirmed and he be re-sentenced to two months imprisonment commencing from 15 November 2025 and expiring on 14 January 2026. 10. Joshua Luke Winters be convicted of driving unlicensed and be sentenced to six months imprisonment commencing from 15 October 2025 and expiring on 14 April 2026. 11. Joshua Luke Winters be convicted of driving a motor vehicle without the owner’s consent and be sentenced to 12 months imprisonment commencing from 15 November 2025 and expiring on 14 November 2026. 12. The sentences imposed be suspended and Joshua Luke Winters be required to sign an undertaking to comply with the offender’s good behaviour obligations under s 85 of the Crimes (Sentencing Administration) Act 2005 (ACT) from today, 15 August 2022, until the end of the total sentence, 14 November 2026, on the following conditions: (a) That Joshua Luke Winters travel to Calvary Riverina Drug and Alcohol Centre, Wagga Wagga, New South Wales on 16 August 2022 and admit himself to the residential program by 10:00 am that day; (b) That Joshua Luke Winters remain at the Calvary Riverina Drug and Alcohol Centre until he has completed the residential drug rehabilitation program and obey all reasonable directions of the officer in charge of the Centre and obey all the…

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 Winters (No 2)

Details

AGLC: R v Winters (No 2) [2022] ACTSC 377
Case: [2022] ACTSC 377
Decision Date: 15 August 2022

CaseChat Overview and Summary

The case of R v Winters (No 2) involved the defendant, Joshua Luke Winters, who faced multiple criminal charges. The court had to consider the confirmation of his previous convictions, as well as new charges including driving unlicensed and driving a motor vehicle without the owner's consent. The legal issues revolved around the re-sentencing of Winters for his prior offences, the cancellation of a treatment order due to his breach, and the imposition of new sentences for his recent criminal activities. The court also had to determine the appropriate conditions for a Good Behaviour Order in light of Winters' history of drug-related offences.

The court found that Winters had breached the conditions of his treatment order, leading to the cancellation of that order. Despite this, the court recognised the importance of addressing Winters' drug dependency and ordered him to participate in a residential drug rehabilitation program at Calvary Riverina Drug and Alcohol Centre. The court imposed new sentences for Winters' recent criminal activities, but suspended the sentences and instead required him to comply with a Good Behaviour Order. This order included specific conditions such as abstaining from alcohol, cannabis, and illicit drugs, and submitting to supervision and drug testing by ACT Corrective Services.

The court concluded that the most appropriate course of action was to suspend the sentences and impose a Good Behaviour Order with stringent conditions. This approach aimed to address Winters' underlying issues and reduce the likelihood of reoffending. The order required Winters to attend a rehabilitation program, submit to supervision, and comply with various restrictions designed to support his recovery and prevent further criminal behaviour.

The court made several orders, confirming and re-sentencing Winters for his previous offences, convicting him of new charges, and imposing a Good Behaviour Order with specific conditions. These conditions included mandatory participation in a drug rehabilitation program, supervision by ACT Corrective Services, and strict restrictions on substance use. The sentences were suspended, and the order was set to last until 14 November 2026.

Orders

Orders of the court

1. Joshua Luke Winters’ conviction for aggravated burglary be confirmed and he be re-sentenced to 18 months imprisonment commencing from 15 January 2022 and expiring on 14 July 2023.

2. Joshua Luke Winters’ conviction for minor theft by joint commission be confirmed and he be re-sentenced to 2 months imprisonment commencing from 15 May 2023 and expiring on 14 July 2023.

3. Joshua Luke Winters’ conviction for damaging property be confirmed and he be re-sentenced to six months imprisonment commencing from 15 March 2023 and expiring on 14 September 2023.

4. Joshua Luke Winters’ conviction for aggravated burglary by joint commission be confirmed and he be re-sentenced to 18 months imprisonment commencing from 15 June 2023 and expiring on 14 December 2024.

5. Joshua Luke Winters’ conviction for minor theft be confirmed and he be re-sentenced to seven months imprisonment commencing from 15 August 2024 and expiring on 14 March 2025.

6. Joshua Luke Winters’ conviction for driving a motor vehicle without the owner’s consent be confirmed and he be re-sentenced to 10 months imprisonment commencing from 15 October 2024 and expiring on 14 August 2025.

7. Joshua Luke Winters’ conviction for theft by joint commission be confirmed and he be re-sentenced to nine months imprisonment commencing from 15 February 2025 and expiring on 14 November 2025.

8. Joshua Luke Winters’ conviction for driving while disqualified as a repeat offender be confirmed and he be re-sentenced to six months imprisonment commencing from 15 July 2025 and expiring on 14 January 2026.

9. Joshua Luke Winters’ conviction for minor theft be confirmed and he be re-sentenced to two months imprisonment commencing from 15 November 2025 and expiring on 14 January 2026.

10. Joshua Luke Winters be convicted of driving unlicensed and be sentenced to six months imprisonment commencing from 15 October 2025 and expiring on 14 April 2026.

11. Joshua Luke Winters be convicted of driving a motor vehicle without the owner’s consent and be sentenced to 12 months imprisonment commencing from 15 November 2025 and expiring on 14 November 2026.

12. The sentences imposed be suspended and Joshua Luke Winters be required to sign an undertaking to comply with the offender’s good behaviour obligations under s 85 of the Crimes (Sentencing Administration) Act 2005 (ACT) from today, 15 August 2022, until the end of the total sentence, 14 November 2026, on the following conditions:

(a) That Joshua Luke Winters travel to Calvary Riverina Drug and Alcohol Centre, Wagga Wagga, New South Wales on 16 August 2022 and admit himself to the residential program by 10:00 am that day;

(b) That Joshua Luke Winters remain at the Calvary Riverina Drug and Alcohol Centre until he has completed the residential drug rehabilitation program and obey all reasonable directions of the officer in charge of the Centre and obey all the rules of that Centre;

(c) That, if Joshua Luke Winters is discharged from or leaves the Calvary Riverina Drug and Alcohol Centre prior to completion of the residential drug rehabilitation program, he present himself to ACT Corrective Services by 4:00 pm on the next business day with a view to reviewing the Good Behaviour Order;

(d) That, upon completion of the residential drug rehabilitation program at Calvary Riverina Drug and Alcohol Centre, Joshua Luke Winters present himself at ACT Corrective Services by 4:00 pm on the next business day to make arrangements for organising probation supervision;

(e) That Joshua Luke Winters submit himself to the supervision of the Commissioner of ACT Corrective Services or his delegate until 14 November 2026, or such lesser period as the person supervising him considers appropriate, and obey all reasonable directions of the person supervising him, including as to drug and alcohol testing and any medical, including mental health, treatment or counselling or any drug and alcohol counselling;

(f) That, until his admission to the Calvary Riverina Drug and Alcohol Centre, Joshua Luke Winters report to ACT Corrective Services immediately upon release from custody then to the Alexander Maconochie Centre to collect his possessions and then:

i. Reside at [redacted for legal reasons]; and

ii. Be at his place of residence, other than in case of an emergency, from his release from custody until he leaves for Calvary Riverina Drug and Alcohol Centre and present himself at the front door of that residence if requested during that time to do so by a member of ACT Policing.

(g) That Joshua Luke Winters not consume alcohol, cannabis or illicit drugs, including any prescription drugs not prescribed for him.

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 Winters (No 2) [2022] ACTSC 377

Most Recent Citation

R v Rogers (No 2) [2023] ACTSC 5

Cases citing this decision · 2 of 2 shown

Director of Public Prosecutions v McColl
[2025] ACTSC 214

…v McColl (Supreme Court of the Australian Capital Territory, Refshauge AJ, 4 August 2023) R v Bonfield (No 2); R v McColl (No 2); R v Williams (No 3) [2022] ACTSC 377 R v McColl [2022] ACTSC 386 R v McColl (No 3) [2024] ACTSC 291 R v Slattery (No 3); DPP v Slattery [2025] ACTSC 125…
R v Rogers (No 2)
[2023] ACTSC 5 Para 14

…t reduced. The participant is expected to be free of drug use, limited in alcohol use (see R v Bonfield (No 2) R v McColl (No 2); R v Williams (No 3) [2022] ACTSC 377 at [5]–[7]), free of criminal activity and to develop life and employment skills as well as to maintain a stable living environment. The minimum time…

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Cases cited in this decision · 8 of 8 shown

R v Hagen
[2022] ACTSC 362 Para 2

…The Court considered such applications in R v Tonna (No 2) [2022] ACTSC 362 at [34]–[39]. The approach to such applications has been set out helpfully in R v Massey (No 4) [2021] ACTSC 211 at [19]–[21] as follows: 19. The approach to the application is as follows. One ground is sufficient to require the Court to co…
R v Winters
[2022] ACTSC 371 Para 10

…ourt and all the material admitted in evidence by the Court on the sentencing hearing of the charges against Mr Winters, as to which, see R v Winters [2022] ACTSC 371 at [44]–[87]. There was no objection to this material and its contents were not challenged.…
R v Massey (No 4)
[2021] ACTSC 211 Para 2

…h applications in R v Tonna (No 2) [2022] ACTSC 362 at [34]–[39]. The approach to such applications has been set out helpfully in R v Massey (No 4) [2021] ACTSC 211 at [19]–[21] as follows: 19. The approach to the application is as follows. One ground is sufficient to require the Court to consider cancelling the Tr…
R v Crawford (No 4)
[2021] ACTSC 209 Para 2

…29]. In the absence of such a basis for continuation, it is almost inevitable that the Treatment Order will be cancelled: see R v Crawford (No 4) [2021] ACTSC 209. This is the approach I shall take to the application.…
R v Dowling (No 3)
[2021] ACTSC 210 Para 12

…end dates, especially for multiple offences, are specified anew in the imposed sentence. These curiosities have been discussed in R v Dowling (No 3) [2021] ACTSC 210 at [46]–[48], [59]–[62].…
R v Crawford (No 3)
[2020] ACTSC 369 Para 2

…s, however, must be based on a careful analysis of the facts and circumstances: see R v Tonna (No 2) at [36]-[39]; [70]-[73], R v Crawford (No 3) [2020] ACTSC 369 at [27]-[29]. In the absence of such a basis for continuation, it is almost inevitable that the Treatment Order will be cancelled: see R v Crawford (No 4…
R v Wyatt
[2017] ACTSC 87 Para 3

…While it might be inferred from R v Wyatt [2017] ACTSC 87 at [17] that a corporate entity can be an eligible victim, s 17 of the Crimes (Restorative Justice) Act 2004 (ACT) seems to suggest that the Act is only directed towards individual human beings as victims. For example, while a substitute victim is available…
R v Forrest
[2016] ACTSC 321 Para 8

…contained in the Crimes (Restorative Justice) Act 2004 (ACT), but this is the approach to its interpretation that the Court has accepted: R v Forrest [2016] ACTSC 321; 11 ACTLR 311 at 318; [39].…

Legislation cited in this decision · 6

Crimes (Sentencing) Act 2005 (ACT)
12A, 46J, 63, 65, 80W, 80ZE, 80ZH 8 mentions (from Para 1)
Crimes (Restorative Justice) Act 2004 (ACT)
17 2 mentions (from Para 8)
Crimes (Sentence Administration) Act 2005 (ACT)
112 2 mentions (from Para 18)
Road Traffic (Driver Licencing) Act 1999 (ACT)
32 2 mentions (from Para 4)
Victims of Crime Act 1994 (ACT)
6 2 mentions (from Para 1)
Crimes (Sentencing Administration) Act 2005 (ACT)
1 mention (from Para 1)